American Democracy in Context. Joseph A. PikaЧитать онлайн книгу.
security should be balanced—an issue we will return to later in this chapter.
The Bill of Rights
Civil liberties consist of the basic rights and freedoms that citizens enjoy without governmental interference. These include not only the freedoms of speech, press, assembly, and religion but also the guarantee that government will not take one’s life, liberty, or property without due process of law. These liberties are spelled out in the first ten amendments to the United States Constitution, collectively known as the Bill of Rights. In contrast with civil liberties, civil rights (discussed in Chapter 5) focus not on the freedoms from government interference found in the Bill of Rights but rather on the guarantee of equal treatment by the government found in the equal protection clause of the Fourteenth Amendment. In other words, civil rights refers to freedom from governmental discrimination (unequal treatment) based on some individual characteristic such as race, gender, or disability. Thus, the right to peaceably assemble is a civil liberty guaranteed by the First Amendment, but if the government were to arbitrarily discriminate in the enforcement of that right—by determining that people with green eyes can peaceably assemble but people with blue eyes cannot—we would call that discriminatory treatment a violation of civil rights.
The Bill of Rights is such a central part of the Constitution that it is hard to imagine the document without it. And yet, in the waning hours of the Constitutional Convention of 1787, the members of the convention—voting as state delegations—unanimously rejected a proposal for a Bill of Rights that was introduced by George Mason of Virginia, an ardent defender of individual rights who had drafted the famous Virginia Declaration of Rights in 1776.6
Many of the delegates, such as Alexander Hamilton, felt that a Bill of Rights was unnecessary. Seven of the states already had a bill of rights in their own state constitutions.7 Hamilton also believed that the Constitution limited the powers of the national government to those enumerated. Therefore, he believed that the national government would be powerless to abridge rights. As he put it in Federalist 84, “Why declare that things shall not be done which there is no power to do?”8 Moreover, enumerating specific rights could easily lead to the omission of others. Would the implication be that the national government was free to infringe upon rights that were not enumerated? Finally, confronting the issue of a Bill of Rights at this late stage might lead to another long round of debate and undermine fragile compromises that were already in place.
Mason disagreed, believing that the Constitution gave too much power to the national government. The lack of a Bill of Rights intensified the fear that the national government might subvert states’ rights as well as those of individuals. But Mason had not been able to convince delegates to the Constitutional Convention to accept his position. His personality did not help. He was an impatient man who disliked compromise. His verbal jousting tended to alienate opponents.9 In the end, a frustrated Mason famously refused to sign the Constitution, saying that he would sooner chop off his right hand than do so.10 He then became a leading critic of the Constitution during the ratification debate.
James Madison, another delegate from Virginia, initially opposed a Bill of Rights, but—due in part to the persuasive efforts of Thomas Jefferson—changed his mind and became one of its strongest proponents.11 His conversion was partly pragmatic. It came as he was running for Congress from a district in Virginia that strongly favored a Bill of Rights. But it also was a matter of timing and strategy. Before the ratification of the Constitution, its opponents were calling for a second Constitutional Convention to modify the proposed document. Madison knew that such a convention could lead to a radical transformation of the Constitution and undermine the goals of the Federalists. Therefore, the initial goal was to get the document ratified unscathed.
Once the Constitution was ratified, however, the dangers posed by amendments became less serious. At that point, a Bill of Rights could be used to defuse lingering opposition to the Constitution. As Madison put it in January 1789,
Circumstances are now changed: The Constitution is established … and amendments, if pursued with a proper moderation and in a proper mode, will not only be safe, but may serve the double purpose of satisfying the minds of well-meaning opponents, and of providing additional safeguards in favour of liberty.12
civil liberties The basic freedoms that citizens enjoy from governmental interference, such as the freedoms of speech, press, assembly, and religion, and the guarantees of due process and other specific protections accorded to criminal defendants.
Bill of Rights The first ten amendments of the U.S. Constitution, which form the basis of civil liberties.
Thus, acting on a proposal by Madison, the First Congress sent twelve amendments to the states for ratification. The first two, dealing with the size of the House of Representatives and the compensation of senators and representatives, were not ratified. As a result, the proposed Third Amendment, dealing with the freedoms of religion, speech, and the press, became the First when the amendments that make up the Bill of Rights were ratified in 1791.13
Similar to the Constitution, the Bill of Rights was a highly contested document. The version seen here includes a number of changes made by the Senate to the version passed by the House, as well as the first two Articles, which were not ratified at that time.
Michael Latil / The LIFE Picture Collection / Getty Images
The Bill of Rights and the States: The Original Understanding
Just as it is hard to imagine our Constitution without a Bill of Rights, so it is hard to imagine our Bill of Rights not protecting individuals from state laws that infringe upon their liberties. And yet the Bill of Rights was originally thought to limit only the power of the national government—not the power of the states. States’ rights advocates, in particular, had pushed for a Bill of Rights to prevent the new national government from encroaching not only on individual rights but also on the power of the states.
It is telling that James Madison’s proposal that the Bill of Rights include an amendment that said, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases” was rejected.14 Instead, the First Amendment clearly states, “Congress shall make no law.” And even though the remaining amendments seemed more general (the Sixth, for example, says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”), the common understanding was that these guarantees applied only to actions by the federal government, such as federal criminal prosecutions.15 Thus, after the ratification of language in the First Amendment—“Congress shall make no law respecting an establishment of religion”—seven states (Connecticut, Georgia, Maryland, Massachusetts, New Hampshire, South Carolina, and Vermont) continued to maintain some form of religious establishment.
In the 1833 case Barron v. Baltimore, the U.S. Supreme Court reaffirmed the view that nothing in the Bill of Rights limited state action. Chief Justice John Marshall wrote the opinion in Barron. Given what we know about Marshall, his ruling might seem surprising. He was, after all, an ardent Federalist who did much in other cases to strengthen the national government at the expense of the states. Why would he write an opinion that vindicated states’ rights? It may simply be that the answer was so obvious and the intent of the framers so clear that the outcome was preordained. As Marshall himself put it, the legal question presented was “of great importance, but not of much difficulty.”16 But there was another issue—one not directly raised in the case—that may have influenced the Court: slavery.
The reality of slavery is impossible to reconcile with the concept of liberty espoused by the framers. And yet many framers, including James Madison and Thomas Jefferson, owned slaves. As discussed in Chapter