Constitutional Convention of 1787
The delegates to the Constitutional Convention of 1787 (known as the Framers) were initially concerned with creating a stronger, centralized government that would allow for regulation of trade and commerce, provide for a stronger national defense, and reduce tensions and jealousies between the states. The Framers were also concerned about a fair allocation of power in national Congress and the necessity of having a government that could collect taxes and function. The leading Framers decried what the called the ‘‘imbecility’’ of the government under the Articles of Confederation, which was unable to accomplish very much. The Framers believed they were creating a government of relatively limited power, which could only legislate in those areas that were enumerated through specific grants of power to Congress.
Given their vision of a limited government, the Framers were relatively unconcerned about ‘‘civil liberties’’ under the new regime. They believed that the regulation of most behavior would be at the state level, and thus they did not see civil liberties as a particularly important concern for the national government. Most of the Framers did not believe that Congress had the power to regulate freedom of the press or create a state religion, and, therefore, they saw no reason to discuss such powers in the Convention or provide for their protection in the Constitution. Furthermore, most of the Framers could not conceive of a representative government trampling on the fundamental liberties of the people. In their view, kings, princes, and dictators threatened the liberties of the people; legislatures chosen by the people could not do so.
There was, of course, an internal logic to this argument. In England the people had forced the king to grant them rights. King John I signed the Magna Carta at sword point, surrounded by knights and other great men of the realm who demanded he guarantee them certain rights. Over the next four centuries all Englishmen came to believe that they were entitled to some of these rights. In the seventeenth century Englishmen demanded more rights and wrested them from the King in the Civil War, the Glorious Revolution, and through acts of Parliament. The English Bill of Rights was a statute passed by Parliament as part of the Revolution. This history led some Framers to believe that the United States did not need a ‘‘bill of rights,’’ because there was no monarch from which to wrest these rights. On the contrary, they argued that a bill of rights was unnecessary in a government of limited powers in which the people would be sovereign. In a debating congressional power over the army and the militias, James Madison asserted the widely held belief that ‘‘the greatest danger to liberty is from large standing armies, it is best to prevent them by an effectual provision for a good Militia.’’ [2 Farrand 338] This argument led to a number of provisions that kept the military under strict civilian control. It would eventually lead to the Second Amendment, guaranteeing that Congress lacked the power to abolish the state militias (‘‘A well regulated Militia, being necessary to the security of a free State . . .’’), but did have the power to regulate them and set rules for government them.
These many understandings about the origin of liberties and the threats to them led the Framers to ignore civil liberties issues until the very end of the Convention. The delegates debated the nature of government from the end of May until the end of July without discussing issues that are today considered fundamental aspects of civil liberties. Some protections of civil liberties were taken for granted. In an early debate, for example, James Madison cited ‘‘the diversity of religious Sects’’ to support the idea of checks and balances [1 Farrand 108]. Madison assumed these sects would have the liberty to practice their faiths as they wished. There was no sense in this, or any other debate, that the constitution had to protect religious freedom. Madison and others assumed that Congress would have no power to regulate religious practice and that the states would have to allow religious liberty because of the growing diversity of the nation. In the early debates in the Convention, Madison noted that ‘‘religion itself may become a motive to persecution & oppression,’’ but he argued that large electoral districts, not a bill of rights, would protect against this [1 Farrand 135].
When the draft constitution was first presented, in early August, it contained a few provisions that protected civil liberties. It guaranteed the right to trial by jury for federal criminal offense and guaranteed that the trial would take place in the state where the alleged crime was committed. This would emerge in the final Constitution in Article III, Sec. 2, par. 3. The draft Constitution also defined treason as only ‘‘levying war against the United States,’’ thus eliminating constructive treason or other definitions of treason based on speech or belief.
On August 18, both Madison and Charles Pinckney proposed adding what became the copyright clause of Article I, Sec. 8 of the Constitution. This clause would serve authors and publishers and was key to the development of a free press, although it was seen at the time as more of a protection of economic interests than of civil liberties.
On August 20, almost three months after the beginning of the Convention, a delegate made the first proposals for specific protections of civil liberties. Charles Pinckney of South Carolina proposed a series of additions to the draft constitution. Some of these eventually became part of the original constitution, including the clause limiting the suspension of the writ of habeas corpus, the prohibition of religious tests for office holding, and the prohibition on simultaneous multiple office holding. The first two would be keys to protecting civil liberties in the new nation. The third helped prevent the concentration of power in the hands of a few officials. Pinckney also proposed an explicit clause declaring that ‘‘the military shall always be subordinate to the Civil power.’’ The final Constitution would not have such specific provision, but the spirit of this proposal is clearly evident in the clauses that give Congress authority to make all rules for the military and to appropriate money for the military, while making the president, a civilian, the Commander-in-Chief of the Army and Navy. Finally, Pinckney proposed a clause that would later be incorporated into the Bill of Rights. One was a statement that ‘‘The Liberty of the Press shall be inviolably preserved.’’ The second would form the first clause of what became the Third Amendment: ‘‘No soldier shall be quartered in any House in time of peace without the consent of the owner.’’ Indeed, while the order would be changed slightly, these eighteen words would form the first eighteen words of what became the Third Amendment [2 Farrand 341-42].
In retrospect, it seems astounding that no one at the Convention suggested any of these provisions during the first three months of debate. The best explanation for this is that no one thought such protections of liberty were necessary until after the Constitution took shape, and the framers understood the extent of power the new national government would have. It may seem ironic to modern Americans that the first person to make these proposals was Pinckney, who is most remembered as the most articulate and vociferous defender of slavery and the African slave trade at the convention and the man who, along with Pierce Butler, proposed the fugitive slave clause. However, this connection between civil liberties and slavery should be not seen as ironic. Masters of slaves, like Pinckney, were fully aware of their own civil liberties, and the need to preserve them, even as they denied more fundamental liberties to their slaves.
On the same day Pinckney proposed these additions, George Mason offered a clause that was distinctly hostile to civil liberties. Mason proposed that Congress have the power ‘‘to enact sumptuary laws.’’ Such clause would have allowed Congress to regulate how people dressed, limiting certain kinds of clothing to people certain social classes. Governor Morris, one of the richest men at the Convention and one of the largest landholders in the nation, argued that such laws ‘‘tended to create a landed Nobility.’’ Indeed, such a provision would have given Congress the power to establish social classes and regulate personal expression. Mason argued that such laws were necessary to make sure all citizens maintained ‘‘manners.’’ The Convention wisely voted this proposal down [2 Farrand 344]. Mason would later be remembered for his strident demands for a bill of rights and his refusal to sign the Constitution, because it lacked one. Yet, here he wanted to create a classbased society that would have denied to some people the fundamental right to choose how to dress themselves. Later that day Mason also opposed only allowing the United States to punish treason, arguing that the national government would have only a ‘‘qualified sovereignty’’ [2 Farrand 347]. Such an analysis had strong implications for civil liberties, because it would allow the state to define treason more broadly than merely ‘‘making war’’ on the nation. This would allow the states to use treason to suppress nonviolent opposition to state policies and, as such, suppress civil liberties.
On August 22, the Convention accepted a proposal by Elbridge Gerry and James McHenry to prohibit ex post facto laws and bills of attainder. No one at the Convention opposed a prohibition on bills of attainder that should be banned, but the ex post facto provisions roused the ire of a number of attorneys in the Convention, including Oliver Ellsworth and James Wilson, both of whom would serve on the Supreme Court. They argued that a ban on ex post facto laws was unnecessary, because, as Ellsworth put it, everyone knew that such laws ‘‘were void of themselves.’’ Wilson argued that such a clause would insult the Convention by leading people to believe that the delegates were ‘‘ignorant of the first principles of legislation.’’ In response to these arguments, Daniel Carroll of Maryland pointed out that the states has passed and enforced ex post facto laws, despite the universal belief they were unconstitutional. Wilson jumped on this argument to make a point held by many at the Convention—that a bill of rights or any constitutional provision on civil liberties was useless, because such constitutional prohibitions were unenforceable. Wilson noted that a number of states had passed ex post facto laws despite state constitutional prohibitions. Hugh Williamson agreed with Wilson, noting that in his home state of North Carolina the legislature had ignored the state constitution and passed such laws. Nevertheless, he believed a constitutional prohibition had much value ‘‘because the Judge can take hold of it.’’ In other words, Williamson argued that judicial review would allow courts to strike down laws that violated the Constitution. After a bit more debate, the Convention adopted the provision banning ex post facto laws, just as it had banned bills of attainder [2 Farrand 375-76].
In the weeks that followed, the Convention finished debating and refining the articles dealing with the legislative, executive, and judicial branches. These debates and votes considered various clauses touching on civil liberties, such as jury trials for accused criminals and the civilian control of the military. The Convention also adopted the slave trade provision of Article I, Sec. 9, which allowed the African slave trade to remain open until at least 1808. This was not a civil liberties issue per se, but it clearly affected the civil liberties of approximately 100,000 Africans who were imported into the country, mostly between 1800 and 1808. The Convention also adopted the Fugitive Slave Clause or Article IV, Sec. 2, Par. 3. No one at the Convention articulated any fear that this clause would jeopardize civil liberties, either of blacks or their white allies. From the 1830s to the Civil War, the implementation of this clause would deprive numerous people—free blacks, fugitive slaves, and white Abolitionists—of their civil liberties. But this potential problem was not obvious to anyone at the Convention.
On August 30, with the heated debate over the African slave trade behind them, the Convention returned to finalizing the document. The delegates agreed, without debate, to add the words ‘‘or affirmation’’ to the clause on the presidential oath and later did the same for all other required oaths. This allowed Quakers and others who were opposed to taking oaths, to hold office under the new Constitution. This can be seen as the first constitutionally sanctioned accommodation to religion under the Constitution. Charles Pinckney once again proposed that there be no religious tests for office holding. Roger Sherman thought this was unnecessary because ‘‘the prevailing liberality’’ was ‘‘a sufficient security ag[ain] st. such tests’’ [2 Farrand 468]. The Convention wisely rejected Sherman’s protest and unanimously accepted Pinckney’s proposal. The Convention then spend spent nearly two weeks revising the rest of the Constitution and debating the powers of the president and how it would be both elected and removed from office. The delegates were worried about presidential power and the tyranny of the executive. The debates obviously had implications for civil liberties, which could easily be destroyed by a president turned dictator. But there was not explicit discussion of civil liberties. On September 10, the Convention turned the draft Constitution over to a Committee of Style, which came back on the 12th with what was more or less the final version of the Constitution.
At this point, after almost three and half months of debate, a few delegates suddenly noticed that the Constitution did not have a bill of rights. Hugh Williamson noted that the Constitution did not have a provision to protect the right of a jury trial in civil cases. Nathaniel Gorham asserted that it ‘‘was not possible to discriminate equity cases from those in which juries are proper’’ and thus ‘‘this issue should be left to the legislature.’’ Elbridge Gerry, who a week later would refuse to sign the Constitution, argued that juries were necessary ‘‘to guard ag[ain]st corrupt judges’’ [2 Farrand 587]. George Mason, who would also refuse to sign the Constitution, said that a statement of the general principle of having juries, where appropriate, could resolve this issue.
But, the lack of a protection of civil juries was not the real problem. Mason asserted, for the first time in the Convention, that ‘‘He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose–It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.’’ Elbridge Gerry, then proposed a bill of rights. Roger Sherman of Connecticut replied that the state bills of rights were not repealed by the Constitution and would be sufficient to protect the liberties of the people. He also argued that the national legislature ‘‘may be safely trusted’’ to protect liberty. Mason answered that the laws of the United States would be ‘‘paramount to the State Bills of Rights,’’ implying that liberties protected by states could be trumped by federal law or even by the federal courts. The state delegations then voted unanimously to reject the call for the addition of a Bill of Rights. Mason and Gerry doubtless supported the measure in their delegations, but no delegation supported them [2 Farrand 588-89].
The next day (September 13) Mason once again asked for a clause allowing Congress to pass sumptuary laws. The convention agreed to send this to a committee, but it never emerged from the committee. On the 14th the disgruntled Mason tried to remove the ban on ‘‘ex post facto’’ laws, arguing that the phrase was unclear. The Convention voted this down. The Convention then rejected a motion to add a clause ‘‘that the liberty of the Press should be inviolably observed.’’ Roger Sherman argued it was unnecessary because ‘‘the power of Congress does not extend to the Press.’’ Four states, Massachusetts, Maryland, Virginia, and South Carolina, supported this provision, but the rest did not [2 Farrand 617-18].
This was the last debate over a bill of rights. The next day George Mason announced he would not sign the Constitution. His speech, which was later published, was a wholesale denunciation of the Constitution and reflected his deep dissatisfaction with a stronger national government. He began the speech with a statement about the lack of a bill of rights:
There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declaration of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law (which stands here upon no other foundation than its having been adopted by the respective acts forming the constitutions of the several States).
However, nowhere else in the speech did he complain about the lack of protection for civil liberties. He complained about the continuation of the African Slave Trade, which would lower the value his own state’s excess slaves, but he also complained that the regulation of trade in general would hurt the South. While not focusing on any specific civil liberties that were not protected, Mason did, however, attack the Constitution for prohibiting ex post facto laws, which most civil libertarians consider one of the great protections of liberty in the Constitution.
Mason’s last speech, as well as the brief debate in September over a protection of a free press, helps explain why the Framers did not include a bill of rights in the Constitution. Most of the delegates agreed with Roger Sherman that a bill of rights was unnecessary, because they believed that Congress lacked the power to regulate religion or the press or any other fundamental liberties. Mason, who is often credited with pushing for the Bill of Rights after the Constitution was ratified, seems to have raised the issue mostly to express his general displeasure over the Constitution. It is extremely doubtful that Mason or Gerry would have signed the document, even if ‘‘the plan had been prefaced with a Bill of Rights,’’ as he ‘‘wished.’’ The fact that he waited until the last week of the Convention to raise this issue suggests that the Bill of Rights and civil liberties in general was not a high priority for him. Pinckney, who happily signed the Constitution, thought that the Framers should explicitly protect the ‘‘liberty of the Press,’’ and four delegations agreed with him. However, the rest of the Convention did not, accepting Sherman’s position that it was unnecessary. The majority of the Framers also must have understood that if they protected the press, they would have to protect every other civil liberty. Otherwise opponents of the Constitution would accuse them of planning to subvert all other liberties. Thus, the Framers rejected the demand for a bill of rights as unnecessary. The lack of a bill of rights would become an issue in the debate over ratification, but probably they Framers were wiser for refusing to be trapped into a debate of that issue at the Convention.
References and Further Reading
- 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.