Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
–Amendment I, US Constitution
First. That there be prefixed to the constitution a declaration—That all power is originally vested in, and consequently derived from the people.
That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.
-James Madison, June 8, 1789, remarks on proposed constitutional amendments before the House of Representatives
On June 8, 1789, James Madison—fourth President of the United States—introduced eight proposed articles of amendment to be known as the Bill of Rights. The original First Amendment which met its death in Congress professed a need: a declaration of purpose, a reminder to all, that all power is derived from the people. When Madison teamed up with Alexander Hamilton and John Jay to produce The Federalist Papers, he laid aside partisan politics and personal concerns. Defining constitutional government for a new nation was the primary duty of the day. Federalist No. 84 speaks of a “bill of rights,” but avoids addressing the issue substantively. By March 1789 the First Congress had assembled, George Washington had been administered the oath of office as the nation’s first elected president, and the time was ripe for debate on what would become the Bill of Rights.
Debate on the Bill of Rights
Summer was a favorite time in the political lives of the Founding Fathers. From May through early July 1776, the Continental Congress debated what became America’s founding document: the Declaration of Independence. Over the course of a long hot Philadelphia summer in 1787 (from May 25 to September 17), 55 men met in closed convention producing the Constitution of the United States. As the Constitution was being debated in convention, the Continental Congress in July 1787 enacted the Northwest Ordinance that prohibited the institution of slavery within the territory. On June 8, 1789, James Madison introduced his version of the Bill of Rights. Another summer, another great document in the making. This time, however, the gentleman from Virginia set forth his personal agenda.
The Original First Amendment: A Mission Statement
The study of constitutional history is filled with many interesting sidebars, and one of them is the defeat of what was Madison’s intended first amendment. The gentleman from Virginia was of the opinion that the Bill of Rights needed a “mission statement.” Madison’s defeated proposed first amendment was more than a mission statement; it addressed the limitations of government. Couched in classical 18th century republicanism, it professed the virtues of man; and that Government was instituted for the benefit of the people. In debate, Mr. Madison took the position that a declaration against abuse of power was needed, stating:
Some policy has been made use of, perhaps, by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power o the Crown; the power of the Legislature is left altogether indefinite.
We notice here, Madison’s keen mind in drawing fundamental distinctions between the British Parliament at Westminster responsible for passage of the Navigation Act, the Stamp Act, and the Townshend Revenue Act leading up to the Revolutionary War: of a parliament that wielded unbridled power, as compared to limited legislative government by means of enumerated powers. Madison was a firm believer in freedom of conscience and the right to a fair trial, but what came first in drafting a bill of rights?
Let’s continue our exploration of his remarks on that June day in 1789:
Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people are unguarded in the British constitution.
The Magna Carta, great as the charter of 1215 may be, was never intended to protect “We the People.” In the realm of realpolitik, the Magna Carta was, to use a bankruptcy term, a “cramdown.” Absent King John agreeing to the terms of the barons, he would have lost the throne of England. Madison was correct in his assessment that the Great Charter did not protect the people and their perceived rights. The father of the Bill of Rights was incorrect in asserting that Magna Carta was the British constitution. To this day, the United Kingdom has a body of law called “constitutional law,” but it does not have a written constitution. [i]
Propelling Madison’s belief that the first amendment should be a mission statement was the very real need to limit congressional government. “The people of many States have thought it necessary to raise barriers against power in all forms of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.” James Madison’s argument for his proposed first amendment was grounded in the history of the recent past. Still, the proposed first article of amendment failed. Why?
One explanation of why Madison’s original first amendment failed was the 18th century belief that election to Congress was temporary: service in the House or the Senate was never intended to be a full-time permanent position. In voicing opposition to the Bill of Rights, Congressman James Jackson, an adherent of the Anti-Administration Party (soon to be transformed into the Anti-Federalists Party and then the Democratic-Republican Party) from Georgia said:
The more I consider the subject of amendments, the more I am convinced it is improper. I revere the rights of my constituents as much as any gentleman in Congress, yet I am against inserting a declaration of rights in the Constitution, and that for some of the reasons referred to by [Madison]… Who are Congress, that such apprehensions should be entertained of them? Do we not belong to the mass of the people? Is there a single right that, if infringed, will not affect us and our connexions as much as any other person? Do we not return at the expiration of two years into private life? and is not this a security against encroachments?
We see here how a member of the First Congress perceived of his temporary station in life: that of being temporary. James Jackson was more than an early Anti-Federalist; he adhered to the “good government” theory. Government was for the benefit of the people; and the Constitution of 1787, one of enumerated and limited powers, was effectively a bill of rights against legislative encroachments and abuses of power. [ii]
Congressman Jackson’s thesis came to life in the seminal case Barron v. Mayor and City Council of Baltimore. In Barron, Mr. Chief Justice Marshall writing for the Court held: “The ninth section [of article I] having enumerated, in the nature of a bill of rights, the limitations intended to be imposed on the powers of the General Government, the tenth proceeds to enumerate those which were to operate on the State legislatures.” [iii] At a time in which the Bill of Rights was held to apply only to the national government, Barron is a forensic examination into how the late 18th century and early 19th century minds viewed the original Constitution.
Jackson, a member of the Georgia bar saw another problem in adopting a bill of rights. In debate that June day, Congressman Jackson stated:
There is a maxim in law, and it will apply to the bill of rights, that when you enumerate exceptions, the exceptions operate to the exclusion of all circumstances that are omitted; consequently, unless you except every right from the general grant of power, those omitted are inferred to be resigned to the discretion of the Government.
Madison respected the concerns raised by Jackson that June day, replying:
This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights.
These concerns over a bill of rights serve to highlight why Mr. Madison’s proposed first amendment that of a mission statement defining the role of government in American society, would in the end fail.
No statement of purpose can thoroughly express all fundamental rights without omitting others. Mr. Jackson understood this, and in the course thereof, the Anti-Administration congressman from Georgia unintentionally framed the issue for why the people were in need of what became the Ninth Amendment. Out of a failed first amendment came the adopted Ninth.
Notes
[i] Principles of British constitutional law are derived from several sources, namely: 1) Magna Charta of 1215, as re-enacted in 1225 during the 9th year of Henry III; 2) the English Bill of Rights (1689), a product of the Glorious Revolution of 1688; 3) the English Poor Laws of the 19th century; and, 4) opinions of the English bench. See e.g., F.W. Maitland, The Constitutional History of England (Cambridge, Eng.: The University Press 1908, 1974 reprint) (H.A.L. Fisher ed.); Sir David Lindsay Keir, The Constitutional History of Great Britain since 1485 (9th ed., Scranton, Pa.: W.W. Norton & Company Press 1969); J.R. Tanner, English Constitutional Conflicts of the Seventeenth Century 1603-1689 (Cambridge, UK: Cambridge University Press 1924,1962 printing); Rt. Rev. Dr. William Stubbs, Select Charters and Other Illustrations of English Constitutional History from the Earliest Times to the reign of Edward the First (Oxford University Press 1966 ed.) [1st ed., 1870]. In this respect, the British constitution is an “oral” instrument, not founded upon any one written document; but a composite of several documents, and court decisions interpreting them. In 2013, as Americans celebrated the 222nd anniversary of the adoption of the Bill of Rights, the London School of Economics and Political Science is directing “Constitution UK.” This project brings together LSE’s Department of Law, its Institute of Public Affairs (IPA), its Public Policy Group and its Democratic Audit for the purpose of drafting a constitution for the United Kingdom in time to celebrate the 800th anniversary of King John’s acceptance of Magna Charta of June 15, 1215. See n.a., Crowdsourcing a New UK Constitution: Launch Event, The status quo is not an option, October 8, 2013, available on-line at, http://blogs.lse.ac.uk/constitutionuk. The year 2015 came and went without the British adopting a written constitution. To this day, the United Kingdom does not have a written constitution setting forth the duties and limits of each branch of government.
[ii] 10 See e.g. Ex parte Cummings, 71 U.S. (4 Wall.) 277 (1867), rev’g. sub nom. State v. Cummings, 36 Mo. 263 (1865). In Cummings, the Supreme Court used the ex post facto clause of the Constitution, (U.S. Const. art. I, § 9, cl. 3), as a shield of religious freedom in declaring Missouri’s “Iron-clad” loyalty oath unconstitutional. At a time in which the Bill of Rights did not apply to the several states, see Barron v. Mayor and City Council of Baltimore, 32 U.S. (7 Pet.) 243, 250 (1833), constitutional provisions such as the ex post facto clause served as a bulwark of individual liberty. Compare Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D.Pa. 1823) (No. 3,230) (Opinion of Washington, Cir. J.), applying the privileges and immunities clause of the Constitution (U.S. Const. art. IV, § 2, cl. 1) as a shield of individual liberty. See Philip B. Kurland, The Privileges or Immunities Clause: “Its Hour Come Round Last”,? 1972 Wash. U.L.Q. 405. Not until Meyer v. Nebraska, 262 U.S. 390 (1923), did the Supreme Court begin the process of selective incorporation of the Bill of Rights into the Fourteenth Amendment Due Process clause. See Laurence H. Tribe, American Constitutional Law § 11-2, 772−774 (2nd ed., Mineola, N.Y.: The Foundation Press 1988). In Meyer, the Court held that a Nebraska statute prohibiting the teaching of German violated Fourteenth Amendment Structural Due Process. See also Pierce et al. v. Society of Sisters, 268 U.S. 510 (1925) (Held: State law prohibiting parents from sending their children to parochial school violative of Fourteenth Amendment Due Process).
[iii] Compare The Federalist Papers No. 84, supra note 3, wherein Alexander Hamilton takes a position akin to that of Congressman Jackson. Hamilton argued that Article I, Section 3, clause 7 on impeachment, limits the punishment to “removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment according to law.” Article I, Section 9, clause 2 addresses the prohibition of suspension of the writ of habeas corpus, except in cases of rebellion or invasion where the public safety may require it. Article I, Section 9, clause 3, prohibits bills of attainder and ex post facto laws. Article III, Section 3, clause 3, delineates the procedure for impeachment trials before the Senate. To Hamilton, these limitations upon the national government constituted a bill of rights within the first seven articles of the Constitution.
Rabbi Joseph Fred Benson is a retired Missouri Supreme Court Archivist and Legal Historian. A native of University City, Missouri, Benson received an A.B. cum laude in English Legal History; American Legal History; and Political Science, American National Politics with an emphasis in Constitutional Law 1976; A.M. in American Legal History with an emphasis in Constitutional Law 1977; J.D., 1985, Saint Louis University; Semichah/ Rabbinic Ordination 2007, Saint Louis Beis Din/Rabbinical Court. He served as the first Supreme Court Archivist – Legal Historian to the Supreme Court of Missouri (2000-2015). In retirement, Rabbi Benson teaches Hebrew to adults in Jefferson City and officiates at life cycle events throughout Mid-Missouri. He is also a provocateur of articles appearing in the Missouri Lawyer’s Weekly; St. Louis Jewish Light; and, the Catholic Missourian. His first article in JURIST appeared on July 4, 2020 titled “The Real Independence Day: July 2, 1776.” The opinions expressed herein are those of the Author, and do not reflect the opinion of the Supreme Court of Missouri.
