Does the Bill of Rights Need Revision?

• Author: Herbert F. Goodrich
• Published date: 01 September 1935
• Date: 01 September 1935
• DOI: http://doi.org/10.1177/000271623518100105
• Subject Matter: Articles

27

Does

the

Bill

of

Rights

Need

Revision?

By

HERBERT

F.

GOODRICH

T.HE

bill

of

rights

in

the

present

Constitution

of

Pennsylvania

is

an

article

which

contains

twenty-six

sections.

The

sections

make

interest-

ing

reading.

They

start

out

with

a

general

declaration

about

natural

rights

of

mankind,

pass

to

more

defi-

nite

sections

forbidding

attainder,

quartering

of

troops

without

the

con-

sent

of

the

owner,

and

the

granting

of

titles

of

nobility

or

hereditary

distinc-

tion,

and

declare

against

the

prohibi-

tion

of

emigration

from

the

State.

This

last

provision

is

a

puzzling

one.

It

comes

down

to

us

from

the

constitu-

tion

of

1776,

and

has

remained,

with

few

changes,

ever

since.

Why,

one

may

ask,

should

any one

want

to

emi-

grate

from

Penn’s

VVoods?

And

why,

if

somebody

might

conceivably

have

such

a

queer

desire,

did

colonial

con-

stitution-makers

think

his

gratifica-

tion

of

it

so

important

as

to

write

it

into

the

basic

law?

One

may

have

a

guess,

but

he

may

not

have

a

judicial

answer,

for

no

restless

Daniel

Boone

ever

seems

to

have

had

occasion

to

appeal

for

constitutional

protection

against

a

legislature

seeking

to

restrain

him

from

roaming

beyond

the

borders

of

the

State

whenever

his

fancy

prompted

him

so

to

do.

VAGUE

PROVISIONS

When

one

reads

over

the

bill

of

rights

in

the

Pennsylvania

Constitu-

tion,

with

a

thought

of

revision

in

mind,

his

first

impulse

is

to

reach

for

his

blue

pencil

and

delete

a

great

deal

of

it.

It

is

too

long:

twenty-six

sec-

tions

as

contrasted

with

twelve

in

the

Model

State

Constitution

prepared

by

the

Committee

of

the

National

Mu-

nicipal

League.

Some

of

the

sections

are

loosely

drawn;

they

leave

questions

open

which

ought

to

be

answered.

For

instance,

Section

4,

headed

&dquo;No

disqualification

for

religious

belief,&dquo;

states:

No

person

who

acknowledges

the

being

of

a

God,

and

a

future

state

of

rewards

and

punishments

shall,

on

account

of

his

reli-

gious

sentiments,

be

disqualified

to

hold

any

office

or

place

of

trust

or

profit

under

this

Commonwealth.

Suppose

a

man

acknowledges

the

be-

ing

of

a

God

but

is

unconvinced

that

a

future

life

provides

a

scale

of

rewards

and

punishments.

Can

he

be

dis-

qualified

from

holding

office

under

this

provision?

The

constitution

does

not

say.

Again,

in

Section

16,

headed

&dquo;In-

solvent

Debtors,&dquo;

the

language

runs:

The

person

of

a

debtor,

where

there

is

not

strong

presumption

of

fraud,

shall

not

be

continued

in

prison

after

delivering

up

his

estate

for

the

benefit

of

his

creditors

in

such

manner

as

shall

be

prescribed

by

law.

What

yardstick

measures

to

decide

whether

the

presumption

of

fraud

is

&dquo;strong,&dquo;

and

who

is

to

do

the

meas-

uring ?

Is

the

debtor

to

remain

in

durance

vile

during

the

measuring

process?

Suppose

the

debtor

has

not

surrendered

his

estate

for

the

benefit

of

his

creditors.

Can

he

be

thrown

into

jail

until

he

does?

Does

the

con-

stitution,

in

other

words,

really

abolish

imprisonment

for

debt,

or

does

it

only

go

half

or

a

quarter

of

the

way,

and

relieve

from

continued

incarceration

a

debtor

who

is

free

of

the

taint

of

fraud

and

who

has

stripped

himself

of

his

worldly

goods

for

the

benefit

of

his

creditors?

If

only

the

latter,

Mr.

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