Posted on 04/13/2013 4:18:53 PM PDT by Jacquerie
James Madison wasn’t a big supporter of Bills of Rights. He wasn’t alone. His notes toward the end of the Constitutional Convention of 1787 are sketchy, but one thing is clear; every State (though not every delegate) voted against a Bill of Rights (BOR).
Less than a year later, at the wild Virginia Ratification debates of June 1788, the Federalist team lead by Madison and Anti-Federalists by Patrick Henry went back and forth as to the pro and con of formal inclusion in the Constitution. Anti-Federalists were furious; many Anti-Federalists demanded Virginia withhold ratification until their amendments were ratified by the other States.
Why the Federalist resistance to a BOR?
Madison explained in an October 1788 letter to Thomas Jefferson. He had in his hands a pamphlet that contained all of the amendments proposed by the various State Constitutional Conventions. He was not against a BOR; he could support those that did not imply unenumerated powers. At the same time, he did not think their “omission (from the Constitution) a material defect.” No, he would support amendments because they were anxiously desired by Constitutional opponents. He did not need to tell Jefferson there was no guarantee of actual Union despite ratification by eleven of thirteen States.
Madison outlined four reasons he was lukewarm toward a BOR. First, the Constitution did not grant power to infringe on our natural rights. Second, he was concerned that rights would be expressed narrowly rather than expansively. As evidence, a proposed amendment from New England objected to the prohibition of religious tests because it would open “a door for Jews, Turks, and infidels.” Third, because the States would both participate in law making and keep a watchful eye on the operations of new government. Lastly,” repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”
Experience showed that a BOR was ineffective when needed most. Sound familiar?
In Virginia, he saw their Declaration of Rights “violated in every instance where it had been opposed to a popular current.” Referring to the mid-1780s controversy over a State supported church bill, he said it was only narrowly defeated, despite a freedom of conscience guarantee in the Virginia Declaration of Rights. IOW, recent history showed that State BOR alone were ineffective barriers to majoritarian abuse.
“Wherever the real power in a government lies, there is the danger of oppression. In our (State) Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”
In short, post-revolutionary States did not reliably enforce their various BOR.
He reasoned that BOR were necessary in monarchies, as limits demanded by the people, as powers taken from the prerogatives of the sovereign power, the King. When violated, the multitude of people had not only the raw power of any mob to resist, but legitimate authority to physically fight back against encroachments of the rights granted them.
But in American republican governments, the people and sovereign are identical. When the people themselves overrun the rights of the minority, to whom can the minority appeal? “What use then it may be asked can a BOR serve in popular Governments?”
Madison identified two. The political truths in a BOR could, over time, become such powerful maxims that they overpower ill-considered, mass impulses. Secondly, and though remote, if evil springs not from the people but from the Government, a BOR would be good grounds for appeal.
Adapted from James Madison Writings pgs 420-421.
Ah—my friend — any written law is but a thing of wax in the hands of the ambitious. A written law is only as good as our ability to write the law on our hearts. If a written law is read often— and if it is taught to our youth,properly.If we the people are educated and informed of the laws -and understand the meaning of the terms —IF we the people insist that the laws be upheld as they are written—and if we the people hold forth the written law and insist violation be remedied——it is incumbent upon us—is it not to be the wellspring of our Constitution and laws?The written word can only do what it was intended it is up to us to determine how and to what extent the written word will be of use.
“What is the usefulness of a truth in theory, unless it exists constantly in the minds of the people?”
Post #11 is also pertinent.
An excellent question. I was enjoying the discussion until I came to those replies.
Re Hamilton: read this and tell me that he wasn't hawking one set of ideas, while implementing something quite different. My take is that he was doing the bidding of our creditors to raise cash sufficient to sustain a standing national defense (particularly a navy), having little faith in the militia alone. His argument, particularly in Federalist 75, is so dishonest as to call into question his integrity.
All told, however, though it has been seriously altered in many ways, overall the BOR has proven essential in thwarting bad government more times than can be counted, because the systems of checks and balances are far less capable in doing so.
The evidence of this lies in Britain, that had no written BOR, and has suffered markedly because of it.
And, it should not be forgotten, that when the government does stray, the original document and the BOR exists as a reminder of what it should be, and a guidepost to what the government should return to.
For example, if you took 100 strong conservatives, and gave them a year to argue how to restore the country, they would likely not need a year, because they wouldn’t need to experiment with untried ideas. Instead they could refer to “what worked before”, and “why did we stop doing it that way?”, as their guideposts.
The results of this would be the discovery that when we stopped doing something that was right, it was done for pragmatic reasons that no longer apply. So there is no reason to continue the change, and we should go back to doing things the right way.
This in no way is “reactionary”, because a reactionary path is one that seeks a false, idealized former system. Instead we would be returning to a system we *knew* had worked, so most likely would work again.
Your link is worthy of a separate post. It is unrelated to this thread.
??? Uh, as a practical matter, little of it remains.
the original document and the BOR exists as a reminder of what it should be, and a guidepost to what the government should return to.
Yes. That is what Madison said near the end of my post.
I couldn't agree more with your last two paragraphs.
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