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Thursday, December 15, 2011

This Day in Legal History -- The Bill of Rights

On this day in legal history the first ten amendments to the United States Constitution, the Bill of Rights, were ratified and made the law of the land. We should consider ourselves lucky that we have a Bill of Rights because the path which these amendments strode was a rocky one.

While the Constitution originally came with limitations on the new federal government, there were framers who felt the document did not go far enough to protect individuals. Delegate George Mason, who had drafted Virginia’s Declaration of Rights desired that “the plan had been prefaced with a bill of rights. . .[It] would give great quiet to the people.” Those who supported ratification of the new constitution downplayed the need for it as Alexander Hamilton did in the Federalist Papers. They felt that since Congress could only exert enumerated powers there was no need for a bill of rights; a bill of rights would only constrain national powers. A majority of states had their own bills of rights and the feeling was that these would protect individuals. While that was true, the States only protected some rights and not others. For instance Virginia did not protect freedom of speech, assembly, petition or habeas corpus. While all states protected religious liberty, some permitted or provided for establishment of religion. Their coverage was spotty at best.

Those opposed to ratification of the Constitution (the Anti-Federalists) argued that the absence of a bill of rights showed that rights were insecure under the proposed Constitution. Some have commented that the proposal for a bill of rights was merely a smokescreen and that the Anti-Federalists opposed ratification and were seeking amendments to the Constitution on the issues of direct taxes, judicial power, and the commerce power (how little things have changed in over 200 years). A compromise was reached where the Constitution would be ratified and then amended later.

Once the first Congress convened Madison began the task a creating a bill of rights. On September 25, 1789 twelve proposed amendments were submitted to Congress by the States. The Anti-Federalists tried to stop Madison by stalling, adding additional amendments, and “depreciated the importance of the very protections of individual liberty that they had formerly demanded.” Two of the original twelve were voted down and the final ten were ratified on December 16, 1791. Connecticut and Georgia later ratified the Bill of Rights-- in 1939 on the sesquicentennial anniversary of the ratification of the Constitution.

How the Bill of Rights came to be is a fascinating story. As one commentator characterized it, “The party that had first opposed a Bill of Rights inadvertently wound up with the responsibility for its framing and ratification, while the party that had first professed to want it discovered too late that it was not only embarrassing but politically disastrous for ulterior party purposes.” This sounds like a description of the individual mandate portion of the health care reform law. The moral of the story is the more things change the more they stay the same.

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