December 15, 2008

Bill of Rights Day

Today in 1791, the Bill of Rights was enacted. Our then-young Constitution was amended in fulfillment of a promise made to those who had misgivings about its strong Federal government.

The genius of the original Constitution was to divide power and provide a system of checks and balances among the three branches of government. The genius of the Bill of Rights is to recognize that the individual is paramount, that what people do matters more than what governments do because ultimately, the government serves the people and not the other way around.

The architect of the Bill of Rights was James Madison, a protégé of Thomas Jefferson and hero of the Revolutionary War who had commanded a regiment under George Washington. Madison was an able, nuts-and-bolts kind of politician, the sort of guy who knew who all the local head honchos were around Virginia and had an instinctive feel for making deals and rolling logs. But he was also very much an idealist and a great proponent of the concept of individual rights as the basis for the Revolution. He viewed the Constitution of the United States as the culmination of a generation-long struggle that began in the Revolution to vindicate individual rights. He was also a passionate and lifelong advocate for the creation of a strong central government, despite his membership in Jefferson's clique which otherwise seemed to favor "states' rights."

Madison was a deeply religious man. For that reason, he was a significant advocate of the separation of church and state. Madison believed that governmental involvement in matters of religion would corrupt and erode religion's value as a moral guide and that it was vitally important to keep governmental power from intruding on the affairs of churches. It is likely to Madison that we trace a number of the special privileges afforded to religious institutions in this country, such as the tax-exempt status of land owned by churches, the parsonage tax exemption permitting pastors and ministers a tax-free home in which to live, and the tradition of sectarian chaplains opening sessions of legislatures with prayers and invocations of the Diety. Today, I question the wisdom of these things and test them against Madison's very words in the First Amendment, but Madison himself saw no contradiction. One suspects that Madison would have relied upon the concept, still invoked today, that there is nothing wrong with religion informing the beliefs and morals of our policymakers and voters.

As President, Madison inherited a tense diplomatic situation (Britain and France were at war again) and difficult economic circumstances caused by the Embargo Act, forbidding trade with the beligierent powers of Europe -- which meant basically all of them. In particular, Madison objected to and attempted to use the Navy to prevent the impressment of American seamen and occasional the seizure of American ships into the British Navy. Ultimately his efforts to keep America neutral yet encourage trade failed and in 1812, war broke out between Great Britain and the United States on Madison's request for a declaration of war. In his defense, Madison's request for war was pressured by a new generation of "Young Turks" in Congress who had no memories of the Revolutionary War.

America was unprepared for a real fight with a major military power. In response to the declaration and initial military actions against the British Navy at sea, the redcoats invaded America, seizing the capital city and burning the White House and the Capitol. Madison evacuated Washington and ran the government at a variety of moving locations until what we call the War of 1812 came to a draw. The war saw a number of important events, most notably including the emergence of a war hero with an eye to politics named Andrew Jackson, who took command of Madison's by then national political network and transformed it into what has today become the Democratic Party. Of less political significance but of great importance to our national character was the composing of The Star Spangled Banner, commemorating the battle of Fort McHenry in Baltimore, Maryland shortly after the sacking of Washington.

But Madison's greatest legacy is the Bill of Rights. No other work of his has had such a lasting effect. Although he was the broker of the compromises that led to the passage of the Constitution itself, he was also the one who promised the anti-Federalists, the ones with misgivings about a strong central government, that it would be amended and guarantees of individual rights would be built in to the foundational doucment of the then young United States. Madison's efforts in Congress led to these twelve proposed amendments being sent out for ratification, eleven of which have become Amendments to the Constitution:
Article the first [Not Ratified]
After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second [27th Amendment - Ratified 1992]
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third [1st Amendment]
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.

Article the fourth [2nd Amendment]
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article the fifth [3rd Amendment]
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth [4th Amendment]
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the seventh [5th Amendment]
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article the eighth [6th Amendment]
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article the ninth [7th Amendment]
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article the tenth [8th Amendment]
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the eleventh [9th Amendment]
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth [10th Amendment]
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
In modern times, we continue to argue and dispute and disagree about the principles and ideas and words and intent of these guarantees. Madison, ever the politician and master of seeking compromise, chose his words very carefully. The First, Second, Fourth, Fifth, and Tenth Amendments in particular continue to be sources of great debate as to exactly what they mean and how they should be applied to modern circumstances. Madison would have approved -- he saw these matters as part of the rough and tumble of politics, and the idea of successive generations working to understand the basic ideas of free government and make them functional and alive was what he was all about when he was at his best.

And no one seriously disputes that Madison's masterwork provides the dome atop the building of the Constitution; the enduring commitment to the concept that the government is the guarantor of individual rights, that the power of the government is and must be subordinate to the liberties of its citizens. So on the anniversary of Madison's crowning achievement, let us all recommit ourselves to the system of government he, perhaps more than any other American, created to keep all of us free.

6 comments:

David Schraub said...

In honor of the day, one of my favorite quotes of all time:

"Can any of you seriously say the Bill of Rights could get through Congress today? It wouldn't even get out of committee." -F. Lee Bailey

zzi said...

>>Madison was a deeply religious man. For that reason, he was a significant advocate of the "separation of church and state."

Please show us where these word are in the Bill Of Rights.

zzi said...

P.S. This post should be read in all high school classrooms; even if some of the points are wrong (headed)

Transplanted Lawyer said...

I never said that the words "separation of church and state" could be found in the Bill of Rights. I said that Madison was an advocate of the concept. Do you dispute that contention, and if so, some evidence supporting that contention would be much appreciated. Educate me.

Transplanted Lawyer said...

P.S. I already know that Madison didn't have a problem with a chaplain opening up sessions of Congress with a prayer.

zzi said...

or that him and Jefferson attended services in the Capitol . . .

I'll get back to you on the other. Got to pick up a bag, not a box, of rock salt.