Constitution 10: Ratification and the Bill of Rights

During the convention, there was considerable attention given to the process for adoption of the Constitution. Initially, the issue revolved around whether the Constitution should be sent to the Congress to be ratified as was the Articles of Confederation (and thereby treated as no more than an amendment to that document). The founders were of the view that the transformation of the government into a supreme national government required a different ratification process. They felt the document needed to be ratified in some way by the people themselves and not by the states, which would establish the sovereignty of the new government within its sphere of responsibility.

A second procedural question revolved around how many states would be required to institute the new government. This was an important question, for all states were required to adopt the new Constitution it would surely fail, but if too few states joined, it might also fail. In the end, Article VII provided that if nine of the thirteen states were to ratify the Constitution, it would be sufficient to create the new government among the states so ratifying the document. [1]

Ratification

As mentioned above, Article 7 provided that “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” [2] Notice that Article VII establishes a procedure by which each state would have a convention made up of representatives of the people who would ratify or fail to ratify the Constitution. This particular provision was not without controversy at the time because the Articles of Confederation provided that it would take a unanimous agreement of all states to amend the document. [3]

In Federalist No. 40, Madison defended the action of the Convection as warranted because this was not merely an amendment of the Articles of Confederation but a fundamental change of the form of government to which the people ought to consent. Thus, Madison wrote in The Federalist No. 40 that, “in all great changes of established governments, forms ought to give way to substance; that a rigid adherence in such cases to the former, would render nominal and nugatory the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’” [4] In other words, from a practical point of view, ratification by the people was the best means, since a substantial change in the form of the national government was to be effected.

From a practical point of view, the process was necessary to remedy in practice a defect of the Articles of Incorporation: it required unanimous consent for amendments, which was too high a bar for effective government. The founders were practical people. They wished to create a process that would ensure that changes were not made for purely political or passing reasons, but which would enable the document to be modified when necessary. The founders, and especially Hamilton did not consider that they were omniscient or had created a perfect document, and they wanted to provide a reasonable chance for change. [5]

On June 21, 1788, not a year after the proposal was sent to the states, New Hampshire became the nineth state to ratify, and the Constitution became the supreme law of the land. It is notable that after New Hampshire, two of the most powerful states, New York and Virginia ratified the document, indicating their desire not to be “left behind” in the establishment of the new nation and disadvantaged by the new union. [6]

Need for the Initial Bill of Rights

The single greatest objection to ratification of the Constitution was the absence of a Bill of Rights. In the end, the first ten amendments were added to the document to satisfy those who opposed the Constitution on this basis. During the Constitutional Convention, it was understood that the absence of a Bill of Rights could be a barrier to adoption of the Constitution. On September 12, 1787, George Mason of Virginia made a motion to the Convention to create a Bill of Rights. Elbridge Gerry of Massachusetts seconded the motion. Since both were opposed to the new form of government, they might not have been the best persons to make the motion, and Mason’s motion failed. However, their motion was an indication of the importance a Bill of Rights might be in the ratification process.

This was not the end of the matter. Thus far, I have been quoting the Federalist Papers, but the Federalist Papers were not the only papers prepared. The antifederalists had their own intellectual army. Robert Yates, writing under the pseudonym of Brutus, wrote the following:

Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage. [7]

The situation in Massachusetts was especially violent and a warning to the Federalists of problems in securing the ratification of the document in certain states. By this time, the need for a Bill of rights was obvious and during the first Congress, James Madison, now a Congressman from Virginia, went about the business of creating one. He made an examination of various potential amendments and made a proposal, ten of which were enacted as the first ten amendments to the Constitution in 1791.

Bill of Rights as Adopted

Set out below is a brief description of the Bill of Rights:

  • The First Amendment: Five Freedoms. The First Amendment protects five basic liberties. They are (i) freedom of religion, (ii) freedom of speech, (iii) freedom of the press, (iv) freedom of assembly, and (v) freedom to petition the government to right wrongs. These were the guarantees that the Anti-Federalists complained were importantly missing in the new Constitution.
    • Freedom of Religion means that the government may not force you to accept one set of religious beliefs nor may it interfere with the way you worship. [8]
    • Freedom of Speech entitles American citizens to say what they think, provided they do not intentionally hurt someone else’s reputation by making false accusations. Neither may they make irresponsible statements deliberately harmful to others, such as yelling, “Fire!” in a crowded theater when there is no fire. There are many issues about which Americans disagree, from child-rearing practices to baseball teams to Presidential candidates. Freedom of speech enables people to state their opinions openly to try to convince others to change their minds.
    • Freedom of the Press makes it possible for Americans to keep informed about what is going on in government. It helps them to be responsible citizens. Reporters and editors can criticize the government without the risk of punishment, provided they do not deliberately tell lies. Newspapers, magazines, and books, as well as television and movie scripts, do not have to be submitted for government inspection before they are published. This censorship would violate the First Amendment.
    • Freedom of Assembly makes it possible for Americans to join clubs or political parties, even if those groups represent unpopular views.
    • Freedom to Petition allows people to tell the government what they think is needed. They can try to prevent the government from acting in a certain way. They can complain to the government without fear of penalty when things aren’t going the way they should.
    • The Second Amendment: The Right to Bear Arms. The Second Amendment both recognizes that individual have the right to maintain “a well-regulated militia,” and that citizens have the right to “keep and bear arms.” [9]
    • The Third Amendment: Housing Troops. The Third Amendment pledges that in peacetime citizens will never have to keep soldiers in their homes without consent.
    • The Fourth Amendment: Searches and Seizure. The Fourth through Eighth Amendments concern the rights of people suspected of a crime. The Fourth Amendment protects citizens from improper searches of their bodies, possessions, or homes. It requires that a detailed warrant be issued by a judge listing what can be searched. There has to be a good reason for the search.
    • The Fifth Amendment: Rights of the Accused, Due Process of the Law, and Eminent Domain. The Fifth Amendment protects the rights of anyone accused of a crime. It assumes that everyone is innocent until proven guilty.
      • Grand Jury. When a person is accused of infamous crime, including especially one for which the punishment could be death, the Fifth Amendment requires that a “grand jury” look at the charges before that person can be brought trial. A grand jury is a group of citizens who decide if there is enough evidence to try a person. It is intended to prevent people from being falsely accused of a serious crime
      • Multiple Trials. The Fifth Amendment states that the person cannot be tried twice for the same crime, prohibiting so-called “Double Jeopardy.”
      • Self-Incrimination. The Fifth Amendment guarantees citizens freedom from against “self-incrimination.” This means people cannot be forced to testify against themselves. Under the Fifth Amendment, law enforcement officials must produce the evidence necessary to convict a person of a crime. The accused person cannot be made to provide it. The guarantee against self-incrimination makes sure that unfair pressure cannot be used to make a person confess.
      • Due Process of the Law.Another section of the Fifth Amendment holds that “no one can be deprived of life, liberty, or property without due process of law.” In other words, the government must follow certain legal procedures before deciding on a penalty. It can’t jail a person because it suspects that the person committed a crime. It must prove the accusation by following certain rules and methods.
      • Eminent Domain.Finally, the Fifth Amendment requires the government to pay citizens when it takes over their property for a public use. The government’s right to take this property is called “eminent domain.” Suppose the state wanted to build a highway which would run right through your residence. It would have to pay the owners a reasonable price for the property. The government could force you to move, but at least it would have to provide you with the money to relocate.
    • The Sixth Amendment: Fair and Speedy Trials. The Sixth Amendment provides more requirements for a fair trial in criminal cases. It guarantees a speedy, public trial by an impartial jury in the area where the crime was committed. The defendant must be able to question the accusers and to force favorable witnesses to testify. The accused has a right to a lawyer.
    • The Seventh Amendment: Jury Trials. The Seventh Amendment guarantees that Americans will receive a jury trial in civil (as opposed to criminal) cases involving property worth more than $20 and no fact can be retried without a jury making findings of fact.
    • The Eighth Amendment: Bails, Fines, and Punishments. The Eighth Amendment protects people from having to pay unreasonably high “bail” in order to be released from prison before they go to trial. Bail is money given to pledge that a person accused of a crime will appear for trial. The Eighth Amendment also protects people from unreasonably high fines. Finally, it outlaws cruel and unusual punishment. This requirement, as well as the Fifth Amendment’s guarantee against self-incrimination, protects citizens from the use of torture. [10]
    • The Ninth and Tenth Amendments: Reserved Powers. The last two amendments address the liberties of citizens and the rights of states. The Ninth Amendment states that the Constitution and the Bill of Rights do not define all of the fundamental rights people have. Such rights exist whether or not they are defined. The Tenth Amendment makes a similar claim concerning the rights of the states. It holds that the states and the people have powers that are set aside and not listed item by item. These powers are called “reserved powers.” They can be contrasted with “express powers,” which are specifically defined in the Constitution.

With the adoption of the Bill of Rights, the Constitution as it was initially created was complete.

Conclusion

The Bill of Rights is important for a number of reasons, and much Constitutional Law revolves around application of its provisions. The Bill of Rights is initially important for by forcing its adoption and experiencing the ratification process, the United States of America put into effect the amendment process, and showed that a free people could be trusted to amend their fundamental charter. The elites of the nation, and especially Hamilton, did not think that a Bill of Rights was either necessary or desirable. The people disagreed and it was the will of the people which prevailed. In the beginning more than ten amendments were proposed, but ten were finally chosen. Today, one can hardly imagine the United States Constitution without the Bill of Rights. Its importance to the nation and to human liberty cannot be over-estimated.

Copyright 2021, G. Christopher Scruggs, All Rights Reserved

[1] US Constitution, Article VII.

[2] Id.

[3] Articles of Confederation, Article XIII.

[4] Federalist Papers, No. 40 (Madison).

[5] As an aside, I doubt that the Constitution could have been adopted in its original form had the convention process with a nine-state minimum not been devised for ratification. Patrick Henry, of Virginia, was a leader of the group opposing ratification.

[6] The states ratifying the document and dates are: Delaware – December 7, 1787, Pennsylvania – December 12, 1787, New Jersey – December 18, 1787, Georgia – January 2, 1788, Connecticut – January 9, 1788, Massachusetts – February 6, 1788. Maryland – April 28, 1788, South Carolina – May 23, 1788, New Hampshire – June 21, 1788, Virginia – June 25, 1788, New York – July 26, 1788, North Carolina – November 21, 1789, Rhode Island – May 29, 1790. Vermont was not a state at the time the Articles of Confederation were adopted and did not participate in the Convention or ratification.

[7] See, “Brutus,” Essays I, VI, X-XII, and XV (Oct.18 and Dec.27, 1787; Jan. 24 and 31, Feb. 7 and March 20, 1788) for a full series of the antifederalist arguments.

[8] I intend to do a separate blog on this particular amendment, since it is important to the reason for these blogs.

[9] Because criminals often used unlicensed weapons to hurt others, some people have urged the national government to control the sale of guns. Other people have argued that gun control is a violation of the Second Amendment. The wording of the document would seem to indicate that to attempt to regulate this would interfere with a fundamentally state right.

[10] Currently, the most important cases involving this amendment concern whether the death penalty is a form of cruel and unusual punishment.

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