The Basic Symbols of the American Political Tradition

VII. The Tradition and the Bill of Rights

CHAPTER VII The Tradition and the Bill of Rights We can now analyze the so-called Bill of Rights, usually defined as the first ten amendments to our Constitution. The officialliterature , as we might well expect, has already taken great care to supply us with answers to most of those questions that arise concerning the Bill of Rights and its place in our tradition . Its teachings come down to something like this: The Declaration of Independence and the Bill of Rights, theoretically speaking, fit "hand in glove." More exactly, the Bill of Rights follows in the "spirit" of the Declaration by asserting individual rights that limit arbitrary and abusive action by government . It is worth our while to examine some of the contentions found in the official literature upon which such an estimate of the Bill of Rights seems to be based. Contention One: The Bill of Rights was intended to correct an oversight of the Constitutional Convention. The fifty-five at Philadelphia somehow did not appreciate the extent to which the people wanted their basic rights enumerated in the Constitution. On this score, at least, they certainly were not attuned to the times or to the spirit of either the people or the revolution. Whether the Framers were out-of-step with their timeswhich is one of the stock charges of those who claim the Declaration marks the origins of tradition this side of the Atlanticis a question we shall leave open save to point out that this 119 120 THE BASIC SYMBOLS seems not to be the case given the speed with which the Constitution was drafted and adopted. The "oversight" theory, however, falls flat on its face because of certain obvious facts. First, the matter of whether to include a Bill of Rights in the Constitution was brought up before the Philadelphia Convention and was rejected unanimously, each state voting as a un'it. Second, we find the subject of a Bill of Rights discussed in Federalist 84, wherein the charge is made that the addition of a Bill of Rights would not only be unnecessary but dangerous -a matter we will go into at some length later. But we are hardly entitled off of the plain record to say that the omission of a Bill of Rights was an oversight. On the contrary, it was by all outward evidences deliberate. Contention Two: The Constitution would not have been adopted unless the pro-Constitution forces promised that a Bill of Rights would be written into or added onto the Constitution . Of all the fictions that have grown up around the Bill of Rights and the adoption of the Constitution, this is quite probably the most unbelievable. Who, we might ask, could make any such commitment?, How could promises of such a nature be extracted from the pro-Constitution forces when the participants in the state ratifying conventions (all thirteen of them) had only to look at the document before them to see precisely what the amendment process entailed. Certainly no group in the ratification conventions was in any position to do more than say: "Yes, if we, or one of our members, is elected to the Congress, we pledge ourselves to bring the matter up. Moreover, we will, insofar as possible, try to secure passage of the desired amendment." But given the amendment process which calls for a two·thirds vote of both houses of Congress and a three-fourths approval of the states, they could not have promised anything beyond this. And the plain undisputed fact is that the Constitution was ratified without a Bill of Rights. OF THE AMERICAN POLITICAL TRADITION 121 Contention Three: The Bill of Rights is closely linked to the Declaration of Independence because the Bill of Rights is couched in terms very much akin to the Declaration's. At least both documents speak of "rights" in the sense that there are things which no duly constituted government should do. This is at best only partially true. The word "right" or "rights" appears six times in the Bill of Rights. Three times it is employed with respect to matters that relate principally to the administrative and judicial branches. "In all criminal prosecutions , the accused shall enjoy the right of a speedy and public trial ...." Or, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated." The...