Freedom of Rights

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History of the Bill of Rights, and something about the Fourteenth Amendment to the Constitution, and the Equal Protection clause

My Resource for Historical Letters, and Historical References regarding the Bill of Rights ', comes from the Library of Congress, and the Library of Congress's [The Constitution of the United States of America, analysis and interpretation, annotations of cases decided by the Supreme Court of United States.] The Library of Congress Web Site, Law Library.  Prepared by the Congressional Research Service, Library of Congress.

On September 12, 1787, five days before the constitutional convention adjourned, Mason and Gerry raised the question of adding a Bill of Rights to the Constitution.  Said Mason: "it would give great quiet to the people; and with the aid of the states declarations, a bill might be prepared in a few hours."  But the motion of Gary and Mason to appoint a committee for the purpose of drafting a Bill of Rights was rejected.  The main argument against adding a Bill of Rights into the Constitution was, that inasmuch as Congress was delegated no power to do the things which a bill of rights would prescribe no Bill of Rights was necessary and that it might be dangerous because it would contain exceptions to powers not granted, and might therefore afforded a basis for claiming more than was granted.  As a consequence, the opponents of ratification made the absence of the Bill of Rights a major argument, and some friends of the document, such as Jefferson, strongly urged amendment, to include a declaration of rights.  Several state conventions ratified while urging that the new Congress to be convened proposing such amendments, 124 amendments in all were put forward by the states.  Although some dispute occurred with regard to the obligation of the first Congress to propose amendments, Madison at least had no doubts, and introduced a series of proposals, which he had difficulty claiming the interest of the rest of Congress in considering.  At length, the House of Representatives adopted 17 proposals; the Senate rejected two and reduce the remainder by combining them, to 12, which were excepted by the house and sent to the states, where 10 were ratified and the other two did not received the requisite number of concurring states.

Before the United States Constitution had been adopted, Thomas Jefferson wrote a letter to James Madison, indicating what he did not like about the proposed constitution.  "First the omission of the Bill of Rights, providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restrictions against monopolies, and the internal and the unremitting force of the habeas corpus laws, and trial by jury in all matters of the facts triable by laws of the land, and not by the law of nations....  Let me add that the Bill of Rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."  In the same letter he suggested that nine states should ratify and four withhold ratification until amendments adding a Bill of Rights were adopted.  Jefferson still later endorsed the plan put forward by Massachusetts to ratify and propose amendments.

George Washington observed in letters, that a ratified constitution could be amended, but that making such amendments conditions of ratification was ill-advised.

Madison began as a doubter, writing Jefferson "My own opinion has always been in favor of the Bill of Rights, still I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendments...."  His reasons were four.  [1]  The federal government was not granted the powers to do what a Bill of Rights would prescribe.  [2]  There was a reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.  I am sure that the right of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.  [3]  A greater security was afforded by the jealousy of those States of the National Government.  [4]  experience proves the inefficiency of a bill of rights on those occasions when its control is most needed.  Repeated violations of these parchment barriers have been committed by overbearing majorities in every state....  Wherever the real power in government lies, there is a danger of oppression.  In our government the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents....  Where ever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful and interested party than by a powerful and interested prince."  Jefferson's response acknowledged the potency of Madison's reservations and attempted to answer them, in the course of which he called Madison's attention to the argument in favor, not considered by Madison, "which has great weight with me, the legal check which it puts into the hands of the judiciary.  This is a body, which if rendered independent, and Strictly to their own department, merits great confidence for their learning and integrity."  Madison was to assert this point when he introduced his proposals for a Bill of Rights in the House of Representatives. 

So following the ratification of the Constitution, Madison in his successful campaign for a seat in the House firmly endorsed the proposal of a Bill of Rights.  "It is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the states for ratification the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude, the freedom of the press, trials by jury, and security against general warrants."  Debate in the House began on July 21st, 1789 and final passage was had on August 24th, 1789.

It would seem that Thomas Jefferson convinced James Madison and James Madison convinced the Congress using Jefferson's argument and the Congress passed the Bill of Rights, and it was James Madison who wrote and proposed the original Amendments to the Constitution or the Bill of Rights.

One of the Amendments that the Senate refused to accept, declared by Madison to be "The most valuable of the whole list" read:  "The equal rights of conscience, the freedom of speech or of the press, and the right to trial by jury in criminal cases shall not be infringed by any state".  It wasn't until the Fourteenth Amendment to the Constitution, in 1887, that the Supreme Court fully recognized that the Bill of Rights applied to all State Governments, as well as the Federal Government. 

Section 1 of the Fourteenth Amendment states; All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States in which they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of the citizens of United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

I believe the United States Congress has violated the fourteenth amendment to the Constitution with its hate crimes legislation, by denying individual citizens of the United States equal protection under the law.  This also can apply to some forms of Affirmative-Action, where race is used to give preferential treatment to People according to the color of their skin or ethnic origins.  If you're going to have affirmative-action it should be based on economic disadvantage not on the color of your skin or ethnic origins.  The only way you can provide equal protection under the law is to apply it equally to everyone as individuals, the minority of one, the smallest minority on earth, regardless of race, or the color of their skin, or their national origin, or their belief system, or sexual orientation, to treat everyone equally as individuals with equal laws, equal rights and equal justice.  The only way that that can be provided is in a colorblind, or racially, or ethnically blind system of Justice.  Also Justice needs to be blind to all forms of social prejudice.  The Attorney General, under President Clinton; tried to say that offending a ethnic minority, or minority group, with the name of a sports team, whether it was a local community school or college, or a national sports team, was a hate crime.  The hate crimes law, passed by the United States Congress, is a violation of the equal protection clause of the fourteenth amendment, and has been applied unequally when it comes to the ethnic offense of a racial minority, and should be argued as unconstitutional, under the fourteenth amendment's equal protection clause.  We have to stay forever vigilant, to be forever free, in the freest nation on Earth.

Web page by N. Scott Mills; for questions and/or comments please send your e-mail to lightform@msn.com

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