Constitution of 1787
The U.S. Constitution of 1787 did not contain a bill of rights, because the overwhelming majority of the delegates did not believe that one was necessary. They were creating a government of limited powers and did not think that these powers included the right to generally regulate civil liberties. Thus, the Framers did not include any general protections for freedom of religion, speech, the press, or assembly, because they quite frankly did not believe Congress could ever legislate on such matters. They did anticipate a federal Criminal Law, but not one at the convention believed it was necessary to guard against warrantless searches or prosecution without grand jury indictments because the Framers simply could not imagine that any representative government could act in such a manner. In opposing the addition of a bill of rights, Roger Sherman of Connecticut explained that the national legislature could ‘‘be safely trusted’’ to protect liberty. [2 Farrrand 588–589] Similarly, he argued that no special protection freedom of the press was necessary because ‘‘the power of Congress does not extend to the Press.’’ [2 Farrand 617–618] A majority of the convention agreed with Sherman both times. Sherman may have been wrong about this, but it’s position was not taken out of hostility to civil liberties. The Framers were naı¨ve in this regard, but not tyrannical.
While generally not protecting civil liberties, the Constitution contains a number of clauses that are protective of civil liberties. There are also provisions that could threaten civil liberties, especially in the absence of a bill of rights.
Protections of Civil Liberties in the Constitution
While not generally protecting freedom of speech, the ‘‘Speech and Debate Clause’’ of Article I, Sec. 6, Par. 1, does protect the freedom of members of the House and Senate to speak freely and openly when debating issues in Congress. This was a critical provision in the development of open government and representative government. At the same time, however, this clause has allowed demagogues, like Senator Joseph McCarthy, to destroy the reputations of innocent Americans without fear or interference fromthe courts.
Article I, Sec. 8 provided for the granting of copyrights to authors. This is generally seen as an important stimulus for the growth of literature and publishing in America. The protection of copyright is seen as essential to a free press to the extent that authors and publishers need economic and legal protection for their work.
Article I, Sec. 9, Par. 2 allows for the suspension of habeas corpus only under very limited circumstances: when there has been an invasion or rebellion and the public safety requires it. This clause prevents arbitrary suspensions. Indeed, the only sustained suspension took place during and after the Civil War, when there were true rebellions in the nation. During World War II habeas was suspended in Hawaii, which was a war zone. The Japanese Internment was technically not a suspension of habeas, although it unfortunately had a similar affect for Japanese Americans. The strict requirement for habeas suspension contrasts with the easier methods by act of Parliament in Britain.
Tied to the habeas clause is the prohibition on ex post facto laws and bills of attainder. These clauses were important additions to the Constitution that limited the ability of the government to punish people for their political acts and viewpoints. Article 1, Sec. 10, Par. 1 also prohibited the state from passing such laws. The Constitution did not, however, prohibit the states from suspending habeas corpus in situations other than rebellion or invasion. This meant that if martial law had to be declared in the event of a natural or man-made disaster, it would be done at the local or state level.
Two clauses dealing with religion are perhaps the most important protections for civil liberties in the original Constitution. Article II, Sec. 1, Par. 7 and Art. VI, Sec. 1, Par. 3 both provide that in taking the oath of office state and federal officials ‘‘shall be bound by Oath or Affirmation’’ to support the Constitution. By adding the term ‘‘or Affirmation,’’ the framers opened office holding to Quakers and members of other pietistic faiths who refused to take ‘‘oaths.’’ In addition, by not including an oath to ‘‘God’’ or an oath on a Bible, the Framers placed no religious impediments to officeholders such as existed in England, where members of Parliament had to swear an oath on the Protestant, King James Bible. More importantly, the same clause of Art. VI also declared that ‘‘no religious Test shall ever be required as Qualification to any Office or public Trust under the United States.’’ At the time eleven of the thirteen states had some form of religious test for office holding, as did every nation in Europe. The United States thus became the first nation in the world to allow people of any religion, or no religion at all, to hold office. Significantly, Jews had already held some offices in the new nation, including one who was an officer on George Washington’s personal staff during the Revolution. The Constitution reaffirmed that in this nation anyone, of any religion, could hold office.
The other major protections for civil liberties were in Article III of the Constitution. Section 2, Par. 2 of that Article provided that all prosecutions under federal law would be by jury, and the trials would have to take place in the state where the alleged crime was committed. This would prevent the government from moving defendants far from their homes and witnesses, as England had done before the Revolution. Section 3, Paragraph 1 of this Article set out a high standard for treason: that it could consist only of ‘‘levying War’’ against the United States or ‘‘adhering to their enemies, giving them Aid and Comfort,’’ and that no conviction could take place without two witnesses to the same ‘‘overt act’’ or a confession in ‘‘open court.’’ England allowed prosecutions for constructive treason—that is for statements, or even cartoons or drawings—that could be construed as treasonous. No overt act was necessary for the crime, and two witnesses to the same act were not necessary for conviction. Paragraph three of this section of the Constitution also prohibited the government from punishing the descendants or heirs of those convicted of treason, which had been done in England.
Threats to Civil Liberties
Although creating a government with limited powers, the Constitution was open-ended on many issues. Article I, Sec. 8 allowed Congress to regulate interstate trade. Even if Congress could not abridge freedom of the press, it might prevent political literature from being sent across state lines if the content was deemed unacceptable to a political majority. This would also be accomplished by denying the use of the mail to certain categories of publications. Starting the 1870s with the Comstock Act, Congress prohibited ‘‘obscene materials’’ from the mail. For more than fifty years this included any material that women could have used to learn about Birth Control. Authorities prosecuted and jailed the founder of family planning in America, Margaret Sanger, under this statute. During World War I, the post office prohibited papers critical of war policies from being circulated through the mail. In the 1960s, the Congress tried to use the commerce clause to prevent antiwar activists from crossing state lines, although this law, known as the H. Rap Brown law (after a black activist), was struck down as violating the First Amendment.
The power to regulate naturalization (Art. I, Sec. 8, Part. 4) has also been used to threaten civil liberties. Aliens have been deported, or threatened with deportation, for exercising free speech rights. Also, immigration laws, which are tied to naturalization, have been used to discriminate against people on the basis of political ideology and ethnicity. Sometimes this has been used to protect the nation from those who might harm the country (fascists, communists, terrorists), but it has also been used merely to weed those with unpopular ideas, such as pacifists or advocates of polygamy, that did not pose any security threat to the nation.
The fugitive slave clause (Art. IV, Sec. 2, Par. 3) provided that runaway slaves would be ‘‘delivered up’’ on the claim of the owner, without any due process requirements. This would lead to kidnappings and the removal of people who had claims to freedom. At the time this clause was barely debated, but it had great potential, which was played out in the first six decades of the nineteenth century to deny fundamental rights to African Americans.
Provisions That Both Protect and Threaten Civil Liberties
A number of provisions can both threaten or protect civil liberties, depending how they are implemented. For example Article I, Sec. 8, Par. 15 allows for the use of the militia to suppress insurrections, whereas Article IV, Sec. 4 allows the use of the army to protect the states from rebellions and insurrections. These clauses have been used to suppress those who would violate the civil liberties of others—such as the use of the army to suppress the Ku Klux Klan after the Civil War or the use of the Army and the state national guards (the militia) to help integrate public schools and state universities in the South in the 1950s and 1960s. But, this clause was also used to suppress labor strikes, where workers were seeking high wages or better working conditions, but not threatening violence.
Article I, Sec. 9 prevented Congress from ending the African slave trade for twenty years. On the other hand, when the twenty years were up, Congress was able to end the trade. To the extent that enslavement is the most outrageous denial of civil liberty, this clause can be seen as cutting in both directions on civil liberties.
The most significant clauses that could have threatened, or protected, civil liberties were tied to those places—such as the territories and the national capital—where Congress had the exclusive right to legislate. The Framers argued that a Bill of Rights was unnecessary for the Constitution because the states, not Congress, would pass most general laws. The regulation of the press, for example, would be left to state law under the constitution. However, in the territories and the planned federal district—what became Washington, D.C.—the Congress would function as a state legislature. Thus, without a bill of rights the Congress would be able to deny or protect fundamental liberties without any constitutional guidance or limitation.
In the end, the Constitution did not greatly threaten civil liberties, because it created a government of limited powers. However, the potential for great harm to fundamental liberties could be found throughout the Constitution. With no bill of rights the Congress might find it necessary to suppress free speech or freedom of the press in times of war. The government might find it ‘‘necessary and proper’’ to favor one faith or one general religious ideology to accomplish some policy goal. The government might decide that a treaty required the suppression of some liberty at home to achieve a foreign policy goal. The Framers did not see these potential dangers—or did not believe them realistic, and thus did not think the Constitution needed a bill of rights. The First Congress, using the power to amend the Constitution, would remedy the lack of a bill of rights.
References and Further Reading
- Borden, Morton. Jews, Turks, and Infidels. Chapel Hill: University of North Carolina Press, 1984.
- Farrand, Max, ed. The Records of the Federal Convention of 1787. 4 vols. New Haven: Yale University Press, 1966.
- Finkelman, Paul, James Madison and the Bill of Rights: A Reluctant Paternity, Supreme Court Review 1990 (1991): 301–347.
- Levy, Leonard W. Origins of the Bill of Rights. New Haven: Yale University Press, 1999.
- Urofsky, Melvin I., and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2 vols. New York: Oxford University Press, 2002.