America’s Long Journey: A bill of rights

A bill of rights

We all shelter under them, or at any rate, still did by the end of the twentieth century. But how many of us could name them, or tell their significance, or say how they got there, and why?

The “why” is simple enough. Adopting the Constitution meant adding a new layer to the government, something unknown. This new “federal” government may have struck the people of the States the same way the specter of the United Nations governing America haunts some people today, except, this was really going to happen. Somehow, before it was too late, the people would have to insert some safeguards, however fragile.

This fear was not confined to a few nuts on the fringe. In three states, ratification was obtained only on the promise that a bill of rights would be attached. The fear of federal encroachment was shared, ultimately, even by James Madison, the new constitution’s primary architect. So he proposed a set of clarifying amendments, an even dozen of which were approved by Congress and ten of which were ratified by the requisite three-fourths of the states.

The thing to remember is that this is a list of limitations. Whereas the body of the Constitution spelled out how the new government’s powers were to be divided, the Bill of Rights specified boundaries to those powers. Notice, the amendments provided protection from this new layer of government, but did not apply to States vis-à-vis their own citizens. (Madison’s proposal to apply parts of the Bill of Rights to the states was rejected by the Senate. Only after the Civil War were these protections held to apply to actions of State governments as well.)

The Bill of Rights, by enumerating federal limitations, thereby enumerates individual freedoms. It limits the federal government to the powers enumerated, and reserves for the people or the States all rights not specifically mentioned in the Constitution.

It was a nice set of protections, while it was followed. But although documents and traditions can serve to buttress freedom, in the absence of pugnacious and effective resistance to encroachment, they will become only empty fortresses, mocking us by reminding us of what was sought and lost.

Our lost protections:

  1. “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
  2. “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (The connection here between the militia and arms seems to imply that this amendment was meant to prohibit the federal government from disarming the State governments.)
  3. “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.”
  4. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
  5. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” (The fifth amendment lost some public support in the 1950s, when the public saw how accused mobsters used it to shield themselves and their activities, but in retrospect the value of these protections should be obvious.)
  6. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” (Happy the nation without lawyers, but when you need one, you really need one. The alternative is “justice” behind closed doors.)
  7. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.”
  8. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Another amendment that lost some public support, particularly in that it was used to abolish the federal death penalty. Again, the value of the amendment should be apparent in hindsight.)
  9. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

10. “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (This amendment was the logical corollary to the division of powers within the federal government. This one tried to set limits between the new government and the States.)

It was a splendid set of protections.

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