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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INTERPOSITION: The Duty to Say “NO!”

NO - Just say NO (signs)

by Diane Rufino, January 25, 2018

The word Interposition means “to place between; cause to intervene.” In the context of the Constitution and the system of government it has established in this country, interposition is the doctrine that says that an individual State may oppose any federal action it believes encroaches on its sovereignty. It is a doctrine tied to the Tenth Amendment. The Tenth Amendment, as we all know, is a restatement of the fact that government power is split between two sovereigns, the federal government and the individual States. The Constitution establishes a horizontal separation of powers between the executive, legislative, and judicial branches at the federal level. By the very nature of its limited grants of delegated powers to those branches, the Constitution also establishes a vertical separation of powers between the federal government and the State governments. By “vertical,” we mean that the federal and State governments are co-equal sovereigns. The Tenth Amendment is a restatement of the fact that the Union is not a consolidated one with unlimited power at the federal level but rather a federation of sovereign states with most of the day-to-day running of people’s lives and governing of communities being reserved to the States and the powers to regulate for safety and security, immigration, commerce, and currency being delegated to the common government. Dual Sovereignty. The Tenth Amendment, quite simply, reads: “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.”

Since the Tenth Amendment cannot enforce itself, interposition is one of the doctrines that allows the States and the People to stand up for the rights that are reserved to them.  Right now, the federal government has a monopoly over the meaning and scope of its powers. Congress makes the laws, the president signs the laws and enforces then, and the courts review them for constitutionality.  It wasn’t always this way. The federal courts were originally only supposed to render an “opinion” to the other branches. They were to take that opinion under advisement and amend the particular law or alter their conduct. The “check” that the “opinion” offered was that it was public; once the States found out the opinion, as sovereigns and as the co-parties to the compact known as the US Constitution, they always had the option to nullify and refuse to enforce a law or policy that the court deemed as unconstitutional. But the judicial branch made sure that its power was much more substantial than rendering a mere opinion. The federal monopoly was established when Chief Justice John Marshall handed down the Marbury v. Madison opinion in 1803.  Essentially the decision asserts that the Supreme Court is the tribunal tasked with interpreting the Constitution and as such, it’s “opinions” are not really “opinions” at all but binding decisions. Whatever the men in robes decide is the meaning and the intent of the Constitution IS the meaning and intent and its decisions are final and binding.

But rights and liberties are never secure when men and women have the power to interpret while also being motivated by political opinions, personal passions, etc. The Tenth Amendment MUST not be left to the federal government monopoly to ignore or re-interpret as it sees fit.

The remedy always available to those who hold the reserved powers is interposition – to recognize that certain acts are unconstitutional and exceed delegated powers (and hence are null and void and legally unenforceable) and then to take the necessary steps to make sure that they are NOT enforced. To allow them to be enforced is allowing government usurpation.

I. Interposition: Its Roots in the Magna Carta –

Interposition is a doctrine that the federal government abhors. Arizona tried to interpose in 2010 or so when it was fed up with the fact that the Obama administration refused to enforce immigration laws and the State was being overly burdened by illegal immigration. It passed a law giving its state law enforcement powers to determine which immigrants were undocumented and to require employers to do the same in the hiring process (e-verify). The Arizona legislature and Governor Jan Brewer interposed for the benefit of their citizens and for the proper functioning of the State. Quickly, however, Obama sued the State. How dare it interpose.

Where did this doctrine come from???

It has its roots in the Great English Charter itself – the Magna Carta, signed in the year 1215 by King John to formally recognize the “rights” recognized by ancient tradition and custom of the barons and other lower-class Englishmen. (Remember, this was Medieval England, the era of serfdom)

At the end of the Charter, the English barons included a section providing for the enforcement of its provisions. Section 61 read:

“Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.”

Put simply, Section 61 established a representative group of 25 barons, to be selected as they see fit, who would be tasked with the responsibility of making sure that the promises made by King John when he signed the Charter are kept, even at the point of rebellion against him. This group of 25 “shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter.”

In other words, because the King may eventually ignore the promises he made, those who hold the rights and liberties have the right to decide when they’ve violated and then to take any and all steps to make sure that such violation is remedied.

I would argue that inherent in any compact that protects individual rights is the right of those who hold those rights to decide when they’ve been violated and then to take any and all steps to make sure that such violation is remedied.

I would also argue that in any social compact where government power is delegated and powers are reserved, that each party (the one receiving the delegated power and the ones holing the reserved powers) has the right to prevent the other from taking what is legally theirs. This doctrine therefore applies to the Constitution, itself being a social compact.

How did the Magna Carta come about?

II. The History – The Meeting at Runnymede and The Story of King John and the Magna Carta [Constitutional Rights Foundation, 2001. Referenced at: http://www.crf-usa.org/foundations-of-our-constitution/magna-carta.html ]

A. Who Was King John?

Myth and history are intertwined in the England of 800 years ago. We all remember the outlaw, Robin Hood. From his hideout in Sherwood Forest, he and his band of Merry Men preyed on the rich and gave to the poor. Their archenemy was the Sheriff of Nottingham, who took his orders from the sinister Prince John. While Robin Hood never existed, John certainly did. He was the central character in a real life drama that led to a milestone in human liberty: Magna Carta. Prince John’s older brother, Richard, became king of England when their father, Henry II, died in 1189. King Richard I (also called Richard the Lionhearted) spent almost the entire 10 years of his reign away from England. He fought in tournaments, led crusades and waged several wars on the continent of Europe.

Since Richard needed revenue to pay for his adventures, he taxed his subjects heavily. At one point Richard was captured by his enemies and held for ransom (a common practice in feudal Europe). Richard’s tax collectors in England had to raise an enormous sum of money to free him. Despite Richard’s demands, the people back home in England loved him as a conquering hero.

When Richard died in 1199, John became King. Unlike his brother, John tended to stay at home and run his kingdom on a day to day basis. John, however, continued his brother’s harsh tax policy. Because John lacked Richard’s heroic image and charisma, his subjects began to hate him for his constant demands for more tax money

B. King John vs. The Church –

King John made more enemies when he refused to accept the appointment of Stephen Langton as Archbishop of Canterbury, the most important position in the English Catholic Church. By so doing, John challenged the authority of Pope Innocent III in Rome, who punished John by excommunication. John retaliated by taxing the Church in England, confiscating its lands and forcing many priests to leave their parishes.

While King John carried on his dispute with the Pope, powerful English landowners called barons conspired against him. Fuming over John’s heavy taxes and other abuses of power, the barons plotted rebellion. To head them off, King John made an unexpected move.

In 1212, King John agreed to have Stephen Langton become Archbishop of Canterbury. John also promised to compensate the Church for its money and lands. John even went so far as to make England a fief of the Pope. King John still ruled England, but, as John’s liege lord, the Pope gained tremendous prestige throughout Europe. Pope Innocent was delighted and in 1213 ended John’s excommunication. With John now under the protection of the Church, the resentful barons retreated—at least for a while.

C. King John vs. the Barons —

Convinced that his throne was again safe, King John returned to one of his favorite projects. For years he had dreamed to retake possession of lands in France that had once belonged to his ancestors. Once before, John had led a military expedition to France. Although he won a number of battles, John failed to decisively defeat the French king. Now, in 1213, John planned another campaign.

An invasion of France required many soldiers and more money. Under feudal law, a liege lord had the right to call upon his vassals to provide knights or money during times of war. From the English barons, all vassals of King John, he demanded men-at-arms or gold to support his new French war. Many of the barons refused, having little interest in John’s quarrel with the French king. Enraged, King John set out to punish them by attacking their castles.

Early in 1214, he abandoned his domestic quarrels and left with a force of loyal barons and mercenaries (paid soldiers) for France. History repeated itself. John succeeded in winning some battles, but failed to gain control of the disputed lands.

D. The Road to Runnymede —

Soon after returning to English soil in October 1214, King John resumed his demand for money from the rebellious barons. His demands fell on deaf ears. Sensing John’s weakness after his failure in France, the barons began to make their own demands. In January 1215, a group of them appeared before King John asking for a written charter from him confirming ancient liberties granted by earlier kings of England. Evidence suggests that the newly appointed Archbishop Stephen Langton may have encouraged these demands.

John decided to stall for time; he would give the barons an answer later in the spring. In the meantime, John sent letters to enlist the support of Pope Innocent III, and also began to assemble a mercenary army.

In April, the barons presented John with more specific demands. John flatly rejected them. He remarked: “Why do not the barons, with these unjust exactions, ask my kingdom?”

In response, the barons withdrew their allegiance to King John, and started to form their own rebel army. At the head of the rebel forces was Robert FitzWalter, who called himself “Marshal of the army of God and Holy Church.” In an effort to cool things off, John proposed that the Pope settle their differences. With the Pope openly siding with King John, the barons refused. John ordered his sheriffs to crush the rebel barons and they retaliated by occupying London.

A stalemate ensued. The 40 or so rebel barons and their forces held London as well as their own fortified castles throughout England. King John commanded a slightly smaller force of loyalist barons and mercenaries. Unaligned were about 100 barons plus a group of church leaders headed by the ever-present Archbishop Stephen Langton. Langton (who was sympathetic to the rebels if not one himself) began to work for a negotiated settlement to prevent all-out civil war and arranged a meeting to be held at Runnymede, a meadow on the Thames west of London.

E. Meeting at Runnymede —

King John and his supporters, the rebel barons, the neutrals, church leaders and Archbishop Langton all met at Runnymede on June 15, 1215. Actually, the Charter was negotiated at Runnymede between 10 and 15 June 1215, with King John riding down each day from Windsor, and the barons encamped in their tents across the meadows beside the Thames. Significantly, while most of King John’s fighting men were scattered throughout his kingdom, the rebels appeared at full military strength.

Little is known about the details of this historic meeting, but we do know that King John placed his seal of approval on a document called the “Articles of the Barons.” Over the next few days these articles were rewritten, expanded, and put into the legal language of a royal charter. At some point, probably on June 19, King John put his seal on the final draft of what we call today “Magna Carta” or “The Great Charter.” In exchange, the rebellious barons renewed their oath of allegiance to King John, thus ending the immediate threat of civil war.

With the document, the nobles compelled John to execute this recognition of rights for both noblemen and ordinary Englishmen. The Charter begins with Article 1, which, besides asserting that “the English Church shall be free,” also states: “We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.” Besides recognizing the right of the church to be free from governmental interference, the Magna Carta also recognized the rights of all free citizens to own and inherit property and to be protected from excessive taxes through representation in a “common counsel.” It established the principles of due process and equality before the law, the right to a jury of one’s peers, and the right of widows who owned property to choose not to remarry. It also contained provisions forbidding bribery and official misconduct.

And, as mentioned earlier, it included an enforcement provision: Section 61 read: “61. Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression (or, in the event of our being out of the realm, if our justiciar shall not have corrected it) within forty days, reckoning from the time it has been intimated to us (or to our justiciar, if we should be out of the realm), the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall, together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations towards us.

Tricky to the end, however, King John left off the names of the 25 barons who were to be tasked with the enforcement of the charter’s terms. By doing so, John intended to downplay the enforcement provision and in general hoped the Charter would become no more than a toothless symbol of his generosity to the kingdom.

Magna Carta of 1215 was not really intended to be a list of rights for Englishmen or even the barons themselves. It was more like a contract in which John bound himself to abide by its provisions. The barons only wanted King John to satisfy their complaints against his abusive rule, not overthrow the monarchy. The real significance of this document lies in the basic idea that a ruler, just like everyone else, is subject to the rule of law. When King John agreed to Magna Carta, he admitted that the law was above the king’s will, a revolutionary idea in 1215.

F. Aftermath —

King John surrendered significant power when he agreed to Magna Carta. It is doubtful that he really ever intended to live up to all his promises. Certainly, the barons hoped that its terms would be rigorously enforced. While John did satisfy some of the barons’ personal grievances, he secretly wrote the Pope asking him to cancel Magna Carta on the grounds that he signed it against his will. At the same time he continued to build up his mercenary army. Not trusting John’s intentions, the rebel barons held on to London and maintained their own army.

Pope Innocent III replied favorably to King John’s appeal. He condemned Magna Carta and declared it null and void. By September 1215, King John and his army were roving the countryside attacking the castles of individual barons, but he avoided the rebel stronghold of London. The barons charged that King John had defaulted on his agreement with them and they were justified in removing him from the throne. They offered the throne to the son of the French king, if he would aid their rebellion.

A long and bloody civil war loomed across England, when suddenly, King John died. A round of heavy eating and drinking apparently led to a case of dysentery causing his death on October 18, 1216. Ten days later John’s nine-year-old son, Henry, was crowned as the new king of England. With John out of the way, the conflict gradually ceased. Less than a month after Henry was crowned, his supporters confirmed Magna Carta in his name. This time it received the approval of the Pope.

Magna Carta, carrying with it the idea of “the rule of law,” was reconfirmed a number of times over the next 80 years, becoming a foundation of English law. Eventually, Magna Carta would become the source of important legal concepts found in our American Constitution and Bill of Rights. Among these are the principle of no taxation without representation and the right to a fair trial under law. These foundations of our own constitutional system had their beginnings in a meadow beside a river almost 800 years ago.

III. CONCLUSION

As I hope you all remember from school, the Magna Carta was a crucial turning point in the struggle to establish freedom and recognize individual rights. The ancient laws and customs by which England had been governed, and which had been abused by the King, were enumerated most clearly and explicitly on its parchment. His signature, his assent, was demanded by those who refused to be mistreated any longer by him. These ancient laws and customs, defended strongly by those who believed were not to be transgressed by the King, would eventually be thought of as human rights.

The next recorded milestone in the development of these “human rights” would be the Petition of Right, drafted in 1628 by the English Parliament and sent to Charles I as a statement of civil liberties and a reminder of the obligation of Kings to recognize that the throne is not above the law. (See my recent article “The English Roots of American Liberty,” January 20, 2018)

Winston Churchill once admonished the free world to learn to pronounce the word “No.” Summoning the wisdom of Alexander the Great, Churchill, in the face of Nazi aggression, challenged the free world to muster the courage to tell Hitler “no.” In his famous October 16, 1938, broadcast to the United States and England, termed “The Defense of Freedom and Peace: The Lights are Going Out”, Churchill reflected: “Alexander the Great remarked that the people of Asia were slaves because they had not learned to pronounce the word ‘No.’ Let that not be the epitaph of the English-speaking peoples or of Parliamentary democracy, or of France, or of the many surviving liberal States of Europe.”

If we don’t learn to say “NO,” then it may also become the epitaph of the United States.

It takes courage to stand up against a person or a body having great power. It often comes at some personal sacrifice. Our challenge is to stand up as a people, and as individual States, to the government officials, the government bodies, and yes, even federal judges who are violating, ignoring, eroding, or otherwise re-interpreting the Constitution our Bill of Rights. Each unconstitutional act usurps the powers delegated or reserved to the People and the States. Nature’s Law supersedes man’s law. Every failure to resist the tyranny posed by an unconstitutional act tightens the noose around freedom’s neck.

References:
The Magna Carta – http://www.constitution.org/eng/magnacar.htm

“The Meeting at Runnymede: The Story of King John and Magna Carta,” 2001, Constitutional Rights Foundation, 601 South Kinglsey Drive, Los Angeles, CA 90005. Referenced at: http://www.crf-usa.org/foundations-of-our-constitution/magna-carta.html [Section II, Parts A, B, C, D,, and F are taken directly from this source. Only a part of Section E comes this source].

Diane Rufino, “The English Roots of American Liberty,” For Love of God and Country (Diane’s blog), January 20, 2018. Referenced at: https://forloveofgodandcountry.com/2018/01/24/the-english-roots-of-american-liberty/

Jason K. Allen, “Pronouncing the Word ‘No’: The Most Important Lesson I Learned from Al Mohler,” Jason Kallen’s Blog, Nov. 9, 2015. Referenced at: https://jasonkallen.com/2015/11/pronouncing-the-word-no/

The English Roots of American Liberty

MAGNA CARTA - King John signing

by DIane Rufino, January 20, 2018

From the Declaration and Resolves (petition to King Charles listing the colonies’ grievances against the King and Parliament), the Declaration of Independence, to the Bill of Rights / Declaration of Rights adopted by the individual states, to the US Constitution, and to the US Bill of Rights, the Founding Fathers looked to English history for the words and templates to navigate the colonies towards independence and then into a republic. They reflected on the abuses of the Kings and the compacts demanded by the people to check those abuses, as well as the Enlightenment era philosophy on government in building a lasting republic. It is said that our Founding Fathers were wise and extremely well-read, but moreso, they were keenly aware of England’s history, which was, of course, also the history of the American colonies.

The colonists certainly embraced the liberty they found in the American colonies and the chance they had to self-govern as they saw fit. They worshipped according to their conscience, they engaged in trade freely, and they established their own colonial governments. But then they began to see that new-found liberty in jeopardy. The historic abuses of the English monarchy on its subjects now turned to the colonies. The colonists were taxed without their representation in Parliament (a right listed in the Magna Carta and English Bill of Rights of 1689), their trade interfered with (Tea Act), their colonial assemblies suspended (violation of their colonial charters), they had standing armies kept among them (in violation of the English Bill of Rights), they were forced to quarter troops (in violation of the Petition of Right of 1628 and English Bill of Rights), and their firearms and ammunition were confiscated (in violation of the English Bill of Rights). And when they protested and remonstrated these violations of their rights as English subjects, as those of centuries earlier had done, King Charles III ignored and mocked them. To the King, the colonists were crude, almost laughable in their simpler ways. He accused them of acting like petulant children and essentially being bothersome. He did not answer their written complaints, nor was swayed when they pleaded to him, “as loyal subjects,” to please intervene on their behalf to Parliament (for such things as the Intolerable Acts). By 1774, the King had had enough of them and accused them of being in active rebellion against Great Britain. All the colonists wanted was to have their rights respected. [Watch the DVD Set “Liberty – The American Revolution” (PBS) to feel the frustration the colonists felt in the years leading up to the American Revolution].

The question was this: How would the colonists respond?

Well, we know how they responded. Looking at the totality of the situation (“The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States…”), the colonists, assembled in the Second Continental Congress, felt it had no other meaningful course but to seek its independence. In asserting what they believed was their natural right of self-determination and right of self-governance, they took a cue from their English roots (the Grand Remonstrance of 1640) and set forth a list of grievances against the King. In the Declaration of Independence, they listed 27 grievances – abuses of their rights – which, as the colonies declared, justified their separation from Great Britain.

When the fighting began the colonies weren’t seeking their independence; they were merely rebelling against tyranny. But North Carolina and then Virginia, and then others, began to call for independence, and on July 2, 1776, the resolution declaring independence was adopted and on July 4, Jefferson’s formal Declaration was issued – “to a candid world. The rebellion turned into a war for independence. Luckily, trust in George Washington paid off and friendship with France paid off as well. After our victory at Saratoga, France sent troops and its naval forces. British General Cornwallis surrendered at Yorktown, VA on October 19, 1781 and on September 3, 1783, representatives of King George III of Great Britain and representatives of the United States of America signed the Treaty of Paris to officially end the American Revolutionary War. Article I of the Treaty read: “His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states…” The colonies were free.

But then next question was perhaps more important: How would they secure the liberty and individual rights they had just fought for? What kind of government system would best suit that goal?

Luckily our Founding Fathers were students of history and philosophy. They studied the Greek and Roman republics and knew what made them great and what led to their demise. They knew the history of England – a monarchy – and knew that although the great charters of liberty were written by the English to limit the conduct of the King and then to include Parliament, they also knew that those protections often went unnoticed. There were several attempts in England’s history to limit (forever) the rights of kings to place themselves above the law, but in some cases, the king took the “Divine Right of Kings” doctrine far too seriously. The Divine Right of Kings was the political/ religious doctrine in England that asserted that a monarch is subject to no earthly authority, deriving the right to rule directly from the will of God. Indeed, the history of England was a series of repeated events – abuses of the King over his subjects followed by a charter or petition demanding that their rights be acknowledged and that the King recognize limits to his power, followed by periods where the King or Kings ignored the charter/petition and subjects were again abused, followed by another petition, etc. For example, King John (1199-1216) signed the Magna Carta in 1215 after his barons took up arms against him, but almost immediately, he broke those promises. In 1928, Parliament presented King Charles I with the Petition of Right, complaining of a series of breaches of law and the Great Charter (Magna Carta) he had committed. The violations were of four general types – unfair and illegal taxation, as well as imposing taxes without the action of Parliament, many due process violations, including imprisonment without cause, quartering of soldiers on subjects, and imposing martial law in peacetime. The remainder of his reign would be marked with such extreme abuses that he would eventually be brought to trial and executed. James II, his son, would be another abusive king. With James II, the people (and Parliament) had had finally enough. He was removed by a bloodless revolution and the new King and Queen, William and Mary (Mary being James II’s daughter) signed the English Bill of Rights in 1689. Drafted by Parliament, the Bill of Rights officially set limits to the right of kings to put themselves above the law. The statute which offered the throne to William and Mary legally conditioned their rule on signing and respecting it. And subsequent kings would thus be limited as well.

All of our Founding Fathers knew that history very well. Again, England’s history was the history of the American colonies. But it was, after all, a monarchy. And a monarchy, as shown, was incapable of truly securing the inalienable rights of the individual. A democratic form of government would work either. True democracy is mob rule. It is always a rule by the majority. It could easily be tyranny by the majority.

In drafting the Constitution, which created our system of government here in the United States, our founders decided the best form of government would be a republic. Their study of history taught them that. As James Madison, author of the Constitution, wrote in Federalist No. 10: “Hence it is that democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and in general have been as short in their lives as they have been violent in their deaths … A republic, by which I mean a government in which a scheme of representation takes place, opens a different prospect and promises the cure for which we are seeking.”

Article IV Section 4, of the Constitution: “The United States shall guarantee to every State in this Union a Republican Form of government … ”

At the Philadelphia Convention in 1787, the task of the delegates was to design the new republic as wisely as possible. like what Dr. Joe Wolverton II wrote in a 2004 article for The New American: “They believed they could find the key to inoculating America against the diseases that infected and destroyed past societies. Indeed, it has been said that the Founders were coroners examining the lifeless bodies of the republics and democracies of the past, in order to avoid succumbing to the maladies that shortened their lives.”

The Constitution was signed by the delegates on September 17, 1787 and then it was sent to each state to be ratified or rejected. Several of the delegates were unhappy with the final draft because it did not include a Bill of Rights and some, including the powerful George Mason from Virginia, promised to try to defeat its ratification in the state conventions. (Patrick Henry planned to help Mason do so). Thomas Jefferson, the author of the Declaration of Independence, believed strongly that a Bill of Rights needed to be added, but Madison, author of the Constitution, did not. Jefferson wrote: “A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.” States like Virginia and North Carolina and Rhode Island would not ratify unless a Bill of Rights was added, and New York was up in the air. Although it may have been likely that 9 states (as required by Article VII) would have ratified so that the Constitution would have done into effect, the states couldn’t imagine a union without the large powerful states of VA, NY, and NC. And so a deal was made with Madison at the VA Ratifying Convention. He would submit a Bill of Rights as amendments to the Constitution in the first session of the first US Congress. Madison was an honorable man. The rest is history.

Before the deal was made, however, Patrick Henry got up before the Convention to make the case that a Bill of Rights was necessary to secure the blessings of liberty from a government that (as history has always shown) will eventually become too powerful. He spoke these words: “Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take everything else!….. I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American.”

Madison introduced his proposed amendments to the Constitution (a Bill of Rights) to Congress on June 8, 1789, and after a committee put them in final form and Congress adopted them, they were sent to the states on September 25 for ratification. Out of the twelve proposed amendments, the states ratified ten. There are approximately 26 individual rights identified in the Bill of Rights (excluding the unenumerated possibilities in the Ninth Amendment). Of those 26 individual rights, 9 can be traced back to Magna Carta, 7 can be traced to the English Petition of Rights of 1628, and 6 can be traced to the English Bill of Rights of 1689.

I used to think our Founders were divinely inspired to write some of the documents that they wrote….. the words, the themes, the ballsy language. But when you go back and study England’s illustrious history and you read the great charters and documents of liberty – the 1100 Charter of Liberties, the Magna Carta (1215), the Petition of Rights (1628), the Grand Remonstrance (1641), and the English Bill of Rights of 1689 – you realize that our Founders had all the templates they needed. In many cases, they followed in the very footsteps of their forefathers – English subjects – who petitioned every hundred years or more for their rights and for the King to limit his jurisdiction over their lives. For example, the Grand Remonstrance listed a series of grievances against Charles I, from the beginning of his reign, explaining why he needed to answer for his actions. In drafting the Declarations & Resolves of Oct. 14, 1774 (series of petitions and resolutions to King Charles I and Parliament in response to the Intolerable Acts), the First Continental Congress adopted the same petition formats that the English used to their King to petition for the rights that were being violated. In drafting the formal Declaration of Independence, Thomas Jefferson used the same format in order to condemn King Charles III and to make the case to a candid world why the people of the American colonies were seeking their political and legal separation from Great Britain. And so history lessons like this are so important because they serve to remind us that our system rests on a very distinguished history of standing up for liberty against tyranny and that the principles embedded in our documents are ones designed to withstand the abuses of those in power, in any branch. And that is why it is so important that those principles should not be taken for granted, maligned just because our fore-fathers were products of another era, or happened to own slaves or represented social norms of the day or happened to sneeze the wrong way, or “legislated” away from the bench by activist judges. Charles I was a miserable, ambitious King who, perhaps more than any other King of England, embraced the notion of the Divine Right of Kings and hid behind the artificial status it created. He quarreled with Parliament (the people’s body established by the Magna Carta to give them representation when it came to taxation) over taxes. He wanted more and more to finance his endless wars. When Parliament wouldn’t give him the funds he demanded, he merely dissolved the body. He did so three times from 1625-1629. When he dissolved Parliament in 1629, he resolved to rule alone and to get the money he needed. And so he raised revenue through non-Parliamentary means – including Ship Money (taxing those who lived along the coast). Most of these things helped to lead to his demise, which followed after he waged a civil war on Parliament itself, which he lost. Charles was tried, convicted, and executed for high treason by (a rump) Parliament in January 1649. He was beheaded. I point to Charles I because he was so abusive and dismissive of the rights of the people that the damage he did signaled the end of British system. After he was executed, Oliver Cromwell served as Lord Protector over England until his death in 1658. The monarchy was restored two years later, at which time, Charles II took the throne. He ruled until 1685 and when he died, his brother James II took the throne. He was deposed less than 3 years later. William and Mary were offered the throne and England got an official Bill of Rights at their coronation.

But one good thing came out of Charles’ reign. He cracked down quite heavily on the Puritans in England, and as a result, they emigrated (ultimately) to New England to found colonies based on religious liberty and eventually to establish the commonwealth of Massachusetts. The history of England is also one of religious tyranny and persecution, and no doubt provided the passion that certain Founders, such as Thomas Jefferson, had to secure religious freedom in the colonies.

England’s history is vital to our education because in her 600-year-or-so history, her people have stood up for their rights – rights they believed were fundamental and essential to their humanity and dignity – and in the end, their petitions, once merely requesting for the recognition of certain rights, became a Bill of Rights (1689), officially recognizing essential rights belonging to the individual that government was obligated to respect. While England does not have an official Constitution, per se, it considers a group of documents (including the English Bill of Rights) as being its “constitution” or governing document. But those documents, which represented the plight of the English for their rights to be free and to be free from government made it to the minds of our American Founders who then incorporated it into our nation’s founding documents. Our founding documents are superior to England’s because in this country, there is an “official” Constitution and an “official” Bill of Rights and both are predicated on something the English system is not – that government power originates from the individual. Those documents memorialize not only the formal recognition of inalienable individual rights, but they set important limits and boundaries on government. If you don’t think the English system of protest and petition didn’t work and if you don’t think it SHOULD be the model we embrace here – consider this: Each time the English people petitioned for their rights, those rights were enlarged, as mentioned above. Also consider this: The ability to have and bear arms originated as a “duty” in England, under the Militia laws. But after many years of the Crown confiscating guns and leaving England’s subjects undefended and vulnerable in the face of despotic Kings (willing to arrest and imprison them merely for political reasons or belonging to the wrong religion), that duty became a “right” in the English Bill of Rights. We have our Right to Have and Bear Arms (Second Amendment) because of the will and determination of the English people.

References:

“English and Colonial Roots of the US Bill of Rights – http://teachingamericanhistory.org/bor/roots-chart/

Virginia Ratifying Convention, Thursday, June 5, 1788 – http://www.constitution.org/rc/rat_va_04.htm

Federalist No. 6 (Alexander Hamilton), Avalon Project (Yale Law School) – http://avalon.law.yale.edu/18th_century/fed06.asp

“Liberty – The American Revolution” (3 disc, DVD set), PBS – https://shop.pbs.org/

The Petition of Right of 1628 – http://www.constitution.org/eng/petright.htm

The Grand Remonstrance of 1640 – http://www.constitution.org/eng/conpur043.htm

The English Bill of Rights of 1689 – http://avalon.law.yale.edu/17th_century/england.asp

Dr. Joe Wolverton II, “The Founding Fathers & the Classics,” The New American, September 20, 2004. Referenced at: https://21stcenturycicero.wordpress.com/tyrrany/the-founding-fathers-the-classics/

INDEPENDENCE DAY: The Story of Us

4th of JULY - red, white, and blue wall

by Diane Rufino, July 4, 2016

Independence Day – What it really means….

What does Independence Day – the 4th of July – mean to you?  Is it just a holiday to eat, drink, and light off fireworks?  Do you display and wave the flag of the United States out of habit – because everyone else on the block does it?  Do you cover your table with a plastic tablecloth of stars and stripes and decorate your yard with red, white, and blue because that’s what Target and Walmart remind you to do with its holiday displays and sales?   Do you actually understand what the 4th of July signifies?  Did you sleep through that lesson in American History Class? Was it even taught to you at all?

I just hope you aren’t one of those Americans who doesn’t think it matters.

When I was very young, I thought Independence Day marked the day when the 13 colonies defeated the British for our independence.  Then in middle school, I learned that it marked the date the Declaration of Independence was signed.  That was the extent of my understanding until I did my own reading.  Soon I learned that not only was the Declaration of Independence signed on July 4, 1776, but that it was an act of treason against the British Crown. It was an act of treason because while the colonies were fighting for their independence, the British were fighting to quash their rebellious nature for good. Rebellion against the Crown was high treason and it would not be tolerated.

But it wasn’t until I graduated law school that I was finally able to appreciate the real significance of the Declaration of Independence.  Simply put, as its author Thomas Jefferson explained: “The Declaration of Independence… is the declaratory charter of our rights, and of the rights of man.”  And in that magnificent document, Jefferson has laid out the natural order of our rights and the natural purpose and limits of government.

The document was almost forced on the colonies by history’s happenstance. It began with the colonies’ restlessness in the wake of an over-zealous King and Parliament which first sought to extract tax revenue from them (without representation) and then to oppress and subjugate them as a means of punishment. They were punished for daring to stand up for their rights as Englishmen, as Englishmen had done for over 500 years of their history.  Indeed, the history of England has been a history of repeated attempts, first by the barons and then by all subjects, to assert basic human rights and to demand from the King a promise (a charter) that he will respect such. Some of the attempts were successful and some only temporary, but all of England’s notable charters were signed and limited the reach of the King and Parliament, even if only for a very short time.

Some of these charters and other significant documents include: The Charter of Liberties of King Henry I (1100), the Magna Carta (1215), the Petition of Right (1628), the Grand Remonstrance (1641), and the English Bill of Right of 1689.  This history is critical for the foundation for our country because all total, these documents establish the notion that government must respect boundaries on the individual, acknowledging that they have certain essential rights and liberties.  The rights and liberties asserted and re-asserted in these documents are the “rights of Englishmen” that the colonists most eagerly embraced and were most eager to protect.

Author Brion McClanahan explains the significance of England’s grand history in his article Rethinking the Declaration of Independence: “In 1100, King Henry I of England agreed to restrictions on his power through the Charter of Liberties. The English barons rejected absolute authority and sought to preserve traditional decentralized “government.” Just over one hundred years later, in 1215, King John was forced again by the English nobles to sign the Magna Charta. The “Great Charter,” as it is known in English, declared that the king was not above the law – making him essentially equal to the nobles – and it resisted the trend toward centralization in England. Though on the books, the Magna Charta was often ignored by more powerful English monarchs, but several of its provisions became the basis of English common law, most notably the writ of habeas corpus.” (See the Habeas Corpus Act of 1679).

In October 1214, King John returned to England in disgrace. His mission to reconquer his lost territory in northern France had failed and other military campaigns were unsuccessful as well. He taxed England’s barons heavily to finance these campaigns and they were not happy.  Upon his return, he found that a group of angry barons from across the country had formed an association and were prepared renounce him as king. 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 the negotiations amounted to nothing. And so, on May 5 of that year, the barons gathered and agreed to declare war on King John. On May 17, 1215 they captured London, the largest town in England, without a fight.  With London lost and ever more supporters flocking to the side of the barons, the King John realized he would have to address their concerns.

On June 8, he notified the barons of his willingness to negotiate. Over the next few days, the barons assembled in great numbers at Runnymede, a relatively obscure meadow just a few miles from Windsor castle, where King John was based. They arrived to repeat their demands and negotiate peace terms. On June 15, the barons presented their terms to the King and he signed the great document – The Great Charter (“Magna Carta”).

In Chapter 39 of Magna Carta, one of the document’s most important clauses, King John made the following promise:  “No freeman shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Here, it was agreed that the Crown and his administration would not arrest, outlaw, banish, or incarcerate any free man, deprive him of his rights, possessions or legal standing, or otherwise take official and forceful action against him, except in accordance with the lawful judgement of his equals or in accordance with the laws of the Kingdom. This was, in embryonic form, the principle of due process of law: The government shall not deprive any person subject to its jurisdiction of life, liberty, or property without due process of law. The Magna Carta provided that justice was to be guaranteed to every person in the Kingdom, that the right of justice would not be sold, delayed, or denied to any person. Thus, this critical, historic document provided that every freeman — i.e., every Englishmen who was not a serf — was to enjoy security and protection from illegal interference by the King (ie, government) in his person and property.   [See Dr. Almon Leroy Way, Jr. (Professor of Political Science), “The American System of Government….”]   The terms listed in the Magna Carta would later be referred to as “the ancient rights and liberties of Englishmen” in the English Bill of Rights of 1689.

King John, in giving his consent to Magna Carta, agreed that: (1) the Monarch was subject to the law of the Kingdom and (2) the law placed limits on royal authority. This reflected an early stage in the development of the central idea of English and American constitutionalism — the idea that the ruler was not above the law and therefore had to abide by the law and stay within the limits the law imposed on his power.  [See Dr. Almon Leroy Way, Jr.]

Under Magna Carta, the King still governed England, but he had to share with the barons one important sphere of political authority — the power of taxation. All royal requests for extraordinary taxes had to be submitted to the Common Council for its consideration and decision. When it came to the King’s raising revenue by means other than collecting the feudal fees and aids in amounts due him by customary right, he had to share with the barons, the largest and most powerful bloc in the Common Council, the authority to make binding decisions. The requirement, stipulated in Magna Carta, that the King submit proposals for extraordinary taxation to an assembly of his leading subjects — the barons and the Church officers of high rank — was one small but significant step on the long road to firmly establishing as a constitutional guarantee, truly binding on the Monarch and all other officers of the government, the age old principle of English government that no subject could be taxed without his consent, given by the subject directly in person or indirectly through elected representatives in a legislative assembly.   [See Dr. Almon Leroy Way, Jr.].

When Britain began taxing the colonies without allowing them representation in Parliament, particularly with the Stamp Tax, the colonists asserted this basic right from the Magna Carta in their protest slogan “No taxation without representation.”  The phrase actually originated with Massachusetts attorney James Otis about 1761, who proclaimed: “Taxation without representation is tyranny!”

After the Magna Carta, the Petition of Right of 1628, which was written by Parliament, was presented to King Charles I to re-assert the civil liberties of his subjects.  The Petition contained four main points: (1) No taxes could be levied without Parliament’s consent; (2) No English subject could be imprisoned without cause–thus reinforcing the right of habeas corpus; (3) No quartering of soldiers in citizens’ homes; and (4) No martial law may be used in peacetime. Each of these four points enumerated specific civil rights that Englishmen felt Charles I had breached throughout his reign. Although he’d never been that popular as the monarch, his abuse of power against the people escalated to an intolerable level after Parliament refused to increase taxation and finance his unpopular foreign policies. The purpose of the Petition was to seek redress for the serious grievances Charles had committed.

When Charles showed no sign of repenting, Parliament drafted an extensive list of grievances which it presented to him on December 1, 1641. The grievances included 204 instances of gross abuses of the King’s power and usurpations of the rights of the people.  Preceding this list of grievances were the following significant paragraphs:

For the preventing of those miserable effects which such malicious endeavours may produce, we have thought good to declare the root and the growth of these mischievous designs: the maturity and ripeness to which they have attained before the beginning of the Parliament: the effectual means which have been used for the extirpation of those dangerous evils, and the progress which hath therein been made by His Majesty’s goodness and the wisdom of the Parliament: the ways of obstruction and opposition by which that progress hath been interrupted: the courses to be taken for the removing those obstacles, and for the accomplishing of our most dutiful and faithful intentions and endeavours of restoring and establishing the ancient honour, greatness and security of this Crown and nation.

The root of all this mischief we find to be a malignant and pernicious design of subverting the fundamental laws and principles of government, upon which the religion and justice of this kingdom are firmly established.

The Grand Remonstrance would help precipitate a civil war in England and eventually lead Parliament to file official charges of high treason against Charles I.  He would be tried, convicted, and executed (beheaded) in 1649. His son Charles II was exiled and his other son James II was able to escape to France dressed as a girl.

When England erupted in this civil war, the Parliament asserted its authority and suspended the reign of the Monarch, and by 1688 had become the driving force behind English law and policy. From 1649 to 1660, England became a republic. At first it was ruled by Parliament, but in 1653, Oliver Cromwell, commander of the army, became Lord Protector of England and served until he died (1658; his son took over briefly). Eventually the blood line of Charles I was restored in 1660 first with Charles II (who sat on the throne at the time of the plague and the great fire of London) and then in 1665, with James II. He was terribly unpopular, and in fact, was widely hated by the people. Not only did he force his Roman Catholic faith on the British people, but he willingly allowed the persecution of Protestants. He was forced to give up the crown in the Glorious Revolution (the “Bloodless Revolution”) of 1688.

When King James II was expelled from England in 1688, Parliament invited King William III of Orange and his wife Mary II (daughter of James II), of the Netherlands, to assume the throne.  Parliament promised no resistance. The only requirement was that they sign the English Bill of Rights that Parliament had drawn up on behalf the people. It condemned James II for violating the rights of Englishmen, which the Parliament called the “laws and liberties of this kingdom,” and placed restrictions on the powers of the monarch. William and Mary “gladly accepted what was offered them” and signed the English Bill of Rights.

Those from England who settled the colonies, particularly Massachusetts, seeking freedom from religious persecution (Puritans and Pilgrims) and others, brought this history – and these rights – with them. After all, they were still Englishmen; they were living on a continent claimed by England and establishing settlements and communities pursuant to land patents issued by the King.

But the bond of affection would seem to be one-way only.  While the colonists sought to live as loyal subjects to the Crown, enjoying the same the rights and liberties as the citizens of England, England sought to exploit the colonies for raw materials, trade, and taxes.  For several years, things were good. No complaints.  But just as the British colonies were growing and expanding, there were French colonies growing and expanding as well – in the frontier region west of Virginia up to Canada. They were mainly fur-trappers. Eventually, Britain felt its American colonies and interests were being threatened and the two empires went to war. It lasted seven years (the French-Indian War, aka, the Seven Years War, 1754–1763), and eventually, the French were expelled and England secured greater territory. Believing the war was primarily for the benefit of the safety and security of the colonies, Parliament enacted a series of taxes on the colonies to recoup the money it had spent. [Note that around 1750, the plantations were established and against the wishes of the colonies, Britain pushed the slave trade on them to ensure that raw materials such as sugar, tobacco, indigo, cotton, and rice were produced plentifully and productively and shipped to England]

Accordingly, Parliament enacted the following taxes:  The Navigation Acts (1651, 1660, and 1663; duties on tobacco and molasses, to name a few), the Plantation Duty Act (1673; a duty on plantations), the Sugar Act (1764; a duty or tax on sugar), the Stamp Act (1765; a tax on all documents, including legal documents, calendars, cards, etc), and the Townshend Acts (1767; duties on items imported by the colonists, including glass, lead, paints, paper, and tea).  The colonists were outraged.  They weren’t outraged at the taxes themselves, but rather by the violation of their essential right to have representation in the legislative body that passes such tax measures.  “No Taxation Without Representation!”  They compared the current king, King George III, to Charles I for indiscriminately taxing the colonies without their consent. The Sons of Liberty organized at this time – originating in Massachusetts and New York and eventually having a presence in all thirteen colonies – and they were extremely effective at protesting these taxes and frustrating their enforcement.

Protests heightened with the passage of the Tea Act in 1673. The Tea Act allowed the British East India Company, which had a surplus of tea, to have a monopoly on import tea to the colonies. In passing this act, Parliament actually thought it was doing a favor to the colonies by providing tea at a reduced price (due to the surplus).  In fact, the cost of the tea, together with the new tax (“a mere 3 pence”), would be lower than the cost of the tea provided by other sources.  But Parliament didn’t get it.  The colonists didn’t think government had the right to force a monopoly on them and interfere with the trade of colonial tea merchants. Colonial merchants couldn’t compete with the less-expensive tea that the East India Tea Company provided so abundantly. And so, the colonists once again took matters in their own hands. In Pennsylvania and New York, colonists did not allow British tea ships to enter the large city ports. They sent ships out into the harbors to block the tea ships.  In Boston, they had a “party.”  On that evening of December 16, 1773, approximately 100 “radicals,” members of a secret organization of American Patriots called the Sons of Liberty, dressed up as Mohawk Indians, boarded three East India Company ships, broke open all 342 wooden chests of tea, and dumped them into the Boston Harbor.  The value of the tea destroyed, in today’s market, would amount to about $1 million.

Well, that particular act of protest was the one that the broke the camel’s back. At first King George III didn’t seem too perturbed at the incident, but soon, the tide of British public opinion would grow against the colonists, whom they regarded as rebellious and childish, and that rising sentiment would force Parliament and King George to punish the citizens of Boston for their recalcitrance. Parliament would no longer tolerate disobedience; the colonies’ “rebellious spirit” would finally have to be addressed and they would have be made to obey British laws. Parliament would no longer be soft when it came to obeying British laws. It would show the colonies what happens to those who happen to have a “rebellious spirit” and are disobedient, and in doing so, reinforce upon them the need to obey its laws.  What followed would be a series of laws called the “Coercive Acts” (also referred to as the “Intolerable Acts”).

On March 28, 1774, in response to the Boston Tea Party, Parliament passed four acts which together became known as the Coercive Acts. These individual acts included: (1) The Boston Port Act, which closed the port of Boston until damages from the Boston Tea Party were paid (no ship carrying colonial goods could enter or leave Boston Harbor until the Massachusetts Colony paid for all the tea that was destroyed);  (2) The Massachusetts Government Act, which effectively revoked Massachusetts Charter of the Province of Massachusetts Bay (1691), its colonial charter, prohibited democratic town meetings, and turned the royal governor’s council into an appointed body with wide-ranging powers (in other words, shifting government authority from Massachusetts colony to the royal governor);  (3) The Administration of Justice Act, which made British officials immune to criminal prosecution in Massachusetts; and  (4) The Quartering Act, which required colonists to house and quarter British troops on demand, including in their private homes as a last resort.

Indeed, the situation was intolerable. Parliament ordered the Royal Navy to blockade the Boston Harbor, preventing ships from entering and bringing in goods and supplies and blocking colonial merchant ships from leaving and selling their goods.  By fiat, the basic structure of colonial government was altered. England was now governing the colony. To add insult to injury, King George appointed General Thomas Gage, who had served as the head of the British Army in North America, as the new Governor of Massachusetts, and he brought troops with him.  On May 13, General Gage arrived in Boston with four regiments of troops. Aside from the fact that the colonists felt stripped them of their previously enjoyed rights, perhaps more unnerving was the presence of four thousand British soldiers in Boston. Under the Quartering Act, there would be guaranteed residence for the British Army and the citizens of Massachusetts would be required to quarter them, if necessary (otherwise they would have to remain on ships).  The Quartering Act required the colonies to house British soldiers in barracks provided by the colonies. If the barracks were too small to house all the soldiers, then localities were to accommodate the soldiers in local inns, stables, ale houses, and houses of sellers of wine. Should there still be soldiers without accommodation after all such public houses were filled, the colonies were then required to take, hire and make fit for the reception of his Majesty’s forces, such and so many uninhabited houses, outhouses, barns, or other buildings as shall be necessary.  Finally, British officials could abuse these acts and be free from prosecution in the colony.

In response, provincial militias started to gather munitions and store them in the countryside out of reach of the British regulars.

On May 26, Parliament dissolved Virginia’s colonial government – its Virginia House of Burgesses.  And on September 1, General Gage seized the Massachusetts Colony’s arsenal at Charlestown, located just across the Charles River from Boston – near Bunker Hill.

On Benjamin Franklin’s advice, the colonies decided to meet in a common body to address Britain’s treatment of the colonies, in particular the blockade of Boston Harbor and the Intolerable Acts on the Province of Massachusetts.  And so, on September 5, the First Continental Congress met with 56 delegates in Carpenters Hall in Philadelphia. Twelve out of the thirteen colonies sent delegates (Georgia did not send any). The Continental Congress, which would meet on two separate occasions, became the governing body of the “united” colonies during the time leading up to and then during the American Revolution.

On October 14, the First Continental Congress adopted a Declaration and Resolves against the blockade, the Coercive Acts, the Quartering of troops, and other objectionable British actions. These resolutions listed a series of grievances against Parliament (where have we seen that response before?) and appealed to the King to intercede on behalf of the colonies for proper respect for their rights as Englishmen. The Declaration and Resolves began as follows:

The good people of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent, and Sussex on Delaware, Maryland, Virginia, North- Carolina and South-Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted: Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, DECLARE,

That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS:

Resolved, N.C.D. 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.

Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural- born subjects, within the realm of England.

Resolved, N.C.D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved.

The Declaration and Resolves was presented to the King and then to Parliament on January 19, 1775.  King George laughed and dismissed the document and the Parliament did not even address it.  King George, to whom the Declaration was addressed, never even offered a formal response, for in his mind, he did not have to submit to the demands of the colonists, whom he regarded as insolent children.  He famously said to the Prime Minister Lord North: “The die is now cast, the colonies must either submit or triumph.”  He would not negotiate with them. His tacit response made it clear that he meant to maintain political unity between the colonies and the United Kingdom even at the expense of the happiness of the colonists.

Word of the Intolerable Acts and the subjugation of the colonists in Boston began to spread to other colonies and they began to react. Perhaps the most famous response came from Virginia, and Patrick Henry!

Because England had dissolved Virginia’s colonial government, its Virginia House of Burgesses, the state’s colonial leaders were forced to meet in secret.  And so they did, on March 20, 1775, at a small church which is now called St. John’s Church, in Richmond, away from the Capitol in Williamsburg. Delegate Patrick Henry presented resolutions to raise a militia, and to put Virginia in a posture of defense. He believed that martial law would eventually come to Virginia. Henry’s opponents urged caution and patience, holding out hope that the King would eventually respond – and respond generously – to the Declarations and Resolves.  On the evening of the 23rd, Henry presented a proposal to organize a volunteer company of cavalry or infantry in every county of Virginia and delivered a fiery speech in support of it.  His final words “Give Me Liberty or Give Me Death!” would be a rallying cry for the cause of independence and indeed, his entire speech is probably the most stirring, most passionate case in defense of liberty in our American history.

The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable²and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace²but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Patrick Henry succeeded in convincing the body of delegates to pass his resolutions. Virginia would call up a militia.

On April 14, 1775, General Gage received orders from London to take decisive action against the rebel-rousers of Boston – the leaders of the Sons of Liberty, Samuel Adams and John Hancock. In the wee hours of the April 19, seven hundred British troops were dispatched to Lexington, where they would capture Adams and Hancock, and then to Concord, where they would seize a secret stockpile of colonial gunpowder (Gage had received intelligence about its location).  But spies and friends of the Sons of Liberty leaked word of Gage’s plan. One lantern hanging from Boston’s North Church informed the countryside that the British were going to attack by land and two lanterns if they were going to attack by sea. A series of horseback riders – Paul Revere, William Dawes and Dr. Samuel Prescott – galloped off to warn the countryside that British troops were coming.

Word spread from town to town, and militias prepared to confront the British and help their neighbors in Lexington and Concord. Colonial militias had originally been organized to defend settlers from civil unrest and attacks by French or Native Americans and selected members of the militia were called “minutemen” because they could be ready to fight in a minute’s time. Sure enough, when the advance guard of nearly 240 British soldiers arrived in Lexington during the early morning hours, they found about 70 minutemen waiting for them on Lexington Green. Both sides eyed each other not knowing what to expect or what to do. Suddenly, a bullet rang out. It would be known as “the shot heard round the world.”  Seven American militiamen were killed in that skirmish.  The British retreated to Concord, where they found an even larger, more organized group of militiamen. They then retreated back to Boston, and as they did so, new waves of Colonial militia intercepted them. Shooting from behind fences and trees, the militias inflicted over 125 casualties, including several officers.  The American Revolution had begun.  By happenstance…. not because of the blockade of Boston Harbor, not because of the Intolerable Acts, not because of the quartering of troops, not because of King George’s rejection of the pleas of the Colonies in the Declarations and Resolves, and not because of the other instances of mistreatment of the colonies. It was because the British had come for their ammunition.

Thus, the war for independence began over the colonists’ right to bear arms and store ammunition for their defense.

Not fully expecting the standoff in Massachusetts to explode into full-scale war, the thirteen colonies agreed to reconvene the Continental Congress in Philadelphia on May 10, 1775.  Samuel Adams, John Adams, Benjamin Franklin, John Hancock, Patrick Henry, Thomas Jefferson, and George Washington were some of the esteemed delegates.

By the time the Second Continental Congress met again, war was already underway, and so its purpose primarily became to conduct the war and manage the efforts.  Already, colonial militias had seized arsenals, driven out royal officials, and besieged the British army in the city of Boston. On June 14, the Congress voted to create the Continental Army out of the militia units around Boston and quickly appointed Congressman George Washington of Virginia as the Commanding General of the Continental Army.  On July 6, Congress approved a Declaration of Causes outlining the rationale and necessity for taking up arms in what had become the American Revolutionary War.  The original draft was written by Thomas Jefferson but the final was written by John Dickinson of Pennsylvania. Much of Jefferson’s language was retained in the final draft. The Declaration insisted that the colonists do not yet seek independence from the mother country but were forced to take up arms “in defense of the Freedom that is our Birthright and which we ever enjoyed until the late Violation of it”, and will “lay them down when Hostilities shall cease on the part of the Aggressors.’  [Interestingly, the very first sentence of the declaration includes a condemnation of the institution of slavery, which the Crown imposed on the colonies].

On July 8, 1775, the Second Continental Congress drafted what was called the Olive Branch Petition, which it sent to the British Crown as a final attempt at reconciliation.  In it, the colonies expressed their collective desire to remain loyal to the British crown. King George, however, refused to receive it.

Rather, on October 27, the King spoke before both houses of the British Parliament to discuss the growing concern about the rebellion in America, which he viewed as a traitorous action against himself and Great Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies.  He spoke of his belief that “many of these unhappy people may still retain their loyalty, and may be too wise not to see the fatal consequence of this usurpation, and wish to resist it, yet the torrent of violence has been strong enough to compel their acquiescence, till a sufficient force shall appear to support them.” With these words, the king gave Parliament his consent to dispatch troops to use against his own subjects, a notion that his colonists believed impossible.

At this point, note that just as the British continued to implore the King to respect their rights and liberties with their various charters and petitions and remonstrances, the colonists followed their same path. The colonies would have preferred to remain associated with Great Britain through bonds of affection and respect, sharing the history and bounded government that had been established for over 500 years, but for over 15 years, the actions and reactions by King and Parliament amounted to “a history of repeated injuries and usurpations” which were clearly designed to establish absolute rule over the colonies. We can see how England’s own history is providing the path – even the format and the words – for Jefferson’s Declaration of Independence.

Thomas Paine, who moved to the colonies from England at the end of 1774, published his pamphlet “Common Sense” in January 1776.  Common Sense advocated independence from Great Britain; Paine used moral and political arguments to encourage common people in the Colonies to fight for an independent government – one that suited their happiness; he appealed to their common sense. And it worked. The publication was wildly popular.

The two sides had once and for all reached a final political impasse and the bloody War for Independence would now be conducted in earnest.  The skirmish had now become a war for independence.

On April 12, the state of North Carolina authorized her delegates to the Continental Congress to vote for independence. This was the first official action by a colony calling for independence. The 83 delegates present in Halifax at the Fourth Provincial Congress unanimously adopted the Halifax Resolves.  The Resolves read:

The Select Committee taking into Consideration the usurpations and violences attempted and committed by the King and Parliament of Britain against America, and the further Measures to be taken for frustrating the same, and for the better defense of this province reported as follows, to wit,

It appears to your Committee that pursuant to the Plan concerted by the British Ministry for subjugating America, the King and Parliament of Great Britain have usurped a Power over the Persons and Properties of the People unlimited and uncontrolled; and disregarding their humble Petitions for Peace, Liberty and safety, have made divers Legislative Acts, denouncing War Famine and every Species of Calamity against the Continent in General…..

Resolved that the delegates for this Colony in the Continental Congress be empowered to concur with the delegates of the other Colonies in declaring Independency….

North Carolina’s state flag proudly displays this historic date.

Virginia followed suit. On May 15, 1776, the Virginia Convention passed a similar resolution. It read:

Resolved, unanimously, that the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the Congress for forming foreign alliances, and a Confederation of the Colonies, at such time and in the manner as to them shall seem best: Provided, That the power of forming Government for, and the regulations of the internal concerns of each Colony, be left to the respective Colonial Legislatures.

At that same Convention, Virginia decided to instruct its delegate in the Second Continental Congress to introduce a formal resolution to declare the colonies independent from Great Britain.  And so, on June 7, delegate Richard Henry Lee, introduced a resolution, termed the Lee Resolution or Resolution of Independence, which contained three parts: (1) to declare the united Colonies rightfully independent of the British Empire: (2) to establish a plan for establishing foreign relations with the Colonies; and (3) to establish a plan of a confederation to unite them officially.

The Lee Resolution simply read:

Resolved, that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved;

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances;

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

On June 11, 1776, the Second Continental Congress appointed three concurrent committees in response to the Lee Resolution – one to draft a declaration of independence, a second to draw up a plan of treaties “for forming foreign alliances,” and a third to “prepare and digest the form of a confederation.”  A Committee of Five was assembled to draft a document to explain the reasons for independence and it included John Adams of Massachusetts, Roger Sherman of Connecticut, Benjamin Franklin of Pennsylvania, Robert Livingston of New York, and Thomas Jefferson of Virginia. According to Adams, Jefferson proposed that he, Adams, do the writing of the document, but he declined. Rather, Adams said, it should be Jefferson.  Jefferson was known for his writing skills. As Adams told him: “Reason first: you are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.”

Thomas Jefferson - clear pic

Jefferson completed his draft of the declaration in just a few days. He argued in his opening two paragraphs that individuals have inalienable rights, that governments are instituted by consent of the people primarily to secure those rights, and that people have the right to overthrow their government when it abuses their fundamental natural rights over a long period of time. Then, in a direct attack on King George (in like fashion to the Grand Remonstrance of 1641 and the English Bill of Rights of 1689), Jefferson listed 27 grievances against King George III – 27 instances when the king violated the “the ancient rights and liberties” of the American colonists. Having thoroughly laid out his proof that the king was a “tyrant” who was “unfit to be the ruler of a people,” Jefferson continued on to condemn the British Parliament and the British people.  “These unfeeling brethren,” he wrote, had reelected members of Parliament who had conspired with the king to destroy the rights of the colonists. Jefferson ended his draft by stating, “we do assert and declare these colonies to be free and independent states….. ”

When Jefferson submitted his draft to the Congress on June 28, the delegates left the first two paragraphs essentially unchanged.  Instead, they concentrated on Jefferson’s list of grievances against King George and the British people. On July 2, 1776, the Second Continental Congress voted to declare the independence of the American colonies from English rule.  And on the July 4 – the Fourth of July – it approved the final edited version of the Declaration of Independence.

News of the colonies’ independence rang out in all the colonies.

While the 4th of July is the date that we celebrate the signing of the Declaration of Independence, the 56 signers didn’t actually affix their signatures until August 2.  John Hancock, President of the Continental Congress, was the first to sign his name and he did so in big letters. The story goes that after he signed his name, he gazed upon it and said: “There! His Majesty can now read my name without his spectacles!”

In explaining the Declaration of Independence, Jefferson wrote: “This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.”

For most of my life, I marveled at the Declaration. Its words were stirring, its declarations were brilliant, its indictment of King George was compelling, and its conclusion was heroic.  I assumed the ideas, the words, and the flair were all the brainchild of Jefferson.  But after reviewing the historical documents he had studied all his life, and taking into account the various resolutions and declarations written and adopted by the various colonies at the time, it’s quite clear that the Declaration is a composite of several documents.  First of all, Jefferson essentially copied the form of the English Bill of Rights (and to some degree the Grand Remonstrance before it) as he sat down to compose his draft. Thus, Jefferson’s indictment of King George III was not a radical departure from accepted English practices.  He was following English tradition, which in turn he adapted to American circumstances.  I’ve seen signs and tee shirts calling our Founding Fathers “Our Founding Liberals,” but realizing that Jefferson, in writing the Declaration, followed established English tradition and re-asserted the “ancient rights and liberties” that for over 500 years have defined Englishmen, our Founders were actually quite conservative.

Winston Churchill commented on this tradition: “We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which are the joint inheritance of the English-speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence.”

In addition to historic English documents, Jefferson also borrowed language from George Mason’s Virginia Declaration of Resolves in drafting the Declaration. Mason asserted that “all men are by nature equally free and independent, and have certain inherent rights…namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and maintaining happiness and safety.” Jefferson altered – shortened – his language in his original draft to state: “We hold these truths to be sacred and undeniable: that all men are created equal; that they are endowed by their creator with inherent and inalienable rights; that among these are life, liberty, and the pursuit of happiness.”  In fact, Jefferson adopted his famous phrase from John Locke’s 1689 publication Two Treatises on Civil Government  –  “life, liberty, and the pursuit of happiness.” Everyone at the time understood that Jefferson equated “happiness” with property and safety.  By “equal,” Jefferson meant that all citizens or freeholders are, as Mason wrote, born “equally free and independent” under the law.  Note that the barons of England asserted their legal equality with the king in 1100 and 1215.  So, Jefferson was not stating anything new.  [ See Brion McClanahan, “Rethinking the Declaration of Independence”]

By its very name, the Declaration of Independence was a bold assertion of independence. Because it was asserted in defiance of the King, it was a highly treasonous document.  Its signers were traitors. The outcome of the war would decide their fate.  On October 19, 1781, British General Cornwallis surrendered his troops at Yorktown, Virginia and the British were defeated.  After six years of fighting, the Colonies had won their independence.  And once the Colonies had become independent, the Declaration essentially ceased to have any legal force. That which it sought to accomplish had been accomplished.

But that’s not where the Declaration of Independence’s story ends.

The Declaration may lack legal force but nonetheless, it remains the source of all legitimate political authority here in the United States and it memorializes the principles on which our country is founded.  Abraham Lincoln once referred to the principles embodied in the Declaration of Independence as “the electric cord that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.”  And Calvin Coolidge remarked that “the doctrine of the Declaration of Independence predicated upon the glory of man and the corresponding duty to society that the rights of citizens ought to be protected with every power and resource of the state, and a government that does any less is false to the teachings of that great document — false to the name American.”

Declaration of Independence - signatures

 

A review of the most famous paragraphs of the Declaration remind us of the essential principles that make up our political foundation and ground our precious liberties.

The first paragraph reads:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The first paragraph characterizes the nature of the Declaration.  When Jefferson writes that it is time for the colonies “to dissolve the political bonds which have connected them with another” he is saying that the colonies intend to secede from Great Britain.  The Declaration, first and foremost, is a secessionist document.  What follows in the other paragraphs are the reasons and explanations for the decision to “dissolve their political bonds”; that is, to secede.

The phrase “the separate and equal station to which the Laws of Nature and Nature’s God entitle them” is a particularly significant one.  It means that our rights are not a gift from the State, but arise from our nature. This marks a paradigm shift from the system in England. English law was still dictated by the Divine Right of Kings. Even though charters, petitions, and a Bill of Rights put limitations on the Crown and to some extent, on government in general, they still acknowledged that the King and the State had power over the individual. Without such charters, petitions, and Bill of Rights, the King and government could treat the individual as it wanted, generously or oppressively.  Thomas Jefferson was making it clear that in the United States, rights are NOT a gift from the State, to be enjoyed at its benevolence, but rather that they arise from Nature and from God, separately and equally.  God and Nature go hand in hand. God who created the heavens and the Earth also created the laws of nature. For those who believe God to be the great author of Nature, then rights come from Him, as our Creator. For those who lack faith, they can rest assure that our Declaration equally recognizes that all individuals possess fundamental rights because they are natural rights – part of our very humanity from birth.  Even if you do not believe in a God Almighty, still you must respect the laws of nature.  In this way, Jefferson was laying out the concept of Individual Sovereignty in a way that its people could universally understand and agree, irrespective of the particulars of their individual and very diverse faiths.  Individual Sovereignty is the basis of our Rights in this country.

We may argue yet what are Nature’s Laws, but this much we can be certain:  All people must observe and ultimately obey it, just as the laws of nature apply equally to all human beings.  Since governments are merely fictional entities created by mankind and not by nature, rights supersede government. Saying that government is more important than the individual would be “unnatural.”

In the second paragraph of the Declaration of Independence reads:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.  Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

In this paragraph, Jefferson’s mighty pen goes into greater detail about the nature of the aforementioned natural rights. He tells us that our rights, which are endowed by our Creator (or Nature), are unalienable and although are numerous, the most obvious ones are “Life, Liberty and the pursuit of Happiness.”  “Unalienable” (which is the same as “inalienable”) means that the individual can never been divested of these rights. They cannot be taken away or denied.  They remain with the individual and government cannot take them away.  “Life,” of course, is clear enough.  “Liberty,” according to Jefferson, was the degree to which an individual can exercise his rights, his freedom.  The rights which come under this umbrella would include the rights asserted in the Magna Carta, for example, or in the English Bill of Rights, or in Virginia’s Declaration of Rights. (Remember the time period that the Declaration was written).  “Pursuit of Happiness” includes property, but encompasses much more.  “Pursuit of Happiness” means an individual should be able to freely exercise all his rights in order to live his life to its full potential.  That “full potential” includes the ownership of property and the fruits of one’s labor, mind, and personality (all that which makes a person a unique “individual”).  “Property” was too narrow a term for Jefferson.  Now, just as the individual has the rights to Life, Liberty, and Property, he also has the equal right to protect them.  This right of self-protection and self-preservation is also a natural right. Samuel Adams summed it best: “Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.”

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” is another important principle.  It is a critical and basic tenet of our form of government. First it states unequivocally that the primary role of government is “to secure these rights.” In other words, in the grand scheme of things, individual rights are supreme over the authority of the State (ie, government). The primary role of government, and the motivating force behind the formation of government, is to secure the inalienable rights, endowed by our Creator (Nature), of each individual.  This means that government is to be ideally limited to the role of a policeman, a judge, a prison warden, and a military force.  Furthermore, this provision explains that government has no powers of its own, but only “derives” its powers from individuals consenting to transfer power to it.  This is where the doctrine of Individual Sovereignty comes from. In a state of Nature, man has full sovereign power to govern himself – to provide for himself, to protect himself, to think and act as he wants.  He is responsible for himself and his conduct.  What is especially critical about this principle of “deriving powers from the consent of the governed” is that power delegated by the people is always “temporary” in nature.  The people can always re-assume their sovereign power – their right to govern themselves.

Having told us the proper function of government, Jefferson then tells us what gives cause to changing it: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

The first thing to note is that governments are always “temporary.”  Government exists at the whim of the people and have no right in and of itself to its own existence or longevity. Government is a “creation.”  It is not a natural institution. Because is arises by the “consent of the governed,” it is a product of compact.  Compacts have elements of contract law and agency law. The second thing to note is the Declaration acknowledges that individuals have the RIGHT to establish their government to effect THEIR happiness and their safety. When government ceases to serve those purposes, then individuals are well within their natural right to abolish that government and establish another.

The Declaration goes one step further and challenges individuals to be vigilante of their rights and critical of their government.  “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

How will a people know for sure when it is time to “abolish” their government?  Or how will they know when it is time to dissolve political bonds that tie them to another; that is, how will they know when it is time to secede from another political body?  The Declaration, in that last sentence, tells us: “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

And that line, as Jefferson will explain in the section that follows, sums up the position of the Colonies.  In that section, Jefferson sets out to make the case that the conduct of the King is a history of abuses and usurpations.  He lists 27 grievances against King George III – 27 instances where he violated the rights of the colonists – which he, Jefferson (and the Second Continental Congress, as evidenced by its adoption of the Declaration of Independence on July 4, 1776) believe evidences a design to reduce them under an absolute Despotism (tyranny).  In the last paragraph of the Declaration, Jefferson will finally make the case that because of this evil design, the Colonies have a right and a duty to dissolve their political bonds with the King.

The last paragraph reads:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The Declaration of Independence ends with these powerful words: “For the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.”  We can never forget that the Declaration was a treasonous document, which, if the British had won the war, would have sealed the fate of each of its signers and earned them a date with a hangman’s noose.  But they believed in their cause. They believed in the words they wrote in that document and they believed in their case against the King.  And they were willing to risk it all.

Signer Benjamin Rush (of Pennsylvania) wrote: “Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after another, to the table of the President of Congress to subscribe what was believed by many at that time to be our own death warrants?”

After signing his name in a large flowing style, it is rumored that John Hancock’s full response was this: “There! His Majesty can now read my name without his spectacles. And he can double the reward on my head!”  Benjamin Franklin, insisting that every single delegate sign the Declaration of Independence, said: “We must all hang together or surely we shall all hang separately.”  The large, burly Virginian, Benjamin Harrison, turned to the pipsqueak from Massachusetts, Elbridge Gerry, and joked: “I will have a great advantage over you, Mr. Gerry, when we are all hung for what we are now doing. From the size and weight of my body I shall die in a few minutes, but from the lightness of your body, you will dance in the air an hour or two before you are dead.”

One day after the Declaration was adopted by the delegates to the Second Continental Congress, John Adams wrote home to his wife Abagail: “I am well aware of the toil and blood and treasure, that it will cost us to maintain this Declaration, and support and defend these States. Yet through all the gloom I can see the rays of ravishing light and glory. I can see that the End is more than worth all the means. And that posterity will triumph in that day’s transaction.”

In a speech he gave on the 150th Anniversary of the Declaration of Independence (5 July 1926), Calvin Coolidge reflected:

Great ideas do not burst upon the world unannounced. They are reached by a gradual development over a length of time usually proportionate to their importance. This is especially true of the principles laid down in the Declaration of Independence. Three very definite propositions were set out in its preamble regarding the nature of mankind and therefore of government. These were the doctrine that all men are created equal, that they are endowed with certain inalienable rights, and that therefore the source of the just powers of government must be derived from the consent of the governed. If no one is to be accounted as born into a superior station, if there is to be no ruling class, and if all possess rights which can neither be bartered away nor taken from them by any earthly power, it follows as a matter of course that the practical authority of the Government has to rest on the consent of the governed. While these principles were not altogether new in political action, and were very far from new in political speculation, they had never been assembled before and declared in such a combination… In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man — these are not elements which we can see and touch. They are ideals. They have their source and their roots in the religious convictions. They belong to the unseen world. Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish. We cannot continue to enjoy the result if we neglect and abandon the cause… If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.”

By a stroke of remarkable coincidence, both Thomas Jefferson and John Adams died on the same day – the fiftieth anniversary of the adoption of the Declaration of Independence, July 4, 1826.  Jefferson preceded Adams in death by five hours.

When I think about Independence Day, I think of our magnificent story.  I think about the uncompromising determination of people to live free and the eternal vigilance it took to finally secure lasting boundaries on government. I think about the ways the British and then the colonists expressed their discontent with the King and the many ways they sought to exert their rights, and how the many efforts culminated in their most famous expression in the American Declaration of Independence. I think about how our Founding Fathers brilliantly turned government on its head – transforming a system of government based on the Divine Right of Kings to a system predicated on Individual Sovereignty.  I think of a continuum of a story that began in 1215 with a stand-off on the meadow at Runnymede in order to secure a promise from an arrogant and ambitious king that ended with a document signed by 56 delegates assembled together from 13 separate states on July 4.  The continent may have changed, but man’s yearning to be free did not.

Now, as we all know, a country is a physical location inhabited by a body politic. Principles are embraced by people and not by geography, and so liberty and independence is a spirit that must live in all of us. If it doesn’t, then we suffer oppression together. As Machiavelli once said: “It is just as difficult and dangerous to try to free a people that wants to remain servile as it is to enslave a people that wants to remain free.”  The Declaration embraces our revolutionary spirit, and God help us when our country has the spirit of an aging grandmother. The key is to always keep that revolutionary spirit.  And maybe that’s what Independence Day is all about…. to reflect on our history and to rekindle that spirit every year.

In conclusion, I would like to implore that on this Independence Day and on every Independence Day, that we remember the advice that was once given to us by James Madison: “The people of the U.S. owe their Independence and their liberty to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprised in the precedent. Let them exert the same wisdom, in watching against every evil lurking under plausible disguises, and growing up from small beginnings.”

 

References:

Brion McClanahan, “Rethinking the Declaration of Independence,” Abbeville Institute, July 4, 2016.  Referenced at:  http://www.abbevilleinstitute.org/blog/rethinking-the-declaration-of-independence/

Dr. Almon Leroy Way, Jr. (Professor of Political Science), “The American System of Government: The American Constitutional System – English Origins (1066-1558),” Cyberland University of North Carolina.

Referenced at:  http://www.proconservative.net/CUNAPolSci201PartFourB.shtml  [In-depth study of the Magna Carta]

The Petition of Right of 1628 – http://study.com/academy/lesson/petition-of-right-of-1628-definition-summary.html

The English Bill of Rights of 1689 –  http://avalon.law.yale.edu/17th_century/england.asp

The Grand Remonstrance – http://www.constitution.org/eng/conpur043.htm

The Declaration and Resolves – http://avalon.law.yale.edu/18th_century/resolves.asp

Patrick Henry’s Speech of March 23, 1775 – https://www.history.org/almanack/life/politics/giveme.cfm

Halifax Resolves – http://www.learnnc.org/lp/editions/nchist-revolution/4328

Preamble and Resolution of the Virginia Convention of May 15, 1776  – http://avalon.law.yale.edu/18th_century/const02.asp

The Lee Resolutions –  http://avalon.law.yale.edu/18th_century/lee.asp

“Boiling It Down, This Is What You’ve Said,” Mark America, October 15, 2011.  Referenced at:  http://markamerica.com/2011/10/15/boiling-it-down-this-is-what-youve-said/

Winston Churchill, “The Sinews of Peace”, address at Westminster College, Fulton, Missouri (March 5, 1946); in Robert Rhodes James, ed., Winston S. Churchill: His Complete Speeches, 1897–1963 (1974), vol. 7, p. 7288.

Calvin Coolidge, speech on the Occasion of the 150th Anniversary of the Declaration of Independence (July 5, 1926).

 

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