SCHOOL OF FREEDOM 103F THE BILL OF RIGHTS

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GWSF 103 - Introduction to the Bill of Rights, by Wendi Baggaley
Have you ever seen the Gadsden Flag or wondered what it meant? It was designed by Christopher Gadsden,[i] a South Carolina patriot and delegate to the Continental Congress. He also served as an officer in the Continental Army during the American Revolution. Today, as it did over two hundred years ago,[ii] this banner serves to inspire vigilant citizens who are zealously watching out for their natural, God-given rights.

Divine vs. Natural Rights

During the middle ages, European monarchs claimed that their absolute authority to rule came from God. Since disobedience of sovereign commands was tantamount to sin, this "divine right" concept became a justification for absolute tyranny. Sometimes the despotism became so severe that the citizens would revolt. In 1215, a group of nobles at Sunnymeade, England, demanded a written guarantee of rights from their extortionist monarch, King John. It was called the "Magna Carta", otherwise known as the "Great Charter." Why was this document so important? According to the British Library Board:

Magna Carta was the first grant by an English king to set detailed limits on royal authority. Through its statement of liberties, it sought to prevent the king from exploiting his power in arbitrary ways and it made clear that the king was subject to the law, not above it.[iii]

Many historians point to the Magna Carta as the great ancestor of the American Bill of Rights. Because it was a written agreement, it could not be changed on a whim or by circumstance. Instead, it set a precedent of checking absolute power by institutionalizing the rule of law.

Throughout the intervening centuries, Europe experienced a gradual rebirth of independent, rational thinking. Eventually, the people were ready to throw out the "divine right" framework in favor of a more limited government that respected individual liberties. John Locke, an English philosopher and doctor living in the late 17th century, published several essays denouncing the concept of absolute rule. Building on the work by other noted thinkers such as Descartes, Hooker, and Hobbes, Locke described a "natural law" endowed to human kind by God:

The state of nature has a law of nature to govern it, which obliges every one; and reason, which is that law, teaches all mankind who will but consult it that, being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions; for men being all the workmanship of one omnipotent and infinitely wise Maker, . . . sharing all in one community of nature, there cannot be supposed any such subordination among us that may authorize us to destroy another, as if we were made for one another's uses as the inferior ranks of creatures are for ours.[iv]

Locke further asserted that mankind enters into "social contracts," where each individual grants some of their natural authority to another person or entity, forming a civil society which, with limited, delegated powers, exists to preserve the natural rights of all those within it.[v]

The Great Documents of 1776

Of course, we recognize many of these ideas because they were incorporated into the Declaration of Independence in the summer of 1776 by Thomas Jefferson:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. -- That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.

What many today do not realize is that Jefferson's words and thoughts were largely influenced by one of his Virginian colleagues, the statesman and plantation owner George Mason.[vi] Mason served as a member of the Virginia Convention of May 1776 and worked on the committee charged to write a "Declaration of Rights," which he drafted within days.[vii] The opening phrases of this document sound very familiar:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.[viii]

The Virginia Declaration of Rights secured to Virginian citizens such freedoms as a "speedy trial by an impartial jury", no "excessive fines" or bail, no "cruel and unusual punishments", the "freedom of the press", a "well regulated militia", and the "free exercise of religion, according to the dictates of conscience."[ix] Something interesting to note is that George Mason originally penned the words "tolerance of religion," but later was urged by James Madison to substitute the phrase "free exercise of religion" since the word "tolerance" suggested that religion was something inferior that had to be endured.[x]

Even though Thomas Jefferson was miles away in Philadelphia attending the Continental Congress, Mason and others made sure to inform him of this exciting and important document.[xi] Obviously the Declaration of Independence and, later, the U.S. Constitution and the Bill of Rights echoed the political thinking expressed in Mason's Virginia Declaration of Rights. After the Declaration of Independence was published, seven other colonies included statements about individual rights in their state constitutions.[xii]

In his book, A Lawyer Looks at the Constitution, the former U.S. Solicitor General Rex E. Lee points out an interesting and significant theoretical difference between the rights secured in the Magna Carta and those secured through these early American documents:

These state bills of rights, though drawing on English tradition, differed significantly in basic theory. Americans during the Revolutionary Era had become convinced that the people were sovereign, not the king, the governors, or even the legislatures. Thus, the bills of rights adopted by the early American states were not "grants" of rights from political leaders. Rather, they were designed as limitations imposed on the government to protect the peoples' rights.[xiii]

Without a doubt, the American colonies were ready to rebel against the tyranny of King George, his autocratic Parliament, and the centuries-old tradition of divine right. They believed that they could try the experiment of a new kind of government, one that would have limited powers to protect the inherent, natural, God-given rights of mankind.

Constitutional Convention

America's first experiment in governing the united colonies, the Articles of Confederation, was a dismal failure. Before long, a call came to revise the Articles of Confederation at the Constitutional Convention of 1787. We know that the Virginia Plan became the foundation of debate there. George Mason, one of Virginia's delegates to that convention, spoke strongly of the need to include a written statement of individual rights.

Some rights were eventually included in the final draft of the Constitution, such as:

· The right to demand a writ of habeas corpus, except in cases of rebellion or treason (Article I.9.2)

· Freedom from bills of attainder (Article I.9.3)

· Freedom from ex post facto laws (Article I.9.3)

· The right to a trial by jury (Article III, Section 2)

· Exclusion of religious tests for holding office (Article VI)[xiv]

Even with these provisions, Mason would not be satisfied until the document included a proclamation of individual rights. He spoke strongly of the need for such a document, but the delegates to the Constitutional Convention were tired and wanted to go home. They believed that a federal declaration was unnecessary because almost all of the state constitutions contained provisions protecting individual rights and because the national government was designed to be limited to a few specific and delegated powers.[xv] Alexander Hamilton later argued inThe Federalist:

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 pretence for claiming that power.[xvi]

Near the end of the convention, Mason bitterly declared that he "would sooner chop off his right hand than put it to the Constitution as it now stands."[xvii] He never did sign the Constitution, but fought against its ratification hoping for a second convention to rewrite the Constitution and include a Bill of Rights.[xviii]

Ratification Conventions

As the Constitution was sent to state conventions for approval, two opposing factions developed. Individuals in favor of ratification were called the Federalists because the new Constitution created a stronger federal government. James Madison, Alexander Hamilton, and John Jay were prominent Federalists who published their arguments in favor of the Constitution, now compiled together and known as The Federalist or The Federalist Papers.[xix]

The opposing group, the Anti-Federalists, fought against ratification, albeit for different reasons. Some of them, like Patrick Henry, were suspicious of the centralization of power contained in the Constitution and argued for its defeat. Others, like George Mason, wanted to see the Constitution ratified, but insisted that amendments adding a bill of rights must be added first. Still others called for amendments after ratification. The lack of a "united front" weakened the Anti-Federalist cause.[xx]

Still, Mason's widely published "Objections to the Constitution"[xxi] had gained quite a bit of traction among the different states. Massachusetts ratified the Constitution on the condition that their representatives would present specific amendments concerning individual rights during the first congressional session. Every state that voted for ratification after Massachusetts did so with the direction for Congress to entertain amendments amounting to a bill of rights. Although the Constitution was technically ratified once New Hampshire voted in favor, the country waited to see the outcome of the ratification debates in the two battleground states of Virginia and New York. After much debate in Virginia, the motion to ratify the Constitution passed eighty-nine to seventy-nine, on June 26, 1788. Almost a month later, New York ratified the Constitution, with suggested amendments, on July 24, 1788. The final two states, North Carolina and Rhode Island, ratified in 1789 and 1790, respectively.[xxii]

An Ironic Twist

With all of this emphasis on rights, it was quite ironic that the newly elected Congress seemed to postpone consideration of the many rights-related amendment proposals. Even more ironic was the fact that James Madison - ardent Federalist and outspoken critic of a bill of rights - became the congressman who actually got the job done. [xxiii]



During the ratification debates, Thomas Jefferson wrote to Madison from France encouraging him to compromise on the creation of a federal bill of rights, saying, "A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences."[xxiv] Madison took this advice to heart and conceded that a bill of rights should be added to the Constitution, albeit after ratification.

Another ironic factor shaped Madison's involvement in promoting the Bill of Rights. When Madison ran for a Senate seat, he was defeated by Richard Henry Lee, an Anti-Federalist who had boycotted the Constitutional Convention. Madison then ran for a seat in the House of Representatives, but he was met with stiff opposition from a young Anti-Federalist named James Monroe, the same Monroe who would eventually succeed Madison as President nearly three decades later. During the heated congressional campaign, citizens of Madison's district continually expressed their worries that their freedoms would eventually disappear without a bill of rights. In order to get elected, Madison promised that he would sponsor and support proposals that would establish a bill of rights.[xxv]

Indeed, Madison kept his word. With the same genius he demonstrated in creating the Virginia Plan, he distilled hundreds of different suggestions - sometimes overlapping and sometimes conflicting - into ten distinct amendments that would comprise a federal Bill of Rights. Considering himself duty-bound, Madison kept trying to introduce discussion about a Bill of Rights in Congress, but with little success. His persistence and genius paid off, however. Congress eventually passed those ten amendments by a two-thirds vote of both houses (see Article V) along with two more amendments concerning congressional salaries and apportionment. [xxvi]

Acceptance of the Bill of Rights

These twelve amendments were then sent to President George Washington who sent them to the states for ratification. By the time the states could consider these amendments, the state of Vermont had joined the union and North Carolina and Rhode Island had ratified the Constitution, bringing the total number of states to fourteen. As required by Article V of the Constitution, "three-fourths of the several states," or in other words, eleven states, were needed to ratify the amendments. On December 15, 1791, Virginia became the last state needed for ratification of the ten amendments proposed by James Madison.[xxvii] The struggle to add a Bill of Rights to the Constitution was finished.

Conclusion

The U.S. Constitution and the Bill of Rights have been a safeguard for American citizens against abusive government power for over two hundred years. They are founded on the premise that all humans are created by God and are blessed with natural rights which allow each of us to live and learn in peace and safety. The Gadsden Flag inspired the early colonists to fight for their rights and liberties, but it took dedication, persistence, and the best thinking that the country could produce to actually institutionalize those rights and secure them for future generations. Today, we too can find strength and inspiration in the Gadsden Flag. Yet we can also look to the great documents of our country and their history to find the strength to zealously protect our liberties from the encroaching powers of a federal government that has grown beyond its original bounds. By reminding ourselves just what our liberties are and how they came to be, each one of us can more effectively stand poised to warn our enemies - especially internal ones - "Don't tread on me!"



IDEAS FOR LEARNING AND APPLICATION

1. Sketch and color your own version of the Gadsden Flag. Write on the coils of the snake some of the rights that you feel are most important to you.



2. Study the Virginia Bill of Rights, highlighting any words, phrases, or ideas that are also found in the U.S. Constitution's Bill of Rights.



3. Write an essay comparing and contrasting the ideas in the American Bill of Rights and the French Declaration on the Rights of Man. Conclude by sharing your opinion on how these two documents have affected history.



4. In political science circles, there is a theory called "Problem Definition" which states that the way a problem is defined will determine the final solution. In a political contest, opposing groups struggle to define the issues in a way that will favor their desired outcome. Consider the role of problem definition in the Constitutional Ratification debates, particularly between the Federalists and the Anti-Federalists. What do you think may have happened had the Anti-Federalists chose a more positive name for their group? Would it have made any difference? Think of a current issue with strong opposing sides, such as gun rights, abortion, or illegal immigration. Write an essay exploring how each side of the debate has tried to positively define their own arguments and negatively define their opponent's arguments.



5. Read the Bill of Rights and make an index card for each "Point of Goodness" that you find and add it to your "Points of Goodness Box".[xxviii] Choose one of those cards and write on the back of the card how you or society in general can become better by applying that principle.



6. List the several reasons why the Anti-Federalists were opposed to ratification of the U.S. Constitution. With the perspective of over two hundred years of history, write your opinion on whether or not the Anti-Federalists were right to oppose ratification. Support your opinion with specific examples from U.S. History.



7. Check out the lesson plan by Alan Anderson entitled "Bill of Rights - Remember Me!" (Courtesy of the Minnesota Center for Community Legal Education, see http://www.civicallyspeaking.org/bor_remember.pdf .) By using different locations in the classroom with a hilarious skit involving students, paper airplanes, airplane glue, and a shocking overhead projector, this lesson helps high school students review and remember important parts of the 1st, 2nd , 4th, 5th , 6th, and 8th Amendments of the Bill of Rights.





[i] Chris Whitten, "The Gadsden Flag's Namesake," http://www.gadsden.info/Christopher.html, accessed November 12, 2010.

[ii] Wikipedia, "Christopher Gadsden," http://en.wikipedia.org/wiki/Christopher_Gadsden, accessed November 12, 2010.

[iii] British Library Board, "Treasures in Full: Magna Carta," http://www.bl.uk/treasures/magnacarta/basics/basics.html, accessed November 14, 2010. This is also a great site to explore an original copy of the Magna Carta.

[iv] John Locke,The Second Treatise on Civil Government, Chapter 2, Section 6.

[v] David Earl Bohn, "Locke: Legitimacy and Revolution," in The Origin and Power of Modern Political Thought, unpublished course material, Brigham Young University, 2006. See https://facultyprofile.byu.edu/PublicFacultyProfile/vita/vita_deb7.pdf.

[vi] Carla R. Heymsfeld and Joan W. Lewis, George Mason: Father of the Bill of Rights (Alexandria: Patriotic Education Incorporated, 1991).

[vii] Heymsfeld and Lewis, 82-84.

[viii] George Mason, "Virginia Declaration of Rights," found in The Avalon Project, Lillian Goldman Law Library, Yale Law School, http://avalon.law.yale.edu/18th_century/virginia.asp, accessed November 14, 2010.

[ix] Ibid.

[x] Heymsfeld and Lewis, 130.

[xi] Ibid, 85.

[xii] Rex E. Lee, A Lawyer Looks at the Constitution (Provo: Brigham Young University Press, 1981), 17.

[xiii] Ibid. 17-18.

[xiv] Ibid. 18. See also Heymsfeld and Lewis, 122-23.

[xv] Lee, 18-19.

[xvi] Alexander Hamilton, The Federalist, no. 84.

[xvii] Roger A. Bruns, "A More Perfect Union: The Creation of the U.S. Constitution", found in The Charters of Freedom, National Archives and Records Administration, http://www.archives.gov/exhibits/charters/constitution_history.html, accessed November 15, 2010.

[xviii] Heymsfeld and Lewis, 123.

[xix] You can access an online copy of The Federalist (also known as The Federalist Papers) from the Library of Congress at http://thomas.loc.gov/home/histdox/fedpapers.html.

[xx] Ibid. 132-37.

[xxi] "George Mason's Objections to the Constitution", http://www.gunstonhall.org/library/archives/manuscripts/objections.html, accessed November 12, 2010.

[xxii] Lee, 21-24.

[xxiii] Lee, 24. See also Heymsfeld and Lewis, 137-38.

[xxiv] Thomas Jefferson to James Madison, 1787, "The Bill of Rights", found in Thomas Jefferson on Politics and Government, The Alderman Library, University of Virginia, http://etext.virginia.edu/jefferson/quotations/jeff0950.htm, accessed on November 12, 2010.

[xxv] Lee, 24. See also Heymsfeld and Lewis, 137.

[xxvi] Lee, 24-25.

[xxvii] Ibid., 25.
[xxviii] See Lesson 101 "For Goodness' Sake - Why I Love the U.S. Constitution", Ideas for Teaching and Application, for instructions on making your own "Points of Goodness" Box.

On her blog http://politicalpensieve.blogspot.com, Wendi Baggaley writes, "I'm a Mom who loves my husband and four kids. I love this country. I am eternally grateful for our God-given freedoms. I have a passion for getting involved politically, I like to think and write, I dream and keep working towards having a clean & orderly home, but especially, I try to be an influence for good wherever I am!"
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