The Bill of Rights
Hello and welcome back to Constitutional Perspectives!
We're in the home stretch of Level One now. Last time, I canvassed federalism and the federal Union. That concluded the discussion, for Level One purposes, of the structure of government. But there is, of course, another side to our constitutional system, and that's the division of power between the government as a whole and the People as individuals – or, in other words, the domain of constitutional rights.
Today, therefore, it is time to talk about the Bill of Rights.
First, though, I should say a little bit about the constitutional amendment process – since it is, after all, how the Bill of Rights came about. Article V specifies that amendments are to be adopted upon ratification by three-fourths of the states. In 1789, that required ten of the thirteen states; today, it takes thirty-eight of fifty. There are two separate tracks by which amendments may be "proposed," and sent to the states for ratification, but only one of them has ever actually been used: passage by two-thirds of each House of Congress. (The other involves the states petitioning Congress to call a convention for the proposing of amendments. This provision is much misunderstood, not least in that people think of it as a convention for adopting amendments, not just for proposing them. In any event, it has never happened and never will, not within the strictures of Article V.)
We rightly think of this as an extraordinarily difficult threshold for amendment, today. Recall what I said about constitutional amendments in the states. They're all a lot easier than this, as is amendment in most other countries. But at the time, it was a lower hurdle to clear than what the Articles of Confederation, which could only be amended by the unanimous consent of the states, had provided for. In practice, it has proven surprisingly possible to amend the federal Constitution, having been done some twenty-seven times to date (according to the common accounting). But it is genuinely hard, and as a result, the thing we see in a lot of the states, where the constitution becomes a laundry list of random bits of legislative policy, has not happened at the federal level. All the stuff that's in the Constitution is stuff that really needs to be in a constitution. To be clear, this isn't me defending the Article V system, which in my opinion is today the single worst, least defensible, most undemocratic provision of the entire document. But making amendment difficult does serve a very real purpose, and it has served that purpose well in our history.
Anyway. You'll recall from my discussion of the ratification debate that the biggest complaint the Anti-Federalists had about the proposed Constitution was the absence of a bill of rights. The Federalists argued that such a thing was not necessary; they lost that debate, badly. So the Constitution was adopted with an implicit promise that this problem would quickly be remedied. And indeed, the First Congress did propose a slate of twelve amendments (of fourteen that James Madison had drafted) as almost its first order of business. Ten of the twelve were adopted on December 15th, 1791, when Virginia became the eleventh state to ratify them. (Eleven? Didn't I just say it required ten? Yes, but in the interim Vermont had been admitted as the fourteenth state of the Union.) These ten amendments, or "articles" as they were called at the time, are the Bill of Rights we know and love today.
What of the other two proposed amendments? The first dealt with congressional apportionment. It would have regulated the size of the House of Representatives, according to a three-step formula: at least one representative for every thirty-thousand people, until that would amount to one hundred total representatives; then one representative for every forty-thousand people, until that would amount to two hundred total representatives; then finally no more than one representative for every fifty-thousand people. Wait, no more?? Yeah. Somewhere in the drafting process, the inequality in the last clause got flipped. Possibly this was just a drafting error, possibly it was because James Madison was a troll who disagreed with basically everyone else on the face of the earth about whether large districts were bad.
The other of the twelve not adopted at the Founding dealt with congressional salaries. It supplied a rule that Congress could not raise its own pay until after the next election. This, in effect, prohibits them from looting the public fisc. Otherwise, the theory goes, Congress could just vote itself a massive pay raise and then skip town, having effectively stolen the people's money. It's an interesting theory, but the amendment wasn't adopted and Congress never, you know, did that. Despite which – and I swear I am not making this up – a college student by the name of Gregory Watson decided to lobby state legislatures to ratify the thing starting around 1982. The campaign worked, and ten years later this became the Twenty-Seventh Amendment. Whether this was a valid ratification is actually a subject of some considerable theoretical interest, which I will probably discuss down the road in Level Three. But everyone did accept it as valid, and we print our Constitutions today with twenty-seven amendments.
By the way, the same logic implies that the congressional apportionment amendment is still pending before the states, and could in theory be ratified today, if, uhhh, twenty-seven of them were to ratify it. Which they won't. Because it wouldn't do a damn thing if they did.
But enough about the amendments that weren't ratified. We're here to talk about the actual Bill of Rights: the First through Tenth Amendments. These are probably the most famous part of the entire Constitution, and the First Amendment above all else. The first eight provide a series of rights that individuals have against the government; the last two, on the other hand, state the basic principles of the constitutional scheme itself.
Thematically, the bulk of the amendments deal with matters of legal process and criminal justice. The Fourth Amendment regulates the police, protecting the "right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." The Fifth Amendment has a somewhat eclectic group of rule-of-law provisions: the Grant Jury Clause, which requires indictment by a grand jury (see here) before anyone can be prosecuted for a "capital, or otherwise infamous crime;" the Double Jeopardy Clause, which forbids successive prosecutions for the same offense after the defendant has been acquitted; the privilege against self-incrimination, which you may have encountered on police procedural TV shows when witnesses "plead the Fifth;" and the Due Process Clause, which holds that no one may be "deprived of life, liberty, or property, without due process of law." Oh, and the government also can't take private property without just compensation (a process known as eminent domain).
The Sixth Amendment then covers the rights of criminal defendants. Of these, the most celebrated are the right to trial by jury – and not just any jury, but "an impartial jury of the State and district wherein the crime shall have been committed" – and the right to the "Assistance of Counsel." But there's other miscellany in there, too: the right of the accused to be informed of the charges against them; to be "confronted with the witnesses against" them; and to have compulsory process for obtaining witnesses in their favor.
The Seventh Amendment then extends the right of trial by jury to civil suits, at least "where the value in controversy shall exceed twenty dollars." Yeah, it says twenty bucks, specifically. As best I can tell, twenty 1789 dollars would be more like $750 today. But no, the Seventh Amendment applies at twenty USD, inflation notwithstanding. It's very silly but it's also not particularly relevant, since either way it would amount to "any civil suit for money damages."
Then finally, the Eighth Amendment forbids "cruel and unusual punishments," as well as "excessive" bail or fines. Taken together, the Fourth through Eighth Amendments bespeak a civilized justice system, where those suspected of crimes crimes are treated with respect – from the police investigation all the way through trial, and even after conviction – and are given a fair chance to contest the government's allegations.
This is part of what makes the First Amendment, and the Second for that matter, stand out so much. Their subject matter is completely different. The First Amendment famously provides that:
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.
These are sometimes referred to as the Five Freedoms. Taken together, they protect a robust freedom of belief and expression, often considered one of the essential pillars of a free society, and of liberal democracy. (It's actually kind of the thing that makes a democracy "liberal" as opposed to anything else.)
The Second Amendment, by contrast, has a rather different political valence today. It states that,
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.
What exactly this means is, of course, heavily contested, as is true of the entire Bill of Rights (well, almost). Liberals, who support relatively strict gun control laws, argue it only covers service in the militia, while conservatives see it as a guarantee of a much broader individual right, tied up with the right of self-defense.
Finally there's the Third Amendment, which says that soldiers cannot be quartered in private homes without the consent of the owner, except in wartime. Fun fact: there has never been a Supreme Court case about the Third Amendment! It's never come up. Because... the government just never tries to do this. Every other boundary imposed by these ten amendments is tested, almost constantly. But not this one. It's just... observed.
One important thing to note about these eight amendments is that, when adopted, they only applied to the federal government. You can see this plainly in the text of the First Amendment, with its "Congress shall make no law..." formulation. But it's true of all eight. They speak the language of universal moral rights, but are in fact just limitations on this new thing that had been created by the 1789 Constitution. The Supreme Court held as much in the 1833 case Barron v. Baltimore. Now, the states all had their own analogous provisions; indeed much of the drive behind the adoption of the federal Bill of Rights was the desire to ensure that this new federal government abided by the principles already observed in the states. But the federal Bill of Rights as such did not apply to the states, and if state law varied on a particular point, federal law did not impose any kind of external constraint.
You can also see this, I think, in the Ninth and Tenth Amendments, which state, respectively, that,
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
and,
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.
The Ninth Amendment reflects Madison's concern that a written bill of rights could do more harm than good. As Hamilton argued in Federalist No. 84, the entire Constitution, the entire structure of the federal government, was "to every useful purpose, A BILL OF RIGHTS." This is precisely because of the Tenth Amendment's rule: everything not granted is reserved. And Congress has only limited and enumerated powers. There was already, therefore, a kind of "bill of rights" against Congress, consisting of everything not covered by the enumerated powers. Adopting a written bill of rights, on the other hand, might lead people to conclude that everything not reserved had been granted: that Congress had every power not expressly forbidden to it.
Now, Madison and Hamilton lost this argument (rightly so, in my view). The Ninth Amendment is Madison's attempt to ensure that the perverse inference he feared would not come to pass. I love the Ninth Amendment, it's endlessly fascinating from a theoretical perspective, but that's all a matter for another time. For our purposes, the point is that all of this only makes sense in the context of the federal government. State legislatures, you may recall, have plenary power, a general legislative authority not limited to particular enumerated areas. Thus, states need written bills of rights in order for there to be any limits on government power at all. What Madison is trying to do in the Ninth Amendment simply would not make sense at the state level. And similarly with the Tenth, which is just an explicit statement of what was already the implicit logical structure of the 1789 Constitution.
From the opening words of the First Amendment to the coda in the Ninth and Tenth, therefore, the Bill of Rights can be understood as a cohesive whole that limits the powers of the federal government in particular. A few provisions, like the Establishment Clause and the Second Amendment, can even be understood as concerned not so much with individual rights but with states' rights: the former preventing Congress from interfering with state established churches (which were widespread at the Founding), the latter preventing it from disarming the state militias. (I am drawing here on Akhil Amar's excellent book The Bill of Rights: Creation and Reconstruction.)
But, wait a minute. It's actually not true that the Bill of Rights only limits the federal government, not anymore. Everything I've been saying for the last few paragraphs changed. It changed about four score years after the Bill of Rights was initially adopted. And it changed because of a word I haven't said yet in this entire series, a word I've been conspicuously avoiding. The canny reader may have noticed that I have been playing Hamlet without the prince of Denmark through all of Level One. But I have now finished my sketch of the Founder's Constitution, which means it's time to talk about why their Constitution broke in half, and why it had to be remade.
It's time to talk about slavery.
