America’s Long Journey: Three-fifths of a man

Three-fifths of a man

It was spelled out in the first sentence of the second section of the Constitution’s first article: “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”

In other words, whites, whether indentured or free, would be counted one for one, but black slaves would also be counted, and 60% of their number would be added to the total for whites in the state where they were living.

The idea was logically absurd, and it had consequences that extended over three-quarters of a century – which of course means that it affected our entire national life, past, present and future – and we’d have been better off if it had never been agreed to. The only thing is, there was no choice. It was accept the three-fifths rule, or no deal.

No deal meant no new Constitution, which, under the circumstances, probably meant the loss of the last chance for the former colonies to construct a common government that would have enough strength to maintain itself. In effect, if no deal, no common future. And if the 13 former colonies once became balkanized, who could believe that they would ever again have a chance to come together?

Just as in the Continental Congress a dozen years before, when the need for unanimity allowed South Carolina to block proposals to end slavery, so in the Constitutional convention, practical politics mandated the compromise. The alternative was to let the fledgling nation split into north and south, neither of which would have been viable for long.

But the consequences weren’t negligible.

Historian Garry Wills pointed out, in The Negro President, that the defeated Federalists in 1801 were calling Jefferson the Negro President. Why? Because, without the three-fifths clause of the Constitution, what Jefferson called the second revolution wouldn’t have taken place, and Adams would have been re-elected. That’s the only presidential election that was swung by the three-fifths clause, but slaver-holder over-representation affected plenty more than that, from 1789 right down to the secession winter of 1860-61. Among the consequences Wills counted were these. Without the Constitutionally mandated over-representation of slave-owners, the following votes would have been reversed:

  • Admission of Missouri as a slave state.
  • Approval of Jackson’s policy of Indian removal.
  • Repeated failure of the Wilmot Proviso banning slavery from the territories acquired after the Mexican War.
  • Passage of the Kansas-Nebraska Act.

And as we have seen, the indirect effects were even wider. Southerners dominated the Democratic Party, which meant that even in the North, for a politician to rise above a certain level, he had to be acceptable – or at least not objectionable — to the slave power. They came to take dominance of the federal government as their right. A lot of consequences. But even after that passage of more than 200 years, we have to ask: What choice did the makers of the Constitution have? “All or nothing” is not statesmanship, but a recipe for chaos. Politics, as has been said, is the art of the possible.

But massive European immigration into the Northern states changed the equation. (What immigrant in his right mind would move to an area where his labor had to compete with slave labor?) Southerners were soon outnumbered in the House regardless of the federal ratio. With the admission of California in 1850, they were outvoted in the Senate. When the slave power saw that the North would soon be able to elect an executive without Southern votes, it began to think about withdrawal from the Union, and in 1860, it tried secession. Only after four years of Civil War and 600,000 deaths was slavery, and thus the three-fifths rule, overturned.

That’s a lot of consequences, but there were more. Wills quotes Leonard Richards: “In the sixty-two years between Washington’s election and the Compromise of 1850, for example, slaveholders controlled the presidency for fifty years, the Speaker’s chair for forty-one years, and the chairmanship of House Ways and Means [Committee] for forty-two years. The only men to be reelected President – Washington, Jefferson, Madison, Monroe, and Jackson – were all slaveholders. The men who sat in the Speaker’s chair the longest – Henry Clay, Andrew Stevenson, and Nathaniel Macon – were slaveholders. Eighteen out of thirty-one Supreme Court justices were slaveholders.”

America’s Long Journey: Plato and the American revolution

Plato and the American revolution

“A republic, if you can keep it.”

The classically-educated men who were at the core of the American revolution knew what they were up against. They did their best to try to beat the odds, and died wondering if they had succeeded. In the short run, clearly, they had not failed. But had they found a formula for long-range success? They rather suspected that they had not. They all knew the cycle that Plato had described: Monarchy. Aristocracy. Republic. Democracy. Plutocracy. Dictatorship, and begin again with Monarchy.

They had been born into a world of monarchy. In all of Europe, with relatively trivial exceptions – the Netherlands. Switzerland, Venice – kings and queens were accepted as an inevitable, even a desirable, feature of government. The monarch’s interests were thought to be identical to those of his realm as a whole, and thus the very essence of monarchy – to turn Adams’ definition of a republic on its head – was an empire of men. and not of laws.

Remove the monarch, and a small group of men could govern, and perhaps govern pretty well. Knowing each other’s strengths and limitations, bound to each other with numerous ties of kinship and shared experience, they in effect – or anyway in theory – formed a governing class small enough to remain personal and large enough to be beyond the whims of any one individual. In a way, that is the situation these men were born into, for their king was always far away, dependent upon men who governed in his name but were somewhat dependent upon those they governed. The weakness of an aristocracy, of course, is the same as its strength. Its class limitations are likely to limit its understanding of, and its ability to represent, society as a whole.

Widen control of the government from the aristocracy to the electorate at large, and you created your empire of laws, and not of men. To the founding fathers, this was the ideal state. But what did this mean, under close examination? It didn’t mean universal suffrage, even where (as in New England) the unusual circumstance of universal literacy existed. It meant rule by those who were considered to have a stake in society, which in practice meant rule by those who owned property and could be considered to be independent of another man’s influence. Establishing the republic upon this basis was possible. But how would you prevent it from moving to Plato’s next stage, democracy? Moving from rule by one man to rule by a small interconnected group of men to rule by a qualified electorate creates a continual pressure to expand that electorate. And every such expansion leads toward rule by counting noses. Although we have been raised to think that full expansion of the electorate is the ideal, the founding fathers saw that the larger the percentage of men who voted, the smaller would be the percentage of voters who actually knew the candidates.

(Suffrage was originally restricted to white men who owned a certain minimum amount of property and had been resident in the country a certain minimum time. This excluded non-citizens, of course, and immigrants more recent than whatever limit was set, for they were assumed to have acquired too little a stake in the society to be trusted to help direct its course. Nor did it include women, for they were considered to be under the authority of their fathers or husbands; Nor mere wage earners, for they were dependent upon their employers and thus, in an age of public rather than private-ballot voting, presumably would vote as he directed. Not indentured servants, for the same reason, and not slaves or Indians because they were not considered to be part of the community. Free black men might or might not be given the vote, depending on where they lived.)

Rule by popular majority implied a descent into less stable rule, because it implied that the representatives would become increasingly responsive to the people, which meant, increasingly responsive to the people’s impulses, and whims, and prejudices, and their other short-sightedness. Worse, it implied that those with enough money to buy votes and to buy voter allegiance would obtain control of government, and rule by law would become rule by gold (plutocracy), at one remove.

Once a democracy becomes plutocracy, people don’t take a long time to become disillusioned. Once they realize that their republic has become a republic in name only, they lose their incentive to defend it, for it is no longer theirs. Thus, sooner or later, plutocracies breed dictatorship, either because one of the plutocrats beats the others to the draw or because some insider-outsider like Caesar uses the army to overthrow them before they can overthrow him.

At that point it is only a matter of time and manner before the dictator, or his successor, or his supplanter, declares himself king and the cycle begins again.

Only a very naïve observer could think that the new American republic would be immune to these dangers and tendencies, and naïve is one thing the founding fathers were not. Their attempted remedy was ingenious. Take into account the one, the few, and the many. Have a powerful executive (the one) and a bicameral legislature divided into an upper house (the few) and lower house (the many), and set an judiciary to watch them, and hope that in their mutual suspicions and fears and jealousies, they would keep each other in check.

How long it would work, only God knew, but they had done their best, and even they were divided among themselves in their opinions of how well they had done. Hamiltonians feared chaos; Jeffersonians feared tyranny. They all feared each other, and the secret forces that might be fermenting unseen. But – almost unique to revolutions – they didn’t set to killing each other. They set the machinery into motion and hoped for the best.

A republic, if you can keep it..

America’s Long Journey: The Ratification campaign

The Ratification campaign

Originally the convention was to have proposed revisions of the existing Articles of Confederation. But everybody knew that if the new Constitution were adopted, the former colonies would be embarking on uncharted waters. For that to happen, nine states – two-thirds of the 13 – would have to call conventions that voted to ratify. To put it another way, any five states could kill it by declining to ratify.

A prime weakness of the Confederation government was the need for unanimity. In practice, that meant that nothing that any one State objected to could be done. And that, in turn, meant that the Confederation lived on borrowed time. Nobody knew it better than the members of that Congress, so they decided – unanimously, by some miracle – to leave the decision to the states.

Then followed the process of ratification, State by State, in convention, and it didn’t come easy. Historians have guessed that the public was divided pretty evenly when the debates started.

Everybody knew that if any two of four states — Massachusetts, New York, Pennsylvania, and Virginia — rejected the proposed Constitution, it would probably come to nothing, regardless if the other states approved. And some heavy hitters were opposed. Thomas Paine, for one. In Massachusetts, Samuel Adams. In New York, Governor George Clinton and the whole state machinery. In Virginia, Patrick Henry. But the Federalists were not exactly helpless. In Massachusetts, John Adams. In New York, Hamilton. In Pennsylvania, Franklin, and in Virginia, Madison.

And towering over them all, the man who had presided at the convention, George Washington.

The Federalists argued that ratification was necessary to fix the obvious inadequacies of the Confederation government. To continue under a government that couldn’t make decisions except unanimously, and couldn’t even prevent the various states from each issuing its own currency would be to drift to disaster and dissolution, followed by – what? No one cared to guess.

The Anti-federalists viewed the strong central government outlined in the Constitution as a threat to liberty and a betrayal of the Revolution. They worried what would happen to the powers of the states, and argued cogently that the Constitution lacked a bill of rights.

The struggle over ratification was intense and bitter, but in every state, the Federalists were more united, and more used to working with politicians on a national level.

The turning point of the campaign probably came in Massachusetts, when Hancock and Samuel Adams negotiated a compromise: The convention would ratify, and delegates would recommend amendments to be considered by the new Congress. The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended. All subsequent state conventions but Maryland’s recommended amendments as part of their decisions to ratify.

And so it was done. One interesting and under-reported fact, if indeed it is fact, and not merely appearance: The smaller states, which one might have expected to be the most fearful of incorporation into a stronger central government, by and large were among the first signers, while Virginia and New York, which one might have thought would expect to extend their influence in a larger union, were far more hesitant. Nonetheless, the die was cast.

The ratifications, in the order in which they took place:


Delaware (Dec. 7), Pennsylvania (Dec. 12), New Jersey (Dec. 18)


Georgia (Jan. 2) Connecticut (Jan. 9)

Massachusetts (Feb. 6)

Maryland (April 28)

South Carolina (May 23)

New Hampshire, the crucial ninth state needed (June 21), Virginia (June 25)

New York (July 26)

Voting ratification after the new government was already functioning:

North Carolina (November 21, 1789)

Rhode Island (May 29, 1790)

It had been a long and hard-fought struggle, which in itself, perhaps, had encouraged people to look beyond the limits of their state, and come a step closer toward thinking of themselves not as New Yorkers or Virginians but as Americans. Shared experiences will do that.


America’s Long Journey: The Federalist

How the Constitutional convention even came to be convened is a story unlikely enough in itself, as we shall see. That a convention that was a collision of irreconcilables nonetheless produced a workable result is even less likely. Nonetheless, it happened, and the more closely you look at the process, the more clearly you see the hand of destiny, or what a more religious age would have called divine providence. Never in history was one nation blessed with the coordinated efforts of so many brilliant men – many of whom rarely agreed upon any other public issue in their whole lives. Take, for instance, the story of The Federalist.

The Philadelphia Convention sent its proposed Constitution to the Confederation Congress, which, in September, 1787, submitted it to the states for ratification. New York had an active anti-federalist movement led by Governor George Clinton, and articles critical of the proposed new government soon began appearing in New York newspapers. Alexander Hamilton, although dissatisfied with the proposed Constitution, regarded it as vastly better than the Confederation government. He decided it was time for counter-measures. He knew both James Madison and John Jay as ardent and articulate proponents of reform. An experienced and often brilliant journalistic duelist, he enlisted them to join him in writing articles defending the proposed Constitution.

(If you are wondering where Jefferson was in this effort, he was in Paris, representing the Confederation government. But even if he had been in America, he might not have advocated ratification. He had his serious doubts about the proposed document.)

Jay had succinctly described the existing situation: “The Congress under the Articles of Confederation may make war, but are not empowered to raise men or money to carry it on—they may make peace, but without power to see the terms of it observed—they may form alliances, but without ability to comply with the stipulations on their part—they may enter into treaties of commerce, but without power to enforce them at home or abroad.”

So – to the attack! The articles were written over the pseudonym “Publius.” (Publius Valerius, also known as Publicola – “friend of the people” – was one of the founders of the Roman republic, as the educated of the day would know.) Hamilton’s first essay (known as Federalist No. 1) promised that subsequent articles would cover six topics:

  1. “The utility of the UNION to your political prosperity.”
  2. “The insufficiency of the present Confederation to preserve that Union.”
  3. “The necessity of a government at least equally energetic with the one proposed to the attainment of this object.”
  4. “The conformity of the proposed constitution to the true principles of republican government.”
  5. “Its analogy to your own state constitution.”
  6. “The additional security which its adoption will afford to the preservation of that species of government, to liberty and to prosperity.”

A few of the most-cited papers:

No. 14 returns to the question of the size of the republic, which to some men born and raised to think of their State as “my country” seemed unmanageably huge.

No. 10 argues for a strong, extensive republic as a better guard against the dangers of faction than a smaller one.

The authors were vigorous and prolific. Between October, 1787, and August, 1788, Hamilton wrote and published 51 articles, Madison 26, and Jay (who wrote four and then fell ill), five. Sometimes three or four new essays by Publius would appear in print in the same week.

No. 39 discusses the nature of a true republic, which Publius argues had not yet been seen anywhere. (He sets out three necessary principles for a true republic: the consent of the people, government by elected representatives, and limitations on their terms of service.)

No. 51 describes the idea behind the separation of powers: “Ambition must be made to counteract ambition.”

No. 78 discusses the federal judiciary, and judicial review, as a protection against Congressional abuse of power.

Late in 1788, a two-volume book simply titled The Federalist was published in New York, compiling all 85 articles and essays.

The Federalist was written specifically to build popular support for ratification by the State of New York. But – did it? New York’s vote to ratify came after Virginia’s ratification, which was the tenth. And that was just as well, since New York had elected 46 Anti-Federalists delegates to its ratification convention, and only 19 Federalists. But with the Union assured, was New York going to allow itself to be on the outside looking in? And Virginia’s vote for ratification almost certainly owed more to George Washington’s endorsement, and the advocacy of Madison and Governor Edmund Randolph at the convention, than to anything that appeared in print.

So maybe those brilliant essays didn’t really affect the ratification fight. Who knows? Who cares? What they did accomplish was impressive enough. The essays are considered to be the major contemporary interpretation of the Constitution, persuasive enough to have affected the views of generations of students, authoritative enough to have been cited in countless judicial decisions. Yet, at the same time, they rise to the level of literature in a way that precious few such documents ever do.

America’s Long Journey: Washington launches a government

Washington launches a government

The new federal government was to be government of the people, and government for the people, but not yet government by the people, not in the sense we understand it. Post-colonial America did not suddenly shrug off its British heritage and forget about class distinctions. In 1789, even the most avidly democratic among the founders were accustomed to rule by the financial and social elite.

The idea of the common people participating in government seemed self-evidently impractical, undesirable, and dangerous. They weren’t educated to it, and would never be able to comprehend the issues involved. They would be sheep, easily led by a few wolves.

A long generation later, Andrew Jackson’s election would bring the common people to power, as a result of an expanded franchise, and frontier equality, and the rise of political associations (parties), which did for the ordinary citizen what birth into the aristocracy had done for Washington’s generation. But in 1789, America was ruled by the same relatively restricted group of men who had brought the colonies into common cause, and had held them together until victory, and had met in Philadelphia to hammer out a new Constitution. In the South, these were planters and their lawyers. In the middle colonies and New England, the men of prominence. The republic did not begin as a democracy, and no one expected it to.

Congress was supposed to meet in New York City in early March, but it took an extra couple of weeks to assemble a quorum of the representatives of the eleven states that had ratified the Constitution. George Washington’s inauguration in Federal Hall didn’t take place until April 30.

To us, accustomed as we are to the presidency towering over the other two branches of government, it comes as a shock to realize that initially the focus of government was on the legislature, not the executive. Yes, the executive was Washington; that provided the dignity and stability the new government desperately needed. But Congress, not the President, was the primary mover and shaker.

When Washington assumed office, the government of the United States was mostly in utero. Only the constitutionally established offices had been created, and no courts had been established. Washington’s first acts were to establish the judiciary. Pursuant to the Judiciary Act of 1789, he named a six-member Supreme Court, with original jurisdiction over civil actions between a state and the United States, or between states, or cases involving diplomatic personnel. The Court was given appellate jurisdiction over decisions of the federal circuit courts, and decisions by state courts involving conflicts between state and federal laws.

Beneath the Supreme Court were thirteen judicial districts, each containing district courts and circuit courts. The single-judge district courts had jurisdiction over admiralty cases, petty crimes, and lawsuits involving small amounts. Circuit courts, which were grouped geographically, were, as the name implies, composed of two Supreme Court justices “riding circuit” as well as a district judge. (The circuit riding feature was later changed, as too onerous for the Supreme Court judges). Their jurisdiction covered more serious crimes and civil cases, and had appellate jurisdiction over the district courts. The act also created U.S. Attorneys and U.S. Marshals.

Then it came time to establish the executive branch. Washington, an excellent judge of talent and character, surrounded himself with extraordinarily able and loyal assistants. In September, 1789, he named what became his Cabinet. As fast as Congress created executive departments, he found the proper man for the office.

To head the State department, Thomas Jefferson; Treasury, Alexander Hamilton; War, Henry Knox. At the time of the appointments, Jefferson was in France concluding his five-year representation of the Confederation government, Hamilton, who had been highly influential in getting the new Constitution approved, was practicing law, and Knox was already serving as Continental War Secretary under the Confederation.

To be Attorney General, an office created by the Judiciary Act, Washington named his former aide Edmund Randolph. (In those days – in fact, until 1870 – the Attorney General did not head an executive department, but served as the president’s chief legal advisor.) His final cabinet post, that of Postmaster General, went to Samuel Osgood, though the U.S. Post Office Department was not created until February, 1792.

Finally there was the question of the presidential salary. Washington, a wealthy man with high ideals of public service, offered to serve for no salary but repayment of expenses. When Congress voted an annual presidential salary of $25,000, Washington declined. But he accepted after it was pointed out that Congress did not want the presidency to become, or be seen as, a post limited to the independently wealthy. (That didn’t happen until our own era of “representation” by a Congress of millionaires.)

So, there was the structure, and there was the team. During Washington’s two terms of office, five states would join the Union: North Carolina and Rhode Island (restoring the original 13), Vermont, Kentucky and Tennessee. Major treaties would be signed, precedents established, crises faced and overcome. But it may well be that Washington’s greatest service, which in the circumstances no one else could have accomplished as well, was using the weight of his massive prestige, his solid careful judgments, and the judgment and services of his excellent assistants, to balance the ship of state, to set the new government on an even keel as it began its long journey.

America’s Long Journey: The Northwest Indians

The Northwest Indians

George Washington, 1792: “In vain may we expect peace with the Indians on our frontiers, so long as a lawless set of unprincipled wretches can violate the rights of hospitality, or infringe the most solemn treaties, without receiving the punishment they so justly merit.”

About the history of America and the Indians, two contradictory myths contend. One myth says the Indians were murderous savages who constituted an obstacle in the path of civilization. The other myth says tribal Native Americans lived in peaceful harmony with nature until they were massacred and their lands were stolen.

Is it still necessary to add that historical truth is more complicated than myth?

George Washington’s first foreign-policy challenge was not with the British, the French, or the Spanish, but with the Indian tribes of the Northwest Territory. By the late 1780s, the Western Lakes Confederacy, in raiding on both sides of the Ohio River, had inflicted more than 1,500 casualties. Clearly this had to be halted. But how?

It is easy, and meaningless, to say that Washington’s government should have conceded the West to the Indians. That was not going to happen. By the white man’s standards, that land was being wasted. Lush, fertile Kentucky, for instance, was entirely unoccupied. No Indians lived in what the Indians called “the dark and bloody ground.” They used it only for hunting. When Daniel Boone and other pioneers returned to their native North Carolina to report what they had found, people uprooted themselves and their families, and relocated west of the mountains. (Thus, by 1792 Kentucky was populous enough to become the first trans-mountain state to be admitted to the Union.)

Even if the fledgling nation had decided to leave half its territory in the hands of the Indians, the people would have decided differently, as they had thirty years before when the British had attempted the same policy. The result might have been two countries, one on either side of the mountains, but it would not have been white men on one side, Indians on the other. As long as the white man had the technological edge provided by gunpowder and numbers, it was not going to end any other way.

But Washington hoped for what we in our day might call peaceful coexistence. Seeing the Indian tribes as the problem in foreign relations that they were, he attempted to deal with them in the same way he would deal with any foreign power – by treaty if possible, and warfare otherwise. And, as with European powers, no peace could be obtained in the absence of effective military force.

It took three tries.

In 1790, Washington and Secretary of War Henry Knox sent General Josiah Harmar and a force of nearly 1,500 men deep into Indian territory, near what is now Fort Wayne, Indiana. Harmar sent a detachment of 400 men led by Colonel John Hardin to attack more than 1,000 Indians. Hardin was defeated, and at least 129 of his men were killed.

The following year, Major General Arthur St. Clair met disaster near what is now Fort Recovery, Ohio. St. Clair’s 900 men (and 200 camp followers) were surprised and overwhelmed by 2,000 Indian warriors led by Little Turtle, Blue Jacket, and Tecumseh. Of 920 American officers and soldiers, 632 were killed and 264 were wounded. The camp followers who were slaughtered brought the death toll to 832, a horrifying total for the 1790s, and, in fact, a higher figure than was suffered in any of the following century’s Indian wars.

The troops Harmar and St. Clair commanded had been mostly militia. Their defeats convinced Secretary of War Knox that the country needed a professional army. Congress accepted his proposal, and created a small standing army until “the United States shall be at peace with the Indian tribes.” This army, titled The Legion of the United States, consisted of four sub-legions, self-contained units of infantry and artillery, each sub-legion commanded by a brigadier general.

It was recruited and raised in Pittsburgh, and then, in late 1793, Anthony Wayne, one of Knox’s officers in the Revolutionary War, was ordered to lead a new expedition against the Indians. An energetic, intelligent commander (the Indians called him “the chief who never sleeps”), he spent months training his troops, teaching them to fight Indian-style. As they moved West, he established and garrisoned forts along his line of march to ensure adequate re-supply.

Just as well that he did. On June 30, 1793, just outside the gates of Fort Recovery – built on St. Clair’s battlefield – a pack-horse train led by Major William Friend McMahon was attacked by 2,000 Indians led by Little Turtle. McMahon was killed, but the survivors fled into the fort. A two-day battle ensued, but Fort Recovery held, thus preventing a third disaster.

The following year, in August, 1794, the Legion of the United States decisively defeated Blue Jacket’s forces in the Battle of Fallen Timbers (near what is now Toledo). The Indians fled to British-held Fort Miami, hoping and presumably assuming that their erstwhile allies would shelter them. When the British refused to open the fort to them, the Indians were defenseless, and soon surrendered.. (This one incident, by itself, demonstrates the truth of the long-held American conviction that the British had been encouraging the Indian attacks.)

Fallen Timbers ended Indian resistance in the Northwest Territory. The 1795 Treaty of Greenville required the seven tribes involved – Shawnee, Miami, Ottawa, Chippewa, Iroquois, Sauk, and Fox – to cede most of Ohio and part of Indiana, and recognize the United States rather than Great Britain as the ruler of the territory. They did, and mostly moved west. General Anthony Wayne died in 1796, but in defeating the Western Confederacy, he had done for the northwest territory what Andrew Jackson would do for the southwest territory 20 years later.

We’ll never know if Washington’s policy might have resulted in peaceful coexistence of Indians and whites: The Indian’s Western Confederacy, the raids, the resulting military campaigns, and the final defeat at Fallen Timbers set both races on a different path.

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.