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I am publishing some of my blogs from http://web.me.com/keydet/Site_2/Blog/Blog.html on this site.  Enjoy.

I was recently reading another blog where there was a discussion of what our Bill of Rights means.  I was struck by the fact that there were such divergent views over what the language said.  I am familiar with the language of Madison’s proposals, so I decided it would be interesting to compare the language of Madison with what was proposed by Congress and ultimately ratified by the states.  I have chosen to put my own commentary after each one giving my thoughts on the language and how if Madison’s language had been adopted it might have changed some of the debates which are been a hallmark of our nation’s history.  I will break this down into two or three parts.  Enjoy.Madison Language

First, That there be prefixed to the constitution a declaration, that all power is originally rested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

Constitution and Bill of Rights

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Commentary

Clearly Madison, by wanting to amend the Preamble, by inserting language that if drawn from the Virginia Declaration of Rights and from the Declaration of Independence was preempting the incorporation of the Declaration of Independence into the constitutional fabric of our nation; accomplished by Lincoln in the Gettysburg Address.  (See generally Gary Wills, Lincoln at Gettysburg.)  The question is whether this would have altered the history of our nation any—I doubt it, as the causes of the civil war economic, political, and slavery were already part of the fabric of the nation.

Madison

Secondly, That in article 1st, section 2, clause 3, these words be struck out, to wit:

“The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;” and that in place thereof be inserted these words, to wit: “After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to —, after which the proportion shall be so regulated by Congress, that the number shall never be less than —, nor more than —, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.”

Commentary

While never passed, this amendment would have had profound impact on the nation.  Based on Mr. Madison’s logic, we would have 10000 representatives in Congress; clearly he recognized the foolishness of maintaining the 1 to 30,000 ratio by giving Congress the power to determine the size of Congress.  The interesting note is despite basing representation on population, Mr. Madison, proposed that each state be given a minimum of two representatives.  This would ensure a minimum representation for each state regardless of population.  How would that have affected DC Statehood?

Madison

But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.

Constituion

Amendment XXVII

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Commentary

Better late than never.  Does this have any real impact?

Madison

The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Constitution

Amendment I

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.

Commentary

Here we see, Congress even in the first session, taking short cuts in language.  Rather than relying on the words of Mr. Madison, they chose to bundle several together.  The net result is we are left with a muddle regarding what the First Amendment means.  If we take the words of Mr. Madison at their face value, the exercise of citizenship may not be abridged on the account of individuals’ religious beliefs.  This would have precluded all the unnecessary litigation over whether someone must stand during the Pledge of Allegiances, especially when taken with the next clause.  This would end the posturing of those who object to all sorts and manner of religious expression, or expression on non-religious views.

The next clause clearly recognizes that the peoples write to speech, writing, or publish sentiments clearly at odds with the prevailing views shan’t be abridged.  But when taken with the preceding clause which states “shall the full and equal rights of conscience be in any manner, or on any pretext, infringed” it is evident that dissenting and heretical views were to be constitutionally protected.  This would mean that Eugene Debs would not have gone to prison for his views, that the Red Scare and the tactics of Joe McCarthy would have been tempered.  (I don’t believe for a moment that Joe McCarthy would not have emerged as his kind are an integral part of the American political landscape.)

The Third Clause clearly represents Madison’s belief that there should be no abridgement on the right of the people to peacefully assemble (one should not be surprised by his use of peacefully as Madison saw the duty of both the people to be orderly and government to preserve liberty.)  Madison also believed that the redress of grievance to government was essential aspect of a representative democracy and would serve as a check on the power of government.

The last clause is most interesting, and while separated from the preceding clauses in Madison’s speech to Congress, nevertheless, represents his belief that certain core rights should not be abridged by any state.  Under John Marshall Court, in Barron v. Baltimore ruled that the Bill of Rights were not binding on the states only the federal government.  It is not until the passage of the fourteenth amendment and the selective incorporation by the Supreme Court of the Bill of Rights that states have been bound by the Bill of Rights.  It is interesting that the anti-federalists were more concerned about the abridgement of rights by the central government and not the state governments and not the state governments.  Their rationale was all the states, except one, provided for a Bill of Rights in the states fundamental law.  Except for the Alien and Sedition acts, in the abridgement of individual rights in the ante-bellum period, it was state governments, in particular southern state governments who abridged the rights of the individuals to speak their mind and when in was denouncement of slavery if state coersion did not succeed then the people would resort to violence.  There are also examples in the North, not so much of state action, but individual action against people opposed to slavery.

Madison

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

Constitution

Amendment II

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.

Commentary

The language proposed by Madison would have forestalled any debate over the right of the people to keep and bear arms.  In Madison proposal, the first independent clause clearly states the right of the people to keep and bear arms shall not be infringed.  Whereas in the language adopted by Congress, the right of the people to keep and bear arms is a dependent clause that does not stand-alone as a comma and not a semi-colon separates it.  It further states, what is generally accepted, but again by an independent clause separated by a semi-colon, that local militias are a necessity to a free people.  What I find most interesting is the last clause, again Madison recognizing the power of the majority opinion and the state, made it clear that those who have religious beliefs shall not be compelled to bear arms or serve in the military.  Here Madison once again demonstrates his understanding of human nature and that one of the roles of the fundamental law of the nation is to protect the insular minority against the power of the majority.


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