Greece, Rome, and the Bill of Rights (19 page)

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Authors: Susan Ford Wiltshire

Tags: #Political Science, #General, #History, #Law, #Reference, #Civil Rights, #test

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the Supreme Court to serve as a virtual continuing constitutional convention as it has adapted the black letter text to the needs of later days."

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On September 7 the Senate eliminated the amendment considered by Madison himself to be the most valuable of all, the provision prohibiting the states from infringing on freedom of conscience, speech, press, and trial by jury. As a result, the Bill of Rights limited the powers only of the federal government, not of the states. This was confirmed in the 1833 case of
Barron v. Mayor & City Council
,
13
with the result that many years would pass before the provisions of the Bill of Rights began to be interpreted as applying also to the states.
A second provision dear to Madison was weakened by the House-Senate Conference Committee when it substituted a weaker religious liberty clause. Madison had hoped to institute absolute separation of church and state and the total exclusion of government aid to religion.
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Roger Sherman of Connecticut, who opposed a bill of rights, urged that a series of separate amendments be appended to the Constitution, if they had to be added at all, rather than interwoven within the existing articles as was originally intended. Sherman's motion was defeated the first time but approved on August 19. If Sherman had not insisted on a separate cluster of amendments, it is likely that the Bill of Rights would not have assumed the prominence it possesses.
On October 2, 1789, President Washington forwarded the proposed amendments to the states for ratification. Appropriately, it fell to Thomas Jefferson as secretary of state to convey official notice to the governors that the Bill of Rights had been ratified. He did so in a letter of March 1, 1792, which first mentions two acts concerning the regulation of fisheries and the establishment of the post office and postal roads in the United States. Then Jefferson continues: "Also the ratifications by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment to the Constitution of the United States, proposed by Congress to the said

 

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Legislatures, and of being with sentiments of the most perfect respect, your Excellency's &."
The first two amendments, restricting the size of the House of Representatives to between one and two hundred members and preventing Congress from altering the salaries of senators and representatives until after a session of Congress should have intervened, failed to be ratified by the states.* The remaining ten became part of the Constitution immediately upon ratification by the required number of states on December 15, 1791. Ironically, Virginia was the last state to ratify the Bill of Rights.
The hopes championed by Jefferson in the Declaration of Independence had becomeby due processthe law of the land.
The Meaning of the Bill of Rights
Whereas the Constitution forms the basis of the power of government, the Bill of Rights serves as a check on that power. Both accomplishments are extraordinary, and each complements the other. The Bill of Rights also represents the high point of the transformation of natural law theory to a doctrine of natural rights.
By the time of the American Revolution, what had been begun as essentially a conservative principle had become a liberating one. The doctrine of natural rights was still closely tied with the notion of a fundamental law as the foundation of government, and right reason was still the highest recourse. Now, however, natural law was seen as the source of the fundamental right of human beings themselves to determine which liberties they consider essential to human dignity and what forms of government they would create to assure them.

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It should be emphasized that both Federalists and Anti-federalists argued their position concerning a bill of rights on the basis of the theory of natural rights. Federalists
*The latter provision was ratified as the Twenty-seventh Amendment to the U.S. Constitution on May 19, 1992.

 

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maintained that no specific bill of rights was necessary because everyone took for granted that these rights existed naturally and did not require confirmation in codes devised by human beings. One of the most passionate of the Antifederalists, Elbridge Gerry, argued that "the rights of individuals ought to be the primary object of all government, and cannot be too securely guarded by the most explicit declarations in their favor."

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Gerry's elaboration of this argument is one that could have been, and often was, expressed by the Federalists in support of natural rights:

All writers on government agree, and the feelings of the human mind witness the truth of these political axioms, that man is born free and possessed of certain unalienable rightsthat government is instituted for the protection, safety and happiness of the people, and not for the profit, honour, or private interest of any man, family, or class of menThat the origin of all power is in the people, and that they have an incontestible right to check the creatures of their own creation, vested with certain powers to guard the life, liberty and property of the community.
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Both before and after the framing of the Constitution, Americans have engaged in a wide variety of interpretations of natural law.
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Supreme Court Justice Hugo Black, for example, represents a certain dichotomy of thought about natural rights and constitutional interpretation. Black respects the historical role of natural rights in the development of the Bill of Rights, but he expresses reservations about a thoroughgoing natural rights interpretation of the amendments. Arguing for the right of an individual employee to sue for wages despite a union contract to arbitrate grievances, Black spoke of the contributions to these rights of Magna Carta and other charters of liberty:
At least since Magna Carta people have desired to have a system of courts with set rules of procedure of their own.... It was in Magna Carta, the English Bill of Rights, and other such charters of liberty, that there originally was expressed in the English-speaking world a deep desire of people to be able to settle differ-

 

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ences according to standard, well-known procedures in courts presided over by independent judges with jurors taken from the public.... That right was written into the Bill of Rights of our Constitution and in the constitutions of the states.

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On the other hand, in
Adamson v. California
Black expresses his opposition to the "natural law" formula, which in his view the Court had used to expand safeguards already sufficiently laid out in the Bill of Rights:
This decision reasserts a constitutional theory spelled out in
Twining v. New Jersey
that this Court is endowed by the Constitution with boundless power under "natural law" periodically to expand and contract constitutional standards to conform to the Court's conception of what at a particular time constitutes "civilized decency" and "fundamental justice...." I fear to see the consequences of the Court's practice of substituting its own concepts of decency and fundamental justice for the language of the Bill of Rights as its point of departure in interpreting and enforcing the Bill of Rights.... Conceding the possibility that this Court is now wise enough to improve on the Bill of Rights by substituting natural law concepts for the Bill of Rights, I think the possibility is entirely too speculative to agree to take that course.
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Learned Hand grants that belief in inherent "natural laws" was widely held in the eighteenth century, capping a long history going back to the beginning of our era. The easiest support for such an attitude, he says, was the "will of God," as Thomas Aquinas and also the Deists of the eighteenth century held. Hand proposes that "the Constitution and the 'Bill of Rights' neither proceed from, nor have any warrant in, the Divine Will ... but on the contrary that they are the altogether human expression of the will of the state conventions that ratified them.... This presupposes that all political power emanates from the people."
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Schwartz classifies in five groups the rights protected under the Bill of Rights: freedom of religion; the rights of expression and association; the right to privacy; the right to due process; and freedom from arbitrary restraint or

 

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