Last week we commemorated the 220th anniversary of the Bill of Rights ratification. The document we now celebrate as the hallmark guarantee of civic freedom has a history that most Americans hardly know. The origins of the Bill of Rights owe to the framers' struggle to adopt national Constitution.
Last week we commemorated the 220th anniversary of the Bill of Rights ratification. The document we now celebrate as the hallmark guarantee of civic freedom has a history that most Americans hardly know. The origins of the Bill of Rights owe to the framers’ struggle to adopt national Constitution.
In a December 1787 letter to James Madison, Thomas Jefferson, who did not attend the Constitutional Convention, argued the omission of a Bill of Rights was a grave error, “A bill of rights is what the people are entitled to against every government on earth.” James Madison was at first skeptical of an enumerated listing of rights, deriding it as a “parchment barrier.”
Interestingly, the Bill of Rights first ratified by Congress contained 12 amendments, not 10. The original first two were not approved when put to the states for a vote. As we consider our current political and governmental problems, the content of the first two deleted amendments bears reflection.
As originally intended, the first two amendments read, “Article the first … After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons. Article the second … No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”
In other words, the first guarantees of right or freedom that the framers assailed was their own office and mechanism for payment. The laudable ideals now enshrined in our First Amendment were bumped to third place behind the apportionment of Congressional representatives and their payroll. For people who are concerned we have wandered too far from the “original intent” of the Bill of Rights, the modern death grip of lobbyists, special interest groups and PACs, seems to suggest that “fundamental” intent has been well-preserved.
Bowing to well-heeled contributors on both the left and the right, it gives us pause to wonder what our government might look like if members of Congress were unfettered by the perpetual self-interest of amassing campaign war chests. What kind of nation might we have if reason and justice were the primary criteria for policy? Some may criticize this as an overly-jaundiced view, but it is difficult to have any other when we watch our own local representatives take millions from industrial and professional lobby groups and then — as if by magic — adopt positions favorable to those groups.
It is unimaginable that Congress would be paralyzed in its current quagmire if balanced policy and greater good were the exclusive metrics for law-making. As we look back on other things left out of the originally proposed Bill of Rights, we might recall another of Madison’s proposed guarantees, “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” It sounds perfectly benign today, but Congress in 1789 knew this meant an expansion of federal powers into state-level affairs. As history confirms, the Supreme Court could barely countenance such reach even a century later.
More importantly, in Madison’s era, such language might have imperiled the “venerable” institution of slavery that undergirded many of the Southern states’ economic fortunes. As with most public policy, what we have is hardly where we started.
In many ways this is demonstrably positive. In some instances, as highlighted above, it shows we still have work to do.