The Constitution that the Philadelphia Convention transmitted to the Confederation Congress for consideration on September 28, 1787 contained a number of provisions protective of individual rights and liberties. Article I, Section 9 affirmed that the writ of habeas corpus should not be suspended except in cases of rebellion or invasion ‘‘when the public safety may require it.’’ It also prohibited Congress from passing bills of attainder or ex post facto laws. Article I, Section 10 placed a similar ban on the states. Article III, Section 2 provided for trial by jury in criminal cases in the newly created federal courts. Section 3 defined treason narrowly, and required the testimony of two witnesses or confession in open court for conviction of the crime. In addition, it said that conviction could not work corruption of blood nor forfeiture except during the life of the person attainted. Article VI declared that no religious test should ever be required as qualification for any federal office. Although the provision applied only to members of Congress, one might also point to Article I, Section 6, which immunized senators and representatives from criminal or civil liability for ‘‘any speech or debate in either house.’’ One might consider this as a freedom of speech provision for members of Congress. Perhaps too the prohibition on titles of nobility may be considered as a freedom for members of Congress. Some at the time, such as Alexander Hamilton for example, saw this as a provision securing liberty.
Proposals for the inclusion of additional civil liberties provisions were brought before the convention for consideration but commanded little support. On August 20, Charles Pinckney of South Carolina introduced resolutions calling, among other things, for a ban on the quartering of soldiers in houses in peacetime and a declaration in favor of freedom of the press. They were referred to committee but never made their way into any proposed constitutional text. Toward the end of deliberations, Elbridge Gerry of Massachusetts urged that jury trial be guaranteed in civil as well as criminal cases in the federal courts. George Mason of Virginia thought this impracticable, but said he would support a motion to preface the Constitution with a bill of rights. A declaration of rights ‘‘would give quiet to the people,’’ he stated, and could be quickly prepared since there were many state charters of rights that could be drawn on for suitable language. (Mason was the principal author of Virginia’s own Declaration of Rights.) A motion by Gerry, seconded by Mason, to appoint a committee to prepare a bill of rights failed to win the vote of a single state delegation, however. On the convention’s last day of deliberations, Gerry and Pinckney made a final effort to have a guarantee of jury trial in civil cases added to the Constitution, but their motion also failed unanimously.
The matter of securing additional rights and liberties came up again during Congress’s consideration of the Constitution. Richard Henry Lee of Virginia, making reference to ‘‘the various bills or declarations of rights whereon the governments of the various states are founded,’’ urged the wisdom of grounding the new Constitution on a similar declaration. Specifically, he asked that before its submission to the states, the Constitution be amended to guarantee the right of conscience in matters of religion, freedom of the press, the right of jury trial in civil cases, the right of peaceable assembly, and the freedom from unreasonable searches and seizures. He sought also a prohibition on standing armies in times of peace unless assented to by two-thirds of both houses of Congress. But Lee’s proposals were not acted upon, and the Constitution was submitted to the states for consideration in unaltered form.
Among a people as rights conscious as were eighteenth- century Americans (most of the state constitutions that had been adopted in the period after the Revolution included declarations of rights), it is not surprising that one of the chief points of contention during the ensuing debates on ratification was whether the 1787 Constitution adequately protected individual rights and liberties. Some took aim at the very size and structure of the proposed new republic. The creation of a central government with vastly enhanced powers and the radical (as they saw it) subordination of the states to that government in and of itself posed a threat to civil liberties. The states, men like Samuel Adams and Luther Martin thought, were the true protectors of liberty. James Madison argued famously, to the contrary, that the new nation, with its large territory, multiplicity of interests, and divided government, was a place where individual rights and liberties would thrive. The more common complaint, heard repeatedly during the debates, was that the new Constitution lacked a declaration of rights or, a more focused variation on the same theme, had failed to provide explicit protection for specific cherished rights and liberties. Pennsylvania, Massachusetts, Virginia, and New York were the most significant contributors to the discussion of this topic, and this essay will concentrate on the debates in those states. But first a further word about George Mason.
Mason was one of the first to sound the alarm about rights and liberties during the ratification period. Shortly after the convention adjourned, Mason— who had refused to sign the Constitution—penned a paper entitled, ‘‘Objections to the Constitution,’’ in which he set forth his reservations about the new document. Lack of civil liberties protection was certainly not his only objection. He was very disturbed by the plenary power over commerce given the national government, for example, arguing that it would lead to the economic ruination of the southern states. Nonetheless, civil rights and liberties were a principal concern as is clear from the paper’s opening sentence. ‘‘There is no declaration of rights,’’ Mason wrote, ‘‘and the laws of the general government being paramount to the laws and constitutions of the several states, the declarations of rights in the separate states are no security.’’ Specifically, there was ‘‘no declaration of any kind for preserving the liberty of the press, the trial by jury in civil causes; nor against the danger of standing armies in time of peace.’’ Mason’s ‘‘Objections’’ began to circulate widely in manuscript form in early October both in his home state and elsewhere, and became, as the historian Lance Banning has put it, ‘‘a starting point for Antifederalists throughout the country.’’
Mason’s pamphlet was certainly read in Pennsylvania, the first state to summon a ratification convention, and a state where there was considerable opposition to the Constitution, much of it centering on the lack of a bill of rights. Several members of the Pennsylvania legislature, who had tried to prevent the calling of a convention, published a manifesto on September 29, the day after the call for a convention went out, urging their constituents to look soberly at the proposed constitution, paying particular attention to such questions as jury trial, liberty of the press, and standing armies (the phrasing made clear that they thought the Constitution did not satisfactorily deal with each) and to ask themselves ‘‘whether in a plan of government any declaration of rights should be prefixed or inserted.’’ And on October 5, Samuel Bryan, writing under the pen name ‘‘Centinel,’’ published a caustic article in a Philadelphia newspaper, drawing an unfavorable comparison between the solicitude for rights found in the Pennsylvania Constitution and the neglect of those rights in the Philadelphia document. The drafters, he complained in particular, had ‘‘made no provision for the liberty of the press, that grand palladium of freedom and scourge of tyrants.’’
Determined to respond to these and other attacks, James Wilson, one of the Constitution’s chief drafters, delivered a speech to a public meeting of supporters held in Philadelphia on October 6. It may be considered something of an opening salvo of proponents in the war over ratification.
Wilson addressed first the large issue of whether the Constitution ought to contain a bill of rights. Sounding a theme that would be sounded and expanded on some months later by Alexander Hamilton, Wilson distinguished the proposed new federal government from those set up by the various state constitutions. The latter governments had every right and power that the people of the states had not expressly reserved to themselves. But the proposed new federal government was one of limited, delegated power and here the reverse of that proposition applied. Every power not expressly delegated was retained by the people. A bill of rights would therefore be superfluous. Liberty of the press, he commented, had become ‘‘a source of declamation and opposition,’’ but how, he asked, could such liberty be threatened by the new government? It had been given no authority whatsoever over the press. As to the complaint about the failure to provide for jury trial in civil cases, he dismissed out of hand the accusation that the Constitution prohibited such trials. Given the different ways in which the states dealt with this question, it had simply proved ‘‘impracticable to have made a general rule.’’ As to standing armies, he said he did not know of a nation in the world that did not wish ‘‘to maintain the appearance of strength’’ even in peaceful times. Besides, he noted, the Constitution placed the military under restrictions and controls.
Critics were quick to respond to Wilson’s speech, an account of which appeared the next day in the Philadelphia press, some acerbic in tone. ‘‘Centinel’’ weighed in again, characterizing Wilson’s defense of the omission of a declaration securing liberty of the press and other rights as ‘‘an insult on the understanding of the people.’’ If Wilson was correct that every power not given was reserved, then this proposition should have been expressly affirmed. ‘‘I lay it down as a general rule,’’ he went on, ‘‘that whenever the powers of a government extend to the properties of the subject, all their rights ought to be clearly and expressly defined—otherwise they have but a poor security for their liberties.’’
The debate continued on the floor of the Pennsylvania Convention, which met from November 20 to December 15. Wilson argued again that a declaration of rights was unnecessary. Indeed, he said it would be imprudent. A bill of rights was a statement of powers reserved by the people. Anything not listed was presumably given away. An incomplete or imperfect enumeration would by implication leave rights unprotected. But then, asked John Smilie, a leading opponent of ratification, why had the convention seen fit to protect the privilege of the writ of habeas corpus and to secure trial by jury in criminal cases? How did this square with Wilson’s precept that it was dangerous to attempt an enumeration? A bill of rights was highly useful, Smilie declared, because it offered ‘‘a plain, strong, and accurate criterion by which the people might determine when, and in what instance, their rights were violated.’’ Smilie’s question as to why the Constitution, which, its defenders insisted, did not need a bill of rights, nonetheless included a partial one would be echoed by other speakers in other states during the ratification contests.
As the convention drew to a close, Robert Whitehill, another opposition leader, presented a petition from the citizens of Cumberland County, urging that the Constitution not be ratified without the inclusion of a bill of rights. He then moved that the convention adjourn pending the consideration of adding certain articles to the Constitution, among them amendments securing freedom of religion, speech, and the press; in criminal cases prohibiting excessive bail and cruel and unusual punishment affirming the right of the accused to a speedy trial by a jury of the vicinage, his right to confront his accusers, to be represented by counsel, and to refuse to give evidence against himself; and finally, an amendment stating that ‘‘the people have a right to bear arms for the defense of themselves and their own state.’’ Whitehill’s motion was rejected and Pennsylvania went on to vote to ratify the Constitution. Whitehill, Smilie, and their confederates, however, had not given up the fight. They and nineteen other delegates who had voted against ratification published a lengthy statement of the reasons for their opposition, including in it the list of their proposed amendments.
The Pennsylvania debates concerning ratification in general, and rights and liberties in particular, take on a special importance. Pennsylvania was the first state in which there was extensive debate about ratification. The arguments for and against received considerable attention outside the state (the ‘‘Dissent of the Minority,’’ for example, was widely circulated around the country). These galvanized proponents and opponents elsewhere. They also played a large role in setting the parameters of debate. They created, in the words of one historian, ‘‘the terms of discourse, the grammar, syntax, and vocabulary of ratification.’’
Massachusetts does not particularly stand out for the vigor of its debates on the subject of civil rights and liberties, but is noteworthy because it was the first state to recommend amendments touching on the subject. Civil liberties occasioned little discussion in the state convention, which opened on January 9, 1788. During the debates, Samuel Adams did propose that the Constitution be amended to guarantee freedom of the press, the right to bear arms, freedom from unreasonable search and seizure, and the right to petition the legislature. But he withdrew these proposed amendments when it was clear they could not win support.
There was some discussion out of doors. James Winthrop, who wrote a series of critical articles on the constitution for the Massachusetts Gazette under the pen name ‘‘Agrippa’’ between November 1787 and February 1788, complained in one of them about the lack of requirement that federal criminal trials be tried by a jury of the vicinage in the county where the crime was allegedly committed. The defendant would be put on trial before strangers, who would have no way of knowing ‘‘whether he is habitually a good or bad man ... and whether the action was performed maliciously or accidentally.’’ In another he demanded as a condition of ratification the addition of an amendment stating that citizens should carry into the federal courts the rights accorded them by their own state constitutions.’’
Massachusetts voted to ratify on February 6 in a very close vote. The resolution of ratification, the first to do so, recommended that certain amendments be added to the Constitution. They would, it was said, offer a shield against ‘‘an undue administration of the federal government’’; these amendments were designed, it was said, ‘‘to remove the fears and quiet the apprehensions’’ of the people. (Note the similarity to Mason’s words in the Philadelphia Convention.) Most concerned the structure of government or aimed to better protect the rights of the states vis-a´-vis the national government. Two dealt with civil liberties. One declared that no one should be prosecuted for a capital or ‘‘infamous’’ crime except upon grand jury indictment. The other affirmed the right of jury trial in civil cases in the federal courts in all ‘‘actions at common law.’’
A few months later, New Hampshire followed the lead of its New England neighbor, recommending the addition of amendments in its resolution of ratification. These tracked closely those recommended by Massachusetts, but included as well a ban on standing armies, a prohibition against the quartering of troops in private homes, and an affirmation of freedom of conscience. One proposed amendment constituted the most unqualified endorsement of the right to bear arms to emerge from the ratification debates, stating: ‘‘Congress shall never disarm any citizen unless such as are or have been in rebellion.’’
The most intense discussion of civil rights and liberties in Virginia occurred on the floor of the state ratifying convention. The chief opponent of ratification was Patrick Henry. Henry, a died-in-the-wool enemy of the whole constitutional project (there seemed hardly a clause of the proposed constitution that he did not consider objectionable), addressed the civil liberties question in several passionate speeches. The Constitution was bringing a revolution, as radical as the war for independence, he thundered in one such speech, threatening to destroy ‘‘all pretensions to human rights and privileges.’’ He railed against its tolerance for standing armies and the absence of any limitation on the quartering of troops. The partial bill of rights contained in Article I, Section 9 failed to secure ‘‘the great objects of religion, liberty of the press, trial by jury [gone in civil cases, he said, not really secured on the criminal side], interdiction of cruel punishments and every other sacred right.’’ There was no adequate protection against general search warrants, no requirement of trial by a jury of the vicinage, nor other necessary protections for the criminal defendant such as the right to know fully the accusation against him. As to the Federalist argument that a bill of rights was not necessary because everything not given up was retained, Henry pointed to the habeas corpus clause of Section 9, which said the writ could be suspended in certain situations. That implied that absent the exception, the writ could be suspended in all cases. ‘‘It reverses the position of the friends of this Constitution,’’ he argued. His mind would not be quieted, he declared, until he saw a substantial bill of rights.
Edmund Randolph, something of a late convert to the cause of ratification, took the lead in addressing Henry’s civil liberties objections. The rights of criminal defendants were clearly implied by the constitutional text, he contended. The right to know the accusation against oneself and to confront witnesses followed from the requirement of jury trial in criminal cases. A criminal trial could not proceed without accusation and witnesses. There was no need for express prohibitions of excessive bail or cruel punishments or general search warrants since it was unreasonable to think that members of the legislature or judiciary would ever tolerate such abuses. Randolph’s arguments on freedom of the press and of religion and on civil juries paralleled those of Alexander Hamilton in The Federalist, and he may have drawn on them (Hamilton’s essays appeared in print in late May; the Virginia Convention convened June 2). Freedom of the press and religion were secure because the national government had been given no power over these domains. Silence on civil juries did not mean they were precluded.
Randolph was one of the few to address the question of why some rights had been specified in the 1787 Constitution but not others. Those specified, he contended, were exceptions from particular powers expressly granted Congress in the Constitution and necessitated by that grant. Thus, the prohibition on suspending habeas corpus and the ban on bills of attainder were exceptions to specific power given Congress to regulate courts or to maintain a system of criminal justice.
The arguments of Henry and others must have had some impact because Virginia’s resolution of ratification, passed June 26, 1788, included a recommendation that the first Congress to assemble under the new Constitution consider amending the document to add a ‘‘Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people.’’ The list of rights deemed worthy of recognition closely paralleled those recognized in Virginia’s own bill of rights. They included, in addition to those referred to in the Henry/Randolph colloquy, freedom of assembly, a requirement of unanimous consent for conviction in criminal trials, the right to refuse to bear arms on grounds of conscience, and something in the nature of a due process clause, providing that no one should be deprived of life, liberty, or property, ‘‘but by the law of the land.’’ Virginia thus became the third state to recommend the addition of civil liberties amendments in its ratification resolution.
The public debate on the Constitution in New York, it has been observed, was among the fullest in all the states, and it produced some of the most intelligent and penetrating discussion of the subject both by Anti-Federalist opponents and Federalist supporters. It began in the fall of 1787, months before the legislature had voted to call a convention and consisted of newspaper articles, pamphlets, and public speeches. On the Anti-Federalist side, the most thoughtful commentary came from writers using the pen names, respectively, of ‘‘Brutus’’ and ‘‘the Federal Farmer’’ (the true identity of these two has ever been satisfactorily established).
In a series of essays that appeared in the New York Journal between October 1787 and April 1788, Brutus offered an analysis of the Constitution in all its parts. He took up the lack of a bill of rights in his second essay. He found it astonishing that ‘‘this grand security for the rights of the people,’’ as he called it, was not to be found in the proposed constitution. History had shown that it was the natural inclination of those who governed ‘‘to enlarge their powers and abridge the public liberty.’’ An express reservation of rights was therefore a necessity, he declared. (If it was not necessary, he asked, echoing Pennsylvania’s Robert Whitehill, why had the authors secured certain of these such as the habeas corpus privilege?)
Among the rights that should have been explicitly reserved, Brutus argued, were the privilege against self-incrimination, the right to confront one’s accusers, and the right to be tried in the place where the crime one was accused of was allegedly committed (otherwise, one might be ‘‘carried from Kentucky to Richmond for trial for an offense,’’ he declared). He also scored the authors for failing to include a ban on excessive bail or cruel punishment or a requirement that search warrants be supported by oaths. He thought that provision for jury trial in civil cases was essential for securing property. A particular concern of his was the Constitution’s implicit endorsement of standing armies, and in several articles he warned against the dangers that they posed to liberty.
The Federal Farmer’s essays appeared in a small New York newspaper but were reprinted in pamphlet form and widely distributed. This writer was less hostile to the Constitution than Brutus and somewhat more tentative in his recommendations. While he acknowledged there were difficulties in the way of the project, he thought a complete bill of rights both wise and ‘‘very practicable.’’ There might be some force in the argument that all powers not delegated were reserved (on this question men would take such sides as suited their purposes, he wrote), but the prudent thing to assume, he averred, was that those who governed would construe their powers most broadly, and it was therefore the better part of wisdom to carefully delineate ‘‘the powers parted with and the powers reserved.’’ He favored an enumeration of ‘‘the most essential rights’’ and, to hedge against the possibility that some might be overlooked in the listing, a declaration that all not expressly surrendered were reserved. There was yet another reason for including a bill of rights, the Farmer wrote. Such declarations established, ‘‘in the minds of the people truths and principles which they might never otherwise have thought of, or soon forgot.’’ They constituted a kind of declaration of first principles and as such deserved to be prominently proclaimed.
The partial declaration already contained in the 1787 Constitution ought to be extended to secure freedom of religion, some sort of protection of the press against oppressive taxation, freedom from unreasonable searches, the right to confront one’s accusers in criminal trials, and the right to trial by jury in civil cases. Juries were important not only because they protected individuals against abuse of their rights but also—and this was a point other defenders of the civil jury made—because they offered ordinary citizens yet another means of participating in public affairs. (It is important to note that at the time, juries had the authority to decide the law as well as the facts.)
The most powerful commentary in support of the Constitution to appear in New York or anywhere else for that matter during the ratification debates was doubtless that contained in The Federalist Papers. The brainchild of Alexander Hamilton and aimed primarily at influencing the debate in his home state, these essays were published in New York City newspapers between October 1787 and May 1788. As is well known, they were a showcase for his and James Madison’s dazzling rhetorical talents and produced some of the most brilliant political advocacy ever written. The two that dealt most directly with the subject of rights and liberties were Hamilton’s Nos. 83 and 84, both of which first appeared in the second volume of collected Federalist essays, published toward the end of May 1788.
Hamilton devoted all of No. 83 to defending the Constitution against those who criticized it for its lack of provision for jury trial in civil cases, ‘‘the objection to the plan of the convention, which has met with most success,’’ as he noted. He dismissed with scorn those who argued that the Constitution if adopted would abolish civil juries, some even going so far as to say that it did away with juries in the state courts. Mere silence did not mean abolition, and the Congress would be totally free to make whatever provisions it wished for the trial of civil cases in the federal courts. Hamilton expressed doubt as to whether the lack of provision for civil juries was a civil liberties issue at all. It was the criminal jury, he declared, that protected individuals against the arbitrary exercise of power by the state, the true domain of personal liberty. Civil juries had little or nothing to do with such matters. Still he acknowledged that civil juries might serve as a kind of additional security against corruption in the trial of civil causes, and so he felt compelled to explain why the drafters of the Constitution had not seen fit to provide for them. The main problem, he said, was a practical one. Because there were such great variations ‘‘between the limits of the jury trial’’ in the different states, ‘‘no general rule could have been fixed upon.’’ Nor did he find the Massachusetts proposal that juries be guaranteed in actions at common law very helpful because different states defined actions at common law in different ways. The sorting out of matters like this were best left to the discretion of the legislature, he argued.
Federalist No. 84, which dealt with the more general question of why the Constitution contained no bill of rights, reprised many of the same themes that James Wilson had broached in his State Yard Speech. Bills of rights were ‘‘in their origin, stipulations between kings and their subjects,’’ ‘‘reservations of rights not surrendered to the prince.’’ They had no application to constitutions such as that proposed, in which the people retained every power they had not given to the sovereign. Indeed, a declaration of rights would be dangerous, he averred. By stating exceptions to powers not granted, it would supply ‘‘a colorable pretext’’ for claiming powers not granted in the first place. A statement that the liberty of the press should not be restrained, for example, might furnish the government with the pretext for claiming a right at least to regulate. The security of the press depended on ‘‘public opinion and the general spirit of the people.’’ The same consideration applied to those who feared oppression of the press through taxation. It would be wrong to say that newspapers should pay no taxes and no mere declaration could protect a paper against oppressive taxation.
New York voted to ratify the Constitution on July 26 by a margin of three votes. The act of ratification advocated additional protection for civil rights and liberties but in a fashion so convoluted and with language so opaque that it is impossible to characterize it any less generally than that.
Civil rights and liberties were not the only issue around which debate swirled during the ratification period, but they were a very important one. And by the time the First Congress assembled in March 1789, a powerful momentum in favor of adding amendments securing rights and liberties had built up. Some seven states had recommended such amendments in their ratification acts. (A guarantee of the right to jury trial in civil cases, interestingly, was the one endorsed by more states than any other.) James Madison, once as negative as Wilson and Hamilton on the wisdom of including a declaration of rights, had changed his mind. During his campaign for a seat in the House of Representatives in 1788, he promised that if elected he would make the introduction of a bill of rights one of his highest legislative priorities. He proved true to his word. On June 8, he introduced a set of amendments incorporating most, but not all, of the civil liberties provisions that proponents had been arguing for during the ratification period.
References and Further Reading