The Constitution of the United States of America: Analysis and Interpretation Part 140

[125] Jane Perry Clark, The Rise of a New Federalism, 91 (Columbia University Press, 1938).

[126] _See_ James Hart in 13 Virginia Law Review, 86-107 (1926) discussing President Coolidge's order of May 8, 1926, for Prohibition enforcement.

[127] Clark, New Federalism, cited in note 2 above; [Transcriber's Note: Reference is to Footnote 125, above.] Corwin, Court Over Const.i.tution, 148-168 (Princeton University Press, 1938).

ARTICLE VII

RATIFICATION

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Const.i.tution between the States so ratifying the Same.

IN GENERAL

In Owings _v._ Speed,[1] the question at issue was whether the Const.i.tution of the United States operated upon an act of Virginia pa.s.sed in 1788. The Court held it did not, stating in part:

"The Conventions of nine States having adopted the Const.i.tution, Congress, in September or October, 1788, pa.s.sed a resolution in conformity with the opinions expressed by the Convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of Congress as the place, 'for commencing proceedings under the Const.i.tution.'

"Both Governments could not be understood to exist at the same time. The new Government did not commence until the old Government expired. It is apparent that the Government did not commence on the Const.i.tution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognized by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new Government into operation. In fact, Congress did continue to act as a Government until it dissolved on the 1st of November, by the successive disappearance of its Members. It existed potentially until the 2d of March, the day preceding that on which the Members of the new Congress were directed to a.s.semble.

"The resolution of the Convention might originally have suggested a doubt, whether the Government could be in operation for every purpose before the choice of a President; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in March 1789 * * *"

Notes

[1] 5 Wheat. 420, 422-423 (1820).

AMENDMENTS TO THE CONSt.i.tUTION

AMENDMENTS NOS. 1-10

Bill of Rights

Page History 749 Ordinance of 1787 749 Formulation and adoption of the bill of rights 750 Bill of rights and the States: Barron _v._ Baltimore 750 Bill of rights and Amendment XIV 750

AMENDMENTS TO THE CONSt.i.tUTION

AMENDMENTS NOS. 1-10

Bill of Rights

HISTORY: THE ORDINANCE OF 1787

While the Const.i.tutional Convention was engaged in drafting the Const.i.tution, the Congress of the Confederation included in the Ordinance for the government of the Northwest Territory, adopted July 13, 1787, the following provisions:

"It is hereby ordained and declared by the authority aforesaid, that the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit:

"Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

"Art. 2. The inhabitants of the said territory shall always be ent.i.tled to the benefits of the writ of _habeas corpus_, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, _bona fide_, and without fraud, previously formed.

"Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

"Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: * * *"[1]

FORMULATION AND ADOPTION OF THE BILL OF RIGHTS

Two months later, at the very end of its labors, the Const.i.tutional Convention rejected, with scant consideration, a proposal by Gerry and Mason, to prepare a bill of rights.[2] This omission furnished the princ.i.p.al argument urged against ratification of the Const.i.tution.

Hamilton replied with the following ingenious argument: "* * * bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * It is evident, therefore, that according to their primitive signification, they have no application to the const.i.tutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."[3]

The people did not find this line of reasoning persuasive. Several States ratified only after Washington put forward the suggestion that the desired guarantees could be added by amendment.[4] No less than 124 amendments were proposed by the States.[5] Shortly after the First Congress convened, Madison introduced a series of amendments,[6]

designed "to quiet the apprehension of many, that without some such declaration of rights the government would a.s.sume, and might be held to possess, the power to trespa.s.s upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable * * *"[7] After prolonged debate seventeen proposals were accepted by the House two of which were rejected by the Senate. The remainder were reduced to twelve in number, all but two of which were ratified by the requisite number of States.[8]

THE BILL OF RIGHTS AND THE STATES: BARRON _v._ BALTIMORE

One of the amendments which the Senate refused to accept--the one which Madison declared to be "the most valuable of the whole list"[9]--read as follows: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State."[10] The demand for a.s.surance of these rights against encroachment by the States would not die. In spite of the deliberate rejection of Madison's proposal the contention that the first Ten Amendments were applicable to the States was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron _v._ Baltimore[11] in 1833, the argument was consistently rejected. Nevertheless the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection. Expression such as the statement of Justice Miller in Citizens Savings and Loan a.s.sociation _v._ Topeka that: "It must be conceded that there are * * * rights in every free government beyond the control of the States"[12] probably account for the fact, reported by Charles Warren that: "In at least twenty cases between 1877 and 1907, the Court was required to rule upon this point and to reaffirm Marshall's decision of 1833, * * *"[13]

THE BILL OF RIGHTS AND AMENDMENT XIV

After the adoption of the Fourteenth Amendment, a fresh attack was launched on that front. The rights a.s.sured against encroachment by the Federal Government were claimed as privileges and immunities which no State may deny to any citizen.[14] As early as 1884 the further contention was made that the procedural safeguards prescribed by these articles are essential ingredients of due process of law.[15] For many years, the Court continued to reject these arguments also, over the vigorous and prophetic dissents of Justice Harlan. With respect to the due process clause it held that these words have the same meaning in the Fourteenth Amendment as in the Fifth, and hence do not embrace the other rights more specifically enumerated in the latter, there being no superfluous language in the Const.i.tution.[16] In 1897, however, it retreated from this position to the extent of holding that the Fifth Amendment's explicit guarantee against the taking of private property without just compensation is included in the due process clause of the Fourteenth.[17] Later cases have established that the terms, "liberty"

and "due process of law" as used in Amendment XIV, render available against the States certain fundamental rights guaranteed accused persons in the Bill of Rights[18] and the substantive rights which are protected against Congress by Amendment I.[19]

Notes

[1] 1 Stat. 51 n.

[2] Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Const.i.tution, V, 538 (1836).

[3] The Federalist No. 84.