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In fact, during the 1787 Constitutional Convention, Slonim notes that the need for a bill of rights was not even a topic of discussion until Virginian delegate George Mason raised the issue just several days before the Convention was scheduled to rise on September 17; Mason suggested that a bill of rights "would give great quiet to the people." Following this assertion, Elbridge Gerry of Massachusetts moved that the Convention add a bill of rights to the Constitution and Mason seconded his motion to no avail: "The Convention unanimously rejected the proposal by a vote of 10 to 0, with one state absent. Failure to heed Mason's counsel was to plague the Federalists throughout the ratification campaign" (emphasis added).
The first major confrontation concerning the ratification of the Constitution involving the need for a bill of rights occurred in Pennsylvania several weeks after the close of the Constitutional Convention; at that time, the Seceders from the state Assembly called upon their electorate to consider whether the rights of citizens could be regarded as safe under a constitution that did not contain a bill of rights; also in Pennsylvania, Samuel Bryan argued in 1787 that the absence of a bill of rights made it essential for a second constitutional convention to be held to address the errors and omissions of the first.
In response to these charges, James Wilson, who contributed significantly to the drafting of the Constitution as a member of the Pennsylvania delegation to the Constitutional Convention, and who was a prominent legal scholar who would subsequently serve as a Justice on the original U.S. Supreme Court, articulated the basis for distinguishing between a government of unlimited powers and one of enumerated and defined powers. In this regard, Wilson believed that because the Constitution already delineated the powers available to the national government, there was little need to amendment them for the people's protection because the national government was without power to interfere in these domains. For example, Wilson wrote that: "The former, as illustrated by the state governments, were sovereign in their authority and had free rein to exercise any and all powers, but the latter, as illustrated by the federal government, could only exercise those powers which it disposed of under the Constitution. There was, therefore no fear that the federal government could threaten the rights of citizens in such matters as freedom of the press, freedom of religion etc., since it was powerless to operate in such spheres." Unable to foresee the consequences of judicial activism ironically beginning with Marbury vs. Madison, Wilson and his like-minded peers argued that a bill of rights was redundant to the protections that already existed in the Constitution, or such rights were rendered superfluous by the manner in which the government was intended to operate. For instance, Wilson suggested that:
There are two kinds of government; that where general power is intended to be given to the legislature and that where the powers are particularly enumerated. In the last case, the implied result is, that nothing more is intended to be given, than what is so enumerated, unless it results from the nature of the government itself.... [I]n a government like the proposed one, there can be no necessity for a bill of rights. for... The people never part with their power.... [W]e are told, that there is no security for the rights of conscience. I ask... what part of this system puts it in the power of Congress to attack those rights? When there is no power to attack, it is idle to prepare the means of defense (emphasis added).
In fact, by enumerating such rights in the Constitution, the Federalists were concerned that if they failed to include some or others, these would not be protected. In this regard, Croddy reports that:
The Federalist promoters of the Constitution of 1787 believed that a bill of rights was unnecessary and even potentially dangerous. They reasoned that the carefully crafted structure of the new scheme of government outlined in the Constitution, with its separate branches of government, checks and balances, and enumerated powers, protected the states and, by implication, the individual from the tyranny of central authority. They feared that by taking the additional step of enumerating rights, those not enumerated might fail to be protected.
Because resources are by definition scarce, and it was very hot after all that year, these appeared to be important and urgent points to be considered by the Federalists. Indeed, at this point, Madison believed that there were already sufficient guarantees in the Constitution that precluded the immediate inclusion of a bill of rights just to achieve ratification. In fact, a consistent philosophy was reflected in the Federalist Papers and more than one of the speakers at the Constitutional Convention as well that maintained that the primary guarantors of the quality of public officeholders were the people themselves. "The nature of republican government requires that it be so. Publius saw the Constitution as establishing government by popular majorities that would rule on principles of justice and the general good."
Madison and his like-minded colleagues clearly believed that moral and religious traditions would provide citizens with the ability to make judicious decisions concerning the electorate and these officials would ensure their protection from the potential evils of a national government. In 1788, Madison emphasized this point during the Virginia Ratifying Convention: "I go on this great republican principle, that the people will have virtue and intelligence to select men of virtue and wisdom. Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks -- nor form of government can render us secure." As the events of September 11 and others have so clearly demonstrated, checks and balances are not all that is required to "render us secure," but the need for a strong national government that could provide for the common defense, ensure a source of revenue and so forth, was deemed sufficiently compelling to the Federalists to argue against a bill of rights, at least at that point in time, because that was not their mandate.
In this regard, in a speech before the Convention delegates on June 8, 1789, Madison made the point that if they had been given the opportunity the first time around, a bill of rights would have been a do-able exercise, but the process could have potentially ruined all of the hard work they (and especially Madison!) had invested thus far by introducing so many modifications and the debate that would ensure that nothing would be accomplishing at the Convention. "Indeed I think it would have been of advantage to the government, if it had been practicable to have made some propositions for amendments the first business we entered upon; it would stifle the voice of complaint, and make friends of many who doubted its merits." In sum, Madison believed that a "reservation of rights was unnecessary and improper in a constitution of limited and specified powers; the government had not authority in the area of individual rights. Any attempt to define such rights also rank the risk of omitting rights unnamed."
B. Anti-Federalist Perspectives. In an Age of Information, the reasons cited by the Anti-Federalists to support their opposition to the proposed Constitution, particularly absent a bill of rights, may appear spurious. In fact, though, geography was an important consideration in their line of thinking, especially given that Washington, D.C. was so far away from many of the affected states and they believed that it would not be possible for a centralized national government to adequately represent their unique interests. According to one historian, "The Antifederalists argued that the Constitution rearranged the physical environment of America. They accused the Federalists of tying together the entire country and its various geographic and climatic conditions under one government. This government would not reflect the climatic or geographic features of a specific area, as it had under the confederation. All Americans would, instead, be governed from a central source without regard for the shaping influences of local forces."
Likewise, according to Ketcham, "As the debates over the new Constitution progressed, anti-federalist objections to the powers granted the federal government began to crystallize in specific proposals for amendments that would limit those powers. In some state conventions, especially where sentiment was closely divided, proposals were made for amendments to be insisted upon prior to ratification, while others were offered in hopes that a second convention might consider them for inclusion in a revision constitution." These proposals ranged from the modest (for instance, the Massachusetts Convention offered a relatively short list), some were similar to the final versions used in the Bill of Rights, while still other amendments "would have greatly altered the powers of the new government." According to Bernhard and her colleagues, "Anti-Federalists wished to protect the people against government, but that does not…[continue]
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