A Bill of Rights is What All Free People Are Entitled to Against Every Government

bill of rights - with james madison

by Diane Rufino, January 3, 2019

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”    –  Thomas Jefferson, in a letter to James Madison, December 20, 1787

December 15 marks a very special day in our founding history – On that date in 1791, the first 14 states (Vermont had just been admitted to the Union as the 14th state), ratified the first 10 amendments to the US Constitution, known collectively as our Bill of Rights. We often take it for granted that these first ten amendments, our Bill of Rights, are included in our Constitution, but if we want to point to one reason the colonies went to war for their independence from Great Britain, it was to permanently secure the rights embodied in our Bill of Rights from all reaches of government. Without the Bill of Rights, the revolution would have been in vein.  Thomas Jefferson, probably the Founder who exerted the most pressure on James Madison for a Bill of Rights, advised: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”  He wrote this to Madison on December 20, 1787, almost three months after the Constitution had been signed by its drafters in Philadelphia.

On Bill of Rights Day, we reflect upon those rights guaranteed in the first nine amendments (the tenth being a restatement of federalism – the strict separation of power between the federal government and the States) but more importantly, we should come to appreciate the efforts of certain particularly liberty-minded Founders who fought against great odds to make sure that our Constitution in fact included a Bill of Rights. After all, James Madison, considered the Constitution’s author, and most of the other Federalists did not see the need for a Bill of Rights and thought the Constitution wholly sufficient without it. That was the status of the Constitution when it went to the states for ratification.

What is a “Bill of Rights”?  A bill of rights, sometimes called a Declaration of Rights or a Charter of Rights, is a list of the most important rights belonging to the citizens of a country – rights that the King or other form of government must respect. The purpose is to protect those rights against infringement either by law or by conduct from public officials. The US Bill of Rights is the Declaration and enumeration is the individual rights memorialized in the Constitution intended to protect the individual against violations and abuses of power by the government. In that respect, our Bill of Rights is like most other bill of rights (including the English Bill of Rights is 1689 and the great Magna Carta of 1215).  This history of England, including the movement of groups of people (like the Puritans and Pilgrims), to the New World, is a history continually seeking for the recognition and security of fundamental human liberties. And early colonial history continued that tradition of setting out the rights and privileges of the individual in their government charters.

The Preamble to the Bill of Rights explains its clear purpose. It reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

In other words, the Bill of Rights is a further limitation on the power of government, above and beyond those limitations already imposed by its very design and delegation of limited powers.

HISTORY:

Again, a Bill of Rights (or Declaration of Rights, or Charter of Rights), is a list of the most important rights belonging to the citizens of a country that the King or other form of government must respect. Bills of rights may be “entrenched” or “unentrenched.”  A bill of rights that is “entrenched” cannot be amended or repealed by the governing legislature through regular procedure, but rather, it would require a supermajority or referendum. Bills of rights that are “entrenched” are often those which are part of a country’s constitution, and therefore subject to special procedures applicable to constitutional amendments. A bill of rights that is not entrenched (“unentrenched”) is merely statutory in form and as such can be modified or repealed by the legislature at will.

The history of the world shows that there have been limited instances where the rights of the people have been enumerated and/or protected by a Bill of Rights. This history includes the following charters, documents, or bills of right:

  • Magna Carta (1215; England) rights for barons
  • Great Charter of Ireland (1216; Ireland) rights for barons – Ireland became independent of Great Britain in 1937
  • Golden Bull of 1222 (1222; Hungary) rights for nobles – which interestingly, included the right of Nullification
  • Charter of Kortenberg (1312; Belgium) rights for all citizens “rich and poor”
  • Twelve Articles (1525; Germany) – considered the first draft of human rights and civil liberties in continental Europe after the Roman Empire.
  • Petition of Right (1628; England)
  • English Bill of Rights 1689
  • Declaration of the Rights of Man and of the Citizen (1789; France) – inspired by Thomas Jefferson
  • The US Bill of Rights (1791)

The roots of our modern-day liberty originated in England, as far back as 1100, culminating there with the English Bill of Rights in 1689 and ultimately providing the blueprint for our very own US Bill of Rights in 1791. The roots of liberty, including the roots of our very own American liberty rights, can be found in the selection of charters and documents listed below:

  • The 1100 Charter of Liberties (also called the Coronation Charter) – The 1100 Charter of Liberties was a written proclamation offered by Henry I of England and issued upon his accession to the throne in 1100. It sought to bind the King to certain laws regarding the treatment of nobles, church officials, and individuals – most notably, certain marriage rights, rights of inheritance, amnesty rights, rights for the criminally-accused, and environmental protection (forests). It is considered to be the precursor to the Magna Carta.

 

  • The Magna Carta of 1215 (“the Great Charter”) – The barons at the time, frustrated by ten years of excessive taxation by King John in order to finance a campaign to regain lands in France only to watch the King return home in defeat, consolidated their power and threatened to renounce him. Over the next eight months, they made repeated demands to the King, requesting that he give them a guarantee that he would observe their rights. But these negotiations amounted to nothing. And so, on May 5, 1215, the barons gathered and agreed to declare war on him. On May 17, the barons captured London, the largest town in England, without a fight, and finally, King John took notice. With London lost and ever more supporters flocking to the side of the barons, he sent word that he would meet with them to discuss terms of peace.. Over the next few days, the barons assembled in great numbers on the fields of Runnymede, a relatively obscure meadow that lies between the town of Staines and Windsor castle, where King John was based. Negotiations took place over the next several days and finally, on June 15, King John affixed his seal to the document that would become known as the Magna Carta (or “The Great Charter”). The Magna Carta enumerated an expansive list (63 “chapters”) of rights for barons, and also provided the remedy of Nullification.  The principles extended beyond the often-recognized origin of the “No Taxation Without Representation” doctrine in chapter 12 (and hence the creation of a “people’s body” which addressed matters of taxation and spending) and the Due Process clause of chapter 39. The concepts of “Trial by Jury” and “No Cruel Punishments” are present in chapter 21; and the forerunner of the “Confrontation Clause” of our 6th Amendment addressed in chapters 38, 40, and 44. But the most important contribution of the Magna Carta is the claim that there is a fundamental set of principles which even the King must respect. Above all else, Magna Carta makes the case that the people have a “right” to expect boundaries from the King in their lives and with respect to their property. They have a right to expect “reasonable” conduct.  [King John would go on to ignore the promises he made in signing the Magna Carta]

 

  • The Petition of Right of 1628 – In 1628, under the leadership of Sir Edward Coke, a legal scholar-turned-practical politician, Parliament petitioned Charles I, son of the recently deceased King James I, to uphold the traditional rights of Englishmen, as set forth in the Magna Carta. It was an appeal to his sense of being a just King. Charles was already on his way to being a notorious tyrant. Parliament was not only fed up with is participation in the Thirty Years War (a highly destructive European war) against its consent, but when it refused to provide Charles the revenue to fight the war, he dissolved the body (several times, actually). That would lead Charles to raise revenue other ways – by gathering “forced loans” and “ship money” without Parliamentary approval (hence, taxation without representation in violation of the Magna Carta) and arbitrarily imprisoning those who refused to pay. Among the customary “diverse rights and liberties of the subjects” listed in the Petition of Right were no taxation without consent (as mentioned), “due process of law,” the right to habeas corpus, no quartering of troops, the respect for private property, and the imposition of no cruel punishment. King Charles did not consider himself bound by the Petition and so, he simply disregarded it. He would later be officially tried for high treason by a rump Parliament and beheaded in 1649. [The Petition of Right would have a profound effect on our US Bill of Rights: The Due Process clause of the 5th Amendment, the “Criminal Trials” clause of the 6th Amendment, and the “Civil Jury Trial” clause of the 7th Amendment all are influenced by the Petition of Right.  Furthermore, during the 1760s, the American colonists articulated their grievances against King George in terms similar to those used by Lord Coke in the Petition of Right to uphold the rights of Englishmen].

 

  • The English Bill of Rights of 1689 – After the Bloodless Revolution or “Glorious Revolution” (in which the English Parliament instigated a bloodless coup, replacing King James II with his daughter, Mary II and her husband, William III), Parliament set to right the abuses of its previous kings – Charles I, Charles II, and James II. It drafted and adopted a bill of rights, known as the English Bill of Rights, as which set out certain basic civil rights and clarified the right of secession for the British Crown. It was presented to William and Mary in February 1689 as a condition to the offer to become joint ruling sovereigns of England.  It was contractual in nature so that the acceptance of the throne was tied to their express promise to recognize the rights set forth in the Bill of Rights. A violation of that agreement would terminate the right of William and Mary to rule. The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament. It further, and most importantly for this discussion, sets out certain rights of the individual, including:  the right to bear arms for self-defense, the right of Due Process, the right to petition government, such criminal defense rights as the right to be free from excessive bail, the right to a jury trial for the crime of high treason, and the right against any cruel and/or unusual punishment, the guarantee that there would be no taxation without representation, the right to be free of a standing army in times of peace, and the right to be free of any quartering of troops.  [Great Britain is unlike the United States in that it has no formal Constitution; rather, the English Bill of Rights, taken together with the Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts of 1911 and 1949 are considered, in total, as the uncodified British constitution].

 

  • The colonies being organized under grants and agreements from England, it was assumed that English traditions applied. The colonists considered themselves British subjects and as such, they believed they were entitled to all the rights and privileges of Englishmen. That is why they reacted as they did to the taxes imposed by Parliament, why one protest theme was “No Taxation Without Representation,” why the Sons of Liberty formed, why they harassed the colonial stamp collectors and stamp masters until they resigned, why they engaged in acts of civil disobedience (such as preventing the British from unloading their ships at colonial ports) or hanging colonial governors in effigy, why they tossed crates of tea into the Boston Harbor, why men like Patrick Henry called for the raising and training of colonial militias, and why they were willing to confront the Redcoats with their muskets when they sought to destroy the stockpiles of colonial ammunition. It seemed that once again, as English history has shown true, Englishmen would have to exert their rights and demand that the King to respect them. Proper boundaries would once again have to be established.

 

  • King John’s rejection of the Magna Carta (1215) and King Charles’s rejection of the Petition of Right (1628) proved to our Founding Fathers that the system established in Great Britain provided only arbitrary security for individual rights. They would need to come up with a different system of government, grounded on more “enlightened” principles and “enlightened” government philosophy. And that is exactly what they did in the Declaration of Independence – announcing that the American states were united on the concept of Individual Sovereignty, that government power originated from the People, to serve the People, and not from kings (“the Divine Right of Kings”) to serve kings.

With what many believe to be divine guidance and protection, the thirteen original colonies fought and won their independence from Great Britain in 1781. Lord Cornwallis surrendered his British troops to General George Washington, Commander of the Continental Army, on October 19, 1781 and the Treaty of Paris, signed in September 1783, marked the official end of the struggle. Since the colonies worked together in a collaborative effort to communicate grievances and concerns to King George and Parliament and to engage in a concerted effort to prevent war, but then once war came, to fight and manage the war effort, it seemed only natural to continue to collaborate in their independence. The first attempt at a loose union of states, under the Articles of Confederation, was not very successful. The government lacked the enforcement power needed to effectively act on behalf of the states, such as the power to collect revenue to pay the war debt.

Taking note of the limitations of the common government (the Confederation Congress, aka, Congress of the Confederation, or sometimes even referred to still as the Continental Congress), certain members of our founding generation instigated for a Convention to amend that government. Eventually, in February 1787, Congress called for such a Convention to meet in May in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government [the Articles of Confederation] adequate to the exigencies of the Union.” And so, the Convention did convene on May 25, 1787 in Philadelphia with delegates from all the states except Rhode Island. The Constitutional Convention, as it came to be known, quickly changed direction – from amending the Articles of Confederation to designing an altogether different form of government. James Madison would be the architect of that plan (the Virginia Plan).  The collective wisdom of the delegates at the Convention identified the weakness of the Virginia Plan, which for the colonies was the creation of a “national” government, with concentrated power in that government, rather than a “federal” government which left most of the sovereign power with the states. A federal government, with the sovereignty of the States keeping the sovereign power of the federal government in check, was the form of government that the delegates preferred. A government that could remain checked against abuses was one that honored the fiercely independent and freedom-loving nature of the colonies and one which would address the reasons for the revolution against Great Britain.

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government — the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration – or bill – of individual rights. As it turned out, and luckily for us as depositories of certain “inalienable rights” as well as civil rights (those belonging to individuals living in a society, subject to the rule of law), the lack of a Bill of Rights turned out to be an obstacle to the Constitution’s ratification by the states that could not be overcome. The Federalists opposed including a bill of rights on the ground that it was unnecessary. According to James Madison, a leading Federalist, a Bill of Rights was not necessary, arguing that because the general government was one of limited powers, having only those powers specifically delegated to it and none touching on individual rights. Besides, he said, a Bill of Rights would only create confusion (inferring that any other right or privilege not listed in the Bill of Rights would be fair game for federal regulation) and also, state governments could ensure these freedoms without the need for a federal mandate. The Anti-Federalists, who were afraid of a strong centralized government and knowing that history has clearly shown that governments tend to concentrate power and tend towards centralization and then tyranny/abuse, refused to support the Constitution without one.

At the close of the Philadelphia Convention, on September 20, 1787, the delegates left with mixed feelings about the document they drafted. Of the 55 delegates to the Convention, only 39 signed it.  Of the 16 that did not sign, some left early (for business, health reasons, family concerns, or out of protest) and some refused to sign out of protest. Some of the more important delegates (ie, position and/or influence in their states) who refused to sign were the following:  George Mason of Virginia (because it did not contain a Bill of Rights), Luther Martin of Maryland (because it violated states’ rights), John Mercer of Maryland (because it did not contain a Bill of Rights), Elbridge Gerry of Massachusetts (because it did not contain a Bill of Rights), John Lansing and Robert Yates, both of New York (because it created too strong of a government, which he characterized as much more “national” than “federal”), and Edmund Randolph of Virginia (because it contained insufficient checks and balances to prevent government abuse). Had some of our most active and influential founding fathers attended the Convention, there would have been far greater opposition to the final product. Those who refused to attend or who were unable to included: Patrick Henry (refused to attend, he “smelled a rat” who he believed would try to vest the common government with too much power), Richard Henry Lee (refused to attend because he too didn’t trust the motives of those who called it), Thomas Jefferson (was acting as Ambassador to France at the time, but offered to advise the delegates by correspondence), John Adams (was acting as Ambassador to Great Britain at the time), Samuel Adams (refused to attend because he rejected the purpose of the Convention) and John Hancock (refused to attend for the same reason as Sam Adams).

Many of those who refused to sign the Constitution vowed to fight its ratification at the state conventions – George Mason, Elbridge Gerry, the delegates from Maryland, Luther Martin and John Mercer, and the delegates from New York, John Lansing and Robert Yates. And some strong anti-Federalists who were not delegates at Philadelphia would oppose it as well –Richard Henry Lee, Sam Adams, John Hancock, James Monroe (Virginia), and New York’s Governor George Clinton (who wrote several anti-Federalist essays under the pen name “Cato”). Add to these “big guns” the biggest ones of all – Thomas Jefferson, who was as strong a proponent of a Bill of Rights as one could be, and Patrick Henry, perhaps our most vocal and passionate orator for liberty. Jefferson would have advised Madison to include one, and certainly would have taken issue with Madison’s position on the matter, even though he would have had to do so by correspondence. Perhaps that is the reason why Madison lapsed during the final days of the Convention in updating Jefferson as to the discussions and decisions made in the Convention. It wasn’t until a month after the Convention wrapped up, on October 24, that he finally wrote to him again and sent him a copy of the draft Constitution. We do know that as the debate intensified over a Bill of Rights, Jefferson wrote Madison with his strong opinion, including his letter of December 20, 1787, in which he wrote: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”   [The Appendix at the end of this article contains the full commentary in Jefferson’s letter relating to the lack of Bill of Rights in the new Constitution].

On September 28, 1787, the Confederation Congress (aka, Congress of the Confederation) advised the states to begin calling their ratifying conventions, and several did so immediately. Madison left the Philadelphia Convention uncertain what the outcome of the ratification process would be. The dissent by Edmund Randolph and George Mason, both from his home state, and then their refusal to attach their names to the Constitution weighed very heavily on his mind. As Kevin Gutzman pointed out in his book James Madison and the Making of America, the influence that those two men alone had in the overall ratification process potentially could more than counter the entire “unanimity” of the Convention.

As we will see, Madison not only played a leading role in bringing about the Philadelphia Convention (he and Alexander Hamilton orchestrated the report to the Confederation Congress – the Annapolis Report – which made the recommendation that a convention be called in May 1787 in Philadelphia to address the defects of the Articles of Confederation), but he also played a critical supporting role (through his writings) in the debates in the state ratifying conventions, and then a more formal role when ratification seemed to be doomed. The Constitution was “his baby” and he was going to do all he could to see it adopted and a stronger union created. [In September 1786, a conference was called in Annapolis, Maryland to discuss the state of commerce in the fledgling nation. The national government had no authority to regulate trade between and among the states. The conference was called by Virginia, at the urging of Madison, to discuss ways to facilitate commerce and establish standard rules and regulations. Only five of the 13 states sent any delegates at all].

Between November 20, 1787 and January 9, 1788, five states – Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut – ratified the Constitution with relative ease, although the bitter minority report of the Pennsylvania opposition was widely circulated. Despite overwhelming success with these early conventions, the Federalists were well aware of the difficulties that lay ahead. Massachusetts, New Hampshire, Virginia, and New York were still to come and they knew that North Carolina and Rhode Island weren’t going to sign. In other words, the difficult journey still lied ahead because the anti-Federalist (opponents of the proposed Constitution) were aggressively campaigning against ratification, six states were in doubt, and the magic number of 9 states (Article VII – when 9 states ratified the Constitution, it would take effect) might never be achieved.

In the month after the close of the Convention, Madison found himself in New York and with some time to spare. It didn’t look good; too many political heavyweights were lining up against ratification. New York was unlikely to approve the Constitution. When John Lansing and Robert Yates abandoned the Philadelphia Convention, as Gutzman wrote, “they said that they had not been sent to Philadelphia to replace the Confederation with a national government.” New York’s strongest political figure, its Governor, George Clinton, sided with Lansing and Yates. Alexander Hamilton, a delegate to the Convention from NY, advised Madison that the best way to improve the chances of ratification in his state was to appeal directly to the electorate through the newspapers. After all, several anti-Federalists were already writing articles and other publications criticizing the Constitution and condemning the ambitious government it believed it created.

In addition to the anti-Federalist essays written by Governor Clinton (“Cato”), there were other, also powerful, essays published to criticize the Constitution and to highlight its many flaws. There was “Brutus” from New York (likely Robert Yates or Melancton Smith, or maybe even John Williams), “Centinel” from Pennsylvania (Samuel Bryan), “Agrippa” from Massachusetts (James Winthrop), and the “Federal Farmer” from Virginia (most likely Richard Henry Lee, or maybe Mercy Otis Warren). The is no list to identify with certainty which individuals authored the essays. Agrippa published 11 Letters “To the people,” and 5 essays “To the Massachusetts Convention” by February 5. Brutus published 11 of his 16 essays, Cato published all of his 7 essays, Centinel published 14 of his 18 letters, and Federal Farmer published all of his 18 letters between October 1787 and the start of the Massachusetts ratifying convention, which was January 9, 1788. Much to the dismay of the Federalists, the flood of Anti-federalist essays were starting to have their impact on the electorate and on more importantly, on the election of delegates, and key conventions were yet to meet (namely, New York and Virginia).  In fact, in both those states, the majority of delegates selected would be anti-Federalists.

[New York would call for its convention on February 1, select its delegates from April 29 to May 3, and set its date for June 17. Virginia would select its delegates in March, and set a date of June 2 for its convention].

Alexander Hamilton, James Madison, and prominent NY figure, lawyer John Jay agreed to address the anti-Federalist campaign, convinced that rejection of the Constitution would condemn the states to an unworkable union. It is likely that Madison took charge from the beginning, laying out a theme or roadmap for the essays, making sure that the criticisms of the anti-federalists were addressed, making sure the provisions of the Constitution that were most contentious were addressed and effectively explained, and that the arguments in favor of the Constitution were made that he wanted. When Jay became very ill, the bulk of the essays would have to be split between Hamilton and Madison; Jay would only be able to write 3 essays. The three men responded to each and every one of the criticisms of the anti-Federalist, in essay form, under the pen name “Publius.” Beginning in October 1787, these men penned 85 essays for New York newspapers and later collected them into 2 volumes entitled The Federalist (later to be referred to as The Federalist Papers), which addressed each concern of the anti-Federalists, analyzed the Constitution, detailed the thinking of the framers, anticipated scenarios posed by the critics, and explained what each provision meant. The Federalist Papers gave assurances that the fears of the anti-Federalists were unfounded and mere speculation and conjecture. One reading the Federalist Papers would believe the federal government to be one of strict and limited powers and without any threat of overstepping or abusing its powers. Comparing the government explained in the Federalist Papers to the one today would be to compare a pea to a grapefruit.

In contrast to its predecessor states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), the Massachusetts convention was angry and contentious, and at one point, it erupted into a fistfight between Federalist delegate Francis Dana and anti-Federalist Elbridge Gerry when the latter was not allowed to speak. The impasse was resolved only when revolutionary heroes and leading anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments. In other words, Massachusetts’ ratification was a “conditional” one. [The convention’s proposed amendments included a requirement for grand jury indictment in capital cases, which would form part of the Fifth Amendment, and an amendment reserving powers to the states not expressly given to the federal government, which would later form the basis for the Tenth Amendment. Massachusetts’ Ratification is provided in the Appendix at the end of this article].

The next contentious convention would be in Virginia – in June.

At this point, I wanted to provide a timeline of the State Ratifying Conventions:

Timeline of State Ratifying Conventions:

Delaware – December 7, 1787 –  Delaware ratified the Constitution, 30-0.  [http://teachingamericanhistory.org/library/document/delaware-ratifies-30-0/ ]

Pennsylvania – December 12, 1787 – Pennsylvania ratified, 46-23.  [http://teachingamericanhistory.org/library/document/pennsylvania-ratifies-46-23/ ]

New Jersey – December 18, 1787 –  New Jersey ratified, 38-0.  [http://teachingamericanhistory.org/library/document/new-jersey-ratifies-38-0/ ]

Georgia – December 31, 1787 – Georgia ratified, 20-0.  [http://teachingamericanhistory.org/library/document/georgia-deed-of-ratification/ ]

Connecticut – January 9, 1787 –  Connecticut ratified 128-40.  [http://teachingamericanhistory.org/library/document/connecticut-ratifies-128-40/]  

Massachusetts – February 6, 1788 – The delegates to the Massachusetts Ratifying Convention were split on whether to ratify the Constitution or reject it, and so they came up with a compromise.  The high road explanation is that responsible leaders from both parties, including Adams and Hancock, convened and said, “Look, we’ve been at this now for nearly a month. We’re not making any progress whatsoever. The country is in crisis and if Massachusetts doesn’t sign, then we’re down the tubes. Is there some way we can come to some common ground on this?” And the common ground was that Massachusetts would ratify now with an expectation that in the First Congress amendments would be proposed to alter the Constitution. This is known as the Massachusetts Compromise. And enough people bought into it because Hancock bought into it, that it swayed enough delegates to ensure ratification. So the high ground is the sense of crisis, the sense of duty, the sense of Hamilton‘s remark in Federalist 85 that states would be better off signing quickly and working within the system, and that sense that Massachusetts had a responsibility to step up and take the lead. Ultimately, the Massachusetts Ratifying Convention ratified 187-168 with 9 proposed amendments – again with the understanding and expectation that a Bill of Rights would be added.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

New Hampshire – February 14, 1788  – A majority of the delegates to the New Hampshire Ratifying Convention were opposed to ratification, and so the delegates to the convention voted to postpone until June 18, at which time they would take up the issue of ratification again.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

Rhode Island – March 24, 1788 – Rhode Island rejected the call for a state ratifying convention; the state had no intention of even considering a new constitution.

Maryland – April 26, 1788 – Maryland ratified 63-11.   [http://teachingamericanhistory.org/ratification/stagefour/#maryland ]

South Carolina – May 23, 1788 – South Carolina ratified, 149-73, with 5 Declarations and Resolves.  [http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

New Hampshire – June 21, 1788 – New Hampshire ratified 57-47, with 12 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

Virginia – June 25, 1788 –  Virginia ratified 89-79, with 20 Bill of Rights and 20 proposed amendments.  [http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

On July 2, 1788, the Confederation Congress (still under the Articles of Confederation at the time), adopted the ratification of the US Constitution. The old union (13 colonies-turned-states) was dissolved at that point and a new union, comprising the states that had ratified up until this point (DE, PA, NJ, GA, CT, MA, NH, MD, SC, and VA) was formed.

New York – July 25-26, 1788 – New York ratified on July 26, after debating the day before whether to ratify with amendments or not. It ratified by a slim margin, 30-27, with 25 Bill of Rights and 31 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].  The first three Bill of Rights read:

(1)  That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

(2)  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

(3)  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [= “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

(4)  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

(5)  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

North Carolina – August 2, 1788 – North Carolina voted 184-84 against ratification.  [http://teachingamericanhistory.org/ratification/elliot/vol4/northcarolina0802/ ]

On September 13, 1788, the Confederation Congress prepared for the new government to take its place. On January 7, 1789, presidential electors were selected, and on February 4, the first election was held to select representatives to the new government under the US Constitution. The candidates receiving the top votes for president were George Washington and John Adams, and so they became the country’s first president and vice-president, respectively. James Madison was elected to the first US Congress from the state of Virginia. The first US Congress was inaugurated on March 4, and finally, on March 30, Washington was inaugurated. He delivered what would become one of the most memorable and often-cited Inaugural addresses.

The first government created by the US Constitution was installed.

North Carolina – November 21, 1789 –  North Carolina ratified 194-77, with 20 Bill of Rights and 21 proposed amendments

Rhode Island – May 29, 1790 –  Rhode Island ratified 34-32, with 18 Bill of Rights and 21 proposed amendments.  [Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

***  Timeline of Ratification of the US Constitution, Reference:  http://teachingamericanhistory.org/bor/timeline/.  By clicking on the State Ratifying Convention, you can pull up the debates, the votes, and the proposed amendments associated with each state’s vote.  Also, I have included, in the Appendix at the end of this article, the proposed Bill of Rights and/or proposed amendments proposed by the certain states in their ratifications].

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Having co-written The Federalist Papers to help secure ratification in New York, James Madison left the state for Virginia, to take up the battle there. [The Virginia Convention would be held before the New York Convention, two weeks before, but as it turned out, they would continue simultaneously].  Back in Virginia, Madison would have to face Patrick Henry, George Mason, Edmund Randolph, James Monroe, Richard Henry Lee (one-time president of the Continental Congress) and William Grayson (VA representative in the Continental Congress). George Mason had authored the 1776 Virginia Declaration of Rights and the state constitution (chief author, at least) so he would clearly be a forceful authority on the necessity of a Bill of Rights. Mason and Lee would mount the most strenuous opposition to the proposed Constitution, in favor of amending it to include a Bill of Rights. Patrick Henry would oppose it on states’ rights grounds as well. He urged that Virginia hold out for amendments.

Virginia elected its delegates to the Convention in March 1788, and many men – many prominent men – ran for a seat. Interestingly, some of the more prominent men who chose not to run, or who did not win, included George Washington, Thomas Jefferson, Beverley Randolph, Richard Henry Lee, and a few others. The most prominent men who were elected included James Madison, Patrick Henry, George Mason, Governor Edmund Randolph, James Monroe, William Grayson, Edmund Pendleton, George Wythe, George Nicholas, former VA Governor Benjamin Harrison V, and John Marshall (who would go on to become our most influential Supreme Court Chief Justice). Of the 168 delegates, the majority were anti-Federalists.

In his book James Madison and the Making of America, Gutzman goes into detail with respect to Mason’s objections to the proposed Constitution. He wrote:

On October 7, Mason sent a letter to [George] Washington including his objections to the Constitution. An amended version of notes he had made during the Philadelphia Convention, this document essentially repeated complaints Mason had raised then: There was no Declaration of Rights, and the Supremacy Clause meant state declarations would be unavailing; the House was too small; the Senate had money powers, although it did not represent the people; the combination of legislative and executive powers in the Senate endangered liberty’ the federal judiciary would swallow up the state judiciaries and thus allow the rich to oppress the poor; the president lacked an executive council, which meant he would be led by the Senate; and the vice-president, in limbo between the Senate and the executive branch, was a dangerous personage – besides which he would give one state three Senate votes, which was unfair.

In addition to these objections, Mason also went public with his Philadelphia Convention prediction that the Commerce Clause would empower the eight northern states to abuse the five southern ones. There would be a tendency for Congress to read almost anything into the Necessary & Proper Clause, which threatened both states’ rights and individuals’ rights.  [James Madison and the Making of America, pg. 189]

Virginia’s Convention met from June 2 – June 27. The Convention would end up pitting Patrick Henry against James Madison, with the former spending much more time on the floor speaking.  Henry was Madison’s most formidable antagonist in the ratification fight.  Henry was perhaps our most passionate founding father, being known for his fiery speeches and his imagery. He was the voice of the revolution. As Gutzman wrote: “He was the great guardian of Virginians’ self-government and inherited rights. He was also an orator without parallel, one who could cause hair to stand up on the necks even of his most devout opponents.”  He did not disappoint at the Convention.

On June 8, he took to the floor to accuse the proposed government created by the Constitution of being a consolidated one. His position was that a confederated government (under the Articles) was being replaced by a consolidated government. He objected to the introductory phrase “We the People…,” claiming that it conjured up the notion that the government would be a consolidated national one. He wanted the language changed to “We the States…”  In his speech that day, he said:

“It is said eight States have adopted this plan. I declare that if twelve States and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government. Having premised these things, I shall, with the aid of my judgment and information, which, I confess, are not extensive, go into the discussion of this system more minutely. Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings-give us that precious jewel, and you may take every thing else: But I am fearful I have lived long enough to become an fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined, enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American: But suspicions have gone forth-suspicions of my integrity-publicly reported that my professions are not real. 23 years ago was I supposed a traitor to my country; I was then said to be the bane of sedition, because I supported the rights of my country: I may be thought suspicious when I say our privileges and rights are in danger.”

One of the more contentious days came on June 24; the Convention was winding down. George Wythe opened the day’s proceedings with a speech in favor of ratifying the Constitution before amending it. Madison followed, emphasizing many of the same themes he and Hamilton and Jay had addressed in The Federalist essays. Just as the elderly Benjamin Franklin had urged his fellow delegates in Philadelphia to quit their bickering and work together for the greater good at, Madison essentially tried to make the same point in Richmond. As to the position that amendments should be added before Virginia ratified, Madison argued that it was unreasonable. He didn’t think it was reasonable to expect the other states (eight of them) to retract their unconditional ratifications in order to accommodate Virginia’s demand that the Constitution be first amended, and particularly to include a Bill of Rights. Up until that point, Madison had remained relatively quiet at the Convention. And even when he spoke, he came across as meek. But he was never one to project very well. When he spoke on the 24th, it was in a strained, quiet tone. But he spoke articulately and rationally, and he addressed the many concerns of the anti-Federalists.

When he concluded, he yielded the floor to Henry. From Gutzman’s book:

An account given by Federalist Archibald Stuart proves the point. Henry concluded his speech by calling attention to ‘the awful dangers” attendant upon their vote. “I see beings of a higher order, Henry thundered, “anxious concerning our decision.”  “Our own happiness alone is not affected by the event – All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race….”    [James Madison and the Making of America, pg. 233]

The Convention was getting ready to take a vote when an obscure delegate endorsed Patrick Henry’s call for a list of amendments. “The delegate said that he could not vote for ratification until he was assured that amendments protecting Virginians’ historic rights would be recommended. Madison answered that he would not oppose any ‘safe’ amendments (but continued to assert that he believed it unnecessary, and perhaps even dangerous.’” [Ibid, pg. 235]

Ultimately, on June 25, the delegates voted against first proposing amendments to the other states prior to Virginia’s ratification (ie, having the other states recall their unconditional ratification and re-consider ratification after amendments were added) and voted 89-79 in favor of ratification, with proposed amendments.  On June 27, the Convention adopted a set of 40 proposed amendments. A committee, headed by law professor George Wythe, drafted the amendments – 20 enumerated individual rights (Bill of Rights) and the other 20 enumerated states’ rights. The amendments were forwarded to the Confederation Congress. [Virginia’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

While there were delegates at several conventions who supported an “amendments before” approach to ratification, it soon shifted to an “amendments after” for the sake of trying to hold the Union together. Ultimately, only North Carolina and Rhode Island waited for amendments from Congress before ratifying.

Four days prior to the conclusion of the Virginia Convention, on June 21, 1788, New Hampshire ratified the Constitution. What makes that date special is that when New Hampshire ratified, with its 12 proposed amendments, the required number of state ratifications, according to Article VII of the Constitution, had been met to establish the Constitution. [Article VII – “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”} The Constitution would become operational. A new union (comprised of those states that had ratified) was created and the new frame of government would be established.

The New York ratification convention met on June 17, 1788, while the Virginia Convention was still debating ratification. As with Virginia, a majority of its 67 delegates were anti-Federalists. (The New York Convention would last over month – from June 17 until July 26). On the opening day, the anti-Federalists, led by Governor Clinton, clamored for a Bill of Rights and fought to preserve the autonomy of the state against what it believed were actual and potential federal encroachments. Hamilton (the only NY delegate to the Philadelphia Convention to sign the Constitution) and the Federalists, on the other hand, contended that a stronger central government would provide a solid base from which New York could grow and prosper. While the debates were contentious, the Federalists were ultimately successful and on July 26, the Constitution was ratified by a very slim margin, 30-27, but with 25 Bill of Rights and 31 proposed amendments. The Convention also voted to call for a second federal convention.  [New York’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

On September 13, 1788, the Articles of Confederation Congress certified that the new Constitution had been ratified by more than enough states for the new system to be implemented and directed the new government to meet in New York City on the first Wednesday in March the following year. On March 4, 1789, the new frame of government came into force with eleven of the thirteen states participating – and without a Bill of Rights.

Opposition to the new Constitution among leading Virginians lingered. It would continue to be a thorn in James Madison’s ass…  the man who deceived the states into sending delegates to Philadelphia believing they were tasked with proposing amendments to the Articles of Confederation (when all along, he wanted them to take up the issue of an all-new scheme of government – his scheme, the “Virginia Plan”), the man who thought his scheme had finally been realized, and the man who supposedly held that “not a letter of the Constitution” should be altered.

After Virginia’s ratification and New York’s ratification, the future of the Constitution, as ratified, was not certain.  New York wanted to call another federal convention (to amend the new Constitution?  To get rid of the new Constitution?) and several powerful Virginians, with Patrick Henry taking the lead, seemed likely to move for the same.

As fate would have it, Madison set his sights on the US Senate. But there was one problem for him – the Constitution (pre-17th Amendment) empowered the state legislatures to elect senators, but the VA state legislature (VA General Assembly) was comprised of many enemies he had made in his efforts to deceive the states at the Philadelphia Convention, to write the Constitution, and to secure its ratification, including the great Patrick Henry. And Henry and his fellow anti-Federalists got the chance to get even: in its selection of Senators,  the legislature chose Richard Henry Lee and William Grayson.

Both Richard Henry Lee and William Grayson agreed with Patrick Henry that the Constitution should have been amended to include a Bill of Rights (at the least) before it was ratified. Both, it seems, would favor a second convention.

Madison, at this point, was warming somewhat to the notion of amendments, but it’s not sure if he was warming because he agreed that a Bill of Rights is essential to limit powers of government or if he was just nervous that the issue might be the one to sink his Constitution. One thing is for certain though, he would have rather the Constitution be amended by the first option in Article V (amendments proposed by Congress and then sent to the states for adoption) than by a second convention (the second option in Article V; a convention of states). Kevin Gutzman addressed this in his book:

For one thing, some states would oppose a convention so strongly that they would reflexively oppose any amendment it might propose. For another, it would be easier to have Congress propose amendments than to follow the process in Article V of the Constitution for convening another meeting like the one at Philadelphia. Finally, another convention would include members with extreme views on both ends of the political spectrum, enflame the public mind, and produce nothing conductive to the general good. He had seen how the first convention had worked, and he did not want to hazard a second – which, too, would undermine the impression of the American republic’s stability left in European capitals by the success of the recent ratification campaign.  [James Madison and the Making of America, pg. 241]

Defeated in his bid for the US Senate, Madison decided to stand for the House of Representatives. But again, he would be at the mercy of his nemesis, Patrick Henry. Henry wielded power in the General Assembly, and that power included the ability to draw congressional districts. To spite Madison, he helped draw a map that put Montpelier (Madison’s home) in the same district as James Monroe’s house. In the Richmond Convention, Monroe had aligned himself with Henry, Mason, and Grayson and had voted “nay” on the vote for ratification. “Because Monroe had been an authentic hero in the revolution – suffering a significant wound in Washington’s great victory at Trenton – and had established a respectable legislative record in both Virginia and in the Congress of the Confederation, his opposition would be formidable.” [Ibid, pg. 241]

Madison campaigned against Monroe, and due to the contentious issue of the Constitution lacking a Bill of Rights, Madison softened on the issue of adding amendments. Perhaps all the letters that Jefferson sent him at this time emphasizing the need for a Bill of Rights had something to do with it.  “If pursued with a proper moderation and in a proper mode [meaning that the First Congress would propose amendments for the states’ approval, per Article V], they would serve the double purpose of satisfying the minds of well-meaning opponents and of providing additional guards in favor of liberty.”  [Ibid, pg. 242].  Taking Madison at his word and believing him to be a man of his word, voters selected him over Monroe for the US House of Representatives.

On March 4, 1789, the first US Congress was seated, in New York City’s Federal Hall. The first thing to do was to organize itself. On April 1, the House of Representatives elected its officers, and the Senate did the same on April 6. Also on the 6th, the House and Senate met in joint session and counted the Electoral College ballots for the selection of president. George Washington was certified as president (having been unanimously selected) and John Adams as vice president.

On April 30, 1789, George Washington was inaugurated as the nation’s first president, also at Federal Hall, delivering the Inaugural Address that James Madison had written for him. In that message, Washington addressed the subject of amending the Constitution. He urged the legislators:

“Whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted…..”

Madison knew that as long as the concerns of the anti-Federalists regarding the Constitution remained unaddressed, the threat of a new convention would remain, and so he would take the initiative to propose amendments (comprising a Bill of Rights) himself.  By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo  the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, “The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty.” He also felt that amendments guaranteeing personal liberties would “give to the Government its due popularity and stability.” Finally, he hoped that the amendments “would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.” [Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, “Bill of Rights—useful—not essential—”].  (see Wikipedia)

On June 8, Madison introduced a series of Constitutional amendments in the House of Representatives for consideration. Among his proposals was one that would have added introductory language stressing natural rights to the Preamble. Another would apply parts of the Bill of Rights to the states as well as the federal government. Several sought to protect individual personal rights by limiting various Constitutional powers of Congress. He urged Congress to keep the revision to the Constitution “a moderate one,” limited to protecting individual rights.

Madison was deeply read in the history of government and used a range of sources in composing the amendments. The English Magna Carta inspired the right to petition and to trial by jury, for example, while the English Bill of Rights of 1689 provided an early draft for the right to keep and bear arms and also for the right against cruel and unusual punishment.

The greatest influence on Madison’s text, however, was existing state constitutions, and especially Virginia’s. Many of his amendments, including his proposed new preamble, were based on the Virginia Declaration of Rights, which were drafted in 1776 by another great nemesis, anti-Federalist George Mason. To reduce future opposition to ratification, Madison also looked for recommendations shared by many states. He did provide one, however, that no state had specifically requested: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” He did not include an amendment that every state had asked for, one that would have made tax assessments voluntary instead of contributions. Madison’s proposed the following constitutional amendments:

First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: “The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;” and in place thereof be inserted these words, to wit: “After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.”

Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: “But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.”

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit: But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.

[References:  See the Appendix, at the end of this article, for James Madison’s Speech in the House of Representatives, June 8, 1789, proposing a Bill of Rights, and also see Wikipedia: “United States Bill of Rights”].

The House passed a joint resolution containing 17 amendments based on Madison’s proposal. The Senate changed the joint resolution to consist of 12 amendments and rejected Madison’s suggestions for the Preamble. A joint House and Senate Conference Committee settled remaining disagreements in September. On October 2, 1789, President Washington sent copies of the 12 amendments adopted by Congress to the states. Again, the states would have to call up conventions – this time to debate and ratify the proposed amendments.

In the meantime, North Carolina finally ratified the Constitution, 194-77, with 20 Bill of Rights and 21 proposed amendments. She remained true to her principles – that she would not ratify a constitution without a Bill of Rights included.  Note that while North Carolina was second to last to ratify the Constitution, she was third to ratify the Bill of Rights, on December 22, 1789).

On December 15, Virginia was the eleventh state to adopt the amendments. Having been adopted by the requisite three-fourths of the several states (there being 14 States in the Union at the time, as Vermont had been admitted into the Union on March 4, 1791), the ratification of Articles Three through Twelve was completed and they became Amendments 1 through 10 of the Constitution – also known as our US Bill of Rights. President Washington informed Congress of this on January 18, 1792.

The original First and Second amendments fell short of the required 3/4 majority to make it into the Constitution, but interestingly, the original proposed second amendment (which addressed when Congress can change its pay) finally was adopted in 1992 to become our last amendment, the 27th amendment.

Note that the US Bill of Rights applies only to action by the federal government. It places limits only on its power. As most of you may know from your state constitutions, states have included similar guarantees of liberty of their own. Article I of the North Carolina State Constitution, for example, lists the NC Bill of Rights. The 14th Amendment has been mis-applied to incorporate all guarantees of rights and privileges on the states, and in fact, the 14th amendment, even though it was never constitutionally ratified, is the number one basis for all constitutional challenges.

It is a shame that the cartoon depiction of the Bill of Rights attached leaves off the 9th and 10th Amendments. The 9th Amendment states that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And the 10th Amendment states that all powers not expressly delegated to the federal government by the Constitution nor prohibited by it to the states are reserved to the states or to the people. These amendments underscore the unique foundation of American liberty – that government is not the ultimate sovereign and individuals enjoy only those rights and privileges the government is generous enough to grant them. In America, rights are endowed on each individual by the Creator, inseparable from our very humanity, and government power derives from the natural and inherent right of each person to govern himself and to protect himself, his family, and his property. This is the concept of Individual Sovereignty referred to in the Declaration of Independence, the document that provides the foundational principles, the rights, and expectations for each State in this Union (despite what the federal government might say). It is the document that recognized each state as an independent sovereign for the world to take note; it is the document for which the Treaty of Paris of 1783 addressed to end the war for American Independence. The treaty included this provision: “Britain acknowledges the United States (New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia[15]) to be free, sovereign, and independent states…..

James Madison wrote: “In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.”

I urge everyone to take time today and read the Bill of Rights and understand what each guarantees and why. After all, they protect your most essential liberty rights.

 

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References:

Kevin R.C. Gutzman, James Madison and the Making of America; St. Martin’s Press (NY), 2012.

Gordon Lloyd, “The Bill of Rights,” Teaching American History. Referenced at:  http://teachingamericanhistory.org/bor/roots-chart/

The Six Stages of Ratification – Stage III: Winter in New England: Postpone and Compromise (Massachusetts – February 6, 1788 and New Hampshire (postpones) – February 24, 1788) –http://teachingamericanhistory.org/ratification/stagethree/

Report of the House Select Committee, July 28, 1789 –  http://teachingamericanhistory.org/library/document/report-of-the-house-select-committee/

House Debates Select Committee Report, August 13-24, 1789 –  http://teachingamericanhistory.org/library/document/house-debates-select-committee-report/

Ratification of the Constitution, State-by-State –  http://teachingamericanhistory.org/ratification/overview/

US Constitution, Virginia’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) –   https://www.usconstitution.net/rat_va.html

Day-to-Day Summary of the Virginia Ratifying Convention  –   http://teachingamericanhistory.org/ratification/virginiatimeline/   OR  http://teachingamericanhistory.org/ratification/virginia/

US Constitution, New York’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) – https://www.usconstitution.net/rat_ny.html

Day-to-Day Summary of the New York Ratifying Convention  –  http://teachingamericanhistory.org/ratification/newyorktimeline/     OR:  http://teachingamericanhistory.org/ratification/newyork/

The Debates in the Several State Ratifying Conventions (Elliott’s Debates) – http://teachingamericanhistory.org/ratification/elliot/   [On this site, you can click on links for the following state conventions and it will bring you to calendars so you can see what they did on a day-by-day basis: Massachusetts, Connecticut, New Hampshire, New York, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina]

James Madison Proposes a Bill of Rights to Congress, June 8, 1789) – http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php

United States Bill of Rights,” Wikipedia.  https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Patrick Henry’s Speech at the Virginia Ratifying Convention, June 8, 1788 – http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php

Letter from Thomas Jefferson to James Madison, dated December 20, 1787, Founders Online –  https://founders.archives.gov/documents/Jefferson/01-12-02-0454

Chart: Approval of the Bill of Rights in Congress and the States — https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

 

APPENDIX #1  (Letter from Thomas Jefferson to James Madison, dated December 20, 1787, on the topic of the new Constitution and the lack of a Bill of Rights)

“…….I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the Constitution proposed by our Convention. I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes; and for that reason solely approve of the greater house being chosen by the people directly. For though I think a house chosen by them will be very ill-qualified to legislate for the Union, for foreign nations etc. yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states….  There are other good things of less moment. I will now add what I do not like. First 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 triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”

[Reference:  https://founders.archives.gov/documents/Jefferson/01-12-02-0454 ]

 

APPENDIX #2  (James Madison’s Speech in Congress, June 8, 1789, proposing a Bill of Rights)

I am sorry to be accessary to the loss of a single moment of time by the house. If I had been indulged in my motion, and we had gone into a committee of the whole, I think we might have rose, and resumed the consideration of other business before this time; that is, so far as it depended on what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several States, conformably to the 5th article of the constitution.

I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if congress will devote but one day to this subjects, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.

It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in, that we have seen prevailing [in] those states which are.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.

There have been objections of various kinds made against the constitution: Some were levelled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by congress to the state legislatures are these:

First. That there be prefixed to the constitution a declaration–That all power is originally vested in, and consequently derived from the people. That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 2st. section 2, clause 3, these words be struck out, to wit, “The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made.” And that in place thereof be inserted these words, to wit, “After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto.”

Thirdly. That in article 2st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, “But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives.”

Fourthly. That in article 2st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 2st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That article 3d, section 2, be annexed to the end of clause 2d, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to___dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the classes following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.  The first of these amendments, relates to what may be called a Bill of Rights; I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the government and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of perhaps by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find the although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a Bill of Rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a Declaration of the Rights of the people.

In the next place I wish to see that part of the constitution revised which declares, that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the state conventions, and even in the opinion of the friends to the constitution, an alteration here is proper. It is the sense of the people of America, that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them, below that proportion which certainly is in the power of the legislature as the constitution now stands; and they may, as the population of the country increases, increase the house of representatives to a very unwieldy degree. I confess I always thought this part of the constitution defective, though not dangerous; and that it ought to be particularly attended to whenever congress should go into the consideration of amendments.

There are several lesser cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the legislature to ascertain its own emolument is one to which I allude. I do not believe this is a power which, in the ordinary course of government, is likely to be abused, perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone therefore so far as to fix it, that no law, varying the compensation, shall operate until there is a change in the legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, etc.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the supreme court of the United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal shall be made unless the matter in controvers amounts to a particular sum:

This, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the constitution.

I find, from looking into the amendments proposed by the state conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated, should be reserved to the several states. Perhaps words which may define this more precisely, than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentlemen will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving, that a committee be appointed to consider of and report such amendments as ought to be proposed by congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the Constitution of the United States. By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the house. I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.

[Reference:  http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php ]

 

APPENDIX #3  (STATE RATIFICATIONS):

I.  NEW YORK RATIFICATION (on July 26, 1788), with 25 Bill of Rights:

WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common—wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known.

— That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

—  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

—  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

—  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

—  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

—  That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.

—  That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

—  That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.

—  That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.

—  That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.

—  That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.

—  That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.

—  That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment or Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of such Jury. But in cases of Crimes not committed within any County of any of the United States, and in Cases of Crimes committed within any County in which a general Insurrection may prevail, or which may be in the possession of a foreign Enemy, the enquiry and trial may be in such County as the Congress shall by Law direct; which County in the two Cases last mentioned should be as near as conveniently may be to that County in which the Crime may have been committed. And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witnesses against him, to have the means of producing his Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evidence against himself.

—  That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.

—  That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

—  That the People have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances.

—  That the Freedom of the Press ought not to be violated or restrained.

—  That there should be once in four years an Election of the President and Vice President, so that no Officer who may be appointed by the Congress to act as President in case of the removal, death, resignation or inability of the President and Vice President can in any case continue to act beyond the termination of the period for which the last President and Vice President were elected.

—  That nothing contained in the said Constitution is to be construed to prevent the Legislature of any State from passing Laws at its discretion from time to time to divide such State into convenient Districts, and to apportion its Representatives to and amongst such Districts.

—  That the Prohibition contained in the said Constitution against ex post facto Laws, extends only to Laws concerning Crimes.

—  That all Appeals in Causes determineable according to the course of the common Law, ought to be by Writ of Error and not otherwise.

—  That the Judicial Power of the United States in cases in which a State may be a party, does not extend to criminal Prosecutions, or to authorize any Suit by any Person against a State.

—  That the Judicial Power of the United States as to Controversies between Citizens of the same State claiming Lands under Grants of different States is not to be construed to extend to any other Controversies between them except those which relate to such Lands, so claimed under Grants of different States.

—  That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;

—  And That no Treaty is to be construed so to operate as to alter the Constitution of any State.

Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which shall have been proposed to the said Constitution will receive an early and mature Consideration: We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution. In full Confidence nevertheless that until a Convention shall be called and convened for proposing Amendments to the said Constitution, the Militia of this State will not be continued in Service out of this State for a longer term than six weeks without the Consent of the Legislature thereof; — that the Congress will not make or alter any Regulation in this State respecting the times places and manner of holding Elections for Senators or Representatives unless the Legislature of this State shall neglect or refuse to make Laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the Legislature of this State shall make provision in the Premises; — that no Excise will be imposed on any Article of the Growth production or Manufacture of the United States, or any of them within this State, Ardent Spirits excepted; And that the Congress will not lay direct Taxes within this State, but when the Monies arising from the Impost and Excise shall be insufficient for the public Exigencies, nor then, until Congress shall first have made a Requisition upon this State to assess levy and pay the Amount of such Requisition made agreeably to the Census fixed in the said Constitution in such way and manner as the Legislature of this State shall judge best, but that in such case, if the State shall neglect or refuse to pay its proportion pursuant to such Requisition, then the Congress may assess and levy this States proportion together with Interest at the Rate of six per Centum per Annum from the time at which the same was required to be paid.

[Reference:  http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].

 

II.  VIRGINIA RATIFICATION (June 25, 1788), with 20 Bill of Rights and 20 proposed amendments:

Ratification of the Constitution by the State of Virginia, June 26, 1788. Virginia ratified the Constitution in two steps. The first was the declaration of ratification. The second was a recommendation that a bill of rights be added to the Constitution, and that a list of amendments also be added in accordance with Article 5.  [Reference: https://www.usconstitution.net/rat_va.html ]

Step 1:

WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of New York and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification.

Step 2:  Virginia, do by these presents assent to, and ratify the Constitution recommended on the seventeenth day of September, one thousand seven hundred and eighty seven (September 17, 1787), by the Federal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:

Wythe reported, from the Committee appointed, such amendments to the proposed Constitution of Government for the United States, as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the fifth article thereof; and he read the same in his place, and afterwards delivered them in at the clerk’s table, where the same were again read, and are as follows:

That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people in some such manner as the following:

1st. That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That the Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive to the good and happiness of mankind.

4th. That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections, in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property; all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the exercise of religion according to the dictates of conscience, and that no particular sect or society ought to be favored or established by law in preference to others.

[References:  https://www.usconstitution.net/rat_va.html  and http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

 

III.  MASSACUSETTS RATIFICATION (“Conditional Ratification,” February 6, 1788), with 9 proposed amendments:

The Convention have impartially discussed, and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the twenty fifth day of October last past, and acknowledging with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the People of the United States in the course of his providence an opportunity deliberately and peaceably without fraud or surprise of entering into an explicit and solemn Compact with each other by assenting to and ratifying a New Constitution in order to form a more perfect Union, establish Justice, insure Domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of Liberty to themselves and their posterity; Do in the name and in behalf of the People of the Commonwealth of Massachusetts assent to and ratify the said Constitution for the United States of America.

And as it is the opinion of this Convention that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth and more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.

Secondly, That there shall be one representative to every thirty thousand persons according to the Census mentioned in the Constitution until the whole number of the Representatives amounts to Two hundred.

Thirdly, That Congress do not exercise the powers vested in them by the fourth Section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned or shall make regulations subversive of the rights of the People to a free and equal representation in Congress agreeably to the Constitution.

Fourthly, That Congress do not lay direct Taxes but when the Monies arising from the Impost and Excise are insufficient for the public exigencies nor then until Congress shall have first made a requisition upon the States to assess levy and pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution; in such way and manner as the Legislature of the States shall think best, and in such case if any State shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such State’s proportion together with interest thereon at the rate of Six per cent per annum from the time of payment prescribed in such requisition.

Fifthly, That Congress erect no Company of Merchants with exclusive advantages of commerce.

Sixthly, That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government and regulation of the Land and Naval forces.

Seventhly, The Supreme Judicial Federal Court shall have no jurisdiction of Causes between Citizens of different States unless the matter in dispute whether it concerns the realty or personally be of the value of three thousand dollars at the least. nor shall the Federal Judicial Powers extend to any actions between Citizens of different States where the matter in dispute whether it concerns the Realty or personally is not of the value of Fifteen hundred dollars at the least.

Eighthly, In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it.

Ninthly, Congress shall at no time consent that any person holding an office of trust or profit under the United States shall accept of a title of Nobility or any other title or office from any King, prince or Foreign State.

And the Convention do in the name and in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress at all times until the alterations and provisions aforesaid have been considered agreeably to the Fifth article of the said Constitution to exert all their influence and use all reasonable and legal methods to obtain a ratification of the said alterations and provisions in such manner as is provided in the said Article.

[Reference:  http://teachingamericanhistory.org/library/document/massachusetts-ratifies-187-168-with-9-proposed-amendments/ ]

 

 IV.  SOUTH CAROLINA RATIFICATION (May 23, 1788), with 5 Declarations and Resolves

And Whereas it is essential to the preservation of the rights reserved to the several states, and the freedom of the people under the operations of a General government that the right of prescribing the manner time and places of holding the Elections to the Federal Legislature, should be forever inseparably annexed to the sovereignty of the several states. This convention doth declare that the same ought to remain to all posterity a perpetual and fundamental right in the local, exclusive of the interference of the General Government except in cases where the Legislatures of the States, shall refuse or neglect to perform and fulfil the same according to the tenor of the said Constitution.

This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.

Resolved that the general Government of the United States ought never to impose direct taxes, but where the monies arising from the duties, imposts and excise are insufficient for the public exigencies nor then until Congress shall have made a requisition upon the states to Assess levy and pay their respective proportions of such requisitions And in case any state shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such state’s proportion together with Interest thereon at the rate of six per centum per annum from the time of payment prescribed by such requisition

Resolved that the third section of the Sixth Article ought to be amended by inserting the word “other” between the words “no” and “religious,”

Resolved that it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the general Government to exert their utmost abilities and influence to effect an Alteration of the Constitution conformably to the foregoing Resolutions.

Done in Convention the twenty third day of May in the year of our Lord One thousand Seven hundred and eighty eight and of the Independence of the United States of America the twelfth

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

 

V.  NEW HAMPSHIRE RATIFICATION (June 21, 1788), with 12 proposed amendments:

In Convention of the Delegates of the People of the State of New—Hampshire June the Twenty first 1788.

The Convention having Impartially discussed and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America & submitted to us by a Resolution of the General Court of said State passed the fourteenth Day of December last past and acknowleging with grateful Hearts the goodness of the Supreme ruler of the Universe in affording the People of the United States in the Course of his Providence an Opportunity, deliberately & peaceably without fraud or surprise of entering into an Explicit and solemn compact with each other by assenting to & ratifying a new Constitution in Order to form a more perfect Union, establish Justice, Insure domestic Tranquility, provide for the common defence, promote the general welfare and secure the Blessings of Liberty to themselves & their Posterity—Do In the Name & behalf of the People of the State of New—Hampshire assent to & ratify the said Constitution for the United States of America. And as it is the Opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good People of this State & more Effectually guard against an undue Administration of the Federal Government— The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.—

First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.—

Secondly, That there shall be one Representative to every Thirty thousand Persons according to the Census mentioned in the Constitution, until the whole number of Representatives amount to Two hundred.—

Thirdly, That Congress do not Exercise the Powers vested in them, by the fourth Section of the first Article, but in Cases when a State shall neglect or refuse to make the Regulations therein mentioned, or shall make regulations Subversive of the rights of the People to a free and equal Representation in Congress. Nor shall Congress in any Case make regulations contrary to a free and equal Representation.—

Fourthly, That Congress do not lay direct Taxes but when the money arising from Impost, Excise and their other resources are insufficient for the Public Exigencies; nor then, untill Congress shall have first made a Requisition upon the States, to Assess, Levy, & pay their respective proportions, of such requisitions agreeably to the Census fixed in the said Constitution in such way & manner as the Legislature of the State shall think best and in such Case if any State shall neglect, then Congress may Assess & Levy such States proportion together with the Interest thereon at the rate of six per Cent per Annum from the Time of payment prescribed in such requisition—

Fifthly. That Congress shall erect no Company of Merchants with exclusive advantages of Commerce.—

Sixthly, That no Person shall be Tried for any Crime by which he may incur an Infamous Punishment, or loss of Life, until he first be indicted by a Grand Jury except in such Cases as may arise in the Government and regulation of the Land & Naval Forces.—

Seventhly, All Common Law Cases between Citizens of different States shall be commenced in the Common Law—Courts of the respective States & no appeal shall be allowed to the Federal Court in such Cases unless the sum or value of the thing in Controversy amount to three Thousand Dollars.—

Eighthly, In Civil Actions between Citizens of different States every Issue of Fact arising in Actions at Common Law shall be Tried by Jury, if the Parties, or either of them request it—

Ninthly, Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.—

Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent—of the Owners.—

Eleventh, Congress shall make no Laws touching Religion, or to infringe the rights of Conscience—

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.—

And the Convention Do. In the Name & behalf of the People of this State enjoin it upon their Representatives in Congress, at all Times untill the alterations and provisions aforesaid have been Considered agreeably to the fifth Article of the said Constitution to exert all their Influence & use all reasonable & Legal methods to obtain a ratification of the said alterations & Provisions, in such manner as is provided in the said article—And That the United States in Congress Assembled may have due notice of the assent & Ratification of the said Constitution by this Convention.—It is resolved that the Assent & Ratification aforesaid be engrossed on Parchment, together with the Recommendation & injunction aforesaid & with this Resolution—And that John Sullivan Esquire President of Convention, & John Langdon Esquire President of the State Transmit the same Countersigned by the Secretary of Convention & the Secretary of the State under their hands & Seals to the United States in Congress Assembled.

[Reference:  http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

 

VI.  NORTH CAROLINA RATIFICATION (November 21, 1789), with 20 Bill of Rights:

Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.

Declaration of Rights:

1st. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

4th That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the Legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of Liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well-regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others.

Amendments to the Constitution:  (21 amendments were proposed, but I only included the first here):

  1. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-northcarolina/ ]

 

VII.  RHODE ISLAND RATIFICATION (November 21, 1789), with 18 Bill of Rights:

We the Delegates of the People of the State of Rhode-Island, and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of this State, do declare and make known

1st That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.

2d That all power is naturally vested in, and consequently derived from the People; that magistrates therefore are their trustees and agents, and at all times amenable to them.

3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness [Note: This is a “RESUMPTION CLAUSE.”  New York and Virginia also included such a clause/condition in their ratifications], :-That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.

4th That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence, and therefore all men, have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored, or established by law in preference to others.

5th That the legislative, executive and judiciary powers of government, should be separate and distinct, and that the members of the two first may be restrained from oppression, by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all, or any part of the former members, to be eligible or ineligible, as the rules of the constitution of government and the laws shall direct.

6th That elections of representatives in legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community ought to have the right of suffrage, and no aid, charge tax or fee can be set, rated or levied upon the people, without their own consent or that of their representatives so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th That all power of suspending laws or the execution of laws, by any authority without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned or disseised of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the trial by jury, or by the law of the land.

10th That every freeman restrained of his liberty, is intitled to a remedy, to enquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed.

11th That in controversies respecting property, and in suits between man and man the antient trial by jury, as hath been exercised by us and our ancestors, from the time whereof the memory of man is not to the contrary, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolate.

12th That every freeman ought to obtain right and justice, freely and without sale, completely and without denial, promptly and without delay, and that a establishments or regulations contravening these rights, are oppressive and unjust.

13th That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

14th That every person has a right to be secure from all unreasonable searches and seizures of his person, his papers or his property, and therefore that all warrants to search suspected places or seize any person, his papers or his property, without information upon oath, or affirmation, of sufficient cause, are grievous and oppressive, and that all general warrants (or such in which the place or person suspected, are not particularly designated,) are dangerous, and ought not to be granted.

15th That the people have a right peaceably to assemble together, to consult for their common good, or to instruct their representatives; and that every person has a right to petition or apply to the legislature for redress of grievances.

16th That the people have a right to freedom of speech and of writing, and publishing their sentiments, that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th That the people have a right to keep and bear arms, that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free state; that the militia shall not be subject to martial law except in time of war, rebellion or insurrection; that standing armies in time of peace, axe dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house, without the consent of the owner, and in time of war, only by the civil magistrate, in such manner as the law directs.

18th That any person religiously scrupulous of bearing arms, ought to be exempted, upon payment of an equivalent, to employ another to bear arms in his stead.

Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof; We the said delegates, in the name, and in the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents, assent to, and ratify the said Constitution. In full confidence nevertheless, that until the amendments hereafter proposed and undermentioned shall be agreed to and ratified pursuant to the aforesaid fifth article, the militia of this State will not be continued in service out of this State for a longer term than six weeks, without the consent of the legislature thereof; That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators or representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that n those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises, that the Congress will not lay direct taxes within this State, but when the monies arising from the Impost, Tonnage and Excise shall be insufficient for the public exigencies, nor until the Congress shall be have first made a requisition upon this State to assess, levy and pay the amount of such requisition, made agreeable to the census fixed in the said constitution, in such way and manner, as the legislature of this State shall judge best, and that the Congress will not lay any capitation or poll tax.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

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The 221st Anniversary of the Bill of Rights Should Inspire States to Re-Assert Sovereignty

Bill of Rights-scroll      by Diane Rufino, December 30, 2012

December 15 was Bill of Rights Day.  It marks the 221st anniversary of the day when the first ten amendments – our Bill of Rights – were ratified in 1791.

The Bill of Rights is among those documents classified as “Charters of Freedom.”  It belongs with the list that includes the Magna Carta, the Habeas Corpus Act, the English Petition of Right, the English Bill of Rights, the Virginia Statute for Religious Freedom, and the Virginia Declaration of Rights.  We are reminded everyday of regimes all over the world where people enjoy no fundamental rights, no freedom of religion, no freedom of speech, no freedom of assembly. We read about abusive judicial systems that lack of guarantees of due process, jury trials, and protection against self-incrimination. And we hear about oppressive police states where unreasonable searches and seizures and cruel and unusual punishment are commonplace. All of these places lack the protection of basic human rights that make this country  the land of the free.

When our Constitution was first established, it was assumed that the description of specific powers granted to the government would leave no doubt as to what the government could and could not do, and that the absence of powers over the rights of the people would leave those rights protected.  But Thomas Jefferson and others were wary of leaving such important matters up to inference. They insisted on a Bill of Rights that would state in unmistakable terms those rights of the people that must be left inviolate. In 1787, Jefferson wrote to James Madison:  ”A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences.”  September 17, 1787, the delegates to the Constitutional Convention in Philadelphia signed the final draft of the Constitution and left to go back to their states.  When Jefferson learned that the draft did not contain a Bill of Rights, he noted that it was reckless. He commented that if the states even considered ratifying it, it would amount to “a degeneracy in the principles of liberty.”

As it turned out, the Madison should have listened to Jefferson because many of the states would not ratify it without a Bill of Rights.

When the delegates at the Convention finished their work in Philadelphia, the only thing they created was a “proposal.”  That proposal for a Union, held together by the scheme of federal government outlined in Articles I – III, would have to go to all the states for ratification. Nine of the 13 states would have to ratify it for the Constitution to become effective for those ratifying states. But quickly, a fierce debate broke out in the states – between the Federalists (who were the majority at the Convention) and the Anti-Federalists (who were suspicious of the power delegated to the proposed federal government).  The Federalists, of course, argued that the Constitution should be approved, but the Anti-Federalists urged the states not to ratify it.  They were aggressive in their criticisms, and soon essays written by several of the anti-Federalists appeared in publications in the several states.  They appeared under various assumed names, such as Brutus, Cato, Centinel, Aristocrotis, and the Federal Farmer.  George Clinton, the Governor of New York, Richard Henry Lee and James Mason of Virginia, Samuel Adams, John Hancock, Elbridge Gerry, Nathaniel Ames, and James Winthrop of Massachusetts, and even Patrick Henry were anti-Federalists.  Alexander Hamilton and John Jay of New York, and James Madison of Virginia, all representing key states that were siding with the anti-Federalists, got together to write a series of 85 essays that explained the Constitution in detail and addressed the criticisms outlined in the Anti-Federalist Papers. These would become known as The Federalist Papers.

For many states, the decision to support or oppose the new plan of government came down to one issue – whether their sovereign powers and the individual liberties of the People were jeopardized by its lack of a Bill of Rights. After all, they had rebelled against Britain because it had in their view ceased to respect their age-old liberties as Englishmen—liberties enshrined in the 1215 Magna Carta and the 1689 English Declaration of Rights.  Having fought a long war to protect these rights, were they then to sacrifice them to their own government?  Others countered that a bill of rights actually endangered their liberties…  that listing the rights a government could not violate implied that unlisted rights could be restricted or abolished.  After much discussion at the Philadelphia Convention, the majority of the delegates were of the latter opinion. But that decision cost the signatures of several high-profile delegates, such as George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts.  George Mason felt that the Constitution did not adequately provide protection for the states’ rights and interests, Elbridge Gerry was not happy with the commerce power delegated to the federal government or with the taxing power which he felt might be burdensome on the states, and Randolph, a lawyer, was not content with the looseness of some of the language, fearing that future generations, and particularly the government itself, would seek sweeping changes to the meaning and intent of the document. [Edmund Randolph was the author of the Virginia Plan which was presented at the Constitutional Convention and George Mason was the author of Virginia’s Bill of Rights].

Many of the state conventions ratified the Constitution, but called for amendments specifically protecting individual rights from abridgement by the federal government. The debate raged for months. By June of 1788, with assurances that a Bill of Rights would be proposed, nine states had ratified the Constitution, ensuring it would go into effect for those nine states.  However, key states including Virginia and New York had not ratified and it wasn’t sure that they would without an actual Bill of Rights. After all, the colonies had rebelled against Britain because it had in their view ceased to respect their age-old liberties as Englishmen – liberties enshrined in the Magna Carta (“Great Charter”) of 1215 and the English Bill of Rights of 1689. Having fought a long and bitter war to protect these rights, were the states willing to sacrifice them to their own government?

In Virginia, Patrick Henry was accusing the proposed government of ‘tending or squinting toward the monarchy’ and being a ‘national’ rather than a ‘federal’ one, with no effective checks and balances against a majority or against a government determined to usurp power and no Bill of Rights to curb government power.  He warned: “This proposal of altering our Federal Government is of a most alarming nature.  You ought to be extremely cautious, watchful, jealous of your liberty, for instead of securing your rights you may lose them forever. If a wrong step be now made, the republic may be lost forever. If this new Government will not come up to the expectation of the people, and they should be disappointed – their liberty will be lost, and tyranny must and will arise. I repeat it again, and I beg Gentlemen to consider, that a wrong step made now will plunge us into misery, and our Republic will be lost.”  He continued: “Liberty, the greatest of all earthly blessings, gave us that precious jewel, and you may take everything else! … The Confederation, this same despised government, merits, in my opinion, the highest encomium; it carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses; and shall a government which has been thus strong and vigorous, be accused of imbecility, and abandoned for want of energy? Consider what you are about to do before you part with the government … We are cautioned by the honorable gentleman who presides against faction and turbulence. I acknowledge also the new form of government may effectually prevent it; yet there is another thing it will as effectually do: it will oppress and ruin the people. … This Constitution is said to have beautiful features, but when I come to examine these features, sir, they appear to me horribly frightful; among other deformities, it has an awful squinting-it squints towards monarchy; and does not this raise indignation in the breast of every true American? Your President may easily become king; your senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horribly defective: where are your checks in this government?”

James Madison, the principal author of the Constitution, knew that grave doubts would be cast on the Constitution if Virginia and New York (the home states of several of its chief architects, including Madison himself, and the authors of the Federalist Papers) did not adopt it.  Perhaps he got that impression after Patrick Henry addressed the Virginia Ratification Convention on June 16, 1788 and spoke the following words:

“Mr. Chairman, the necessity of a Bill of Rights appears to me to be greater in this government than ever it was in any government before.  Let us consider the sentiments which have been entertained by the people of America on this subject. At the revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights.

When fortified with full, adequate, and abundant representation, was she satisfied with that representation?  No.  She most cautiously and guardedly reserved and secured those invaluable, inestimable rights and privileges, which no people, inspired with the least glow of patriotic liberty, ever did, or ever can, abandon.

She is called upon now to abandon them and dissolve that compact which secured them to her. She is called upon to accede to another compact, which most infallibly supersedes and annihilates her present one. Will she do it?  This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.

How were the congressional rights defined when the people of America united by a confederacy to defend their liberties and rights against the tyrannical attempts of Great Britain? The states were not then contented with implied reservation. No, Mr. Chairman. It was expressly declared in our Confederation that every right was retained by the states, respectively, which was not given up to the government of the United States. But there is no such thing here. You, therefore, by a natural and unavoidable implication, give up your rights to the general government.

Your own example furnishes an argument against it. If you give up these powers, without a Bill of Rights, you will exhibit the most absurd thing to mankind that ever the world saw – a government that has abandoned all its powers…. the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a Bill of Rights, without check, limitation, or control. And still you have checks and guards; still you keep barriers – pointed where?  Pointed against your weakened, prostrated, enervated state government! You have a Bill of Rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power! You arm yourselves against the weak and defenseless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defense is given up. This is a real, actual defect. It must strike the mind of every gentleman.

When our government was first instituted in Virginia, we declared the common law of England to be in force.  By this (federal) Constitution, some of the best barriers of human rights are thrown away. That system of law which has been admired and which has protected us and our ancestors, has been excluded.  Is this not enough of a reason to have a Bill of Rights?”

It was during this Ratification Convention in Virginia that Madison promised that a Bill of Rights would be drafted and submitted to the States. His promise reassured the convention delegates and the Constitution was approved in that state by the narrowest margin, 89-87. New York soon followed, but submitted proposed amendments. Two states, Rhode Island and North Carolina, refused to ratify without a Bill of Rights. North Carolina refused to ratify in July 1788, and Rhode Island rejected it by popular referendum in March 1788 and North Carolina refused to ratify it in their convention in July.

A year later, on June 8, 1789, referring to Virginia’s Declaration of Rights and the recommendations of the several state ratifying conventions, Madison proposed a series of 20 amendments to the first Congress. He had kept his promise and did so with utmost urgency, for the First US Congress only convened three months earlier, on March 4 (and George Washington had only been inaugurated as the nation’s first US President on April 31st).  In the speech he gave to Congress to propose the amendments, he said:

“It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things (amendments) to be incorporated into the Constitution, as will render it as acceptable to the whole people of the United States…. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.

In some instances the states assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a declaration of the rights of the people.

I am convinced of the absolute necessity (of these amendments).  I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.”

In his speech, Madison emphasized the great concern of the states –  How to prevent the encroachments of government?  As he explained, the ten amendments to the Constitution – the Bill of Rights – were crafted to “limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode.”  It was not individual freedom that the states wanted.  After all, under the American system, all men were created with inalienable rights that come from our Creator and not government.  No, our Founders and state leaders wanted freedom from government. The Bill of Rights doesn’t grant rights. Rather, it recognizes rights. It requires that the government not interfere with those rights. In other words, our Founders and state leaders wanted constitutional liberty. “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.”  It was a hopeful plan.

In fact is that the plan was not the brainchild of the Federalists, who won the day at the Constitutional Convention in Philadelphia. It wasn’t the brainchild of James Madison, initially an avowed Nationalist. The Constitution was amended by the States because of the influence of the anti-Federalists. While it was the Federalists (in the true sense of their name) who rejected the Virginia Plan and supported state representation in the legislature (giving the government itself a “federal” nature),  it wasn’t enough for those who wanted more protection and security for the rights of the States and individuals.

[Note that our Founders, as early as the Constitutional Convention in 1787, came to appreciate state representation in government. They referred to it as providing a state ‘negative’ (a veto power) in government, in order to safeguard the rights, powers, and interests of the states. The same sentiment was emphasized in the state ratifying conventions, only in stronger language.  For those who question the legitimacy of nullification, we can see its very origins in the states’ representation in government. It is clear that the doctrine was part of the dialogue in our nation’s very founding and was implicit in the very design of government].

It was Thomas Jefferson who impressed upon Madison the need for a Bill of Rights. He urged him to heed the concerns of the anti-Federalists, which now became the concern of the various states.  The over-arching concern was the rise of national power at the expense of state power. For example, the Federal Farmer (authored most likely by Richard Henry Lee, of Virginia), in stressing the necessity of a Bill of Rights and protections against a consolidation of power in government, wrote: “Our object has been all along to reform our federal system and to strengthen our governments… However, the plan of government is evidently calculated totally to change, in time, our condition as a people.  Instead of being thirteen republics under a federal head, it is clearly designed to make us one consolidated government.”  George Mason, a delegate to the Philadelphia Convention who refused to support the Constitution, explained that the plan was “totally subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally the state governments.” Brutus, another anti-Federalist, wrote: “The best government for America is a confederation of independent states for the conducting of certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments.  How far shall the powers of the states extend is the question.”

Centinel, yet another Anti-Federalist, reminded readers of the nature of republics. Agreeing with Montesquieu (one of the philosophers our Founders relied heavily on), that a republic government could only survive in a small territory, the anti-Federalists came to the conclusion that America would have to be a federal republic and a union of states (and NOT the states united!).  As small republics themselves, the states would provide the foundation for republican and limited government in our new Union. “From the nature of things, from the opinions of the greatest writers and from the peculiar circumstances of the United States, it is not practical to establish and maintain one government on the principles of freedom in so extensive a territory. The only plausible system by which so extensive a country can be governed consistent with freedom is a confederation of republics, possessing all the powers of internal government and united in the management of their general and foreign concerns….”  [from Centinel]

Brutus agreed. “Neither the general government nor the state governments ought to be vested with all the powers to be exercised for promoting the ends of government. The powers are divided between them – certain ends are to be attained by the one and other certain ends by the other, and these, taken together, include all the ends of good government.”  [articulating our system of dual sovereignty].

Nathaniel Ames, of Massachusetts, wrote: “The state governments represent the wishes and feelings of the people. They are the safeguards and ornament of our liberties – they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights.”  Patrick Henry of Virginia agreed. He referred to the proposed government under the new Constitution a “consolidated and a dangerous” one, and added: “The States are the character and soul of a confederation.  If the states be not the agents of this compact, it must be one great consolidated national government, of the people of all the states…   The people sent delegates, but the states did.”

Taken together, the anti-Federalists concluded that the United States could only exist successfully as a nation if “distinct republics connected under a federal head. In this case the respective state governments must be the principal guardians of the peoples’ rights…. In them must rest the balance of government.”

The US House debated and discussed the proposed amendments, and eventually edited, re-worked, and consolidated them down into 17 amendments. The Senate took up the amendments and made their own edits and alterations, and in September, the two houses got together and reached a compromise. Twelve amendments were approved on September 25 and then sent to the States for ratification.  All in all, it has been said that only two major provisions among the proposed 19-20 original amendments were eliminated by the House and Senate.

The amendments were designed to protect the basic freedoms of US citizens from the reaches of government, namely the freedoms of speech, press, assembly, and exercise of religion, the right to bear arms for self protection, the right to be secure in one’s person, home, and privacy against government searches and seizures, the right not to be denied Life, Liberty, or Property without due process, the right of habeas corpus, the right to fair criminal and civil legal proceedings and proper procedural safeguards,  and the right to be spared cruel and unusual punishment. Additionally, one amendment (the 9th Amendment) was included to memorialize the notion that sovereign power originates in the individual and another (the 10th Amendment) was included to memorialize the federal nation of our government system (“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”).

Influenced by the English Bill of Rights of 1689, the Bill of Rights was also drawn, as mentioned above, from Virginia’s Declaration of Rights, drafted by George Mason in 1776.  While Mason refused to sign the Constitution drafted in Philadelphia, in the ratification struggle that followed, Mason and other critics agreed to support the Constitution in exchange for the assurance that amendments would be passed immediately. While our Bill of Rights was indeed strongly influenced by the plight of the British to limit the “divine” power of the King in their lives and the many charters of freedom they extracted from their rulers, James Madison saw one very important difference between those documents and the Constitution: “In Europe, charters of liberty have been granted by power. America has set the example of charters of power granted by liberty.”

On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, thus giving the Bill of Rights the two-thirds majority required by Article V of the Constitution to go into effect.  Finally, the rights held most dearly by free men would not merely “rest on inference.”

In the end, the anti-Federalists won the day.

Of the two amendments not ratified, the first concerned the population system of representation, while the second prohibited laws varying the payment of congressional members from taking effect until an election intervened. The first of these two amendments was never ratified, while the second was finally ratified more than 200 years later, in 1992.

In 1789, the new Union of States was established under the US Constitution.  Its enumeration of limited powers was intended to provide a basis for unity but the flexibility the states sought to remain the sovereigns they wanted to be.  As Thomas Jefferson explained to Joseph Cabell in 1816: “The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to.  Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.  It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best.”

While many Americans are familiar with the Bill of Rights and especially the ones that we hear often in the news and on pop culture law enforcement shows, no one mentions the preamble to the set of ten amendments ratified on December 15, 1791.  The Preamble to the Bill of Rights reads: “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”  We see that the first ten amendments are intended to be “declaratory and restrictive clauses.”  This means they supersede all other parts of our Constitution and restrict the powers of our Constitution. The Bill of Rights is a declaration of restrictions to the powers delegated to the federal government.  While amendments one through eight (1-8) have some historical context and many are direct and almost verbatim texts from British compacts/charters, the Ninth and Tenth Amendments are uniquely American.

Why is it that we never hear anyone refer to this phrase when looking for support of states’ rights?  This is probably the clearest expression of intent by the States to have the government respect their bulk of reserved sovereign powers.

The Bill of Rights was meant to prevent a repeat of the abuses that compelled our forefathers to take up arms.   It was meant as a shield to protect the people against tyranny, so that the sacrifices and bloodshed by our forefathers would not be in vain. History is repeating itself, and once again, a free people is engaged in the endless struggle between good and evil, between liberty and tyranny. Just like colonial times when a group of liberty-minded folks – the Sons of Liberty – emerged from the People to remind them of this struggle, the modern-day TEA party and other Liberty-minded groups have emerged to do the same thing. And like the Sons of Liberty, which started out as a small group of “agitators” in the several colonies, the Tea Party and other Liberty-minded groups are growing in number as well.  The problem in confronting the steady consolidation of power by the federal government has been the reluctance of states to stand up to their one-time “agent” (now their “master”).  Too many state leaders ignore their oaths of allegiance to the US Constitution and ignore the Ninth and Tenth Amendments – the very amendments they fought so hard in convention for. They question their right to second-guess the decisions of the federal government.  That’s like a 12-year-old bossing his parents around and the parents capitulating because they don’t feel they have the right to second-guess his actions or constrain his conduct.  When we have leaders who are supposed to be “on our side” – on the side of limited government and maximum liberty – but don’t fundamentally believe in our core conservative and government principles, then we have a problem.  We have this problem in my home state of  North Carolina.

North Carolina has a proud history of standing up against government oppression. It was the first state to push for a Declaration of Independence from Britain, it was the first state to authorize its delegates to vote such a Declaration, and it refused to sign the Constitution unless it was amended (to make sure power could not be concentrated in a federal government). And while Virginia (the home of Thomas Jefferson, James Madison, George Washington, and Patrick Henry) proposed twenty alterations to the Constitution and a separate Bill of Rights consisting of twenty items (modeled on George Mason’s 1776 Virginia Declaration of Rights), North Carolina said they still weren’t good enough and wanted an additional six amendments.  North Carolina didn’t want to secede from the Union in 1861, but given the choice between being forced by President Lincoln to take up arms and use them on its southern neighbors (who had seceded peacefully and established a new nation), it chose to respect the freedoms laid out in the Declaration of Independence and Constitution and sever its political bonds with the federal government. With a history so rich and distinguished, it is a sad state of affairs when state leaders announce that they are powerless to question the actions of the federal government even when they know full well that the actions of our current administration are equally egregious to those committed by King George back in the 1770′s.

Other states have a similar history of freedom and have contributed greatly to our shared values and principles. What’s more, some of these states are beginning to re-assert their sovereignty under the 10th Amendment, as well as their “express desire” to “restrict the misconstruction” and “abuse” of federal powers, as they did when they adopted the Preamble and the Bill of Rights in 1791.  For example, the Montana state house passed a State Sovereignty resolution (House Joint Resolution H.J. 26) to assert state rights and define the “line in the sand” which separates the “numerous and indefinite” sovereign powers of the state from the “limited and defined”  sovereign powers of the federal government. [“The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”   James Madison, Federalist Papers No. 45]   The Resolution declared that Montana would jealously guard certain rights and would not tolerate the government intruding in them.

In a time when the government is more concerned with its own existence and power than with protecting the rights and interests of a free and sovereign people, I would suggest that more states need to adopt resolutions like the one Montana endorsed (although the state senate did not pass) and draw that “line in the sand” and reverse the injustice that has been done to the American people over the last 145 years or so.  That line in the sand is necessary to re-establish the proper balance of power between the government and the states that the Constitution, and the Bill of Rights, established in order that individual freedom is most firmly secured. It is necessary, as James Madison himself came to understand and appreciate, to maintain the strength of the individual states to “obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.”

Thomas Jefferson probably said it the best: “When injustice becomes law, rebellion becomes a duty.”

A State Sovereignty Bill that my state of North Carolina should consider is as follows:

 

MODEL LEGISLATION AFFIRMING STATES’ RIGHTS AND CONDEMNING ENCROACHMENT OF THOSE RIGHTS BY THE FEDERAL GOVERNMENT AND EXECUTIVE ORDERS

The government of the great State of North Carolina re-acknowledges and re-asserts the following:

(1).   The Constitution of the State of North Carolina declares that all political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only, and is instituted solely for the good of the whole, and that the people of North Carolina have the inherent, sole, and exclusive right of regulating the internal government and police thereof, and of altering or abolishing their Constitution and form of government whenever it may be necessary to their safety and happiness; but every such right shall be exercised in pursuance of law and consistently with the Constitution of the United States.

(2).  The aforementioned “inherent and exclusive right” may never be expressly delegated to the United States Congress.

(3).  The Constitution that is legitimately recognized by the State of North Carolina is the one interpreted according to the intent of its creation, defined by Federalist Papers, limited by the understanding of the states and assurances given them when they signed the document in their Ratification Conventions, limited by the express language included in the Preamble of the Bill of Rights, limited by the full scope of each amendment comprising the Bill of Rights (including the Ninth and Tenth Amendments), limited by the essence of the Supremacy Clause (only those laws pursuant to a valid constitutional exercise of authority are supreme; all others are not), amended strictly and legitimately according to Article V,  and spirited by the federal design of our government system (which is our most critical of checks and balances).

(4).  The People of North Carolina together form a free, sovereign, and independent body politic (ie, a state) by the name of “The State of North Carolina.”

(5).  The People of North Carolina agree that all powers not expressly delegated to the federal government in the United States Constitution and Bill of Rights must be reserved and exercised by individual states or by themselves.

(6).  Although North Carolina became an independent and completely sovereign state on December 18, 1776, it freely entered into the federal Union on July 21, 1778 when it adopted the Articles of Confederation for mutual benefit and security (“Join or Die”) and re-committed itself to the Union on November 21, 1789 when it became the twelfth state to ratify the US Constitution.

(7).  When North Carolina agreed to join the Union, it did so by social compact.  In signing the Constitution, it established a social compact (or contract) with its fellow states, to delegate certain common functions to a common, federal government in order to act like a Union of states instead of 13 independent states.

(8).  A social compact must be implemented consistent with the terms and understandings in place at the time it is entered into.

(9).  Legally, a compact, like a contract, is valid only when the terms defining the responsibilities, burdens, and benefits of that agreement are still in place.  Once the terms are materially altered, the contract no longer legally binds the parties.

(10).  One important term of the contact is the protection of states’ rights, as reflected in the 10th Amendment (“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”).

The government of the great State of North Carolina, on behalf of its People and for their protection and liberty interests, declares the following political posturing with respect to the federal government:

(1).  That the federal government was created and vested with specified powers that are “limited and defined” for the general management of the independent states but not for the internal regulation of their people and their affairs; the latter are matters rightfully left to the states themselves. To assume otherwise would be to define the government as a national one; yet that scheme was roundly rejected by the states.

(2).  That the several states of the United States, and particularly the State of North Carolina, are not united on the principle of unlimited submission to general government; rather, by ratifying the federal Constitution and Bill of Rights, they designed, created, and constituted a general government for special purposes and delegated to that government certain definite powers, while reserving to themselves all other rights.

(3).  That when the general government assumes undelegated powers, its acts are void and of no force; they are unenforceable by the states

(4).  That the government created by the federal Constitution and the Bill of Rights was not granted the right to determine the extent of the powers delegated to itself, since that would have made its discretion, and not the federal Constitution and Bill of Rights, the measure of its powers.

(5).  There are various examples of constitutional over-reach and abuse by the federal government which have already burdened the sovereign rights and interests of the State of North Carolina, as well as its People, including:

(a)  the federal power to punish crimes, under the Constitution, is limited to treason, counterfeiting of the securities and current coin of the United States, piracies, felonies committed on the high seas, offenses against the law of nations, and slavery.  The government is not authorized to punish any other crimes, and the Constitution been amended to include others.  Therefore, all acts of Congress that assume to create, define, or punish crimes, other than those enumerated in the federal Constitution, exceed the scope of the federal compact and are void and of no force.  The power to create, define, and punish other crimes is reserved by the states.

(b)  the individual rights of freedom of religion and conscience, freedom of speech, and freedom of the press are beyond the reach of the federal government and therefore reserved to the states or the people, allowing states the power to judge the appropriate scope of each right. All acts of Congress and decisions of the federal courts that abridge freedom of religion, freedom of speech, or freedom of the press violate the federal compact and are not law and are void.  [Furthermore, the Supreme Court introduced a legal fiction – the “Wall of Separation” doctrine – into First Amendment jurisprudence to abridge the right of religion and thereby frustrate the states in their ability to legislate morality, which is a legitimate state police power].

(c)  the power over the freedom of the right to keep and bear arms was reserved to the states and to the people, allowing states the right to judge how far infringements on the right to bear arms should be tolerated, rather than allowing that exercise to be defined by Congress. All acts of Congress and decisions of the federal government that attempt to abridge this freedom will violate the federal compact and will be deemed null and void and unenforceable.

(d)  that Congress has usurped the meaning of certain phrases of the federal Constitution, such as those phrases that delegate to Congress a power “to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States” and “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof,” in order to unilaterally concentrate its powers and destroy the limits placed on its authority.

(e)  that Congress and the President have usurped the Constitution’s war powers.  The Constitution divides war powers between the Congress and the President.  This division was intended by the framers to ensure that wars would not be entered into easily or unnecessarily send our citizens into battle. The Constitution’s division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle) and Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort).  The federal government has committed US forces without formal declarations of war.  With such laws as the Military Authorization Act and National Defense Authorization Acts, the government has done an end run on the Constitution by declaring an undefined “war on terrorism” (where “terrorism” is not a defined enemy or country, but a “tactic”) and extending the battlefield to our very United States. By defining the US as a battlefield, the government is claiming it has the power to apply the laws of war over the protections of the Bill of Rights.

(f)  that the federal government has created a new power for itself – the power to declare American citizens as “enemy combatants” in order to detain them indefinitely and suspend the protections protected for them in the Bill of Rights.  “Enemy combatants” are defined by the government as those who fight or engage in hostilities against the United States.  What constitutes conduct that justifies “enemy combatant” status is not clear. It appears that the US Constitution already addresses the situation where an American engages in hostilities against the United States or gives aid and support to an enemy. It is called “treason” and is addressed in Article III, Section 3. The government is already given the power to deal with treason and is given precise guidelines to prosecute traitors. The National Defense Authorization Act (NDAA) relies on this “new” (and unconstitutional) power in order to expand the government’s defense power.

(g)  that the federal government was created to perform common functions for all states and not to use its powers to spy on American citizens, such as patrolling the skies with drones, monitoring speech, evaluating the extent of property, and establishing political profiles.

(h)  that the US Supreme Court exceeded its power under Article III of the Constitution in the healthcare decision of June 28, 2012 (National Federation of Independent Business v. Sibelius) by expanding Congress’ taxing power rather than confining it within the scope of Article I, according to the intent of the provision (James Madison believed that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Thomas Jefferson agreed as well.  He said: “Should you wish to know the meaning of the Constitution, consult the words of its friends.”).  With the decision, the Supreme Court re-characterized the Individual Mandate as a tax and not a “penalty” (as Congress itself defined) and said Congress is within its power “to impose a tax on those who have a certain amount of income but choose to go without health insurance.” The decision seems to disregard the fairness notion of “equal application of the laws.”  While the government does not have the power to order people to buy health insurance, the Court says it has the power to impose a tax to force people to do so.  In other words, the decision says that the government has unlimited power to use its taxing power to coerce Americans into conduct it desires; it has unlimited power to control every economic decision that every individual makes. This is a grave violation of the Liberty guarantee outlined in the Declaration of Independence. [There is another constitutional violation. Article I, Section 7, clause 1 of the Constitution say that all bills that raise revenue must originate in the House. The healthcare bill, which includes at least 21 embedded taxes to raise revenue to fund the healthcare scheme, originated in the Senate, as H.R. 3590.  Reminded of the offensiveness of the Stamp Act of 1765, imposed by King George, the Founders drafted the Constitution to require that taxes and tax increases originate in the House of Representatives. That is to say, they must originate in the legislative body most accountable to the people, where legislators must weigh the need for the tax against the terrible price they might pay at their next election, which is never more than two years off.  In  Federalist No. 58, James Madison defended the decision to give the origination power to the House on the ground that the Chamber that is more accountable to the people should have the primary role in raising revenue.  The Supreme Court, as part of the system of checks and balances, was supposed to “check” the legislative branch on this violation of the Constitution]

(i)  that the federal government has used its taxing power to control and coerce states, and in general, to undermine the powers of the States to regulate under the Tenth Amendment.  If the federal government has the ability to provide funding to the States for projects and policies that it wants to promote (federal grants which are “conditioned”), then it is taxing Americans too heavily. Under concepts of federalism, the government should reduce its federal income tax rate and allow the states the ability to increase its state taxation rate in order to raise the funding for its own projects. This way, states can spend money the way it sees fit for its own people and circumstances and not as the federal government demands.

(j)  That the Executive is using Executive Orders to usurp the legislative powers of Congress when its constitutional powers are limited to those of executing the laws.  As such, many Executive Orders violate the Separation of Powers and blatantly violate the Constitution.

(k)  that the federal government used the events of the secession of the southern states and the Civil War to illegally and unconstitutionally erode the sovereign powers of the individual States. The events leading up to the Civil War and then Reconstruction were so marred with unconstitutional violations that it can be argued that the government and its actions during that time were illegitimate in many respects and therefore not binding on the respective parties (ie, the States).   [For example, President Lincoln took extraordinary liberties with the office of the Presidency in initiating the Civil War and suppressing opposition, in violation of the Constitution – such as ordering actions to initiate hostilities and suspending habeas corpus and having Americans put to death for exercising freedom of speech.  Congress, after the fact, sought to affirm those violations on July 11, 1861 with a Joint Resolution in which it declared Lincoln’s “extraordinary acts, proclamations, and orders” to be “legal and valid” and “necessary for the preservation of the government.” The preservation of government was what was at stake with the signing of the Constitution. Restraining government on the States and the People was. The government cannot violate the Constitution in order to claim to uphold it. The government itself cannot use the Constitution to seek its own immortality.

(l)  that there are numerous other examples of government constitutional over-reach.

(6).  That if North Carolina accepts or continues to accept these violations and inappropriate interpretations, and continues to allow all three branches of the federal government to exercise unbridled authority, it would be surrendering its own form of government.

(7).  That the people of this state will not submit to undelegated and consequently unlimited powers.

(8).  That every state has a right to nullify all assumptions of power by others within their limits, and that without this right, states would be under the dominion and power of anyone who might try to exercise that power.

(9).  That the rights and liberties of North Carolina, and its fellow states, must be protected from any dangers by declaring that Congress is limited by the federal Constitution and Bill of Rights.

(10).  That any act by the Congress of the United States, Executive Order of the President of the United States, or decision/judicial order by a federal court that assumes a power not delegated by the federal Constitution diminishes the liberty of this State and its citizens and violates the federal contract established by the signing of the Constitution.  The State of North Carolina, on behalf of its own sovereignty and the sovereignty of it People, declares that certain reserved state powers will be guarded jealously and aggressively. Acts by the federal government that would be seen as violations of the limited nature of the US Constitution, would be subject to nullification and interposition by the State, and would result in a legitimate breach of the federal compact which ties North Carolina politically to the federal government include, but are not limited to:

(a) establishing martial law or a state of emergency within a state without the consent of the legislature of that state;

(b) requiring involuntary servitude or governmental service other than a draft during a declared war or pursuant to or as an alternative to incarceration after due process of law;

(c) requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to or as an alternative to incarceration after due process of law;

(d) surrendering any power delegated or not delegated to any corporation or foreign government;

(e) any act regarding religion, further limitations on freedom of political speech, or further limitations on freedom of the press; or

(f) any act regarding the right to keep and bear arms or further limitations on the right to bear arms, including any restrictions on the type or number of firearms or the amount or type of ammunition any law-abiding citizen may purchase, own, or possess.

(11).  That if any act of Congress becomes law or if an Executive Order or judicial decision/judicial order is put into force related to the reservations expressed in this resolution, North Carolina’s political bond to the federal government under the federal compact (the signing of the Constitution) would be considered breached and all powers previously delegated to the United States by the federal Constitution would revert to the State and the people, respectively.

(12).  That any future government of the United States shall require ratification of three-fourths of the States seeking to form a government and shall not be binding upon any state not seeking to form a government.

(13).  That the Secretary of State send a copy of this law to the President of the United States and to each member of the United States Congress in order that they be put on notice of North Carolina’s position with respect to the Constitution, the government, and the respective rights and responsibilities of each sovereign.

[This proposed State Sovereignty Bill is of course, a bit long-winded…..]

As we celebrate 221 years with the Bill of Rights to protect our fundamental rights from government oppression, we have reason to  221st anniversary of the Bill of Rights, for there can be no better proof of the wisdom of the Framers than the endurance of the Constitution.  We appreciate their brilliance as we witness the oppressive and tyrannical consequences of a government that continually and increasingly abuses the constitutional limits and guarantees that they provided for us.

As we enter into 2013 (our 222nd year with the Bill of Rights), let us realize what the government will force us to do by the end of the year – enroll in a healthcare insurance program or be punished for it.  The government is already forcing millions of Americans to submit to repeated, egregious, and humiliating violations of their fourth amendment rights every time they fly on an airplane or visit a federal facility, forcing religious institutions to violate its own religious tenets, detaining Americans for promoting opposition to government policies, shoring up the indefinite detention provisions for American citizens in the National Defense Authorization Act (NDAA), and looking for ways to limit our second amendment rights. These policies of the federal government are no less serious than the policies of King George against the colonies.

In August 2012, a 26-year-old former marine and citizen of the state of Virginia, Brandon Raub, wrote the following posts on facebook: “The idea that men can govern themselves is the basis for every just form of government.” “The bill of rights is being systematically dismantled.” “You elected an aristocracy. They are beholden to special interests. They were brainwashed through the Council on Foreign Relations. Your leaders are planning to merge the United States into a one world banking system. They want to put computer chips in you. These men have evil hearts. They have tricked you into supporting corporate fascism. We gave them the keys to our country. We were not vigilant with our republic….  But there is hope. BUT WE MUST TAKE OUR REPUBLIC BACK.”  For those words, the government showed up at his home, arrested him, committed him involuntarily to a mental hospital, and planned to detain him indefinitely. The government made the decision to take his rights away. (Luckily, his mother and a sharp lawyer were able to fight the unlawful arrest). This happened in Virginia, the state that gave us Thomas Jefferson, James Madison, George Washington, Patrick Henry, the Virginia Declaration of Rights, and the Virginia Resolutions of 1798. This is the state that gave us such fiery speeches as “Give Me Liberty or Give Me Death!”  This famous speech in 1775 motivated the Virginia Provincial Convention to bear arms against England and then to vote for independence from England. This was a state that would not ratify the Constitution until Madison gave the delegates assurances that he would draft a Bill of Rights and the First US Congress would propose them and then send them to the states.

Fortunately, the world didn’t end on December 21st.  And so, on this 221st anniversary, let us  reflect on what we, as citizens, can do to keep the spirit of the Bill of Rights alive.  As I discussed earlier, one option is to demand that our state legislatures re-assert the sovereignty that our Founders acknowledged in the Ninth and Tenth Amendments.  If power is not carefully shared among the states and the federal government and if the states are not willing to stand up to the federal government, then this most powerful of checks and balances is useless and individual liberty is destined to suffer.  We already see it happening before our eyes.

When the federal government takes on functions not permitted to it by the Constitution, in violation of the Tenth Amendment, it is only a matter of time before it will usurp the unenumerated rights of the people, in violation of the Ninth Amendment. When the government can misappropriate the unenumerated rights of the people, it is only a matter of time before it will trample upon their enumerated rights – those most fundamental rights which are explicitly spelled out in the rest of the Bill of Rights.

The Bill of Rights still stands for liberty, even though our government won’t.

A few weeks ago, on December 15, Karen Kwiatkowski gave a speech and said: “I believe the Bill of Rights is the natural companion to the Declaration of Independence. May both of these documents inspire us all to seize the day, and live free. May the Bill of Rights guide us in our lives and work, focus our prayers, broaden our dreams, and lead us to end the tyranny, and restore our badly damaged Republic.”

Let’s hope the government doesn’t arrest and detain her for speaking those words.  And let’s hope that the Bill of Rights, the companion to the Declaration of Independence, continues to inspire us to want to live free.

References:
1791: US Bill of Rights. [With information from James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.); Indianapolis: Liberty Fund, 2000.  http://oll.libertyfund.org/index.php?Itemid=264&id=574&option=com_content&task=view

Edward Drake, “The Men Who Didn’t Sign the Constitution.”  http://books.google.com/books?id=k9BPrepFvZ4C&pg=PA1101&lpg=PA1101&dq=Who+didn’t+sign+the+Constitution+in+1787?&source=bl&ots=vcQKEJZ_DU&sig=HW_gI_YRM5PRvasqb9ZFKWuXEGc&hl=en&sa=X&ei=liHQUNCILY-08ASk0YG4Cw&ved=0CG0Q6AEwCQ#v=onepage&q=Who%20didn’t%20sign%20the%20Constitution%20in%201787%3F&f=false

Stewart Rhodes, “Oath Keepers Bill of Rights Day Message: Prepare to Fight for Bill of Rights,” December 15, 2012.  Referenced at:  http://oathkeepers.org/oath/2012/12/15/11145/

Montana House Joint Resolution No. 26 Affirming States Rights –http://data.opi.mt.gov/bills/2009/billhtml/HJ0026.htm

The Bill of Rights and annotations –  http://www.law.cornell.edu/constitution/billofrights

Patrick Henry’s Opening Remarks at the Virginia Ratification Convention, June 4, 1788 –  http://www.academicamerican.com/revolution/documents/HenryConst.htm

James Madison’s Speech to Congress, June 8, 1789, in which he proposed 20 amendments to the new Constitution –  http://www.revolutionary-war-and-beyond.com/james-madison-speech-june-8-1789.html

The revision history of Madison’s proposed Bill of Rights (amendments):

(a)  The amendments as James Madison proposed them on June 8, 1789:  http://www.constitution.org/bor/amd_jmad.txt

(b)  The proposed amendments consolidated by the House down to 17 in number and then passed on August 24, 1798:     http://memory.loc.gov/cgi-bin/query/r?ammem/rbpe:@field(DOCID+@lit(rbpe21200200))

(c)  The Senate product:  On September 21, 1789, a House/Senate conference was called, and the differences between the versions of the two houses were worked out. Madison was one of the House managers in the committee. Several points were agreed upon, and the House was informed of the Senate’s acceptance of the compromise bill on September 25, 1789, the official date of submission of the Bill of Rights to the states.      http://www.usconstitution.net/first12.html

Ratification of the Constitution by North Carolina, November 21, 1788 –http://www.constitution.org/rc/rat_decl-nc.htm

Federalist Papers No. 45 –  http://www.constitution.org/fed/federa45.htm

Federalist Papers No. 58  –   http://www.constitution.org/fed/federa58.htm

Ratification of the Constitution by North Carolina, November 21, 1788 –http://www.constitution.org/rc/rat_decl-nc.htm

Jack Balkin, “The Right Strikes Back: A New Legal Challenge for Obamacare,” The Atlantic, September 17, 2012. Referenced at:  http://www.theatlantic.com/national/archive/2012/09/the-right-strikes-back-a-new-legal-challenge-for-obamacare/262443/

Allah Pundit, “Say, Doesn’t the Constitution Require Tax Bills to Originate in the House?”, Hot Air, June 28, 2012.  Referenced at:  http://hotair.com/archives/2012/06/28/say-doesnt-the-constitution-require-tax-bills-to-originate-in-the-house/

Joint Resolution – “To Approve and Affirm Certain Acts of the President of the United States for Suppressing Rebellion and Insurrection” –http://www.archive.org/stream/speechofhonlwpow00powe#page/n5/mode/2up%5D

Jane Kwiatkowski, “Bill of Rights, RIP?” Lew Rockwell, December 15, 2012. Referenced at:http://www.lewrockwell.com/kwiatkowski/kwiatkowski291.html

June 16, 1788 (Virginia Ratification Convention): Patrick Henry Demands and Gets a Bill of Rights,” Free Republic, October 17, 2003. Referenced at:http://www.freerepublic.com/focus/f-news/1003306/posts

“The 14th Amendment: Equal Protection of the Laws or Tool of Usurpation?,” US Congressional Record – House, June 13, 1967; page 15641.

W. Kirk Wood, A Constitutional History: 1776-1833, University Press of America, Maryland (2009).

APPENDIX:

(A) THE BILL OF RIGHTS (with explanation)

The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition

We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.

The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.

The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.

In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.

Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.

The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.

In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.

During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.

The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.

As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.

The Constitution recognizes no “absolute” rights. A Justice of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.

The Second Amendment: The Right to Bear Arms –

This amendment consists of a single sentence: “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.”

Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.

The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.

The Third Amendment: Quartering Troops –

Forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war, was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.

The Fourth Amendment: Search and Seizure –

This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.

Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping.

The Fifth Amendment: Rights of Persons –

Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law”; and the public authorities may not take private property without just compensation to the owner.

The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth”—that is, refuses to answer questions in a court because his answers might incriminate him—thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.

The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, that “hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.

The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.

The Sixth Amendment: Rights of the Accused –

Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases; the right of the accused “to be informed of the nature and cause of the accusation”; also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.

These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”

The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”

The Seventh Amendment: Trial by Jury in Civil Cases –

This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute.

The Eighth Amendment: Bail and Cruel and Unusual Punishments –

How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.

Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.

As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.

The Ninth Amendment: Rights Retained by the People –

Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all? Does a civil right have to be written expressly into the Constitution in order to exist? The Seven Articles and the first eight amendments say nothing, for example, about a right to inherit property, or a right of marriage. Are, then, rights to inheritance and marriage wholly dependent on the will of Congress or the President at any one time?

The Federalists had made such objections to the very idea of a Bill of Rights being added to the Constitution. Indeed, it seemed quite possible to the first Congress under the Constitution that, by singling out and enumerating certain civil liberties, the Seven Articles and the Bill of Rights might seem to disparage or deny certain other prescriptive rights that are important but had not been written into the document.

The Ninth Amendment was designed to quiet the fears of the Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgment and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.

Written to serve as a general principle of construction, the Ninth Amendment declares that “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The reasoning behind the amendment springs from Hamilton’s 83rd and 84th essays in The Federalist. Madison introduced it simply to prevent a perverse application of the ancient legal maxim that a denial of power over a specified right does not imply an affirmative grant of power over an unnamed right.

This amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the “right of privacy,” over which Federal courts may establish jurisdiction. It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the Federal government, not to expand them.

The Tenth Amendment: Rights Retained by the States –

This last amendment in the Bill of Rights was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution. Throughout the country, the basic uneasiness with the new Constitution was the dread that the Federal government would gradually enlarge its powers and suppress the States’ governments. The Tenth Amendment was designed to lay such fears to rest.

This amendment was simply a declaration that “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.” The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States.

The amendment declares that powers are reserved “to the States respectively, or to the people,” meaning they are to be left in their original state.

It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.

During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937, however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had. [My Note: But the question is this: What right does the Supreme Court, a branch of the federal government, to decide the scope of that government’s powers? The explanation given in the Federalist Papers of Article III’s judicial branch powers is that the Supreme Court had the power to advise and to offer an opinion as to constitutionality.

Rights Versus Duties  –

Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.

In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.

With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.

If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.

If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately—not abusing this freedom for personal advantage or vengeance.

If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.

If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.

If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.

If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.

If one is entitled to rights, one has the duty to support the public authority that protects those rights.

For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer; but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true; but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal.

Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans.

Reference: http://www.law.cornell.edu/constitution/billofrights

(B) RATIFICATION OF THE CONSTITUION by the STATE of NORTH CAROLINA
November 21, 1789.

In Convention, August 1, 1788.

Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.

DECLARATION OF RIGHTS

1st. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

4th That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the Legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of Liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defence of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct.

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favoured or established by law in preference to others.

AMENDMENTS TO THE CONSTITUTION

I. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

II. That there shall be one representative for every 30.000, according to the enumeration or census, mentioned in the constitution, until the whole number of representatives amounts to two hundred; after which, that number shall be continued or increased, as Congress shall direct, upon the principles fixed in the constitution, by apportioning the representatives of each state to some greater number of people from time to time, as population encreases.

III. When Congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such State, according to the census herein directed, which is proposed to be thereby raised: And if the legislature of any state shall pass a law, which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected in such state.

IV. That the members of the senate and house of representatives shall be ineligible to, and incapable of holding any civil office under the authority of the United States, during the time for which they shall, respectively, be elected.

V. That the journals of the proceedings of the senate and house of representatives shall be published at least once in every year, except such parts thereof relating to treaties, alliances, or military operations, as in their judgment require secrecy.

VI. That a regular statement and account of the receipts and expenditures of the public money shall be published at least once in every year.

VII. That no commercial treaty shall be ratified without the concurrence of two-thirds of the whole number of the members of the Senate: And no treaty, ceding, contracting, or restraining or suspending the territorial rights or claims of the United States, or any of them or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three-fourths of the whole number of the members of both houses respectively.

VIII. That no navigation law, or law regulating commerce shall be passed without the consent of two-thirds of the members present in both houses.

IX. That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.

X. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

XI. That each state, respectively, shall have the power to provide for organizing, arming and disciplining its own militia whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion: And when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own state.

XII. That Congress shall not declare any state to be in rebellion without the consent of at least two-thirds of all the members present of both houses.

XIII. That the exclusive power of Legislation given to Congress over the federal town and its adjacent district, and other places, purchased or to be purchased by Congress, of any of the states, shall extend only to such regulations as respect the police and good government thereof.

XIV. That no person shall be capable of being president of the United States for more than eight years in any term of sixteen years.

XV. That the judicial power of the United States shall be vested in one supreme court, and in such courts of admiralty as Congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity, arising under treaties made, or which shall be made under the authority of the United States; to all cases affecting ambassadors, other foreign ministers and consuls; to all cases of admiralty, and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more stares, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers and consuls, and those in which a state shall be a party; the supreme court shall have original jurisdiction, in all other cases before mentioned; the supreme court shall have appellate jurisdiction as to matters of law only, except in cases of equity, and of admiralty and maritime jurisdiction, in which the supreme court shall have appellate jurisdiction both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. But the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of this constitution, except in disputes between states about their territory; disputes between persons claiming lands under the grants of different states, and suits for debts due to the united states.

XVI. That in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury.

XVII. That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse or be disabled by invasion or rebellion, to prescribe the same.

XVIII. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted in any manner whatsoever to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.

XIX. That the laws ascertaining the compensation of senators and representatives for their services be posponed in their operation, until after the election of representatives immediately succeeding the passing thereof, that excepted, which shall first be passed on the subject.

XX. That some tribunal, other than the senate, be provided for trying impeachments of senators.

XXI. That the salary of a judge shall not be increased or diminished during his continuance in once, otherwise than by general regulations of salary which may take place, on a revision of the subject at stated periods of not less than seven years, to commence from the time such salaries shall be first ascertained by Congress.

XXII. That Congress erect no company of merchants with exclusive advantages of commerce.

XXIII. That no treaties which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed, or made conformable to such Meaty; nor shall any Meaty be valid which is contradictory to the constitution of the United States.

XXIV. That the latter part of the fifth paragraph of the 9th section of the first article be altered to read thus,-Nor shall vessels bound to a particular state be obliged to enter or pay duties in any other; nor when bound from any one of the States be obliged to clear in another.

XXV. That Congress shall not directly or indirectly, either by themselves or thro’ the judiciary, interfere with any one of the states in the redemption of paper money already emitted and now in circulation, or in liquidating and discharging the public securities of any one of the states: But each and every state shall have the exclusive right of making such laws and regulations for the above purposes as they shall think proper.

XXVI. That Congress shall not introduce foreign troops into the United States without the consent of two-thirds of the members present of both houses.

SAM JOHNSTON, President

Reference: Ratification of the Constitution by North Carolina, November 21, 1788 –http://www.constitution.org/rc/rat_decl-nc.htm