The Green Papers Commentary
 

WITH LIBERTY AND JUSTICE FOR ALL (Part One)
Thoughts on the Origins of the Bill of Rights
on the Eve of Our Nation's 226th Birthday

Monday, July 1, 2002

by RICHARD E. BERG-ANDERSSON
TheGreenPapers.com Staff

Last week we all could witness- thanks to the news media and modern instant electronic communication- an interesting spectacle as a Federal appeals court in San Francisco, California decided that the words "under God" in the Pledge of Allegiance were unconstitutional insofar as forcing children in public schools to daily recite them were concerned; then, not long thereafter, the judge who wrote the opinion of that court stayed the decision pending further review. In the meantime, on the opposite coast, Congressmen- regardless of Party or ideology- were, for the most part, falling all over themselves in defense of the Pledge: well, after all, it is an election year and, therefore, ANYthing (to put into a television ad-- or, for that matter, to avoid a negative ad by an opponent) apparently goes!

Yet, as I watched this "debate" (if one could even use that term) taking place in the well of the U.S. House of Representatives on C-SPAN, I was struck (where not outright appalled) by the unhistorical... no, let's be blunt here: anti- historical... drivel being passed around as fact from both sides of the aisle! Thank goodness for the 4th of July holiday for, not only is it a celebration of the basic political tenets of our Society, but it also forces Congress to take a recess, thereby depriving Members of Congress from further distorting historical reality for their respective, narrow causes. Allow me- as yet another public service of this website- to use this congressional recess to straighten you-all out and, once more, separate bare fact from outright political fiction!

At one point, during her speech on the floor of the House about the recent Federal court decision on the Pledge, Congresswoman Sheila Jackson Lee (D-Texas) expressed one of the favored canards of the typical liberal, that the First Amendment to the U.S. Constitution appears first in what we Americans tend to (albeit at least somewhat inaccurately) call the Bill of Rights because "the Framers" (so-called) wanted Non-Establishment and Free Exercise of Religion- along with Freedom of Speech, of the Press and of Assembly- to be considered the most important civil liberties to be found in the Bill of Rights-- that is, the first ten Amendments to the Constitution. Of course, nothing could be further from the truth! (Though, to be fair to Ms. Jackson Lee, she DID say that she "believe"d this to be so and did NOT actually say it WAS so-- I would sincerely hope that the Congresswoman actually knew better!)

And, lest someone reading this piece think I am only engaged in beating up on some poor, defenseless liberal Democrat, let me also take this opportunity to (fair-minded commentator that I am: again, if you don't believe that I'm fair, just ask me!) turn around and beat up on conservative Republicans because those who wrap themselves in the Second Amendment in order to oppose gun control measures themselves utilize a variant of this same silly anti-historical garbage in order to opine that their favorite Amendment to the Constitution is listed second in the Bill of Rights precisely because (again) "the Framers" wanted ownership of a gun to be the bulwark of such freedom of religion, free speech, a free press and free assembly and the right of petition... Baloney!!

Let's take the time to review the actual facts, Jack!!!:

The term "the Framers" can only properly refer to the delegates (who, in fact, called themselves "deputies") appointed by the several States to the Convention called by the Confederation Congress to revise an Articles of Confederation very badly in need of repair- that body we now know as the Constitutional Convention of 1787 met in Philadelphia and which drafted the original, unamended Constitution of the United States (once they realized- pretty much upon first convening that the Articles were beyond repair and needed to be replaced). Thus, the Framers had nothing to do- at least as Framers per se- with the fashioning of the Bill of Rights because they also had nothing to do with the Amending Process (other than their having set up such a process in the first place, in Article V of the original document).

Indeed, the Convention (with some objections by a vocal minority in that body) decided that what they would have called a "Declaration of Rights" was not even needed for the Federal government the way such a Declaration might, of necessity, be placed in State Constitutions (the prevailing theory was that the civil rights and liberties of Americans was best protected in their capacity as State citizens: that, since the new Federal Constitution was one in which the States would be giving up- to a central government- some authority that the States already had, and that the States could not give to this new central government authority they did not have, therefore any right or liberty protected by a State Constitution was also automatically protected as regarded the new Federal government).

However, this particular working theory of the Framers did not at all necessarily sit well with many as the popular conventions in the several States considered ratification of the new Constitution. The first 5 States to ratify the new document (in order: Delaware, Pennsylvania, New Jersey, Georgia and Connecticut) did not make it an issue; however, Massachusetts- the 6th State to ratify- did so more or less conditionally by proposing Amendments the delegates to that State's ratifying convention would most liked to have seen added to the document. Maryland, as the 7th State to ratify, also did not propose Amendments but every State that ratified the Constitution from that point on (in order: South Carolina, New Hampshire [which, as the 9th State to ratify, made the new document operational], Virginia and New York- these rounding out the 11 States in the Union at the time the First Congress convened in New York City in the Spring of 1789) proposed Amendments in a manner rather similar to the earlier efforts of Massachusetts. Further, North Carolina refused to ratify the Constitution until after the new Congress had sent Amendments spelling out the civil rights and liberties of Americans out to the States for ratification; even Rhode Island, the 13th and final of the Original States to join the new Union, which sidn't even consider ratification until after the Bill of Rights had already been sent out to the States, proposed its own set of Amendments (though, of course, too late for serious consideration by the First Congress)!

Not all that long after the First Congress convened its so-called Quorum Session, Congressman James Madison of Virginia (who had been one of "the Framers" in attendance at the Philadelphia Convention) put together a list of potential Amendments which he culled from the ratification documents provided by the 6 States that had proposed Amendments (Rhode Island was- of course- a 7th State to propose Amendments, as noted in the previous paragraph, but well after Madison had not only already made his proposals but had had his proposals work their way through both houses of Congress!) and introduced them on the floor of the House of Representatives on 8 June 1789 (after having been thwarted in his efforts to have them first referred to a committee of the House). The order in which Madison's proposed Amendments were presented were, it is true, not at all arbitrary but, at the same time, they had nothing at all to do with the importance (real or imagined) of any proposal relative to any other in his list; instead, the order had to do with the fact that Madison originally intended his Amendments to be placed into the appropriate places in the original document rather than, as actually became the practice, of appending them to the end of the original text drafted by the 1787 Constitutional Convention.

Madison's proposed Amendments to the Constitution were, thus, presented in nine groups- each group solely having to do with which portion of the original document was to be amended by the proposed provisions within that group, as follows (and what follows below is my own paraphrase of these proposals):

I. to be attached as a "Preface" (presumably just before the Preamble to the Constitution that begins "We, the People..."):
1. All power is vested in and derived from the People.
2. That government's purpose is to benefit the People in their
a. enjoyment of life and liberty;
b. acquiring and using property;
c. pursuing and obtaining happiness and safety.
3. The right to reform or change government inadequate to the purposes in I, 2.

II. altering Article I, Section 2, clause 3 (which, in the original text, set a fixed ratio of Representatives in Congress to the population) by replacing it with a more progressive ratio (that is, the number of persons per Representatives in Congress, rather than being fixed, was to increase by a certain amount with each decennial census).

III. amending Article I, Section 6, clause 1 (which, among other things, mandates that Senators and Representatives get paid for their services) by adding a provision that no raise in pay of members of either the Senate or the House could take effect until a new Congress had been elected.

IV. amending Article I, Section 9 (listing what Congress CAN'T do)- between clause 3 (prohibiting Bills of Attainder and ex post facto Laws) and clause 4 (prohibiting so-called "head taxes" not proportional to the population of the several States as determined by each decennial census) by adding the following prohibitions on Congress:
1. a.) no abridgement of civil rights on grounds of religious belief or form of worship.
b.) no establishment of national religion.
c.) no infringement of the rights of individual conscience.
2. a.) no deprivation of the right to speak;
b.) or to write;
c.) or to freely publish their sentiments;
d.) no violation of freedom of the press.
3. a.) no restraint of the right to peaceably assemble;
b.) or of the right of petition for a redress of grievances.
4. a.) no infringement of the right to keep and bear arms, due to a well regulated militia being a necessity to a free country.
b.) however, no one religiously opposed to bearing arms to be compelled to serve in the military.
5. no quartering of soldiers in peacetime without the homeowner's consent.
6. a.) no person (except in cases of impeachment) to face more than one punishment, or more than one trial for the same offense;
b.) nor to be compelled to be a witness against himself;
c.) nor to be deprived of life, liberty or property without due process of law.
d.) nor to be obliged to relinquish property for public use without just compensation.
7. a.) no excessive bail to be required;
b.) no excessive fines to be imposed;
c.) no cruel and unusual punishments to be inflicted.
8. a.) no violation of the right to be secure in one's person, houses, papers and other property from unreasonable search and seizure.
b.) warrants not to issue without probable cause, supported by oath or affirmation, and specifically describing what is to be searched and/or seized.
9. in all criminal prosecutions, the accused shall enjoy:
a.) the right to a speedy and public trial;
b.) to be informed as to the cause and nature of the accusation;
c.) to be confronted by his accusers and any witnesses against him;
d.) to be able to compel the testimony of witnesses in his favor;
e.) and to have the assistance of counsel in his defense.
10. the listing here, or elsewhere, in the Constitution not to be so construed as to diminish the importance of other rights retained by the People or to enlarge the powers of the Federal government but, rather, to limit such powers or to admonish greater caution in the exercise thereof.

V. amending Article I, Section 10 (listing what the States CAN'T do)- between clause 1 (which, among other things, prohibits a State from passing Bills of Attainder, ex post facto Laws or laws impairing the obligation of contracts) and clause 2 (which, among other things, prohibits States from imposing duties on imports or exports) by adding the following:
that no state shall violate
1. freedom of conscience;
2. of the press;
3. or the right to a trial by jury in criminal cases.

VI. amending Article III, Section 2, clause 2 (which established appellate jurisdiction in the U.S. Supreme Court over all cases originally heard in a lower Federal court) by
1. placing a minimum dollar amount as regards any civil case appealable to the U.S. Supreme Court.
2. establishing that any appeal to the Supreme Court may not reopen the facts as determined by a jury in a lower-level court except as according to the principles of Common Law.

VII. altering Article III, Section 2, clause 3 (which established that all criminal trials in Federal courts [that is, except in cases of impeachment] be by jury and in the State where the crime was committed, but giving Congress the power to direct, by law, the place for holding Federal trials if the crime was not committed within any State) by replacing it with the following:
1. adding cases arising from military service, along with impeachment, as being exempted from being heard in Federal courts.
2. requiring that all criminal cases brought in Federal court
a.) be heard before an impartial jury of the vicinage (that is, an area usually more local than an entire State);
b.) require unanimity for any conviction;
c.) allow for the right of challenge and other perquisites (as regards jury selection);
d.) and in all capital cases (those where the punishment might be loss of life or limb) require indictment by a grand jury of the locality.
(all the above with the exception of cases of invasion or rebellion, in which case a grand jury and/or trial may be convened in another section of the same State, though as near as possible to the place where the crime was committed).
3. a.) if a crime be committed in a section of a State not part of a county, the trail may be in such county court as the (presumably State) laws already prescribe for such a case;
b.) in civil cases, the right of trial by jury should not be violated.

VIII. immediately after Article VI (that which, among other things, makes the U.S. Constitution the Supreme Law of the Land and requires all officials, State as well as Federal, swear or affirm an Oath of Office to support the Federal Constitution), insert a new Article VII which would
1. make Separation of Powers (heretofore merely a working theory of governance) more absolute in its application and practice.
2. reserve to the States those powers either not delegated to Congress or prohibited to the States in the Federal Constitution.

IX. re: proposal VIII above, the original Article VII (that which mandated that the ratification of nine States alone would put the Federal Constitution into effect [a moot point once New Hampshire had ratified the document well before the First Congress had even assembled]) would have to be renumbered Article VIII.

Thus, we have Congressman Madison's original proposals for the first Amendments in the order he actually presented them on the floor of the House. A perusal of these not only puts these proposals (most of which did, even if only in somewhat modified form, become part of what we Americans tend to call the Bill of Rights) into their proper constitutional context (a context largely lost when these provisions are divorced from where Madison originally intended them to be placed within the original Constitution, as they have been) but also largely illustrates just why these provisions appear in the order in which we see them among the first ten Amendments.

Note well that this order has little- if anything- to do with the relative importance of any particular provision proposed by Madison and, further, that the provision seen above in IV, 10 (from now on- if only for convenience- I will refer to Madison's original proposals in this manner: the group in boldface roman numeral and then the subgroupings in normal typeface arabic numerals or lower case letters, as these appear in my paraphrase of Madison's original Amendments above) indicates that Madison surely did not intend that his listing or the order within said listing be, in any way, indicative of any such relative importance!

Although Madison was hoping that his proposals would be debated in Committee of the Whole (that is, the entire House- as a body- acting as a committee drafting and reviewing legislative proposals before they are voted on by the House as a legislative body per se), instead his proposals were sent to a Select Committee of one Congressman from each of the 11 States then represented (again, North Carolina and Rhode Island had not yet ratified the Constitution) to be considered, along with (and presumably with Madison's own proposals no better than) the Amendments proposed by the 6 States the ratification conventions of which had, by the high Summer of 1789, proposed such Amendments in the first place.

On 28 July 1789, the Select Committee of 11 reported out 19 Amendments, substantially as Madison had originally proposed them, to be- as Madison himself had suggested- inserted into the appropriate places within the original text of the Constitution, as follows ("SC"= the Select Committee's numbering):

SC 1 = a modified form of Madison's I, 1 the opening of I, 2 (the specific "benefits" [a., b. and c.] in I, 2 and all of Madison's I, 3 had been dropped).
SC 2 = essentially all of Madison's II.
SC 3 = essentially all of Madison's III.
SC 4 = essentially Madison's IV, 1 b. and c. (except that the reference to "national religion" had been changed to no establishment of "religion" in general). [Madison's IV, 1 a., however, had been dropped]
SC 5 = a modified form of Madison's IV, 2. and 3. combined, pretty much as we now have it in the Speech, Press and Assembly clauses of the First Amendment.
SC 6 = a modified form of Madison's IV, 4 (modified in that the conditional "well-regulated miltia being the best security of a free State" now would appear before the clause actually allowing for a "right to keep and bear arms").
SC 7 = essentially Madison's IV, 5.
SC 8 = essentially Madison's IV, 6.
SC 9 = essentially Madison's IV, 7.
SC 10 = essentially Madison's IV, 8.
SC 11 = essentially Madison's IV, 10. (as will be seen shortly, the Select Committee moved Madison's IV, 9 to another part of the Constitution).
SC 12 = basically Madison's V.
SC 13 = Madison's VI.
SC 14 = here's where Madison's IV, 9 was moved- intended to be replace Article III, Section 2, clause 3 of the original document, which would also- as Madison had originally intended- include the two following SC Amendments:
SC 15 = almost all of Madison's VII, except
SC 16 = which was a modified form of Madison's VII, 3 b.
SC 17 = Madison's VIII, 1.
SC 18 = Madison's VIII, 2.
SC 19 = Madison's cosmetic IX, which would only be necessary were SC 17 and/or SC 18 to be adopted.

It should be abundantly clear from the above tabulation that, if we accept the traditional liberal interpretation of the alleged "importance" to the framers within the Select Committee of 11 (the closest thing to "framers" that the Bill of Rights would have- apart from, of course, Congressman Madison himself) of what is now essentially the First Amendment, that such rights as it now contains were merely 4th and/or 5th on the "hit parade" in the minds of the Select Committee; that, if we accept the traditional conservative interpretation of what is now the Second Amendment as being second only to what is now the First, then it was- at best- 6th in the minds of these particular "framers". But I seriously doubt that those on either side of the issues that tend to be joined as a result of disputes between conservatives and liberals over either the First or Second Amendments would seriously argue that the issues of how many Congressmen there should be or how much they should be paid are really of greater import than their own respective positions regarding the rights and liberties contained in either current Amendment!

As things turned out, objection was- very early in the debate in the House over Madison's proposals as so modified and slightly rearranged by the Select Committee of 11 (a debate which began in earnest on 13 August)- strongly made to the idea that these proposed Amendments to the Constitution, if adopted, be "shoe-horned" into the original document. There appears to have, instead, slowly developed a consensus that the original text of the Constitution stand alone- at first, as a lasting tribute to the labors of those rightfully called "Framers" (a number of whom, it should be noted, also happened to be members of either house in the First Congress!); the first vote to append the proposed Amendments to the original Constitution (instead of inserting them within the text of the Constitution, as both Madison- and now the Select Committee of 11- suggested), however, was soundly defeated by a roughly 2 to 1 margin.

But the great Ohio State football coach Woody Hayes once said: "When the quarterback puts the ball in the air, three things can happen- and two of them are bad"; likewise, when a political proposal becomes acceptable, it is usually for a variety of reasons and many of these are bad! So it was with the proposal to append the Amendments to the end of the original document rather than insert them within it: clearly, it became apparent to many in the First Congress that Amendments so appended (and, therefore, placed out of context) might later be construed in ways that their insertion within the text would not so easily allow (thus the misinterpretation and factual misrepresentation on the floor of the House that I vicariously witnessed via the window of C-SPAN last week had its long-ago causes). Within a week of its clear defeat, the very same proposal to append rather than insert the proposed Amendments carried the day by a whopping 3 to 1 margin! Madison- who, while winning the "war", had lost this particular "battle"- himself soon foresaw that "some ambiguities" would arise as to "how far the original text is or is not necessarily superseded" due to the fact that the new provisions were now to be totally divorced from the text they were intended to actually amend!

The debate on the floor of the House further pared down the proposals a bit and, on 24 August 1789, the House approved- by the requisite two-thirds vote- 17 Amendments, compared to the Select Committee's own list, as follows (HR referring to these House-approved proposed Amendments):

HR 1 = SC 2 (progressive apportionment of Representatives in Congress)
HR 2 = SC 3 (no change in congressional compensation until a new election)
HR 3 = SC 4 (no establishment of religion or infringement of free exercise thereof or of rights of conscience)
HR 4 = SC 5 (freedom of speech, of the press, of assembly and petition)
HR 5 = SC 6 (within a well-regulated militia, the right to keep and bear arms)
HR 6 = SC 7 (no quartering of soldiers in peacetime without permission)
HR 7 = SC 10 (security against unreasonable search and seizure, warrants with specificity only to issue upon sworn-to probable cause)
HR 8 = SC 8 (no double-jeopardy, no self-incrimination; requirement of due process, just compensation required upon taking of property for public use)
HR 9 = SC 14 (right to a speedy and public trial, to information as to the charges, to confront one's accusers, to compel witnesses and right to counsel)
HR 10 = SC 15 (right to an impartial jury, unanimity for conviction, right of challenge, grand jury indictment for felonies, trial may be moved in case of invasion or rebellion subject to law)
HR 11 = SC 13 (dollar amount set re: civil cases appealable to Supreme Court; no appeal can re-examine triable fact except under rules of Common Law)
HR 12 = SC 16 (in civil cases, right to jury trial is preserved)
HR 13 = SC 9 (no excessive bail or fines; no cruel or unusual punishments)
HR 14 = SC 12 (no State shall infringe the right to trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech or of the press)
HR 15 = SC 11 (the enumeration of rights not to be construed so as to deny or disparage other retained rights of the People)
HR 16 = SC 17 (establishing an absolute Separation of Powers between branches of the government)
HR 17 = SC 18 (powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States)

One can easily see that SC 1 (stating that all power is derived from the People and that government exists for their [unstated] benefit) and SC 19 (which changed the numbering of the final Article in the original document and became unnecessary once it was decided to append, and not insert, the Amendments) were not adopted by the House but also that, except for their rearrangement (and apart from those which had already been dropped either by the Select Committee of 11 or the whole House), the vast majority of Madison's proposals actually made it through the lower house of Congress more or less intact. But now these 17 proposed Amendments would have to go to the Senate for the upper house's consideration.

On 14 September 1789, the Senate approved- by the requisite two-thirds vote- 12 proposed Amendments, compared to the 17 approved a few weeks earlier by the House, as follows (S referring to these Senate-approved proposed Amendments):

S 1 = HR 1, slightly modified as to the actual figures of population in the ratio.
S 2 = HR 2
S 3 =combined HR 3 and HR 4 but the Senate dropped the provision re: "rights of conscience" and also changed the prohibition of "establishing religion" to one prohibiting establishing "articles of faith".
S 4 = HR 5 shortened but- within the lesser amount of verbiage- essentially the same, although the provision re: those "religiously scrupulous of bearing arms" not being compelled to serve in the military was dropped by the Senate.
S 5 = HR 6
S 6 = HR 7
S 7 = combined HR 8 and HR 10 but the Senate dropped the provisions re: the requirements for an impartial jury of the locality, unanimity for conviction, the right of challenge, etc. re: jury selection and the requirement that, in cases of invasion or rebellion, the case should be heard elsewhere in the State.
S 8 = HR 9
S 9 = combined HR 11 and HR 12 but the Senate dropped the minimum dollar requirement for the Supreme Court to hear an appeal in a civil case and, instead, set a minimum dollar amount for the case to be heard in Federal court in the first place.
S 10 = HR 13
S 11 = HR 15
S 12 = HR 17

The Senate dropped outright both HR 14 (which would have required the States themselves to respect trial by jury in criminal cases, the rights of conscience or freedom of speech or of the press) and HR 16 (which would have required the strictest application of the Separation of Powers doctrine within the still-new Federal system). Because each house of Congress had now voted out two quite different sets of proposed Amendments, these proposals now had to go to Conference Committee; there the House received only minimal consideration of its views: a requirement for an impartial jury of the "district" in which a crime had been committed (the first Judiciary Act, which would establish Federal trial courts known as District Courts, was under consideration at the time) was added to S 8 and the provision prohibiting "establishment of religion" (much closer to the House language) replaced the Senate's "articles of faith" language in S 3 but, except for what were- in the main- a few other inconsequential changes, the proposed Amendments as reported out of Conference Committee on 24 September were essentially those 12 pretty much as adopted by the Senate.

The House and the Senate each approved the Conference Report within days and, on 28 September 1789, the 12 proposed Amendments were sent to the States for ratification. The rest, as they say, is History: of the 12, only the latter 10 were deemed to have been ratified by at least three-fourths of the States on 15 December 1791 (by which time, not only had North Carolina and Rhode Island ratified the Constitution, but Vermont had been admitted to the Union, so that 11 of the now-14 States were needed for ratification of what became the Bill of Rights): thus,

Amendment I = what had been S 3 (as modified in Conference Committee)
Amendment II = what had been S 4
Amendment III = what had been S 5
Amendment IV = what had been S 6
Amendment V = what had been S 7
Amendment VI = what had been S 8 (as modified in Conference Committee)
Amendment VII = what had been S 9
Amendment VIII = what had been S 10
Amendment IX = what had been S 11
Amendment X = what had been S 12

Meanwhile, the proposed Amendment which was sent to the States as S 2 took a somewhat longer and more circuitous journey to ratification: it was not until 1992 that it became Amendment XXVII (at this writing, the most recent Amendment to become part of the Constitution but, as it is the essence of Madison's III in my enumeration of his proposals earlier in this piece, it could well be argued that it is also one of the oldest proposals!).

S 1, on the other hand, has been mooted by the passage of time and the "straying" of Congress- in its application of the constitutional requirement for reapportionment of seats in the House per each decennial census over the decades- from the literal application of Article I, Section 2, clause 3 (which, on its face, seems to always require 1 Representative in Congress for every 30,000 persons-- this provision has long been held to be no longer binding, but George Washington thought it so binding that he cast the very first Presidential veto because the reapportionment scheme Congress originally intended to use after the 1790 census did not at all follow this fixed ratio-- it was fear of this fixed ratio not keeping up with a growing population that caused the original proposal what became S 1 [in its form as Madison's II] in the first place!)

I hope that those of you among my fellow Americans who have worked your way through this piece will now pause and think at least a bit about the real history of the Bill of Rights as you once again celebrate our Nation's Birth.

Have a Happy, Healthy and- above all- Safe Fourth of July!

Happy Independence Day!!... and many, many more!!!

 


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