Origins of the Bill of Rights (review)

Origins of the Bill of Rights. By Leonard W. Levy. New Haven: Yale University Press, 1999; pp. xi + 306. $30.00.

The search for original textual meaning, especially in first documents of governance, helps to inform public discourse. Leonard Levy, an eminent historian whose Origins of the Fifth Amendment received a Pulitzer Prize, synthesizes much of his life's scholarship in this volume. Simply put, he explores the fundamental question of limited government in a democracy. What blessings of liberty for its citizens will the state promise to secure? In this exceptional and revealing narrative, Levy recreates that debate from two centuries ago and frames our understanding today.

Origins systematically examines the guarantees of the Bill of Rights (the first ten amendments) as well as selected protections found in the text of the U.S. Constitution itself (writ of habeas corpus, bill of attainder, and ex post facto law). Those who delight in intellectual discoveries unearthed in ancient documents will revel in this book. It is steeped in an impressive array of primary voices. Levy draws generously from English archives, colonial law, state constitutions, records of the Philadelphia Convention of 1787 and the subsequent ratification debates, as well as the available private correspondence of prominent Americans. He presents a rich and compelling analysis of the original meaning of the individual protections of freedom and the embattled process to amend the Constitution.

It is a familiar story that history primers from elementary school forward recount. Yet Levy covers old ground with a new map. He educates us by reconstructing contexts, unveiling obscurities, and unmasking the romance of the early Republic. Appending a national bill of rights, he shows, was neither preordained nor systematic. The process was in fact random and disordered, and the drafts of liberties were "imitative, deficient, and irrationally selective" (186). This entire drama awkwardly played out, however, against a receptive backdrop for freedom.

The notion of liberty, Levy claims, flourished in post-feudal America in large measure because of the absence of traditional impediments such as an aristocracy and a dominant religious dogma. (Recall, however, that "consent of the governed," the cornerstone of pre-revolutionary American thought, was confined to white male property holders.) Late eighteenth century political theory, law, and religion endorsed the principle of limited government. And Americans, Levy suggests, may have understood the dimensions of freedom in a comprehensive way. For them, a constitution created and constrained government and, as supreme law, remained forever paramount to it. Several state constitutions already contained separate lists of protections or selected guarantees embedded in their texts, causing some observers to argue that amendments to the new Constitution would be superfluous. Levy dismisses these arguments as incomplete and defective. Importantly, for many Americans the national register of rights symbolized the contractual bond between the government and the governed. Its purpose was to vindicate the so-called "natural rights" of citizens, the safeguards of life, liberty, and the pursuit of happiness so well articulated in the Declaration of Independence a decade before. (James Madison omitted a reference to free speech in his original list because he believed it was an inherent right that predated government and did not depend on organized society for its vitality.) As Levy points out, the purpose of revolution in 1775 was not to "establish new liberties but to defend old ones" (2). After all, colonists at first simply wanted the same legal treatment afforded to all English subjects.

Despite the fact that no delegate in Philadelphia opposed its inclusion in principle, the adoption of a bill of rights became a centerpiece of practical politics, the sine qua non for the ratification of the new Constitution. Madison, the tireless editor of the Bill of Rights whom Levy honors for his tenacity, collected appropriate liberties from available sources and crafted a set of them into a working document. His successful strategy to persuade the First Congress to approve the amendment package and to defuse the dissatisfaction of Antifederalists who...