ARTICLES

IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 140

Proposed by Congress, and Ratified by the Legislatures of the Several States, Pursuant to the Fifth Article of the Original Constitution.

First ten Amendments (of twelve) proposed by Congress September 25, 1789; adopted June 15, 1790.

140 During the first session of the first Congress under the new Constitution this self-explanatory resolution was passed:

"The Conventions of a number of the States having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the government will best insure the beneficent ends of its institution

"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, twothirds of both Houses concurring, That the following articles be proposed to the legislatures of the several States, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three-fourths of the said legislatures, to be valid to all intents and purposes, as part of the said Constitution, viz. :

"Articles in addition to, and amendment of, the Constitution of the United States of America, proposed by Congress and ratified by the legislatures of the several States, pursuant to the fifth article of the original Constitution."

Its Sources and Application

195

Then followed twelve proposed amendments, the first two of which failed of adoption. The first related to membership in the House of Representatives by population, and the second was against the taking effect of a law varying the compensation of senators and representatives until an election should have intervened.

The ten Amendments adopted make the so-called American Bill of Rights. It has been seen that the Petition of Right and the Declaration of Rights and the Bill of Rights were favorites of the English. Following the practice in the mother country, the colonists issued a Declaration of Rights through their first Continental (Stamp Act) Congress in 1765. More than fifteen years before the adoption of these Amendments a Declaration of Rights had been issued (1774) by the Colonies through deputies sitting "in general congress" at Philadelphia. Reciting that they were "justly alarmed by these arbitrary proceedings of Parliament", which they denounced as "unconstitutional" and "formed to enslave America", they took "into their most serious consideration the best means of attaining" their rights and concluded to "do, in the first place, as Englishmen their ancestors in like cases have usually done for asserting and vindicating their rights and liberties." Then they made specific declarations, among them being that the foundation of liberty is the right to participate in legislative councils; that they were entitled to the "immunities and privileges" given by the colonial charters; that a standing army in the Colonies was "against law"; that restraint of "the right peaceably to assemble . . . and petition" is "illegal"; that “it is indispensably necessary to good government" that the "branches of the legislature be independent of each other" and that therefore a legislative council appointed at the pleasure of the King "is unconstitutional, dangerous and destructive to the freedom of American legislation"; and that Acts of Parliament directing that "colonists be trans

ported to England and tried there upon accusations for treason" and other acts were "unjust and cruel, as well as unconstitutional."

The word "unconstitutional" appears in this Colonial Declaration of Rights again and again.

So Massachusetts, New York, Virginia, and some other States wanted a Bill of Rights in the Constitution, and with the tacit understanding that they would have one they ratified it. Some argued that all the guaranties in the Amendments already existed in the law transplanted from England; but that was a time of written charters and written constitutions, and, to remove every possibility of doubt, a Bill of Rights was wanted in plain writing. The very fact that a writing exists between men often prevents disputes. When both know definitely what the boundaries are neither is likely to make encroachments. That our forefathers were wise in not leaving such vital matters to inference, implication, or construction will be shown by an examination of the first ten Amendments. "The executive in our governments is not the sole - it is scarcely the principal — object of my jealousy," wrote Jefferson from Paris, urging upon Madison the need of amendments making a Bill of Rights; "the tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn, but it will be at a remote period."

The Constitution already contained provisions belonging to a Bill of Rights, such as those forbidding ex post facto laws (Note 64) and bills of attainder (Note 63), prohibiting the suspension of the privilege of habeas corpus (Note 62), requiring trial by jury (Note 110) and at the place where the crime was committed, defining treason and limiting punishment (Notes 113-116), granting the immunities and privileges of all States to the citizens of each State (Note 119), and forbidding a religious test '(Note 136) before admission to office.

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The State constitutions which were adopted in 1776 after the Declaration of Independence contained elaborate bills of rights for the protection of the individual; and, as elsewhere observed, those constitutions were the source of much matter selected by the Constitutional Convention.

The additional safeguards which were given to the man by the so-called Bill of Rights will now be examined. They contain nothing novel. They embody "guaranties and immunities which are inherited from our English ancestors", the Supreme Court (1897) has said.

ARTICLE I.

Congress shall make no law respecting an estab lishment of religion, or prohibiting the free exercise thereof;

141

141 In the reign of Charles II, Parliament, for the purpose of compelling all persons to attend the established Church, passed (1665) the Conventicle Act making every one over sixteen years of age who attended a conventicle (any meeting for religious worship at which five persons were present besides the household) subject to imprisonment, with transportation beyond seas for the third offence. During the same reign it passed the Test Act requiring oaths in support of the established religion. Under those acts, which were not repealed until recent times, all nonconformists of whatever religious belief were very severely dealt with. Those acts hastened emigration to America, as did intolerance in continental countries.

"It is strange indeed," says Ridpath ("Popular History of the United States", p. 128), "that the very men who had so recently, through perils by sea and land, escaped with only their lives to find religious freedom in another continent, should have begun their career with intolerance and persecution."

The established Church of England had been set up in several of the Colonies and taxes were levied for its support.

Madison and Jefferson had waged (1784) a battle in Virginia against the establishment, finally securing the passage of a law declaring that any interference by the civil authority with religious opinion is against natural right.

A clause like this failed of adoption in the Constitutional Convention. As a member of the first House of Representatives under the new Constitution, Madison brought up this Amendment. After the House had adopted it the Senate rejected it, but it was later reinstated by that body.

When Madison became President he vetoed (1811) a bill passed by Congress for incorporating a church organization because he held it contrary to this Amendment, and shortly thereafter he vetoed another which would make a gift of public lands to a church.

Before the Constitutional Convention sat several of the States had put in their constitutions clauses for religious freedom. All of them have such clauses now. The prohibition under consideration is against the Nation and not the State.

In 1890 the Supreme Court of the United States, concluding a great contest begun in the District Court of the Territory of Utah in 1887, held that the National Government had "a perfect right to prohibit polygamy and all other open offenses against the enlightened sentiment of mankind, notwithstanding the pretense of religious convictions by which they may be advocated and practiced."

Let it be borne in mind that all of the first ten Amendments are of National effect and not binding upon the States.

or abridging the freedom of speech, or of the press; 142

142 "The liberty of the press consists, in a strict sense,"