From the Revolution to the Bill of Rights and Beyond

From the Revolution to the Bill of Rights

When the American colonies rebelled against Great Britain, the rebels gave their reasons in the Declaration of Independence: "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." The rhetoric, of course, was more advanced than the reality. Blacks were held as slaves in the colonies, not even all white males would get the vote for another sixty years or so, and all women were disfranchised and deprived of important liberties. Still, rhetoric has a way of shaping reality. By the twentieth century America was closer to the ideals of the Declaration than it was in 1776. The words of the Declaration itself were a factor in bringing about the change.

According to the Declaration, people have unalienable rights to liberty. The ideology of the revolutionary generation shaped the later American Bill of Rights. This revolutionary ideology combined and wove together both the natural rights of man and the historic rights of Englishmen. The colonists emphasized natural rights and historic liberties as a result of their view of government. Government was potentially hostile to human liberty and happiness. Power was essentially aggressive. The Continental Congress in its Address to the Inhabitants of Quebec quoted Marquis Beccaria:

"In every human society ... there is an effort, continually tending to confer on one part the heighth of power and happiness, and to reduce the other to the extreme of weakness and misery. The intent of good laws is to oppose this effort, and to diffuse their influence universally and equally."

Rulers, stimulated by this pernicious "effort," and subjects animated by the just "intent of opposing good laws against it," have occasioned that vast variety of events, that fill the histories of so many nations.

The rebellious colonists dealt with the problem of aggressive political power by several devices: separation of powers, an independent judiciary, the right of people to have a share in their own government by representatives chosen by themselves, and an insistence on the natural and historical rights and liberties of citizens reflected in revolutionary bills of rights of the several states.

By 1787 delegates from the states had drafted a constitution to replace the Articles of Confederation. Juxtaposed to the ideology of the Revolution was the reality of slavery. Although the framers declined to use the word, their constitution contained clauses designed to protect the institution. As Luther Martin, member of the Constitutional Convention from Maryland, put it, the framers had avoided "expressions which might be odious in the ears of Americans, although they were willing to admit into their system the things which the expressions signified."

One of the most significant constitutional advantages extended to slavery was that each slave was counted as three-fifths of a person for purposes of representation in the House of Representatives. In addition, the importation of slaves could not be banned by the federal government until 1808, and this provision could not be amended. Provision was also made for the return of fugitive slaves: "No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on the claim of the party to whom such service or labor may be due." In addition to provisions explicitly protecting slavery was the absence of explicit power to remove it. In the Virginia ratifying convention James Madison assured his fellows that the Constitution did not allow interference with slavery in the states.

These concessions to slavery produced some protests. George Mason, delegate from Virginia and a leading advocate of a federal bill of rights, complained that delegates from South Carolina and Georgia were more interested in protecting the right to import slaves than in promoting "the Liberty and Happiness of the people." Luther Martin's criticisms were more fundamental and prophetic. Slavery, Martin insisted, "is inconsistent with the genius of republicanism, and has the tendency to destroy those principles on which it is supported." It habituated people to tryanny and oppression.

Some framers rationalized the compromise with slavery on the assumption that the institution would soon die out. In truth, however, a compromise was made in the interest of the Union. While the framers compromised with slavery, they took steps to prevent its spread to new states. Particularly after the adoption of the Bill of Rights the Constitution reflected the Jekyll-and-Hyde character of the nation. The nation sought simultaneously to protect liberty and slavery.

When the Constitution replaced the Articles of Confederation, proposals to preface the Constitution with a Bill of Rights had been rejected. As a result, George Mason, a delegate to the Constitutional Convention from Virginia, objected to the proposed Constitution: "There is no declaration of rights: and the laws of the general government being paramount to the laws and constitutions of the several states, the declaration of rights, in the separate states, are no security"

Mason's concerns were shared by others, including Thomas Jefferson, then ambassador to France. In December 1787 Jefferson wrote James Madison about his thoughts on the proposed Constitution. After indicating what he liked, Jefferson went on to what he did not like. First among these was "the omission of a bill of rights providing clearly and without 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 juries in all matters of fact triable by the laws of the land and not by the law of Nations." Jefferson rejected the idea that trial by jury should not be guarantied because some states "have been so incautious as to abandon this mode of trial."

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,...