Liberty Created The Philadelphia Contribution

even waxed enthusiastic in his great speech to a bored audience on June 8,
1789, when he presented the resolutions, famously predicting, if they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights;
they will bean impenetrable bulwark against every assumption of power in the legislature or Executive they will naturally be led to resist every encroachment upon rights stipulated in the Constitution by the declaration of rights.”
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This is not, however, the genesis of the rights-bearing individual, armed with a federal lawsuit to vindicate her entitlement. Indeed, the Bill of Rights is what one writer has called a mixed ore of individual rights, rights of
“the people and rights of states.
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It is highly selective. Madison had a couple of hundred suggestions for inclusion on his desk. Some of his personal preferences were omitted. The final draft contained twenty-two rights. It was not that he could not think of more, but there was no perceived need to write an exhaustive list. Indeed, to do so would not have been prudent. The
Bill of Rights was as much about structure and the distribution of powers as is the rest of the Constitution. The enterprise is summed up by the Ninth and Tenth Amendments. The Ninth Amendment makes it clear that writing some down did not deny the importance of others. Enumeration was not to be construed as denying or disparaging others retained by the people It was the conditions of liberty and not its definitive description that mattered.
The theme permeates the Constitution. The Tenth Amendment, reserving to the states or the people powers not delegated to the United States or prohibited to the states, embodies Madison’s conviction that the powers of the federal government were so textually limited that they could not endanger individual rights.
Madison failed to carry the day on two issues which would assume importance later. One was that he originally proposed to slot the amendments into the Constitution at the place he deemed most relevant, after the section dealing with limitations on the powers of Congress. The reason for this does not seem to have had ideological implications and it was not regarded as a crucial issue. As it happened the placing of the Bill of Rights as a freestanding codicil may have made it more plausible for antislavery advocates and some Republicans in the antebellum period to argue that it was a source of power to the federal government and a declaration of the rights of all
Americans wherever they resided.
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The other issue on which Madison failed to gain support was one that he regarded as of much greater importance.
His fifth resolution for amendment was a limit on the states rather than on the federal government. It prohibited them from violating the equal right of conscience, freedom of the press, or trial by jury in criminal cases His belief that the states were just as likely to be the source of danger to rights was borne out by history. It could not be fairly argued, however, that the road to civil war begins with the Founding Fathers failure to adopt this resolution.
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Madison himself acknowledged that his resolution bound the states only partially, with respect to particular rights There was never a serious prospect of imposing limits on state powers in a Congress whose eyes were firmly focused on potential dangers from the federal government. Madison’s proposal to give Congress a veto power overstate legislation met the same fate.
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As it turned out, the federal government never became a routine transgressor against individual rights. For most of the Constitution’s history,
indeed up to the New Deal, it was not sufficiently engaged in the everyday lives of its people to make such an impact. There was, for example, very little federal criminal law, and hence little need to invoke the protections which the Bill of Rights guaranteed to the accused. That is not to say that the fears of the Framers were unjustified. In times of emergency or conflict the federal government was potentially dangerous. In 1798, when the young United
States seemed on the brink of war with France, President John Adams signed the Sedition Act into law. One of four pieces of repressive legislation,
it ruthlessly restricted freedom to write, publish, or speak critically of the government. Interestingly, its Republican opponents reached not only for the First Amendment to argue against its unconstitutionality but for the Tenth Amendment and a structural argument that the power to limit expression had not been delegated to the government of the United States.
These arguments did not prevail and the law was never tested in the Supreme
Court. It did, however, occasion a serious debate about the meaning of the First Amendment and the importance of making constitutional limitations work. In this case the danger of war passed, calm returned, the law itself expired on March 3, 1801, and incoming President Thomas Jefferson pardoned those who had been convicted under it and freed those languishing in jail. If it was a lesson in vigilance, however, it was not one about the dangers posed by state and local governments.
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But what of Madison’s insight that states were just as likely to endanger the rights of man No theory of the Constitution allowed that states had such a power. The text of the Constitution, however, was thin on limits to state powers. There were some specific limitations, including a ban on ex post facto laws, bills of attainder, and laws impairing the obligation of contracts.
There was also federal protection from possible discrimination by states for those who traveled or did business outside their own state. The federal courts were given jurisdiction in cases between citizens of different states. And to the traveling citizen the Constitution guaranteed that The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States The best known judicial interpretation of this clause, in the 1823 case of Corfield v. Coryell, made it clear that strangers could expect to enjoy fundamental rights and be treated equally with respect to the protections of the law. The judge made no attempt to enumerate all the rights
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the clause guaranteed. It may include the franchise. Enumeration was too tedious he said.
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Traveling slaves had no right to federal protection, though their owners did, as the history of Dred Scott’s travels demonstrated.
If the visiting citizen had rights out of state, and in some very limited circumstances could call upon the Constitution and a federal court to protect them, it was more than the person who never crossed state lines could count on. If he found his rights in danger from his own state, the Bill of Rights was no help. Chief Justice John Marshall was only expressing a constitutional orthodoxy when he held, in the 1833 case of Barron v. Baltimore, that it was a limitation on the federal government and not on the states.
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The belief persisted, however, that states were adequately limited by their own state constitutions, their courts, and the art of responsive, participatory citizenship. Rascals could be voted out, and justice done. And it worked like that for some. The white, male, conforming, voting citizen probably did enjoy an unparalleled freedom in a spacious, energetic young democracy. Slaves did not. And if freed slaves after the Civil War looked to the existing legal status of free African-Americans, women, Chinese, or aliens as a model for freedom, they would not have advanced much further than under the infamous Black Codes with which the South greeted their emancipation.
Even white male citizens who did unpopular things, who spoke out of turn”
against slavery, got caught helping fugitives, or sought state justice against the better judgment of an angry citizenry, might talk to the moon about their rights. They certainly could not talk to the federal government. Between the federal government and the individual in the states there was a constitutional black hole, a place which in 1861 became of vital interest to the North . . and of no interest at all to the Confederacy, to judge from their new
Constitution.

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