By John F. Di Leo -
On December 15, 1791, the Bill of Rights was ratified by the Old Dominion – the Commonwealth of Virginia – enabling the Bill of Rights to hit the necessary three-quarters requirement for passage. With Virginia’s ratification, the Bill of Rights was now a part of the Constitution of the United States.
Both how we came to this point, and the reason it was done, tell us a great deal about the Founding Era. To better understand where we are today, let’s take a moment to look back, and remember 18th century America… and return to the present, and ponder how far we have fallen.
Rights Guaranteed, Rights Trampled
The United States of America was born in the British tradition of guaranteed civil rights. A once-unlimited monarchy was constrained, bit by bit, by hard-won agreements. The Magna Carta in 1215, the Petition of Right in 1628, the Habeus Corpus Act of 1679, the Declaration of Rights in 1689… again and again, over the 700 years between the Norman Conquest and the movement for independence in America, the British people had won guarantees against government abuse… through political action, through negotiation, through threat of insurrection.
The British Crown had been loath to agree to these rights. Kings and queens often fought tooth and nail against them. The ability to hold a citizen without trial, to search a home, to shut up a speaker or shut down a newspaper – these are critical tools in the toolbox of a tyrant.
But gradually, over these seven centuries, the British people had won concessions. First just for nobility, then expanded ever so slightly to include merchants, landowners, and more. One still couldn’t say by the 18th century that all British subjects were fully protected, but it was closer to the mark there than in most other countries of a not-yet-modernized world. By the time of our revolution, the British people were among the freest on earth, and were proud of the fact.
Unfortunately, the guarantors of those rights – the documents, the Parliament, the British public – were an ocean away in an era of slow communications, by the time young King George III took the throne.
The first really activist monarch of the Hanoverians, George III wanted to have plums to dole out to his supporters in Parliament, and – to be fair – he understandably wanted to make sure that the American colonies contributed something to their costs. So George started restricting American liberties – sometimes overtly, sometimes by acts of Parliament.
George III saw Americans getting self-sufficient in more and more areas. He didn’t want America to be independently successful; he wanted these colonies to be suppliers of raw materials and consumers of British finished goods, nothing else. So he saw foundries operating in these colonies, and he shut them down. He saw international trade between these colonies and other countries, and he mandated that most trade, then finally, all trade, must travel first through London middlemen. He saw rabble-rousers, and he sent ever more aggressive governors, then troops, to maintain order and quench opposition.
By the days of our War of Independence, George had placed Boston under military law for nearly a decade… he had mandated that our imports and exports be slowed and increased in cost by his politically-connected middlemen (the London factors)… he had stationed troops in hostile citizens’ private homes… he had summarily dismissed whole legislatures, even the Virginia House of Burgesses in Williamsburg!
The list of George III’s affronts to the liberty of British subjects in the Americas is simply too long to list here. Fortunately, the Declaration of Independence covers a good number of them – while still, long as it is, leaving quite a number out!
The question of course is – and was – how could he do it? How on earth could a country so protective of its rights allow its monarch to trample on them?
The answer is that George III did have a certain type of brilliance. While dismissive of our own rights on this side of the Pond, George III was generally a good king to the people of England proper, where the power of Parliament stood. He didn’t shut down printing presses, dismiss legislatures, station troops in people’s houses, at home in England. So when the Americans started shouting that the king was a tyrant, many in England thought it was poppycock; “George is just great as far as we’re concerned!”
George III had adopted a novel theory; that the guarantees of rights enjoyed by British subjects in England, were guaranteed only to the English. He believed that he was a limited monarch only at home in England, not abroad, in England’s many foreign holdings, where he was an absolute monarch.
Never mind that this theory stood in direct opposition to thousands of years of precedent. From the days of the ancient Romans, being a citizen meant that you enjoy the full rights of citizenship, no matter how far from the capital city you may be. But George III didn’t care about Roman citizens, only about the rough settlers of the distant American frontier, and as far as he was concerned, they were just his subjects, not fellow citizens at all. So to him, the Magna Carta, the Declaration of Rights, the Petition of Rights, none of these affected his plans to subjugate the people of the American colonies in the slightest.
Come the Revolution…
As the colonies declared their independence, their state legislatures moved to issue new Declarations of Rights, clearly asserting the fact that these are innate human rights, granted by God, recognized by the people as their birthright. The new states declared that in the view of Americans, it’s government's duty to defend these rights; government is in fact established for the very purpose of guaranteeing them, of protecting the people from any intruder, attacker or branch of government that would attempt to trample them.
The new state of Maryland included a bill of rights as part of their constitution in 1776; Massachusetts included one in its constitution in 1780. By the end of the War of Independence, every state’s constitution included a list of rights in some form, many based on the Virginia Declaration of Rights, written by George Mason in 1776. Rooted in the common law of England and the seven century British tradition, these new American documents synthesized both the pre-existing legal protections and the true American drive for freedom that had originally drawn our immigrants to these shores.
So these declarations incorporated freedom from a governmentally mandated religious denomination, freedom from government shutdowns of printing presses or public assemblies, freedom from having your business or property taken away by a greedy government. These declarations helped Americans appreciate what we were fighting for, in the hard years of a long and often painful revolution.
The publication of the Declaration of Independence, combined with each state’s own written guarantees, reminded every citizen of what Britain had been doing to us, and reminded us simultaneously that if we won this war, we would govern ourselves, and thus be free of such fears in the future.
The concept of including a bill of rights in every constitution was therefore a foregone conclusion, both from the long history of British documents and from the actions of each state in the 1770s as we broke away from the mother country and set out on our own.
By the time independence was won in 1783, many had forgotten what the purpose of a bill of rights was: to gain a promise from an otherwise unlimited government that, though it might intrude in a thousand other areas, it would never intrude in these. Promise!
The Constitutional Convention… and something new under the sun
In the summer of 1787, the greatest meeting of political philosophers in history gathered together to write a new Constitution. The 55 men of the Philadelphia Convention set out to do something new: not to draw up limits upon an existing king or emperor, but to establish a new form of government, a government that is not just limited by the imposition of a constitution, but that is born of that constitution.
Most arrived at the Convention expecting that the resulting document would include a bill of rights. Several of those in attendance had in fact authored such documents in their own states. George Mason, George Washington’s neighbor and friend – by now generally regarded as the father of such documents – had arrived in Philadelphia with the intent of ensuring that whatever the final document looked like, it would include as strong a bill of rights as possible.
But once the delegates started discussing it in detail – having written seven articles on establishing and controlling the national government, they found themselves recognizing a surprising fact: a bill of rights might not make sense in this document after all!
Here’s what they recognized, in a nutshell: a monarchy, duchy, empire, or other such dictatorship is inherently unlimited. It’s imposed on the people, so it needs to be constrained. A constitution and bill of rights are both needed to limit such a government. Without both, even after a century of honorable behavior, a king might overstep his bounds. So he needed to be told what he could do, and then, he needed also to be told what he could not. And the still-reigning (though ill) king of England had just demonstrated how weak such limits could be in such a situation.
The United States of America was to be a new form of government. The entire U.S. government – all three branches – would be hatched from this document. They would be, essentially, “born limited.”
The Constitution told them what they could do, listing their functions as precisely as they could. The brilliant program of “checks and balances” was designed to build in self-limiting boundaries throughout the new government. The executive wouldn’t try to spread, because the judiciary and legislative would thwart it. The judiciary wouldn’t try to spread, because the executive and legislative, equally jealous of their own power, would thwart the attempt.
Again and again, the Framers built constraints into the Constitution: When the president appoints, the Senate must approve. When the House wants to spend, the Senate and President must agree. When the House and Senate want something done, the Executive will be the one to do it. No one, so theory goes, would attempt to wield power beyond that which was constitutionally granted, because such power would be granted to a rival branch, which would know it was chartered to thwart such a threat.
So, when the time came, the Framers came to the surprising conclusion that a bill of rights would be unnecessary. Such a list is necessary only if there would otherwise be a fear that the government would feel itself unconstrained… but since the entire Constitution was designed to restrict anyway, a bill of rights would not only be unnecessary, it might even be viewed as counterproductive.
The Framers had to consider this:
If we only say “Here’s what the government can do, and no more,” we are being consistent in declaring the government as utterly limited. It’s a shopping list: government can do this, and only this. If it’s not on the list, you can’t do it.
But if we then say “And here’s what the government can not do… this or this or this or that. You can’t ever do any of this, is that clear,” then what have we done? We’ve contradicted ourselves. Because the Constitution doesn’t say that the government can control businesses, so it doesn’t make sense to say “especially not newspapers.” The Constitution doesn’t say that the government can control people’s religious observance, so it doesn’t make sense to say “especially not to set up a taxpayer-funded denomination.” The Constitution doesn’t say that the government can seize anybody’s land, so it doesn’t make sense to say “but if we do, we’ll agree to compensate the landowner at the proper market value of the land.”
And why say “any power not specifically granted in the Constitution is restricted to the states or the people,” when that’s so obvious, it must go without saying?
When they thought about it this way, the Framers realized that it simply wouldn’t make sense to include a Bill of Rights; it would just confuse the issue. They thought that a message that read “you can ONLY do this” would be diluted terribly if you added “but if you DO exceed these bounds, be sure you don’t exceed them in these other directions!” So the Framers voted to stop there, and they published their final document without a Bill of Rights.
George Mason walked out in horror, refusing to sign the final document without such a list, but the majority of the Framers agreed with the logic. So the Constitution was submitted to the states for ratification, just a poetic preamble and the seven articles, ready for the consideration of the states.
A Firestorm Erupts
Perhaps they should have expected it: as soon as the idea of a replacement for the Articles of Confederation was announced (most assumed they would propose amendments, at least at first), the next shock was that this new document included no bill of rights. None at all. No mention of freedom of the press, freedom of religion, freedom of assembly? No mention of the right to be safe in our homes from unwarranted searches, the right to a speedy trial by a jury of one’s peers?
The ratification debate was bound to be hard enough as it was. A potentially bigger central government, certainly a stronger one, this was not what the public had rebelled against England to get. The Federalists (those who supported ratification) went into overdrive, writing articles, giving speeches, organizing support in every state capital, as thirteen separate battles for ratification had to be fought separately.
The Federalists caved quickly on the subject of the bill of rights. They tried to explain why there was no need for one, why in fact it would even be counterproductive, but the idea fell on such deaf ears, they realized that if they didn’t capitulate, the Constitution would be stillborn. The supporters of ratification agreed, in state after state, to make the addition of a bill of rights a condition of ratification, and on that basis, the ratification process began to succeed.
Once the Constitution was ratified, and the new Congress was seated, James Madison, now a Congressman from Virginia, drawing heavily from George Mason’s popular list, drew up a list of amendments for consideration. Seventeen passed the House, and twelve of those passed the Senate on September 25, 1789, ready to be sent on to the states. It took two years for the states to work it out, and on December 15, 1791, the state of Virginia ratified the ten most popular ones, bringing the number of ratifying states to three quarters, and causing the Bill of Rights to become law.
And how have they worked out?
We have now spent 222 years with both a Constitution and a Bill of Rights at the national level. We can never know for sure how the nation would have turned out without the Bill of Rights, but this much we do know:
The federal government has expanded in almost every imaginable direction. It has grown in size and numbers, as the biggest employer and biggest spending entity in the country. It has become the employer of last resort for many, and the employer of choice for even more. It dominates the home loan market and higher education, and now seeks to dominate the healthcare business as well. It buys and sells massive manufacturers like Chrysler and GM, and orders banks and insurance companies around like they were pawns on a chessboard. The federal government has expanded without noticeable resistance in every area not specifically forbidden by the Bill of Rights.
On the other hand, whenever there have been attempts to encroach upon the areas forbidden by the Bill of Rights (and there have been, oh, so many!), the judiciary has usually respected the amendments, though perhaps kicking and screaming along the way. If anything, the judiciary has often imagined these ten amendments to be more restrictive than they were intended to be.
The protection against unfair trials has been morphed into a guarantee of a trial in which conviction is often almost impossible even for the guilty. The protection against government establishment of a religious denomination has been insanely interpreted as a hostility toward government support of the Judeo-Christian worldview that 99% of the Founders themselves held. The protection against restrictions on assembly has been used to support socialist takeovers of state capitols and other federal land, while being conveniently forgotten when tea party groups legally apply for permits.
The warping of the Bill of Rights – this most well-intentioned of documents – has in fact gone on for generations, and today, one political party openly thrashes the Constitution as a document of so-called “negative rights,” as if the very concept of restrictions on government is a dangerous thing!
How far we have fallen.
Our Framers would not recognize the government we have today. They would never have blessed a nation in which half the country depends on government for schooling, for housing, for food, for allowance. They would never have dreamed that such a transformation could occur without a revolution, but it did… in a long slow slide that arguably started with the 16th amendment – the ability to tax individuals directly – and the 17th amendment – the removal of the states’ one and only brake on the federal government, by switching senators to direct election by the masses.
It is perhaps only an academic game – and not a happy one, by any means – to ponder what might have happened had the Framers’ will prevailed, 222 years ago.
What if there were no Bill of Rights at the federal level? What if all there was, in all that short but well-packed document, was a laundry list of things that government might do, nothing else? What if when Hamilton wanted a central bank, the Congress had to debate it, and win public support before it could be chartered? What if when Jefferson wanted to buy land from France, the Congress had to debate that too, and win public support before the check to Napoleon could be cut?
That’s how the nation began. The Constitution was just a list, and anything outside it had to be debated. But ever since the Bill of Rights was added, the argument shifted. Now instead of asking “Can we do that?” we ask “Is it forbidden?” When it is not plainly forbidden by the Bill of Rights, the political strength of the limiting side is rarely sufficient to successfully oppose the expansion. The small-government faction – the faction that stands with the Founding Fathers against the Progressives who seek to empower the leviathan to break free of its bonds – is only strong enough to compete on an ever-dwindling field of battle.
And as we have seen since the dawn of the 20th century, tragically, the list of things forbidden can never be as long as the list of things that an insatiably omnivorous leviathan desires.
The framers gave us one tool, however. Like the “Hope” that was buried in the corner of Pandora’s Box, we have the last amendment of the Bill of Rights – the 10th Amendment – which, if aggressively wielded, can yet wrest control back from Washington, and set this nation free to again be the City on a Hill envisioned by the Founding Fathers.
If only we had them today, in proportional numbers, to help lead us in the fight.
Copyright 2013 John F. Di Leo
John F. Di Leo is a Chicago-based Customs broker and regulatory compliance trainer. He studied his history and political science at Northwestern University, but learned the real impact of the growing leviathan through four decades in international trade. A spokesman of the Illinois Small Business Men’s Association in the 1980s, and a county chairman of the Milwaukee County Republican Party in the 1990s, he has now been a recovering politician for over sixteen years.
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