Pearls of James Madison: Part II – The Bill of Rights

On the Bill of Rights

 As a prime mover behind the writing of the Constitution and as a champion of the Bill of Rights, James Madison, as a Representative from Virginia, attended the first sitting of the new Congress in New York and Philadelphia in 1789-1790. While nine of the thirteen states had ratified the Constitution, allowing Congress to hold its first sessions, a strong desire to explicitly secure the freedom won by a long and costly war of independence made appending a bill of rights to the Constitution a first concern of many Americans and critics of the “charter.” The absence of such a security in the wording of the Constitution and from the enumerated powers of the federal government did not assure the document’s critics that life, liberty and the pursuit of happiness were adequately protected from abuses of power.

What the critics saw was a document which detailed the limitations of federal government power (the enumerations), but no written assurances that, should individuals in that government overstep or abuse their powers, they could be opposed and charged with tyranny or corruption in the pursuit unlimited power. Defenders of the Constitution dismissed these concerns, saying, on one hand, that their absence from the document was instead an assurance of their inviolability; and, on the other hand, that a “bill of rights” questioned the legitimacy of any powers granted to the federal government in its enumerated powers (and, by implication, a questioning of the legitimate powers of the state governments), or would leave other, unnamed rights open to violation and government mischief.

The call for a “bill of rights” to be incorporated into the federal constitution was inspired by the Virginia Declaration of Rights, adopted in the summer of 1776 before the proclamation of the Declaration of Independence. George Mason was its principal author. As noted in “Pearls of James Madison, Founder,” Madison was originally dubious about the value and function of a bill of rights in the federal scheme of things, but eventually saw their necessity and carried the fight for a bill of rights to the Congress’s deliberations on a host of post-ratification matters. As did George Mason. The Constitution Society noted:

As passed, the Virginia Declaration was largely the work of George Mason; the committee and the Convention made some verbal changes and added Sections 10 and 14. This declaration served as a model for bills of rights in several other state constitutions and was a source of the French Declaration of the Rights of Man and of the Citizen, though its degree of influence upon the latter document is a highly controversial question. The reference to “property” in Section I may be compared with the use of the word by John Locke, its omission by Thomas Jefferson from the second paragraph of the Declaration of Independence, and its use in the Constitution, Amendments V and XIV.

George Mason (1725-92), one of Virginia’s wealthiest planters, a neighbor and friend of Washington, is best remembered for his part in drafting the Virginia constitution of 1776. In 1787 he was a leader in the Federal Convention. Refusing to sign the completed document, Mason, along with Patrick Henry and others, opposed its ratification in the Virginia Convention of 1788.]

As noted in my original column, the term property was omitted from the Declaration because of the slavery issue. To recruit the southern colonies in a united Declaration, the term was omitted from the final draft insofar as it meant involuntary human bondage as a legitimate form of property. Jefferson, a lifelong opponent of slavery, was as helpless in the circumstances as any other critic of the institution:

Jefferson wrote that slavery was like holding “a wolf by the ear, and we can neither hold him, nor safely let him go.”  He thought that his cherished federal union, the world’s first democratic experiment, would be destroyed by slavery.  To emancipate slaves on American soil, Jefferson thought, would result in a large-scale race war that would be as brutal and deadly as the slave revolt in Haiti in 1791.  But he also believed that to keep slaves in bondage, with part of America in favor of abolition and part of America in favor of perpetuating slavery, could only result in a civil war that would destroy the union.  Jefferson’s latter prediction was correct: in 1861, the contest over slavery sparked a bloody civil war and the creation of two nations—Union and Confederacy—in the place of one.

Like Jefferson and others who recognized the evil of slavery and of regarding enslaved men as “property,” Madison resigned himself to the reluctant consolation that the moral conflict over slavery would need to be resolved by another generation, and possibly violently, and not in his own time.

Patrick Henry, the most famous and articulate opponent of ratification of the Constitution (an “Anti-Federalist”), warned the Virginia Convention that it should at least insist that the new Congress take up the issue of a bill of rights. In his 24th and last speech during the Convention before it adjourned, he said:

Mr. Chairman, when we were told of the difficulty of obtaining previous amendments, I contended that they might be as easily obtained as subsequent amendments. We are told that nine states have adopted it. If so, when the government gets in motion, have they not a right to consider our amendments as well as if we adopted first? If we remonstrate, may they not consider and admit our amendments? But now, sir, when we have been favored with a view of their subsequent amendments,  I am confirmed in what I apprehended; and that is, subsequent amendments will make our condition worse; for they are placed in such a point of view as will make this Convention ridiculous. I speak in plain, direct language. It is extorted from me. If this Convention will say, that the very right by which amendments are desired is not secured, then I say our rights are not secured. As we have the right of desiring amendments, why not exercise it? But gentlemen deny this right, it follows, of course, that, if this right be not secured, our other fights are not.

The proposition of subsequent amendments {650} is only to lull our apprehensions. We speak the language of contradiction and inconsistency, to say that rights are secured, and then say that they are not. Is not this placing this Convention in a contemptible light? Will not this produce contempt of us in Congress, and every other part of the world? Will gentlemen tell me that they are in earnest about these amendments?

On June 8th, 1789, Madison spoke about the dissatisfaction with the Constitution not even exhibiting in its entirety a token security of liberty. All quotations of Madison here are from James Madison: Writings.*

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, thought mistaken in its object, is laudable in its motive. There is a great body of people falling under this description….

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. (p. 439)

Discussing in their embryonic form some of the amendments to be taken up by the House, Madison outlined them for his colleagues:

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….

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. (pp. 442-443)

Madison went on to itemize the proposed amendments covering the prohibition against double jeopardy, bearing witness against oneself, excessive bail, cruel and unusual punishments, the right to due process, and the prohibition of seizure of private property without just compensation.

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 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. (p. 443)

Not forgetting the states and their relationship with the federal government, Madison added:

No state shall violate the rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. (p. 443)

And, finally:

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively. (p. 444)

Answering the imagined dangers of a bill of rights argued by others, Madison discoursed to the assembly on the benefits of having a bill of rights, and how the absence of one affected the governance of other nations, especially Great Britain.

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 of 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 the rights of conscience, those choicest privileges of the people, are unguarded in the British constitution. (p. 445)

Madison, of course, could not have foreseen the “imperial” presidencies of men like Franklin D. Roosevelt and Barack Obama, whose executive actions have trumped the function of Congress (too often with its acquiescence), and, indeed, would not recognize the federal government as it exists today, a wealth-consuming and rights-negating behemoth which has usurped Americans’ rights and shredded the Constitution.

In our government it is, perhaps, less necessary to guard against the abuse of 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 a declaration is proper. (p. 446)

Madison prefaces his concerns that even a government whose powers have been enumerated in favor of protecting liberty from “off the books” tyranny or arbitrary power exercised through loopholes in wording or content has serious shortcomings. He leads up to the power of taxation:

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 are necessary and proper for carrying into execution the powers vested in the government of the United States….

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?…If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government. (pp. 447-448)

Taxation, in Madison’s time (and, indeed, throughout history) was the only “necessary and proper” way men thought a government could raise money to perform even its legitimate functions, such as maintaining the courts, maintaining an armed force to stave off invasion, and maintaining a civil police force. But even the most ardent and ambitious statists in Madison’s generation (such as Alexander Hamilton) would have found unimaginable a government which presumed it “necessary and proper” to protect the environment, provide subsidized housing, subsidize food purchases, police the securities business, monopolize education, regulate nutrition, provide pensions and medical care subsidies, enforce the purchase of medical insurance, subsidize medical and scientific research, and etc., and also to debase its own currency to pay for these things in an ever-widening range of powers.

The term necessary and proper has been interpreted by lawmakers and courts over the last two centuries to cover every possible “crisis” the government feels committed to regulate and able to police and resolve. If you are not a smoker, the government thinks it “necessary and proper” to protect you against smokers. If you are obese, the government thinks it “necessary and proper” to impose a nutrition regimen. If you are a student, the government thinks it “necessary and proper” to teach you. If you are “poor,” the government thinks it “necessary and proper” to support you in a variety of economic ways. If you are a member of a designated “minority,” the government thinks it “necessary and proper” to protect you from discrimination.

One could list a hundred-page list in tiny print of human relations and actions the government thinks it “necessary and proper” to legislate for and has the “inherent” power to act on.  This is not freedom as Madison and his contemporaries imagined it. It is a clanking web of chains and fetters on your limbs and on your mind.

What has happened is that state governments – and even municipal ones – have simply emulated the federal government in assuming illegitimate powers of taxation and control of virtually every aspect of an individual’s life and actions in the course of pursuing his happiness.

We also have in effect through the federal government bills of attainder and ex post facto laws, which are expressly forbidden in Article I, Section 10, Clause 1. Wealthy individuals in the public eye have been targeted by the government to make examples of (e.g., Michael Miliken, Leona Helmsley, even Redd Foxx) to frighten the public into obedience in terms of ex officio bills of attainder issued by the SEC, the IRS, the Justice Department, and even the EPA.

An example of an undeclared ex post facto law was the arrest and imprisonment of Nakoula Basseley Nakoula, maker of the “Innocence of Muslims” YouTube trailer, on the unsubstantiated assertion (and later exposed as a “What difference does it make?” lie) of Secretary of State Hillary Clinton that the trailer was responsible for the Benghazi attacks. The unwritten law is that it is illegal to make films that purportedly and potentially would incite “justifiable” violence by Muslims by “disrespecting” or blaspheming against Islam or any of its icons or tenets.

In conclusion, America is as far away from the original intent of the Bill of Rights as it is from the original purpose of the original Constitution, subsequently amended in 1913 to include the 16th and 17th Amendments establishing a pernicious income tax and the direct, popular election of U.S. senators.

To the Marxists, socialists, liberals, and other statists who reside in the bubble world of Progressivism, this is indeed “progress” away from life, liberty, and the pursuit of happiness, to a condition of stasis, security, and institutionalized selflessness.

 

*James Madison: Writings. Jack N. Rakove, Editor. New York: Library of America, 1999. 966 pp.

  • writeby

    A diamond of an essay on Madison’s pearls, Ed.

    “Necessary and proper” suffers the same fate as “general welfare. Yet Madison made it’s function clear at the outset:

    “With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”

    But he did “imagine” an America such as we see today, though his examples are today mild by comparison yet in his time most certainly appeared hyperbolic.

    “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. They may establish teachers in every State, county, and parish, and pay them out of the public Treasury; they may take into their own hands the education of children, establishing in like manner schools throughout the Union; they may undertake the regulation of all roads other than post roads. In short, every thing, from the highest object of State legislation, down to the most minute object of police, would be thrown under the power of Congress; for every object I have mentioned would admit the application of money, and might be called, if Congress pleased, provisions for the general welfare.”

  • anthony Silva

    I love the Constitution and its limited Federal Powers. I would like to know why you left out the last 4 words of the Tenth Amendment; “or to the people” Those four words were very important to James Madison as I understand the 10th Amendment. Those words were his effort to limit the power of the Federal Government. Just as in the Articles of Confederation the words, those powers not expressly given are withheld. I know that is not th exact words in the articles of confederation, But Chief Justice John Marshall in M’Culloch v. Maryland; 4 Wheaton, 403 relied on it not being in the Constitution to infur that the government had other powers not mentioned. James Madison said in the Virgina ratification convention for the Bill of Rights that he felt that those four words were his equivelant to the words used in the Articles of Confederation. Professor Randy E. Barnett in his book The Rights retained by the people published James Madisons speech in that book. The founding generation were homogenious in there understanding of the Law of Nature and its Paramount power over Natural Positive Law. The Positive Law had to follow the Law of Natures limitations. Those are to be Benevelant to your fellow man and not to legislate on mans normal propencities. James Wilsons Lectures on Law state that Our Republican forum of government requirers that there be an injury to a person before there can be a crime or a sanction on a person imposed. He gave 168 speeches in the convention that drew up our curent constitution. An injury was defined by him as a violation of that persons Rights. Best regards from a Liberal who beleaves in limited federal powers.