By Fred Barbash
Special to The Washington Post
Sunday, April 6, 2008
"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."
If only the members of the First Congress could see it now, the First Amendment, engraved in marble 74 feet high on the Pennsylvania Avenue facade of the Newseum. Perhaps they would be more enthusiastic than they were in 1789, when they reluctantly wrote the Bill of Rights.
They had little quarrel with the guarantees in the document.
They simply saw no need for a "parchment barrier."
Even the man who introduced the Bill of Rights, Rep. James Madison, called it a "nauseous project."
"A few milk and water amendments, such as liberty of conscience, a free press, and one or two general things already well secured," wrote Sen. Pierce Butler.
" . . . How wonderfully scrupulous have they been in stating rights," Virginia's own Sen. Richard Henry Lee wrote to Patrick Henry. "The English language has been carefully culled to find words feeble in their nature or doubtful in their meaning."
"Mutilated," "gutted," "good for nothing" and "harmless" were among the choice words from other members of the First Congress. "You will find our amendments to the Constitution calculated merely to amuse, or rather to deceive," wrote Rep. Thomas Tudor Tucker, summing it up.
To deceive whom? He did not need to say. Congress wrote the Bill of Rights fitfully over the spring and summer of 1789 not to please a grateful nation, but to appease a skeptical one. The Constitution had been ratified in June 1788 over the bitter opposition of the likes of Patrick Henry and other anti-Federalists, who opposed the Constitution because they saw in it the seeds of tyranny and demanded a declaration of rights as protection.
They threatened not merely amendments to the document but a second constitutional convention to reopen the charter, a nightmarish prospect.
"A sop" would be too crude a description of how members of that Congress viewed the Bill of Rights. They preferred the literary "a tub to a whale," an allusion to Jonathan Swift's tale of sailing men who, "when they meet a whale . . . fling him out an empty tub by way of amusement, to divert him from laying violent hands upon the ship."
In this case the ship was the new "ship of state" still finding its direction.
The rights themselves were not at issue, nor their commitment to them in law.
The language, "freedom of speech, or of the press," "the right of the people to bear arms," "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures," was unexceptional, familiar to members of that Congress from comparable declarations in the states.
So familiar were these phrases that they felt no need for definition, which left the courts free to puzzle over their original meaning, as they do to this day, for example, as they consider the District's gun control law and the commas in the Second Amendment: "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."
As for the First Amendment: "One can keep going round and round on the original meaning of the First Amendment," constitutional scholar Rodney Smolla writes, "but no clear, consistent vision of what the framers meant by freedom of speech will ever emerge."
The framers of the 10 amendments known as the Bill of Rights believed the rights already "well-secured," not only by the states but by the framework of checks and balances of the Constitution. Since the Constitution gave Congress no explicit power to violate individual rights, such as freedom of speech, they argued, why add amendments protecting them?
"Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed," Alexander Hamilton wrote.
Madison, who introduced the amendments in the House, was against them before he was for them. To counter Henry and other anti-Federalists, Madison had promised to propose a Bill of Rights in the First Congress. Madison's constituents in Virginia reminded him of his commitment by nearly defeating him for his seat in Congress after rumors circulated that he might renege.
"Poor Madison got so cursedly frightened in Virginia that I believe he has dreamed of amendments ever since," wrote Sen. Robert Morris, a wealthy Philadelphian who had helped draft the Constitution.
"He is constantly haunted with the ghost of Patrick Henry," wrote Rep. Theodore Sedgwick on the eve of the First Congress. Madison could be obsessive, but he was also among the shrewdest political minds of his day. His goal in introducing the Bill of Rights, he wrote Jefferson, who strongly favored them, was to detach "deluded opponents" of the Constitution "from their designing leaders."
"Designing" meant exactly what it means now. "It is the plan of men of this stamp," wrote arch-Federalist Alexander Hamilton, "to frighten the people with ideal bugbears, in order to mould them to their own purposes. The unceasing cry of these designing croakers is, 'My friends, your liberty is invaded! Have you thrown off the yoke of one tyrant to invest yourselves with that of another?' "
The haze of time and myth obscures the loathing between some Federalists and anti-Federalists and the dramatic political change between the revolutionary era and the beginnings of Constitutional government in 1789. United as rebels against the British, the political leadership of the era had by the late 1780s split into camps, roughly divided by how far each would go in suppressing state sovereignty in the interests of a strong national union. The Constitution was unequivocal -- it declared acts of Congress the "supreme law of the land . . . anything in the Constitution or laws of any State to the contrary notwithstanding" -- and provoked a series of dramatic contests in the states over ratification.
While Henry, a five-term governor of Virginia and member of its House of Delegates, is mostly remembered for his pre-Revolution oratory ("give me liberty; or give me death"), his opposition to the proposed constitution and championship of a Bill of Rights during Virginia's ratification debate may have been his finest hour.
Henry, George Mason and others were unimpressed (correctly, as history proved) with the Federalist contention that the new government would confine itself to powers specifically enumerated in the Constitution. If that were the case, he said, "why not say so" in a Bill of Rights. "Is it because it will consume too much paper?
". . . . The necessity of a bill of rights," he said, "appears to me to be greater in this government than ever it was in any government before."
In September 1789, the First Congress sent 12 amendments to the states for ratification. The original amendment No. 1, relating to congressional apportionment, never got ratified.
The original amendment No. 2 did get ratified -- but not until 1992, when it became the 27th Amendment: "No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened."
Amendments three through 12 were ratified by the necessary 11 states by Dec. 15, 1791.
By default, they became amendments one through 10.
That is to say, Congress's original third amendment became the First Amendment displayed on the Mall today.
The 10 amendments remained "harmless" for about 150 years. In 1798, for example, the Bill of Rights did not stop the Alien and Sedition Acts, which allowed the imprisonment of 25 people, mostly editors, for exercising their rights of free speech and press.
Only in the 1950s, as the courts began applying the amendments to the states under the Civil War-era 14th Amendment, did the Bill of Rights take on legal and political significance.