by Matt Fitzgibbons
Both the Declaration of Independence and the Bill of Rights were born out of struggle. In 1776, Americans were ruled with an iron hand that decreed the English Constitution could be interpreted by both Parliament and the King to mean what they said it meant, not what had been clearly understood for a hundred years. England claimed that American representatives could be “virtual”, meaning appointed rather than elected, and the fact that these new representatives had never even set foot in America was of no concern, so long as they voted the way the King expected them to. Effigies of tax collectors were burned and cries of “No taxation without representation!” were heard throughout the American Colonies. Suddenly, Americans were paying a whopping 15% in taxes and decided that taking on the largest army in the world was preferable. While the Declaration of Independence was a united response from the thirteen colonies against too much government, the Bill of Rights was a response to an internal debate about just how much government was necessary.
From 1777, the new United States government operated as a confederacy under the Articles of Confederation. Each State determined its own laws, taxes, and tariffs, could print its own money, had one vote in Congress independent of it’s size or population, and granted no legislative authority to a central government. During the war itself, American Colonists had little in common with those in neighboring States, and often had difficulty understanding each others’ accents. Eventually, a national spirit formed, and when the Revolution was won and the debt piled up, it was clear that a new system of government with some degree of centralized authority was desperately needed. Enter the United States Constitution.
Of the many proposed constitutions, James Madison’s was the favorite, though several major problems remained. Madison was from Virginia, a large State, and his solution (called the Virginia Plan) favored the large States in that the number of Representatives were to be determined by population. The problem was that this would effectively nullify the power of the smaller States. The alternative proposal (known as the New Jersey Plan) gave each State an equal vote, which nullified the voices of voters in the larger States. Roger Sherman of Connecticut proposed the “Great Compromise” where the number of Representatives would be determined by population for the House of Representatives and equally for the Senate. With this solved, several problems still remained including slavery (temporarily avoided by the 3/5ths Compromise though not resolved until after the Civil War), and exactly how much power this new central government would have. Two factions then formed: the Federalists who supported the newly proposed Constitution, and the Antifederalists who opposed it.
Generally speaking, the Federalists were wealthy, active in commerce, and more interested in an authoritative government than they were in the rights of individuals. The Antifederalists, on the other hand, were generally small farmers and those who valued individual liberty over authority. Alexander Hamilton, the leader of the Federalists, was strongly opposed to democracy saying,
”It has been observed that a pure democracy if it were practicable would be the most perfect government. Experience has proved that no position is more false than this. The ancient democracies in which the people themselves deliberated never possessed one good feature of government. Their very character was tyranny; their figure deformity.“
The Antifederalists, on the other hand, were greatly concerned that even the opening line of the new Constitution “We the People…” indicated the intention of replacing State sovereignty with a central government. Patrick Henry, the Antifederalist leader said,
“What right had they to say, We, the people? … Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation.”
The proposal and ultimate solution for gaining wide-spread support for the ratification of the new Constitution was the promise of a series of Amendments which would collectively be known as the Bill of Rights. These Amendments would address the Antifederalists’ gravest concerns, guaranteeing both specific, individual rights, and reserving all unmentioned powers to the States, thus preserving the States’ sovereignty.
Just as the birth of United States came only after a bloody, eight-year revolution, both the United States’ Constitution and Bill of Rights were born out of struggle as well. But this time the enemy was not the greatest military on earth. It was disagreement between the Founding Fathers over whether to adopt the newly proposed Constitution. Just how much power should the new Federal Government be trusted with, and how would individual rights be protected? The British King had been beaten, but there were many doubts about whether the U.S. Constitution would simply trade one group of tyrants for another.
While the Federalists, lead by Alexander Hamilton, argued for the ratification of the U.S. Constitution as it was, without a Bill of Rights, the Anti-Federalists, lead by Patrick Henry, created a growing coalition of States that threatened not to ratify the Constitution if it wasn’t changed to guarantee individual rights. The Federalists’ argument was that because the proposed Constitution enumerated specific powers to the Federal Government, it reserved all other powers to the States. This arrangement, they argued, protected all of those rights Americans took for granted. Hamilton wrote in Federalist #84,
“I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.”
He went further adding, “For why declare that things shall not be done which there is no power to do?”
The Anti-Federalists on the other hand, demanded a guarantee that as the Republic grew, those understood rights would be enshrined in a way that they could not be taken away. The solution was a series of 12 Amendments to the Constitution which James Madison introduced to Congress in 1789 based both on his The Virginia Declaration of Rights as well as The English Bill of Rights, and various influential writings from The Enlightenment. While the first of these 12 proposed Amendments had to do with the apportionment of Congress and was never adopted, the second did not have enough support at the time, but would eventually be passed as the 27th Amendment in 1992. The remaining 10 were collectively known as The Bill of Rights. But they needed 3/4 of the States to be ratified.
Hamilton and the other Federalists eventually agreed with the compromise, but were concerned that by specifying rights, other rights which were not listed might come under attack in the future. The 9th Amendment addressed their concerns stating, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Bill of Rights was passed by all but three States, and went into effect on December 15th, 1791, four years after the Constitution became the Supreme Law of the Land. In 1939, the three States that had voted against The Bill of Rights (Georgia, Massachusetts, and Connecticut) finally approved them as a ceremonial formality.
More recently, The Constitution and The Bill of Rights have undergone attacks in ways most of the Founding Fathers never imagined. One of which has been through judicial misinterpretation, whether intentional or not. In 1821, writing to Charles Hammond, Thomas Jefferson warned,
“It has long been my opinion, and I have never shrunk from its expression,… that the germ of dissolution of our Federal Government is in the constitution of the Federal Judiciary–an irresponsible body (for impeachment is scarcely a scare-crow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction until all shall be usurped from the States and the government be consolidated into one. To this I am opposed.”
And one further threat still remains… the fact that few Americans today even know the Bill of Rights and both why they were so important to the Founders, and why they are just as important today, if not more so. Rights included, how can someone miss something they never knew they had?
Securing liberty is an age-old problem for each generation, but it takes eternal vigilance. The Declaration of Independence, the U.S. Constitution, and all of the 27 Amendments together (including the Bill of Rights), are only 17 printed pages. Please make the time to read them and pass them on so others can do the same.