J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Monday, January 25, 2016

Just a Few Revisions Here and There

The Amendments to the U.S. Constitution that we think of as the Bill of Rights are rooted mostly in James Madison’s fourth and fifth proposed amendments from June 1789:
That in article 2st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

That in article 2st, section 10, between clauses 1 and 2, be inserted this clause, to wit:
No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
I’m being anachronistic by including Madison’s fifth point because the Senate decided that the federal Constitution should not limit state governments in those ways and therefore omitted that proposal. It took Supreme Court decisions in the early twentieth century to apply the U.S. Bill of Rights to state and local governments. Now we take that for granted.

Lastly, the Tenth Amendment derives from Madison’s eighth, the part that said: “The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.”

Teaching American History has a chart of which of Madison’s proposals fell away as Congress and the states considered them. Of the twelve proposed amendments to come out of that process, ten were approved by 1791 and one more in 1992.

The House rejected Madison’s idea to revise the Constitution’s text itself in favor of tacking all the amendments on at the end. The Congress also made a lot of changes to Madison’s language, mostly shortening it (perhaps at a cost to precision). As a result, the first ten Amendments don’t have a single author; they were a collective creation.

TOMORROW: If Madison didn’t call those Amendments our Bill of Rights, who did?

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