James Madison and the Bill of Rights

by Tom Wolpert on March 1, 2014

I recently finished reading James Madison and the Struggle for the Bill of Rights, by Richard Labunski.  It is generally not well-known that the Bill of Rights was enacted separately, and later than the ratification of the U.S. Constitution, and that opinions were deeply divided over whether or not a Bill of Rights was even necessary.  Many people, including initially James Madison, thought that there was no need to restrain the new federal government from intervening with individual rights, because the new federal government was of limited powers and had no explicit authority to do anything, good or bad, affecting individual liberties – all that had been accorded to the individual states for many years, and it would remain that way.  It wasn’t until the passage of the 14th Amendment, after the Civil War, that a Constitutional basis was enacted that permitted the federal government to apply the Bill of Rights to protect individuals against the conduct of their own state governments.

But there was enough opposition to ratifying the new U.S. Constitution from various segments of the individual states, especially New York and Virginia, that the promise was made by the supporters of the Constitution that a Bill of Rights would be enacted.  Madison was one of those making such promises, and as the conflict intensified over whether or not the Constitution would be ratified, especially in Virginia, such promises became more critical.  Patrick Henry was bitterly opposed to ratifying the new Constitution, believing it accorded too much power to the federal government.  Other groups, such as Baptists, who had suffered persecutions in Virginia, which under British rule still had elements of the Anglican Church established as a ‘quasi-official’ religion, were very concerned about a Bill of Rights (notwithstanding that at the time, the Bill of Rights would not have given them any right to resist the State of Virginia from impositions on their religious freedom).   From the beginning, the Bill of Rights had a symbolic as well as legal significance.  Madison described the debate in Congress over the Bill of Rights as “extremely difficult and fatiguing.” But if the details were difficult and fatiguing, the general scope of what ought to be included had huge areas of fundamental agreement.  There was a 550 year English history that set a context for such discussions, including The Magna Carta (1215) (forced upon King John) (trial by jury, due process of law), the Petition of Right (1628) (forced upon King Charles I) (no unlawful arrest, no housing troops in private homes without consent), the Bill of Rights (1689) (forced upon William and Mary before taking the British throne upon the invitation of Parliament) (right to petition the king and the right to bear arms, no excessive bails or fines, no unusual punishments).

Madison set about coordinating the political resources to have something similar to the present Bill of Rights enacted, which Patrick Henry and others opposed, since they saw Madison’s ‘mild’ Bill of Rights as a sop to prevent the more radical restructuring of the Constitution they wanted.   What was interesting to me was how little discussion or debate there appeared to be about the basic structure of the Bill of Rights: what it protected in the first instance, regardless of which government an individual was being protected from.

James Madison’s initial proposed Amendments included all of the following:

freedom of religion and freedom of conscience

freedom of speech 

– freedom of the press

– the right to peaceably assemble

– the right to keep and bear arms

– right to be excused from armed military service on religious grounds

– no quartering of soldiers in any house without the consent of the owner in peacetime, nor at any time, but in a manner warranted by law

– no more than one punishment or one trial for the same offense

– no one shall be compelled to be a witness against himself

– no one to be deprived of life, liberty or property without due process of law

– no one required to relinquish his property for public use without just compensation

– excessive ball not to be required, nor excessive fines, nor cruel and unusual punishments inflicted

– people had the right to be secure in their persons, their house, their papers, and their other property from all unreasonable searches and seizure

– nor should the people’s rights to such security from unreasonable search be violated by any warrant lacking probable cause and supported by oath or affirmation, particularly describing the places to be searched, or the persons or things to be seized 

– in all criminal prosecutions, the accused just have the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted by his accusers and the witnesses against him, to have compulsory process (a subpoena)  to obtain witnesses in his favor, and to have the assistance of counsel for his defense

– In suits at common law (civil suits), a trial by jury, as one of the bed securities to the rights of the people, shall remain inviolate

It all looks familiar, doesn’t it?  In Madison’s time, the discussion about the relationship between the individual to their home states, and the relationship of the various states to the federal government, could have been lifted from today’s newspapers.  Then and now, from the days of the Magna Carta in England in 1215, these topics have preoccupied English-speaking political thinkers.  Other cultures, other language groupings seem not to have the same preoccupations, but these ideas have certainly seeped into documents which are now promulgated under the auspices of the U.N. (Universal Declaration of Human Rights) or the European Union.

If we just dropped in from Mars, and started looking at today’s newspapers, and Madison’s first pass at the Bill of Rights, what jumps out at us?

Freedom of religion and freedom of conscience are still hotly debated.  Were the legislators of Arizona right or wrong to attempt to pass a law (vetoed by Governor Brewer) that would give individuals in Arizona the right to refuse service to someone based on sincere religious belief?   Few remember now, but Lester Maddox became famous in Georgia in 1964 because refused to serve black Americans at his restaurant because he believed it was his private property right to serve or exclude whom he chose.  But he wasn’t really concerned with private property rights, he was bitterly opposing integration, a hero to segregationists, and felt compelled to confront the efforts of three black Georgia Tech students who asked to be seated in his restaurant with an axe handle.  He was quite sincere in his beliefs though – no one ever accused him of not accurately expressing or manifesting his inward feelings.  It is unclear to me why the debate over gay marriage or gay rights (which I think is not simply a question of nice gay people versus mean Christians), which is an important debate, should be demeaned by refusing anyone service, personal goods or commercial opportunities to anyone else.  If such legislation works, will an Islamic doctor feel free to refuse non-emergency medical treatment to a Fundamentalist Christian – or the reverse?  Where would we be going with that, and where would it end?  In connection with this debate,  sincere belief should be manifested by compliance with a set of laws that protects everyone’s right to freely participate in society’s goods and services, protects everyone from physical harm or threat, and then coupled with sincere speech about what the law ought to be.  It’s okay to resist political correctness (I do it all the time), but refusing to provide food or lodgings to people because of their status has a nasty and infamous history in this country, when black people could not find lodging as they traveled across the large swaths of this country, including but not limited to the South.  The blues and folk-singer Leadbelly (Huddie Ledbetter) recorded an achingly bitter and moving song, The Bourgeois Blues, about his efforts to find a place to stay in Washington D.C.  in 1938.

Freedom of speech is hotly debated.  Edward Snowden disclosed classified documents which revealed a vast apparatus of global surveillance operated by the National Security Administration.  As of this writing, he is a fugitive in an undisclosed location in Russia.  Snowden’s disclosures have certainly affected the ability of the government to conduct such surveillance without criticism and attempts at curtailment, if not greater oversight.  Most of the debate over Snowden’s efforts is because he is a whistle-blower to his supporters, and a traitor to his adversaries.  The freedom of speech issues that we have today have been somewhat overwhelmed by the presence of the internet and the problem is the freedom of an individual (if that’s what we want to call it) to have internet information deleted or corrected or expunged because it is false, or an invasion of privacy, or defamatory, or insulting, or even because the sex tape voluntarily posted in one year now is embarrassing an individual who wants to move on with their public image.  Describing the problem is easier than solving it.

The right to keep and bear arms is so hotly debated today that it has become a mega-issue.  It is a right cherished in Anglo-Saxon history and recognized no where else in the same way, that is, a right so fundamental that no local legislation can defeat it.  It has a long common-law tradition, but was made explicit in the British Bill of Rights of 1689, after many years of bitter Protestant-Catholic conflict: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”  Notwithstanding the nearly weekly tragedies we read about in connection with the ownership of guns, it is difficult to argue against the history of the right to bear arms.  It certainly derives from the bitter Protestant memories of being disarmed by English Catholic monarchs; but it also derives from the hatred of the British standing armies (a source not only of oppression, but a cause for taxation) by the American colonists; it derives from the sense of the Founding Fathers that the people of any particular state by bearing arms could form their own militias for common self-defense and that this was vastly preferable to standing armies controlled by a federal government; and it derives from the ideas of the philosopher John Locke that each individual in a ‘perfect state of nature’ has the right of self-defense and private redress of his grievances against an individual who has done him an injury.

The other controversy that would jump out at any well-read Martian would be the one over unreasonable searches and seizures, electronic surveillance, the requirement for a warrant prior to a search which the place to be searched or the person or the thing to be seized, etc.  Apart from the clearly extra-legal surveillance of the entire world being conducted by the NSA, the issue of electronic surveillance of individuals who are suspected of crimes like drug dealing has become ever more problematic. Electronic surveillance can be implemented from great distances, it generally is quite indiscriminate in the information it gathers, it may purport to be monitoring what is exposed to the public and hence not worthy of (now 4th Amendment) protection, but in fact it intrudes into all sorts of areas that no individual would ever expect to be exposed to the public, etc.   What makes it even harder to balance the competing interests of law enforcement and the individual right to be free from unreasonable searches is that the individuals who have been apprehended with these techniques are generally not very sympathetic – they get caught dealing large amounts of drugs, they usually also have lots of weapons and cash, and there is nothing about them that suggests that society would be better off by letting them go their drug-dealing way with impunity.  (Interestingly, if incarcerated, later on someone will say that their long jail sentence is unwarranted because they have not committed a ‘violent’ crime – but drug dealing, nonviolent or not, is generally surrounded by arsenals of private, lethal weaponry and often involves groups of semi-organized criminals).

Where would James Madison take us today with the Bill of Rights?  We know what he did then – he worked with indefatigable energy, overcoming personal health issues and the difficult and dangerous problems of travel at the time, to enact the Bill of Rights because he wanted to save the U.S. Constitution and the new federal government from being rendered nearly impotent by those who still considered their primary allegiance to be their home state.  (In correspondence, when Patrick Henry referred to “my country” he meant Virginia).  By leading the effort to pass the Bill of Rights, he also created a more secure legal and political environment for the new Constitution and federal government under the leadership of George Washington – who stayed far away from active involvement in political controversies such as the enactment of the Bill of Rights, although his opinions and private support for Madison’s efforts is evidenced in numerous letters which have been preserved.  Washington was keenly aware of the vulnerability of the new federal government to be rendered inert (Washington had been a general under the Articles of Confederation), which is one of the reasons why Alexander Hamilton, that relentless federalist, was chosen to be his Secretary of the Treasury, a post more powerful then than it is now – a better contemporary comparison would be head of the U.S. Federal Reserve.

Well, Madison would certainly have stood along with others to say first: “How stands the Union?”  Everything Madison did was first and foremost to preserve a working federal government for his country, and it is fair to say, notwithstanding our present difficulties, that this is a mission accomplished.  Second, Madison would have been glad to see the enactment of the 14th Amendment, and to see the protections of the Bill of Rights extended to protect individuals against intrusions from their own state governments.   He wanted the protections we now group under the First Amendment, freedom of religion, of conscience, of speech and of the press to be imposed at that time as binding on the state governments as well as the federal government.  That is certainly what the Virginia Baptists wanted who had been denied various licenses to preach by officials in Virginia, and subsequently seen some of their pastors jailed, and Madison courted their votes energetically to get himself elected to the first Congress as a Representative.  Since I am not a mind-reader at all, but particularly of those minds which are long deceased, I won’t try to speculate on how Madison would feel about electronic surveillance.  Madison was never a judge, never prosecuted or defended individuals accused of crimes, and the peculiar and narrowly fact-based analysis that goes into deciding those cases was not his forte.  I don’t think he would have been very sympathetic to Edward Snowden, given Madison’s undying allegiance to the creation of the federal government, although quite possibly other patriots like Patrick Henry and Thomas Paine would be big-time supporters of an individual blowing the whistle on the misdeeds of their own government.  I have no doubt that George Washington, if we were to ask him, would gladly see Snowden incarcerated for a long time.  But the jury (as in the  judgment of history) is still out on Edward Snowden.   Madison would probably have supported federal efforts to regulate and control 2nd Amendment rights, but probably would have shared the near universal assumption of that time that only a tyrannical government needs to totally disarm its own populace.

Perhaps most of all, Madison would say “Work out the problems!  We had big problems – we made big sacrifices!  Don’t sit on your hands and say it’s too hard.  It’s not harder now, than it was then.”   He would certainly be right.  As Benjamin Franklin once said: “It’s a Republic – if you can keep it.”  It takes a little friction to create the heat that is needed.







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