On the 24th, George Wythe proposed that the Committee of the Whole ratify the Constitution and then recommend any amendments thought necessary to the Congress when it assembled.62 The resolution of ratification declared that “the powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will,—no right, therefore, of any denomination, can be cancelled, abridged, restrained, or modified” by any branch of government, except where the power is granted. It added that “among other essential rights, liberty of conscience and of the press” could not be abridged.63
Patrick Henry objected that it was premature to consider ratification without amendments.64 “I feel myself distressed, because the necessity of securing our personal rights seems not to have pervaded the minds of men. . . .” Lack of a prohibition on general warrants meant that “every thing the most sacred may be searched and ransacked by the strong hand of power.” Regarding standing armies,“In our bill of rights of Virginia, they are said to be dangerous to liberty, and it tells you that the proper defence of a free state consists in militia. . . .” Referring to Wythe’s mention only of conscience, the press, and “other” essential rights, Henry asked whether “these three rights, and these only, are valuable?”65
Henry implored that the convention “stipulate that there are rights which no man under heaven can take from you” and proposed a resolution to refer a declaration of rights and certain amendments to the other states prior to ratification. The recommendations were nearly the same as the convention would adopt.66
Henry characterized the declaration of rights as containing “those fundamental unalienable privileges, which I conceive to be essential to liberty and happiness.”67 He reiterated about the Wythe resolution’s mention of two specific rights and the undefined “other essential rights—What are they?—The world will say, that you intended to give them up.”68
Governor Randolph opposed Henry’s proposed declaration on the basis that “the rights intended to be thereby secured were either provided for in the Constitution itself, or could not be infringed by the general government, as being unwarranted by any of the powers which were delegated therein. . . .”69 It is a pity that the stenographer did not record Randolph’s specific remarks about the declaration, particularly the proposal “That the people have a right to keep and bear arms. . . .”70
Randolph’s comments about the amendments to the federal-state balance in the structure of government, however, were recorded. One provision guaranteed that each state had power to provide for organizing, arming, and disciplining its own militia if Congress neglected to do so.71 Randolph found it unnecessary, as “the same powers rest in the states by the Constitution.”72
John Dawson insisted on amendments before ratification, including a declaration protecting freedom of the press and other “liberties of the people.”73
James Madison saw only chaos brewing if each state proposed amendments before ratification. Those supporting amendments “have brought no less than forty amendments, a bill of rights which contains twenty amendments, and twenty other alterations, some of which are improper and inadmissible. Will not every state think herself equally entitled to propose as many amendments?”74 He then fell back on the dogma that an enumeration of rights would imply that omitted rights were given up.75
Patrick Henry shot back,“I will not insist on any [amendment] that does not stand on the broad basis of human rights. He says there are forty. I say there is but one half the number, for the bill of rights is but one amendment.” The legendary orator launched a series of dramatic remarks:
I see the awful immensity of the dangers with which it is pregnant. I see it. I feel it. I see beings of a higher order anxious concerning our decision. . . . All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race. Its adoption may involve the misery of the other hemisphere.
Underscoring Henry’s dramatization, the stenographer wrote: “Here a violent storm arose, which put the house in such disorder, that Mr. Henry was obliged to conclude.”76
Madison closed the day’s debate by insisting that a declaration of rights was unnecessary in that “the general government had no power but what was given it,” and dangerous,“because an enumeration which is not complete is not safe.” But he softened the argument by declaring that he would not oppose amendments that were “without danger.”77
The next day, June 25, George Nicholas opened the proceedings by declaring that the friends of the Constitution wished for no further debate—the Constitution should be ratified and the convention should recommend amendments to be taken up later according to the procedures in the Constitution. He then moved that the question be taken on the Wythe resolution. John Tyler moved that the amendments and bill of rights proposed by Patrick Henry also be considered.78
Benjamin Harrison urged amendments previous to ratification. While some states had ratified unconditionally,
New Hampshire does not approve of the Constitution as it stands. . . . In Massachusetts, we are told that there was a decided majority in their Convention who opposed the Constitution as it stood, and were in favour of previous amendments, but were afterwards, by the address and artifice of the federalists, prevailed upon to ratify it. . . . New York, we have every reason to believe, will reject the Constitution, unless amendments be obtained. . . . Virginia is divided. . . . North Carolina is decidedly against it79
James Madison reiterated his personal commitment to work for amendments after ratification and his prediction that they would be adopted. Delaying ratification would also delay the amendatory process.80 James Monroe rejoined that amendments would never be adopted after ratification: “An alteration will be a diminution of their power, and there will be great exertions made to prevent it. I have no dread that they will immediately infringe the dearest rights of the people, but that the operation of the government will be oppressive in process of time.”81 More speeches followed on the dreadful consequences of either previous or subsequent amendments.
One of the final speeches, and the final word on the right to have arms, was by Zachariah Johnson, who observed that the new Constitution could never result in religious persecution or other oppression. He added: “The people are not to be disarmed of their weapons. They are left in full possession of them.”82 He not only found amendments prior to ratification to be improper, but objected that the proposed bill of rights deleted key portions of the Virginia declaration of rights—the admonition of “frequent recurrence to fundamental principles” and the affirmation that “all men are by nature equally free and independent.”83
Patrick Henry made a final plea for his proposals. He noted that the federalists would not admit the necessity of certain structural amendments, including a prohibition on direct taxation and the militia article, on which he noted: “With respect to your militia, we only request that, if Congress should refuse to find arms for them, this country may lay out their own money to purchase them.” He noted the inconsistency of promising subsequent amendments and objecting to the substance of proposed amendments.84
The resolution of the Committee of the Whole originally reported by Wythe was at this point taken up.85 A substitute was then proposed that, prior to ratification, there should be referred to the other states a declaration of rights asserting “the great principles of civil and religious liberty, and the unalienable rights of the people,” together with amendments to objectionable portions of the Constitution. 86
The substitute was defeated by a vote of 88 to 80. Then the convention voted 89 to 79 to ratify the Constitution.87 The resolution declared that “the powers granted under the Constitution, being derived from the people of the United States, [may] be resumed by them whensoever the same shall be perverted to their injury or oppression”;“that every power, not granted thereby, remains with them”; and that“no right, of any denomination, can be cancelled, abridged, restrained, or modifi
ed,” by the federal government except where a power is given to do so. Finally,“among other essential rights, the liberty of conscience and of the press” could not be abridged.88
A committee was appointed to prepare and report amendments deemed necessary. It included both federalist and antifederalist luminaries—Wythe, Henry, Randolph, Mason, Nicholas, Grayson, Madison, John Marshall, Monroe, and others.89
On June 27, George Wythe reported that the committee recommended certain amendments to be taken up by the new Congress at its opening session. It first proposed a bill of rights “asserting, and securing from encroachment, the essential and unalienable rights of the people,” including a number of declaratory clauses gleaned from the Virginia Declaration of Rights. The first section declared “certain natural rights, . . . among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.” The next two proclaimed that “all power is naturally invested in, and consequently derived from, the people,” and that “the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.”90
After provisions on the political rights of citizens and procedural rights of the accused, the declaration included three successive sections all beginning with the clause “that the people have a right”:
15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.
16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.
17th. That the people have a right to keep and bear arms; that a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free stare; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.91
While rooted in the Virginia Declaration of Rights, each of the above “the people have a right” clauses was new. The Virginia Declaration did not mention the right to assemble and to petition at all; it protected a free press but neglected free speech; and it included the above militia language but not the right to keep and bear arms. Also new was the allowance that standing armies should be avoided only “as far as” possible.
The author apparent was George Mason, who simply added these new clauses to the Declaration’s language he had drafted in 1776.92 As noted, Mason, Henry, and Grayson had sent copies of a declaration with essentially the same language to New York antifederalists at the beginning of the Virginia convention.93
There then followed three successive sections regarding matters military or religious or both—a prohibition on quartering soldiers in houses without consent; a provision that “any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead”; and a declaration that religion is a matter for reason and not force, and therefore all men have a right to the “free exercise of religion,” and that no religious sect “ought to be favoured or established, by law, in preference to others.”94
The genesis of what became the First, Second, and Third Amendments is readily apparent in the above provisions.
Following the bill of rights, the committee recommended an entirely different set of articles under the title “Amendments to the Constitution.” These structural changes clarified or modified the federal-state balance. The first section would mirror what became the Tenth Amendment: “That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.”95 That did not specify what those powers were, but succeeding provisions did.
The structural amendments included three sections regarding military matters. No standing army could be kept up in time of peace without consent of two-thirds of the Congress. No soldier could be enlisted for more than four years except during war. Finally, the militia was addressed as follows:
11th. That each state respectively shall have the power to provide for organising, arming, and disciplining its own militia, whensoever Congress shall omit or neglect to provide for the same. That the militia shall nor be subject to marriallaw, except when in actual service, in rime of war, invasion, or rebellion; and when not in the actual service of the United Stares, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by rhe laws of its own srare.96
This clarification of the state power over the militia would be considered and rejected by the first federal Congress.97 However, some of the second sentence would find its way into the Fifth Amendment, which requires indictment by grand jury for serious crimes except for army and militia personnel in actual service in war.
The above language reserving state militia powers had not been included in the amendments the Virginia antifederalists sent to their New York counterparts on June 9.98 The militia proposal, along with the standing army provision, was included in a later draft entitled “Amendments Proposed to the New Constitution of Government in Addition to the Declaration of Rights.” Moreover, William Grayson drafted amendments that were never introduced to the convention and that included the proposal that “The several States shall not be restrained from providing Arms for their own Militia.”99
The fundamental difference between the Bill of Rights as a declaration of individual liberties and the structural amendments as a division of federalstate powers could not have been clearer. The Bill of Rights declared “that the people have a right”—“peaceably to assemble,” “to freedom of speech, and of writing and publishing their sentiments,” and “to keep and bear arms.” Under the structural amendments, each state shall “retain every power” not delegated to Congress and specifically “the power to provide for organising, arming, and disciplining its own militia,” if Congress neglected to do so.
The resolution of adoption of the above enjoined Virginia’s representatives in Congress to secure ratification of the Bill of Rights and amendments. A federalist motion to strike a provision on direct taxation failed. The convention then voted in favor of the proposals.100
Virginia had taken the decisive step—this large and influential state ratified the Constitution but was committed to use her great influence to demand a bill of rights. The remaining states, both large (New York and North Carolina) and small (Rhode Island and the future state of Vermont), would ratify the Constitution and follow Virginia in insisting that individual rights be declared.
CHAPTER 11
“A Majority That Is Irresistible”
THE GROUNDS WELL for a bill of rights became over whelming with Virginia’s ratification of the Constitution. The remainder of the states would hammer nails in the coffin. New York, another influential and populous state, would ratify and demand a declaration of rights a month after Virginia. North Carolina delayed ratification of the Constitution until after the first federal Congress met and proposed the Bill of Rights. Rhode Island and Vermont would not ratify the Constitution until it appeared that the ratification of the Bill of Rights by the states was a foregone conclusion.
NEW YORK
The New York convention was preceded by serious antifederalist agitation. Significantly, the New York Journal published calls for what became both clauses of the Second Amendment: the militia clause and the right-to-havearms clause.
As for the militia clause, “Brutus” (thought by some scholars to be Robert Yates) wrote in the Journal on November 1, 1787: “In the bills of rights of the states it is d
eclared, that a well regulated militia is the proper and natural defence of a free government . . . .” Standing armies were also denounced. “The same security is as necessary in this constitution, and much more so . . . .”1
Regarding the arms guarantee, “Common Sense” noted in the April 21, 1788, Journal “that the chief power will be in the Congress, and that what is to be left of our government, will be a mere shadow is plain, because a citizen may be deprived of the privilege of keeping arms for his own defence, he may have his property taken without a trial by jury . . . . These things are entirely contrary to our constitution . . . .”2 Appearing originally in a North Carolina newspaper, this article may have been distributed by antifederalists elsewhere for reprinting.
The New York federalists were led by John Jay and Alexander Hamilton, who had argued in The Federalist No. 29 that military establishments would not be a danger where “a large body of citizens, little if at all inferior to them in discipline and the use of arms,” were ready to defend their rights.3 The antifederalists included John DeWitt, who had warned that Congress “at their pleasure may arm or disarm all or any part of the freeman of the United States.”4
George Mason and his Virginia colleagues sent a draft declaration of rights and amendments to the New York antifederalists. Newspaper editor Eleazer Oswald carried and delivered this correspondence to John Lamb, chairman of the Federal Republican Committee. New York Governor George Clinton, who would become president of the New York convention, gave copies to a Special Committee of Correspondence.5
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