The Birth of The Constitution of The United States of America
A constitution is the document that constitutes or creates a government. It is a contract between the people and the government. As is described in the Declaration of Independence, under the American Constitution, the people grant certain powers to the government, and in return, the government is to secure the natural rights of the people.
James Madison was the primary architect of the Constitution. He was the one who came to the convention with the ideas that resulted in the Constitution. Thomas Jefferson was not at the Constitutional Convention. He was the Ambassador to France at the time. However, there was a series of letters between Jefferson and Madison discussing exactly what should be in the Constitution. And after the Constitutional convention, many would attribute to Jefferson’s persuasion, and Madison’s respect for Jefferson, Madison changing from the view that a Bill of Rights was not necessary.
The Bill of Rights
The presence or absence of a Bill of Rights became a contentious issue in the various state ratification conventions. The New York convention was so contentious that it spurred Madison, Alexander Hamilton and John Jay, later first Chief Justice of the U.S. Supreme Court, to write the Federalist Papers to explain the Constitution and argue for its ratification.
Initially, Madison had taken the view, articulated by Alexander Hamilton in Federalist No. 84, “But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. …
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”
The Controversy of The Bill of Rights
Madison, in Federalist 45, arguing that there were sufficient restrictions in the proposed Constitution itself, stated, “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.”
In other words, because the federal government was expected to operate within the specific powers delegated to it in the Constitution, Hamilton, Madison, and others declared not only that a Bill of Rights was not necessary, but that it was, in fact, dangerous. They contended that any enumeration of rights would result in the government, at some future date, using that enumeration of rights to limit or deprive the people of the rights that were not listed.
The Anti-Federalists or Jeffersonians, and Thomas Jefferson in particular, maintained that every people was entitled to a Bill of Rights as a check against the government.
Two states, North Carolina and Rhode Island, rejected the Constitution without a bill of rights, five other states ratified the Constitution only with a demand for a bill of rights, and two states had significant minorities requesting a bill of rights.
That debate was resolved with the 9th and 10th amendments.
The 9th amendment addresses the Federalists’ concern directly:
“The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 10th amendment which has been largely ignored, addresses the corollary concern:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people.
I have referred to rights and natural rights.
Why did the founding fathers consider the source of our rights to be so
I will answer those questions in the next installment.