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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Friday, January 29, 2016

The Juntocast Tackles the Bill of Rights

For folks interested in the recent postings on the genesis of the U.S. Bill of Rights, I recommend the latest podcast discussion from the Junto, released last weekend.

Ken Owen, Michael Hattem, and Roy Rogers discuss the development of those amendments to the Constitution and how their force has changed in American history.

One point they make well which I didn’t find an opening for was how much the Bill of Rights was a political football during the larger debate over the new, larger federal government:
  • George Mason and Elbridge Gerry proposed adding one to the Constitution only in September 1787, at the end of a long summer of debate. By that time, it was pretty clear that neither of them was happy with the new national structure being proposed. And their colleagues at the convention might not have been too happy with them bringing up a new issue so late.
  • The Constitution’s lack of a Bill of Rights was a cause that the disparate Anti-Federalists could agree on and use to bring others to their side. Otherwise, they had different and in some cases orthogonal reasons to oppose the new plan for government.
  • For the Federalists, promising to add a (vaguely defined) Bill of Rights was an easy compromise that didn’t really affect the structure or size or the national government they wanted.
  • When James Madison pushed a Bill of Rights in the first U.S. Congress, many Anti-Federalists opposed his bill because they didn’t think it went far enough. They feared (rightly) that the amendments would deflate their ongoing campaign to limit the federal structure. 
  • The protections for individuals in the Bill of Rights were mainly symbolic for their first century or more anyway. States weren’t required to provide the same guarantees, and the federal government didn’t prosecute a lot of people (or quarter troops in homes outside of wartime).
The last point reminds me of how often people today will complain that a company is taking away their “First Amendment rights” of free expression, and then others will point out that the First Amendment applies to government, not private entities. From 1791 through at least 1900, the First Amendment didn’t apply to state or local governments, either. So unless your state’s constitution promised freedom of speech and freedom of the press, you didn’t have those rights.


RBK said...

Thank you for the podcast recommendation. I will check it out. There is a pretty good one I listen to called "We The People".

I know this will probably sound dumb, but it makes no sense to me why it took so long for the bill of rights to be incorporated into the states. Why only tell the federal government that they can't do something to us, and not have that standard for the state as well.

You can add to the constitution, but you can't take away.

RBK said...

Here I go on a 14th amendment frenzy....

J. L. Bell said...

From a 1791 perspective, the amendments were meant to assuage the Anti-Federalists, or at least to peel away enough of their support to leave the federal structure intact. The Anti-Federalists were worried about the national government telling the states what to do. So to tell the states that they had to adhere to those amendments because they were now part of the national document would have just riled up the people they were designed to win over.

As for taking stuff out of the Constitution, we don't have Prohibition anymore. So it can happen.

RBK said...

Whoops, I should have clarified that *states* can add but can't take away or hinder. That wasn't very clear.

I can see the anti federalist had reasonable concerns, however they founded a new nation together and the bill of rights doesn't place rules against people, just the federal government, so the federal government was actually having their power restricted, which the anti-federalist a should have liked. To not adhere to a bill of rights meant to protect the peoples rights of whole nation, and not just certain states, would make it us more "the states of America" vs the "United States of America"

However, we do have the good fortune of hindsight, so I digress.

J. L. Bell said...

To an extent, that view depends on whether "United States" is a plural or a singular noun. Some historians say the Civil War was the turning-point for the latter construction; I haven't confirmed that with Google Ngrams yet.

I think it's also pertinent that a lot of the rights that Americans were demanding in the 1770s weren't so much individual rights but community rights as determined by the majority of a town or province. Massachusetts had a stamp tax in the 1750s but protested Parliament's Stamp Act in 1765 because the local legislature hadn't voted for it; such a law wasn't inherently unjust on individuals, but Parliament allegedly violated the community's autonomy. In 1770 the Boston town meeting voted to declare a few shopkeepers "enemies to their country" after they wouldn't join the non-importation boycott, their individual choices be damned. The Whigs' problem with the Administration of Justice Act wasn't that it would have instituted trials unfair to defendants but because it would have removed those trials from Massachusetts juries.

We now think of the Bill of Rights as primarily about individual rights, but some of them, such as the wordy language about establishment of religion and the militia amendment, were based on the importance of traditional powers of local communities.