Joseph Story – On the Bill of Rights

Constitutional Convention 5Foundations of the United States Constitution

Joseph Story—selected for the Supreme Court by James Madison in 1811—publishes a text book based on his series of commentaries on the United States Constitution first published in 1833. The 1840 text book also includes a chapter on the Bill of Rights based on his commentaries.

Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people in order to betray them.—§ 459, Concluding Remarks.









Amendments to the Constitution.

§ 431. WHEN the Constitution was before the people for adoption, several of the State conventions suggested certain amendments for the consideration of Congress, some of the most important of which were afterwards proposed to the people for adoption, by that body, at its first organization; and, having been since ratified, they are now incorporated into the Constitution. They are mainly clauses, in the nature of a Bill of Rights, which more effectually guard certain rights, already provided for in the Constitution, or prohibit certain exercises of authority, supposed to be dangerous to the public interests. We have already had occasion to consider several of them in the preceding pages; and the remainder will now be presented.

§ 432. Before, however, proceeding to the consideration of them, it may be proper to say a few words, as to the origin and objects of the first ten amendments, which nay be considered as a Bill of Rights, and were proposed by the first Congress, and were immediately adopted by the people of the United States. The first amendment is, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

§ 433. It has been already stated, that many objections were taken to the Constitution, not only on account of its actual provisions, but also on account of its deficiencies and omissions. Among the latter, none were proclaimed with more zeal, and pressed with more effect, than the want of a Bill of Rights. This, it was said, was a fatal defect; and sufficient of itself to bring on the ruin of the republic. To this objection, several answers were given; first, that the Constitution did, in fact, contain many provisions in the nature of a Bill of Rights, if the whole Constitution was not, in fact, a Bill of Rights; secondly, that a Bill of Rights was in its nature more adapted to a monarchy, than to a government, professedly founded upon the will of the people, and executed by their immediate representatives and agents; and, thirdly, that a formal Bill of Rights, beyond what was contained in it, was wholly unnecessary, and might even be dangerous.

§ 434. It was further added, that, in truth, the Constitution itself, was, in every rational sense, and to every useful purpose, a Bill of Rights for the Union. It specifies, and declares the political privileges of the citizens in the structure and administration of the Government. It defines certain immunities and modes of proceeding, which relate to their personal, private, and public rights and concerns. It confers on them the unalienable right of electing their rulers; and prohibits any tyrannical measures, and vindictive prosecutions. So that, at best, much of the force of the objection rests on mere nominal distinctions, or upon a desire to make a frame of government a code to regulate rights and remedies.

§ 435. Although it must be conceded, that there is much intrinsic force in this reasoning, it cannot in candor be admitted to be wholly satisfactory, or conclusive on the subject. It is rather the argument of an able advocate, than the reasoning of a constitutional statesman. In the first place, a Bill of Rights (in the very sense of this reasoning) is admitted in some cases to be important and the Constitution itself adopts, and establishes its propriety to the extent of its actual provisions. Every reason, which establishes the propriety of any provision of this sort in the Constitution, such as a right of trial by jury in criminal cases, is, to that extent, proof, that it is neither unnecessary nor dangerous. It reduces the question to the consideration, not whether any Bill of Rights is necessary, but what such a Bill of Rights should properly contain. This is a point for argument, upon which different minds may arrive at different conclusions. That a Bill of Rights may contain too many enumerations, and especially such, us more correctly belong to the ordinary legislation of a government, cannot be doubted. Some of our State Bills of Rights contain clauses of this description, being either in their character and phraseology quite too loose, and general, and ambiguous; or covering doctrines quite debatable, both in theory and practice; or even leading to mischievous consequences, by restricting the Legislative power under circumstances, which were not foreseen, and if foreseen, the restraint would have been pronounced by all persons inexpedient, and perhaps unjust. Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance.

§ 436. In the next place, a Bill of Rights is important, and may often be indispensable, whenever it operates as a qualification upon powers, actually granted by the people to the government. This is the real ground of all the Bills of Rights in the parent country, in the Colonial constitutions and laws, and in the State constitutions. In England, the Bills of Rights were not demanded merely of the Crown, as withdrawing a power from the Royal prerogative; they were equally important, as withdrawing power from Parliament. A large proportion of the most valuable of the provisions in Magna Charta, and the Bill of Rights in 1688, consists of a solemn recognition of the limitations upon the powers of Parliament; that is, a declaration, that Parliament ought not to abolish, or restrict those rights. Such are the right of trial by jury; the right to personal liberty and private property, according to the law of the land; that the subjects ought to have a right to bear arms; that elections of members of Parliament ought to be free; that freedom of speech and debate in Parliament ought not to be impeached, or questioned elsewhere; and that excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. Whenever, then, a general power exists, or is granted to a government, which may, in its actual exercise or abuse, be dangerous to the people, there seems a peculiar propriety in restricting its operations, and in excepting from it some at least of the most mischievous forms, in which it may be likely to be abused. And the very exception in such cases, will operate with a silent, but irresistible influence, to control the actual abuse of it in other analogous cases.

§ 437. In the next place, a Bill of Rights may be important, even when it goes beyond the powers supposed to be granted. It is not always possible to foresee the extent of the actual reach of certain powers, which are given in general terms. They may be construed to extend (and perhaps fairly) to certain classes of cases, which did not at first appear to be within them. A Bill of Rights, then, operates, as a guard upon any extravagant or undue extension of such powers. Besides; (as has been justly remarked,) a Bill of Rights is of real efficiency in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights. It requires more than ordinary hardihood and audacity of character, to trample down principles, which our ancestors have consecrated with reverence; which we imbibed in our early education; which recommend themselves to the judgement of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of Rights are a part of the muniments of freemen, showing their title to protection; and they become of increased value, when placed under the protection of an independent judiciary, instituted as the appropriate guardian of the public and private rights of the citizens.

§ 438. In the next place, a Bill of Rights is an important protection against unjust and oppressive conduct on the part of the people themselves. In a government modified like that of the United States, (it has been said by a great statesman,) the great danger lies rather in the abuse of the community, than of the legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter, where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in the executive or legislative departments of government; but in the body of the people, operating by the majority against the minority. It may be thought, that all paper barriers against the power of the community are too weak to be worthy of attention. They are not so strong, as to satisfy all, who have seen and examined thoroughly the texture of such a defence. Yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and to rouse the attention of the whole community, it may be one means to control the majority from those acts, to which they might be otherwise inclined.

§ 439. The want of a Bill of Rights, then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, and peculiarly susceptible of abuse, ought not to receive this solemn sanction. Doubtless, the want of a formal Bill of Rights in the Constitution was a matter of very exaggerated declamation and party zeal, for the mere purpose of defeating the Constitution. But, so far as the objection was well founded in fact, it was right to remove it by subsequent amendments; and Congress have (as we shall see) accordingly performed the duty with most prompt and laudable diligence.

§ 440. The first amendment is, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

§ 441. The same policy, which introduced into the Constitution the prohibition of any religious test, led to this more extended prohibition of the interference of Congress in religious concerns. We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to a dread by the people of the influence of ecclesiastical power in matters of government; a dread, which their ancestors brought with them from the parent country, and which, unhappily for human infirmity, their own conduct, after their emigration, had not, in any just degree, tended to diminish. It was also obvious, from the numerous and powerful sects existing in the United States, that there would be perpetual temptations to struggles for ascendency in the National councils, if any one might thereby hope to found a permanent and exclusive national establishment of its own; and religious persecutions might thus be introduced, to an extent utterly subversive of the true interests and good order of the Republic. The most effectual mode of suppressing the evil, in the view of the people, was, to strike down the temptations to its introduction.

§ 442. How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government in matters of religion have been maintained by many distinguished authors, as well by those, who were the warmest advocates of free governments, as by those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion, will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues ;—these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all events, it is impossible for those, who believe in the truth of Christianity, as a Divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgement in matters of religion, and of the freedom of public worship, according to the dictates of one’s conscience.

§ 443. The real difficulty lies in ascertaining the limits, to which government may rightfully go, in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt any other; another, where it creates an ecclesiastical establishment for the propagation of the doctrines of a particular sect of that religion, leaving a like freedom to all others; and a third, where it creates such an establishment, and excludes all persons, not belonging to it, either wholly, or in part, from any participation in the public honors, trusts, emoluments, privileges, and immunities of the state. For instance, a government may simply declare, that the Christian religion shall be the religion of the state, and shall be aided, and encouraged in all the varieties of sects belonging to it; or it may declare, that the Roman Catholic or Protestant religion shall be the religion of the state, leaving every man to the free enjoyment of his own religious opinions; or it may establish the doctrines of a particular sect, as of Episcopalians, as the religion of the state, with alike freedom; or it may establish the doctrines of a particular sect, as exclusively the religion of the state, tolerating others to a limited extent, or excluding all, not belonging to it, from all public honors, trusts, emoluments, privileges, and immunities.

§ 444. Probably, at the time of the adoption of the Constitution, and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.

§ 445. The next clause respects the liberty of speech, and of the press. That this amendment was intended to secure to every citizen an absolute right to speak, or write, or print, whatever he might please, without any responsibility, public or private, therefor, is a supposition too wild to be indulged by any reasonable man. That would be, to allow every citizen a right to destroy, at his pleasure, the reputation, the peace, the property, and even the personal safety of every other citizen. A man might then, out of mere malice or revenge, accuse another of infamous crimes; night excite against him the indignation of all his fellow citizens by the most atrocious calumnies; might disturb, nay, overturn his domestic peace, and embitter his domestic affections; might inflict the most distressing punishments upon the weak, the timid, and the innocent; might prejudice all the civil, political, and private rights of another ; and might stir up sedition, rebellion, and even treason, against the government itself, in the wantonness of his passions, or the corruptions of his heart. Civil society could not go on under such circumstances. Men would be obliged to resort to private vengeance to make up for the deficiencies of the law. It is plain, then, that this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always that he does not injure any other person in his rights, property, or personal reputation; and so always that he does not thereby disturb the public peace, or attempt to subvert the government. It is in fact designed to guard against those abuses of power, by which, in some foreign governments, men are not permitted to speak upon political subjects, or to write or publish any thing without the express license of the government for that purpose.

§ 446. A little attention to the history of other countries, in other ages, will teach us the vast importance of this right. It is notorious, that, even to this day, in some foreign countries, it is a crime to speak on any subject, religious, philosophical, or political, what is contrary to the received opinions of the government, or the institutions of the country, however laudable may be the design, and however virtuous may be the motive. Even to animadvert upon the conduct of public men, of rulers, or of representatives, in terms of the strictest truth and courtesy, has been, and is, deemed a scandal upon the supposed sanctity of their stations and characters, subjecting the party to grievous punishment. In some countries, no works can be printed at all, whether of science, or literature, or philosophy, without the previous approbation of the government; and the press has been shackled, and compelled to speak only in the timid language, which the cringing courtier, or the capricious inquisitor, has been willing to license for publication. The Bible itself, the common inheritance, not merely of Christendom, but of the world, has been put exclusively under the control of government; and has not been allowed to be seen, or heard, or read, except in a language unknown to the common inhabitants of the country. To publish a translation in the vernacular tongue, has been in former times a flagrant offence.

§ 447. There is a good deal of loose reasoning on the subject of the liberty of the press, as if its inviolability were constitutionally such, that, like the King of England, it could do no wrong, and was free from every inquiry, and afforded a perfect sanctuary for every abuse; that, in short, it implied a despotic sovereignty to do every sort of wrong, without the slightest accountability to private or public justice. Such a notion is too extravagant to be held by any sound constitutional lawyer, with regard to the rights and duties belonging to governments generally, or to the state governments in particular. If it were admitted to be correct, it might be justly affirmed, that the liberty of the press was incompatible with the permanent existence of any free government. Mr. Justice Blackstone has remarked, that the liberty of the press, properly understood, is essential to the nature of a free state; but that this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter, when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public. To forbid this is to destroy the freedom of the press. But, if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done before, and since the Revolution, (of 1688,) is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion, and government. But to punish any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals, is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public of bad sentiments, destructive of the ends of society, is the crime, which society corrects. A man may be allowed to keep poisons in his closet; but not publicly to vend them as cordials. And, after some additional reflections, he concludes with this memorable sentence: “So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press.”

§ 448. The remaining clause, secures “The right of the people peaceably to assemble and to petition for a redress of grievances,” a right inestimable in itself, but often prohibited in foreign governments, under the pretence of preventing insurrections, and dangerous conspiracies against the government.

§ 449. This would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature of its structure and institutions. It is impossible, that it could be practically denied, until the spirit of liberty had wholly disappeared, and the people had become so servile and debased, as to be unfit to exercise any of the privileges of freemen.

§ 450. The next amendment is, “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.

§ 451. The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time of peace, both from the enormous expenses, with which they are attended, and the facile means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.

§ 452. The next amendment is, “No soldier shall in time of peace be quartered in any house without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.” This provision speaks for itself. In arbitrary times it has not been unusual for military officers, with the connivance, or under the sanction of the government, to billet soldiers upon private citizens, without the slightest regard to their rights, or comfort.

§ 453. The next amendment is, “The enumeration in the Constitution of certain rights shall not be construed to deny, or disparage others retained by the People.” The object of this clause is to get rid of a very common but perverse misapplication of a known maxim, that an affirmation of a power in particular cases, implies a negation of it in all other cases; and so, on the other hand, that a negation of a power in some cases, implies an affirmation of it in all others not denied. The maxim, when rightly understood, is perfectly sound and safe; but it has often been abused to purposes injurious to the rights of the people; and therefore the present clause was wisely inserted to prevent any such false interpretations and glosses of the Constitution.

§ 454. The next and last amendment, which has not been already considered, is, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the Status, are reserved to the States respectively, or to the People.” This amendment follows out the object of the preceding; and is merely an affirmation of a rule of construction of the Constitution, which, upon any just reasoning, must have existed without it. Still, it is important as a security against two opposite tendencies of opinion, each of which is equally subversive of the true import of the Constitution. The one is to imply all powers, which may be useful to the National Government, which are not expressly prohibited; and the other is, to deny all powers to the National Government, which are not expressly granted. We have already seen, that there are many implied powers necessarily resulting from the nature of the express powers; and it is as clear, that no power can properly arise by implication from a mere prohibition. The Government of the United States is one of limited powers; and no authority exists beyond the prescribed limits, marked out in the instrument itself. Whatever powers are not granted, necessarily belong to the respective States, or to the people of the respective States, if they have not been confided by them to the State Governments.

(NOTE: To read full commentary on the Bill of Rights, see Book III, Ch. XLIV, §§ 976-1011.)

TML Post courtesy of Democratic Thinker.