Greece, Rome, and the Bill of Rights (18 page)

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Authors: Susan Ford Wiltshire

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accept theological explanations, however, they sought their backing in ancient statements rather than in those of medieval philosophers.

73

Roman law made it possible for the new rationalists, in spite of their reservations about the
Corpus iuris civilis
, to connect their theories to the foundation of the Roman jurists. A reconnection with the classical past commended this union, since Roman law evolved in the first place to meet the needs of an urban, upper-class, individualistic societythe same sort of society envisaged by the scholars of the new era of rationalism.
74
For most of the natural law writers of the seventeenth and eighteenth centuries, natural law had come to mean natural rights. On the eve of the American Revolution, the German philosopher and mathematician Christian Wolff (16791754) was explicit about this: "Whenever we speak of natural law (
ius naturae
), we never intend the law of nature, but rather the right which belongs to man on the strength of that law, that is naturally."
75
In his dictum Wolff emphasizes the rights argument, but it is significant also that he sees these rights as adhering to human beings "on the strength of that law." In other words, if there were no natural law, there would be no natural rights. Fundamental to natural rights theory is the prior theory of natural law and its Roman manifestation, a belief in the rule of law itself.
This was the contribution to individual liberty of Roman law as shaped by the humanism of the sixteenth century and the natural rights theories of the seventeenth and eighteenth centuries.
76
The way was now ready for Thomas Jefferson, James Madison, and the U.S. Bill of Rights.

 

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Chapter 5
The Bill of Rights
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. B
ENJAMIN
F
RANKLIN
The presence of a Bill of Rights in the U.S. Constitution, like the history of natural law and civic liberties, reflects a long story marked by intention, accident, and compromise.
Constitutional scholars generally hold one of two positions about the origins of the Bill of Rights. One is that the document is mostly derivative of English constitutional practice, the other, that it is mostly an American invention. Bernard Schwartz, paraphrasing Oliver Wendell Holmes, considers the American Bill of Rights a magic mirror "wherein we see reflected not only our own lives, but the whole pageant of Anglo-American constitutional development and all that those struggles have meant in the history of freedom."

1

As we have seen, however, the Bill of Rights grows out of a history much older than the constitutional struggles

 

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of either England or America. The purpose of the present chapter is to describe the process by which the first ten amendments became part of the U.S. Constitution, then briefly to place them within their larger historical context.
Framing and Passage of the First Ten Amendments
The Bill of Rights was deeply influenced by events in Virginia fifteen years prior to its ratification. While Thomas Jefferson was meeting with the Continental Congress in Philadelphia in May of 1776, thirty-six of his fellow Virginians, including James Madison, George Mason, Edmund Randolph, and Patrick Henry, were in Williamsburg from May 6 through July 5, writing a Declaration of Rights and a constitution for the new Commonwealth of Virginia. Jefferson told a friend at the time that the work they were doing was ''of the most interesting nature, and such as every individual would wish to have his voice in. In truth it is the whole object of the present controversy; for should a bad government be instituted for us in future it had been as well to accept at first the bad one offered to us from beyond the water without the risk and expence of contest."

2

George Mason drafted both the Declaration of Rights and the first constitution for Virginia. The Virginia Declaration omits any references to English law or to the colonial charters. Instead, it claims the law of nature as the source of individual rights in language similar to Jefferson's in the Declaration of Independence. Furthermore, Article 5 states the doctrine of separation of powers as a rule of positive law, the first time that such a statement had been made in any constitutional document.
3
James Madison proposed a religious liberty clause boldly asserting that all men possess a natural right to believe and worship,
or not to believe
[emphasis added], as they wish. After Patrick Henry killed that amendment, Madison rewrote it to avoid offending conservative Anglicans, stating simply that all people had a natural right to

 

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"the free exercise of religion." The Virginia Declaration of Rights was passed on June 12, 1776.
Benjamin Franklin had the Virginia Declaration at hand when he wrote a bill of rights for the Pennsylvania Constitution of 1776. John Adams used it as he wrote a similar bill for the Massachusetts Constitution of 1780, and a translation of the Virginia document into French formed the basis of the French Declaration of the Rights of Man and of the Citizen in 1789.
The Constitution of 1787, its supporters argued, was a great improvement over the Articles of Confederation because it strengthened the central government with powers to regulate foreign and interstate commerce, levy taxes, raise armies, and coin money, as well as with a strong chief executive and a court system not accountable to Congress or the states. These very strengths, however, also raised the specter of invasion by the federal government of liberties many of the states had already forbidden their governments to infringe. For many, the concern was not so much a strong national government per se as the potential abuse of powers it represented.

4

For a while the absence of a Bill of Rights in the proposed federal Constitution threatened its ratification. Anti-federalists promoted the idea that this was not a mere over-sight but a conscious Federalist deception, and it was not long before most Federalists themselves came to admit what Robert Rutland calls their "Achilles heel" and "tactical error" in omitting a Bill of Rights from the Constitution.
5
One explanation for this omission is that in the Federal Convention of 1787, the framers faced the very practical problem of how to create a workable form of government, whereas in the Second Continental Congress of 1776, they had faced the philosophical problem of how to justify a revolution.
6
George Mason, who served as one of Virginia's delegates to the Constitutional Convention in Philadelphia, refused to sign the document and campaigned in Virginia against its adoption. In a critique written before he left Philadelphia, he wrote: "There is no Declaration of Rights.... The Declarations of Rights in the separate States are no

 

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security. Nor are the people secured even in the enjoyment of the benefit of the common law.... There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes; nor against the danger of standing armies in time of peace."

7
Rutland points out that Mason did not mention a bill of rights until the Convention was nearing its conclusion, but even before he left Philadelphia he had come to see this omission as a fatal error.
8

Jefferson, reading in France a copy of the proposed Constitution sent to him by James Madison, admired the elaborate system of checks and balances embedded in the document but worried about "the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact." Jefferson wrote further to Madison: "Let me add that a bill of rights is what the people are entitled to against every government on earth ... and what no just government should refuse, or rest on inference."
9
Jefferson even proposed to a friend that nine states ratify the Constitution but that the four remaining hold out until a bill of rights had been added.
Another delegate, Edmund Randolph, who was governor of Virginia at the time and had even introduced the Virginia Plan, which formed the first draft of the document, also refused to sign the Constitution and hoped to summon a second constitutional convention to remove its liabilities. This was alarming to George Washington and especially to James Madison, who feared for the future of the Constitution he had so assiduously championed. In a narrow vote the Virginia Convention finally voted for ratification, but its support was closely tied to proposals for amendments to the new Constitution.
Soon after the First Congress convened under the new Constitution, Madison announced that he would propose amendments to the Constitution. In his notes for a speech on June 8, 1789, he indicates that some of the amend-

 

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ments have to do with "private rights" and as such relate "to what may be called a bill of rights." He considers the primary purpose of the amendments to guard "against the legislative, for it is the most powerful and most likely to be abused,'' as well as to guard against abuses by the executive and "the body of the people, operating by the majority against the minority.'' Madison sees the greatest danger to a republic to be the "prerogative of the majority" and hopes the amendments "may be one means to control the majority from those acts to which they might otherwise be inclined."

10

From the various amendments proposed by seven of the state ratifying conventions, Madison ignored those that would have changed the substance of the Constitution and formulated a list of seventeen, basing his choices upon the Virginia Declaration of Rights. The House of Representatives approved seventeen of Madison's amendments, the Senate consolidated them into twelve, and it was these twelve that were approved by Congress on September 25, 1789, for submission to the states.
Madison may have gotten from Alexander Hamilton the term "due process of law" used in the Fifth Amendment. In any event, here he was following the New York rather than the Virginia language. "Due process of law" represents an important shift from the "law of the land" terminology of Chapter 39 of Magna Carta, because "law of the land" could be construed to mean simply the prevailing customs at the time. In a speech to the New York Assembly on February 6, 1787, Hamilton had emphasized that no citizen could be deprived of rights by a legislative act without due process.
11
Madison's greatest contribution was his crafting of words in such a way that they would be adaptable to changing conditions in the years ahead. Especially after the addition of the Fourteenth Amendment, the "due process" phrase of the Fifth Amendment allowed for a gradual inclusion of new rights. "Due process," says Schwartz, "expresses more than the restricted views of the eighteenth century; it is an enduring reflection of experience with human nature. The due process concept has enabled

 

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