Thursday, December 15, 2011

The Rights Stuff

Two-hundred and twenty four years, and three days ago, Pennsylvania ratified the U.S. Constitution, only the second state to do so.

Four years and three days after Pennsylvania ratified the Constitution, the first 10 amendments were officially added, having themselves been ratified by enough states to make them the first additions to a living document that continues to guide and confound us to this day.

That makes today Bill of Rights Day.

So it seems appropriate to continue our history theme for another day. (Back to Pottstown matters tomorrow, I promise.)

The back-story on the Bill of Rights is sort of interesting (for those of us who find these things interesting).

The Pennsylvania Statehouse hosted the convention in 1787
Our local metropolis, Philadelphia, was again the setting for a Constitutional Convention, another momentous step forward for this Republic, which was in danger of grinding to a standstill under the inadequate framework of the Articles of Confederation, ratified in 1781, two years before peace with Britain was declared.

Even then, Americans were wary of a strong, central government, never having seen one that had their interests at heart, and the Articles of Confederation reflected that.

But it soon became evident, as states refused to pay their share of national expenses and sought individual treaties with the sovereign nations of Europe, that what they had was not enough.

And so in 1787, delegates from throughout the fledgling country had to make another trip to Philadelphia.

They came with different ideas.

Alexander Hamilton, who favored a strong federal government, with a strong central bank, wanted a president named for life; whereas others believed all that was needed was some tinkering with the current articles.

The end result, as James Madison's detailed notes make clear, was an amalgam of several proposals, hammered out through negotiation and compromise by men who knew that their failure likely meant the failure of the American democratic experiment.

But it wasn't perfect.

As with the Declaration of Independence, our forefathers who established a nation in the name of freedom, were unable to find a way through the tangled political thicket to end slavery and, perhaps worse, in fact enshrined it in the new Constitution by including the now infamous "three-fifths clause."

This allowed the states with legalized slavery to count those who were otherwise considered to be "property," to, in this once instance, be counted as at least partially people for the U.S. Census purposes of representation in Congress and the Electoral College.

In his book "Negro President," historian Garry Wills makes the compelling case that Jefferson and the  parade of Virginians who followed him into the presidency and House Speakership, benefited from this clause, which gave them representation in the House of Representatives and Electoral College disproportionate to their white populations.

(He also argues, with some apparent justification, that from that point forward, Jefferson's earlier and impassioned advocacy for eliminating slavery in the new republic  evaporated into mere rhetoric, as the full benefit of the political windfall the three-fifths clause provided made itself increasingly self-evident.)

But throughout the debate over the Constitution, one other central issue plagued the debates -- a Bill of Rights.

The American Civil Liberties Union sums it up pretty succinctly: "The Federalists opposed including a bill of rights on the ground that it was unnecessary. The Anti-Federalists, who were afraid of a strong centralized government, refused to support the Constitution without one."

The federalists argued that the Constitution clearly outlined the powers of the federal government and that all other powers fell, by default, to the states. They argued articulating a set of rights might make those not articulated unprotected.

But for those who feared centralized control, an assumption was not enough and it was equally important to outline what a central government could not do.

And so the Constitution was ratified at its convention with the promise that immediately after its adoption by ratifying conventions in all 13 states, that an equal effort would be made to draw up and adopt a Bill of Rights.

Drafted by Madison and based largely on George Mason's Virginia Declaration of Rights, these civil liberties have formed the foundation of some of our most treasured freedoms, as well as the foundation of some of our most vociferous arguments.

Those who argue in favor of gun rights, and those who argue to protect the right to burn the flag both revere the same document.

Only in America.

So take a moment today to consider what life might be like without those rights. It doesn't take much imagination.

Adams looks worried. He was, about his legacy.
And you don't have to look at despotic regimes in third-world countries to do it.

It has happened right here on our shores, most often in times of war, or near war, and often by those considered our greatest presidents.

Just seven years after the adoption of the Bill of Rights, they were challenged by the Alien and Sedition Acts, which made it a crime to speak ill of the administration of President John Adams for fear of fomenting a desire to go to war with France.

During the Civil War, Abraham Lincoln suspended the right of "habeus corpus," which allows a court to determine if a prisoner has been imprisoned lawfully.

During World War I, Congress passed and Woodrow Wilson signed The Sedition Act of 1918, which outlawed speech and the expression of opinion that cast the government or the war effort in a negative light or interfered with the sale of government bonds.

During World War II, this nation imprisoned thousands and thousands of Americans in west coast camps simply because they were of Japanese heritage.

And, as Jon Stewart archly noted (does he ever note anything any other way?), last week Barack Obama made clear he is considering vetoing the $662 billion defense authorization bill passed this afternoon, "not because he objects to the executive branch having near infinite power to detain whoever it wants, but because he objects to the executive branch not having totally infinite power to detain whoever it wants" without charging them.

It was not too long ago, 2007 in fact, when the same Barack Obama told an enthusiastic crowd of supporters "we're not a nation that locks people up without charging them."

All of which brings to mind of a quote from James Madison that I have taped to the very computer screen on which I am writing these words, and which I look at every day:

"I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments of those in power, than by violent and sudden usurpations."

Happy Birthday Bill of Rights.

It would seem we need you more and more each day.


  1. Evan, thank you for the well written history lesson. Some folks , me included, loose sight of the importance of these documents. Our country is not perfect, but I'm glad to be here.