By Rob McNally S.C.O.P.E. Chairman
The development and drafting of the Constitution led to a fierce debate. There were essentially two sides in this debate. There were those who favored a strong central federal government, and those who supported individual rights and states’ rights. Sound familiar? The difference is those that favored a strong federal government felt the individual rights added through the Bill of Rights later were inherent in such a strong federal government without the need of stating them explicitly.
Negotiations during the Constitution Convention of September 12, 1787 rejected a series of individual right guarantees because the primary consideration was to set forth machinery with which to keep the federal government functioning in its infancy. It was suggested in many of the writings of those in attendance over that summer, that the main fear was another prolonged debate over individual rights would prevent getting this mechanism up and running. Federalists believed this should be the primary focus (getting the government running) and had left out many of the guarantees later provided for in the Bill of Rights. Their argument was that Anti-Federalists promised just such a prolonged debate further in the fall of 1787 if such rights were not included. Therefore, the compromise that was reached was that a Bill of Rights would be considered once the basic Constitution was ratified.
Two of our most well known Founding Fathers were on opposite sides of this fence. Thomas Jefferson, known as an anti-federalist, did not attend the September convention, but wrote a letter in December 1787 to James Madison, another well -known founder, who sat on the federalist side of this fence. In the letter, Jefferson related that “[a] bill of rights is what the people are entitled to against every government on earth” and that it was a mistake to leave such out of the Constitution. Madison on the other hand was concerned that a more protracted debate, should such guarantees of individual rights be added, would foil any attempt at ratification. A year later (by the fall of 1788), Madison had switched sides and begun to agree that a Bill of Rights was necessary. This was after the ratification of the Constitution had been achieved by 11 current states in July 1788.
The first proposal for a Bill of Rights contained 12 amendments, not 10, and in fact, the task of pursuing this was undertaken by Madison himself. He was known to have referred to his errand as “a nauseous project” due to the litany of details that went into the number of considered ‘rights’ that needed to be declared.
You may do your own research to review all those ‘rights’ that were not specified, or ultimately were rejected either through debate or lack of ratification by the states. However, it is thought that a huge debt of gratitude should be provided to those arguing against such a Bill of Rights or more particularly, the entire Constitution for as Thomas Jefferson wrote, “[t]here has just been opposition enough” to force adoption of a Bill of Rights, but not to drain the federal government of its essential “energy.” George Washington was known to remark in agreement, “They have given the rights of man a full and fair discussion, and explained them in so clear and forcible manner as cannot fail to make a lasting impression.”
The largest argument against such a Bill of Rights were those who felt such rights needed no ‘spelling out’ in that they were unalienable and of such a nature as not needing any such guarantee, with the 2nd Amendment regarding self-defense and possession of arms being an example. But because of the ratification of this document we have a governmental ‘guarantee’; not a right ‘granted’, but a right ‘recognized’ by our own government as ‘God-given’ and documented in our Bill of Rights for reference.
• http://law2.umkc.edu/faculty/projects/ ftrials/conlaw/billofrightsintro.html