Bill of Rights Day

On December 15, 1791, the Virginia Assembly voted to accept the Bill of Rights.   Virginia was the 11th State to ratify the amendments,  making them officially part of the Constitution.

There were various reasons why they were not included in the first place.  One of the most interesting of reasons, was the concern over what including them might signify.  Many thought that the inclusion of an enumerated bill of rights might imply that rights were granted by government as opposed to powers delegated to government by the people.  Under such an interpretation, it might be further construed that the rights of the people were limited by government to those specified.

The Federalists were in favor of a strong national government and were concerned about weakening it.  The anti-Federalists were in favor of less centralized power, and often used the lack of a bill of rights as a stalking horse for their general opposition and desire to try again with a new constitutional convention.  Although some anti-Federalists, like George Mason, supported the Constitution after ratification of the first ten amendments.  Federalists and anti-Federalists generally agreed with the desire to protect the rights of the people, but differed as to their approach.

Some wanted the guarantees of the Bill of Rights incorporated into the Constitution, while others were willing to accept them as amendments, demonstrating how answerable Congress would be to the will of the people.  Madison argued against opening the discussion further during the Constitutional Convention, for fear of undoing all the compromises to which they had agreed.  He and the Federalists argued initially that a Bill of Rights was unnecessary because the Constitution was one of enumerated powers, and that to suggest protections against things which clearly weren’t in it, was superfluous.  However, he promised, and kept his word, to submit them to Congress for consideration, upon ratification of the Constitution.

It is a simple and plain proposition.  It is agreed upon by all, that the people have all the power.  If they part with any of it, is it necessary to declare that they retain the rest? … If I have one thousand acres of land, and I grant five hundred acres of it, must I declare that I retain the other five hundred? … After granting some powers, the rest must rest with the people.  George Nicholas (a member of the Virginia House of Delegates)

George Mason’s response was that he could see,

… no clear distinction between rights relinquished by positive grant, and lost by implication.  Unless there was a Bill of Rights, implication might swallow up all our rights.

Interestingly enough, the father of the Constitution, James Madison, didn’t really buy either argument.  In his view, no rights were being relinquished to government, which explains part of his ambivalence to the inclusion of a Bill of Rights in the first place.

Madison’s views may be more clearly understood if one considers the preamble to the Bill of Rights he submitted to Congress.  In it, Madison hearkened back to the principal of natural rights.  Such rights are inherent in man and not to be traded away.  However, Congress edited out much of this language.  According to biographer Richard Labunski, the committee that went to work on his draft,

… eliminated most of Madison’s natural rights preamble, cutting out the assertion that the people have the right to reform or change their government when it becomes antagonistic of their wishes or inadequate in its ability to represent them, but leaving a statement about “government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.”

With the hindsight of over two hundred years, we may safely say that the concerns of those advocating a Bill of Rights were justified, regardless of the philosophical premise.  Our country would be a very different place without the guarantees they offer.