Bill of Rights (United States)

Author:Leonard W. Levy

On September 12, 1787, the only major task of the CONSTITUTIONAL CONVENTION OF 1787 was to adopt, engross, and sign the finished document reported by the Committee on Style. The weary delegates, after a hot summer's work in Philadelphia, were eager to return home. At that point GEORGE MASON remarked that he "wished the plan had been prefaced by a Bill of Rights," because it would quiet public fears. Mason made no stirring speech for CIVIL LIBERTIES; he did not even argue the need for a bill of rights or move the adoption of one, though he offered to second a motion if one were made. ELBRIDGE GERRY moved for a committee to prepare a bill, Mason seconded, and without debate the delegates, voting by states, defeated the motion 10?0. A motion to endorse FREEDOM OF THE PRESS was also defeated, after ROGER SHERMAN declared, "It is unnecessary. The power of Congress does not extend to the Press."

Not a delegate to the convention opposed a bill of rights in principle. The overwhelming majority believed "It is unnecessary." Although they were recommending a strong national government that could regulate individuals directly, Congress could exercise only ENUMERATED POWERS or powers necessary to carry out those enumerated. A bill of rights would restrain national powers, but, as Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Congress had no power to regulate the press or religion.

Civil liberties, supporters of the Constitution believed, faced danger from the possibility of repressive state action, but that was a matter to be guarded against by state bills of rights. Some states had none, and no state had a comprehensive list of guarantees. That fact provided the supporters of ratification with another argument: if a bill

were framed omitting some rights, the omissions might justify their infringement. The great VIRGINIA DECLARATION OF RIGHTS had omitted the FREEDOMS OF SPEECH, assembly, and petition; the right to the writ of HABEAS CORPUS; the right to GRAND JURY proceedings; the RIGHT TO COUNSEL; and freedom from DOUBLE JEOPARDY, BILLS OF ATTAINDER, and EX POST FACTO laws. Twelve states, including Vermont, had framed constitutions, and the only right secured by all was TRIAL BY JURY in criminal cases; although all protected religious liberty, too, five either permitted or provided for ESTABLISHMENTS OF RELIGION. Two passed over a free press guarantee. Four neglected to ban excessive fines, excessive BAIL, compulsory self-incrimination, and general SEARCH WARRANTS. Five ignored protections for the rights of assembly, petition, counsel, and trial by jury in civil cases. Seven omitted a prohibition on ex post facto laws. Nine failed to provide for grand jury proceedings, and nine failed to condemn bills of attainder. Ten said nothing about freedom of speech, while eleven were silent on double jeopardy. Omissions in a national bill of rights raised dangers that would be avoided if the Constitution simply left the rights of Americans uncatalogued. The Framers also tended to be skeptical about the value of "parchment barriers" against "overbearing majorities," as JAMES MADISON said. As realists they understood that the constitutional protection of rights would mean little during times of popular hysteria or war; any framer could cite examples of gross abridgments of civil liberties in states that had bills of rights.

The lack of a bill of rights proved to be the strongest argument of the opponents of ratification....

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