Posted on 04/13/2013 4:18:53 PM PDT by Jacquerie
James Madison wasn’t a big supporter of Bills of Rights. He wasn’t alone. His notes toward the end of the Constitutional Convention of 1787 are sketchy, but one thing is clear; every State (though not every delegate) voted against a Bill of Rights (BOR).
Less than a year later, at the wild Virginia Ratification debates of June 1788, the Federalist team lead by Madison and Anti-Federalists by Patrick Henry went back and forth as to the pro and con of formal inclusion in the Constitution. Anti-Federalists were furious; many Anti-Federalists demanded Virginia withhold ratification until their amendments were ratified by the other States.
Why the Federalist resistance to a BOR?
Madison explained in an October 1788 letter to Thomas Jefferson. He had in his hands a pamphlet that contained all of the amendments proposed by the various State Constitutional Conventions. He was not against a BOR; he could support those that did not imply unenumerated powers. At the same time, he did not think their “omission (from the Constitution) a material defect.” No, he would support amendments because they were anxiously desired by Constitutional opponents. He did not need to tell Jefferson there was no guarantee of actual Union despite ratification by eleven of thirteen States.
Madison outlined four reasons he was lukewarm toward a BOR. First, the Constitution did not grant power to infringe on our natural rights. Second, he was concerned that rights would be expressed narrowly rather than expansively. As evidence, a proposed amendment from New England objected to the prohibition of religious tests because it would open “a door for Jews, Turks, and infidels.” Third, because the States would both participate in law making and keep a watchful eye on the operations of new government. Lastly,” repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”
Experience showed that a BOR was ineffective when needed most. Sound familiar?
In Virginia, he saw their Declaration of Rights “violated in every instance where it had been opposed to a popular current.” Referring to the mid-1780s controversy over a State supported church bill, he said it was only narrowly defeated, despite a freedom of conscience guarantee in the Virginia Declaration of Rights. IOW, recent history showed that State BOR alone were ineffective barriers to majoritarian abuse.
“Wherever the real power in a government lies, there is the danger of oppression. In our (State) Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.”
In short, post-revolutionary States did not reliably enforce their various BOR.
He reasoned that BOR were necessary in monarchies, as limits demanded by the people, as powers taken from the prerogatives of the sovereign power, the King. When violated, the multitude of people had not only the raw power of any mob to resist, but legitimate authority to physically fight back against encroachments of the rights granted them.
But in American republican governments, the people and sovereign are identical. When the people themselves overrun the rights of the minority, to whom can the minority appeal? “What use then it may be asked can a BOR serve in popular Governments?”
Madison identified two. The political truths in a BOR could, over time, become such powerful maxims that they overpower ill-considered, mass impulses. Secondly, and though remote, if evil springs not from the people but from the Government, a BOR would be good grounds for appeal.
Adapted from James Madison Writings pgs 420-421.
Please read my/Madison’s post. The Virginia Declaration of Rights were regularly breached. Madison applied this lesson from VA and determined a Senate composed of the States was necessary to enforce a BOR.
Yawn? Do you need fresh air or is it past your bedtime?
You’re verging upon rude, here. Is Constitution.org a disreputable source to you, or is it that you merely want to do away with the Amendments that comprise the Bill Of Rights?
And you’re presuming to educate FR? Amazing.
Sigh. What about judicial appointments as I asked?
As for recourse per Henry, I summarized for Madison, “But in American republican governments, the people and sovereign are identical. When the people themselves overrun the rights of the minority, to whom can the minority appeal? . . . “
. . . to a Senate of the States, the first bulwark, the enforcers of separation of powers and enumerated powers.
Madison's point is that BOR without structural back up to enforce them are parchment barriers, worthless. That is the essence of this thread.
Since 1913, the 17th Amendment, the States were reduced to just another lobby and the national government filled the void and eviscerated our BOR.
Of course I read it!
I just thought Henry’s role was worthy of a little more ‘meat’.
He was still an orator, though past his prime, and he beat Madison at Virginia’s ratification convention with oratory.
Even without the dirct election of Senators, a nationalized media as we have had since circa WW2 negates the influence of the states upon the federal courts. The advancement and security of federal judges is determined by a consolidated media. They decide what reaches the public square- and how it is portrayed. They make no money from defending the US Constitution.
Of course the regional media of Madison’s day- when a nationalized media was unimaginable and technically impossible- would encourage state influence upon the federal judges. Early justices paid close mind to the states.
Is it commonly your practice to reply with sighs and yawns to those responding to threads you post? I can assure you that this behavior is just as tedious to others as replies that are at odds with your basic premise clearly are to you.
I won’t bother responding to one of these threads of yours again, so that’s one less future yawn you’ve got to worry about.
You have a good evening.
A Senate of the States would blow off the Left media.
The 17th Amendment and Republican Freedom
http://www.freerepublic.com/focus/f-chat/3005467/posts
Of what relevance was George Mason to Madison’s letter that questioned the utility of Bills of Rights to republican freedoms?
bump
You may feel you’re getting undue hostility LOL!
The damage of the 17th to the structure and foundation of the Constitution is indeed exemplarary! However- the 17th will not be repealed so some frustration arises.
No, the networks’ ‘nightly news’ would blow off any impeaxhment efforts- see: Earl Warren.
Without a “state” media to counter the national media any politician is powerless.
( I’m sure I sound as much a ‘One Note Johnny’ as you do to some)
The public square is owned by the national media. As I said that was unimaginable and technically impossible before radio and television. It negates all the divisions of power of our system.
Standing is a major tool of repression when general rights are being taken. Everyone is harmed, but standing looks for a narrow plaintiff who has been “wronged”.
The Founders couldn’t have forseen a Protestant population so scared of the Papists that they’d initiate a Prussian/Indian school system of indoctrination and control.
I don’t think it was ever on their radar. It’s without precedent in history outside of Asia or the ME.
That’s something you should repost every year. It’s worth the discussion and there are always new eyes to see it and discuss it.
IIRC, it was Wilson who looked around the room and observed that it was populated by a majority of lawyers. He then warned that it they weren't careful that what the people would get would be a government of the same.
Hamilton pooh-poohed Wilson's concern in the Federalist with his usual blustering snow-job. I wish I had the references because the contrast is yet another instance that shows Hamilton for whom he really represented.
Far from what the original article would have us believe, history has proven the anti-federalists prophetic about the federalists' intentions and about the central government's 'mission creep' regarding the constitution. The BoR would not have been breached if Madison had been right about how the basic document would be interpreted.
Overview
America was governed under the Articles of Confederation from 1781 to 1789. Unable to redress the problem of “majority tyranny,” the Articles were abandoned in favor of the Constitution, which created a “more perfect union.”
The creation in the Constitution of “a more perfect union” did not mean that the union—or its people—would get more and more perfect with time. Rather, this phrase meant simply that the Constitution marked an improvement over the Articles of Confederation.
The majority tyranny that prevailed under the Articles meant that instead of strong but limited government, the nation labored under weak and ineffectual government.
The Founding Fathers featured in this week’s readings—George Washington, James Madison, and Thomas Jefferson—were united in their fear that America’s future under the Articles of Confederation would be short-lived. The Articles, they agreed, not only failed to solve the problem of majority tyranny, but in fact made that problem worse.
In Federalist 10, Madison outlines how the problem of majority tyranny is best solved by enlarging the republic. Factions, or groups acting adversely to the rights of citizens and the interests of the community, can thereby be multiplied, and in their multiplicity counterbalance the pernicious effects they produce. This solution is realistic but not cynical, for it is based on the idea that even though human beings are imperfect, they are still capable of self-government.
Because of the 17th Amendment, the federal government immediately became national. We haven't had a federal government for 100 hundred years. As the Anti-Federalists of 1787-1788 feared, it soon burst beyond its enumerated powers, subsumed those retained by the people and the States, and by 2013 became a consolidated government that determined the limits of its own powers. As history has demonstrated, rival governments in the States will not be tolerated as contenders for power, but have been relegated to being administrators of national Utopian schemes.
If republican freedom is to be restored, the 17th must go.
In early June at the Constitutional Convention, John Dickinson warned that if all power were “drawn from the people at large, the consequence would be that the national Government would move in the same direction as the State governments now do and would run into all the same mischiefs.” State participation in the new government largely solved the "great desideratum;" how to base a government on popular will, yet protect minority rights from majoritarian abuse.
Had Hamilton not written most of The Federalist, the world's greatest gift to political science and freedom, our Constitution, would have been stillborn.
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