ORIGINS OF THE U.S. CONSTITUTION
HISTORICAL EVENTS CONTRIBUTING
TO THE ADOPTION OF THE
U.S. CONSTITUTION AND THE BILL OF RIGHTS
JUDGE EDWARD F. BUTLER, SR
for delivery on September 14, 2002 to the San Antonio, Texas Area Regents' Council of the
Daughters of the American Revolution ; reprinted on the NSSAR History Web Page, Dec. 2005
Our founding fathers did not create the U.S. Constitution or the Bill of Rights in a vacuum. Their concepts of liberty and freedom were developed through their education, personal experiences and political beliefs. That education and those experiences and beliefs were forged during thousands of years of political dialogue and experiments. The origins of our Constitution and Bill of Rights were founded upon the following historical events:
PHILOSOPHERS OF ANCIENT GREECE
Plato and Socrates were among the first men in the western world to advocate the idea of democracy. It is interesting to note that the Greek philosopher Socrates tutored Plato, who in turn taught Aristotle, who later instructed Alexander the Great. As Alexander conquered new territories, he brought a bit of democracy with him.
ANCIENT ROMAN GOVERNMENT
The Romans took the idea of democracy and put it to work. Roman Senators were democratically elected by citizens. Citizens of Rome had both duties (pay taxes) and privileges (right to vote, own property). They established a “democratic republic”. A “republic” is a form of government which is dedicated to promoting the public good. In a republic political authority is shared among it's citizens. This is true where the citizens cast their vote for elected officials. A “democracy” is a government based on the will of the majority of the people. Although Roman citizens enjoyed fewer rights than we have today, classical Rome promoted:
Moral education (good habits, religion and the arts)
Small uniform towns, which they thought fostered good government and limited bad emotions, such as greed and envy
CHARLEMAGNE, EMPEROR OF THE HOLY ROMAN EMPIRE (800 - 811)
Charlemagne was also known as "Charles the Great". He first was King of France from 768 until 814. On Christmas day 800, the Pope crowned him Emperor of the Holy Roman Empire, which at that time constituted most of Europe. He remained Emperor until his death. By the time of Charlemagne, Roman civilization had decayed. He is credited with
Creating a working government among the disorganized tribes and principalities
Codifying the conflicting unwritten laws of the various tribes that became a part of the Holy Roman Empire
Getting the people interested in education
ENGLISH COMMON LAW (1066)
William the Conqueror in 1066, established a feudal system in England. One was either a vassal or a lord. The vassals or serfs worked for the lord, or served in his army. In return, the lord fed, housed, and protected his vassals. Their respective duties to one another were all set down in contracts between them. Some refer to such a feudalistic system as “manorialism”, since the "land grants" were known as manors. Englishmen, enjoyed certain fundamental rights not enjoyed by other Europeans. These rights included
the right to a trial by jury
protection from unlawful entry
no taxation without consent
The British Constitution is an unwritten one. Citizens' rights in that constitution are derived from
the common law (which is based upon the written rulings of the courts)
acts of Parliament, and
political tradition and customs.
By the 13th Century, the common law had become rigid and unworkable. Each civil lawsuit had to fit precisely in the exact legal description or pigeon hole designed for that cause of action, or the citizen was out of luck. This created many inequities. The king made the Lord High Chancellor the “keeper of the king's conscious”. He set up the Chancery Courts, to dispense equitable justice, which the courts of law were incapable of doing. Thus, citizens now had both law and equity to enforce their rights. From these equity courts we derive such legal maxims as “You can't come in to Chancery Court with unclean hands”; and “He who seeks equity, must do equity.”
MAGNA CHARTA (1215)
King John attempted to usurp the rights of Englishmen. He was an evil king. For many years, many of his barons attempted to intercede on behalf of the people of England. Finally, In 1215, a group of barons met King John at Runnymeade, just outside London. There they forced him to sign the Magna Charta. He knew that they had the support of the church, and that he faced an uprising if he did not sign it. Although the Magna Charta established certain traditional rights and, by implication, a vow that the king would not violate those rights, the Magna Charta is most important because it established the idea of a limited government. American colonists found the following ideas embedded in the Magna Charta:
Powers of the sheriff were restricted
No taxation without representation
No interfere with the church
All free men were entitled to a public trial
All men were entitled to justice
For the first time in the western world, a written contract with the king provided that the monarch's power was not absolute, but rather, was limited. It spoke of rights that could not be violated. This amounted to a social contract between the king and the people. Some of its other ideas would later become more important. The Magna Charta defined the English constitution.
MAYFLOWER COMPACT (1620)
Although the Mayflower pilgrims followed the settlers of Jamestowne by 13 years, they were the first colonists to establish a legislative body to make laws and to appoint officers. This compact broke from English tradition, in which colonies were governed from London.
PETITION OF RIGHT (1628)
Some 21 years after the establishment of Jamestowne, Parliament, in 1628, forced King Charles I to sign the Petition of Right. King Charles had levied illegal taxes and had forced people to quarter or keep soldiers in their homes. The Petition of Right reaffirmed that taxes could only be raised with the consent of Parliament. It also guaranteed English subjects other rights, including one saying that they could not be forced to house and feed soldiers in their homes.
HABEAS CORPUS ACT (1678)
In 1678, the HABEAS Corpus Act required the government to provide a trial in a court of law to all who were arrested. Citizens were entitled to be brought before a magistrate; to be informed exactly what crime he or she was being accused of violating; and to be given an opportunity to post bail. The act provided that if there was no proof of the individual's guilt, they should be set free.
ENGLISH BILL OF RIGHTS (1689)
Following the Glorious Revolution, the English Parliament forced King James, II into exile; placed William and Mary on the throne; and won the right over the king to make the laws. The English Bill of Rights of 1689 was enacted to ensure that no monarch would ever be able to do what James II had done. It severely limited the power of the monarch and invested legislative power in the Parliament. It restated many of the freedoms and protections the people already enjoyed. However, it did not provide for freedom of religion, press, or speech.
ACT OF TOLERATION (1690)
The Act of Toleration extended religious freedom to Protestant dissenters and Roman Catholics.
John Locke (1632-1704) professed that all men had the right to life, liberty and property. He said that to protect those rights, men form governments and enter into social contracts with the government.
Charles Montesquieu (1689-1755) asserted that to protect the rights of the individual, the power of the government should be divided among different groups to prevent control by one group. His thoughts led to the “separation of powers” doctrine, that resulted in our executive, legislative and judicial branches of government.
Jean Rousseau (1712-1778) advocated that the government should act for the common good of all citizens, not just the majority.
THE WAR OF THE REGULATION (1768-1771)
This dispute was among the citizens of North Carolina. In 1768, a poll tax levied for the express purpose of completing the Governor's Mansion was the cause of the "Regulator Movement". Frontiersmen were hard up for cash, yet were assessed the same per person tax as the wealthy planters, merchants or sea captains, along the sea coast, who formed an aristocracy.
The westerners were self sufficient and hard working. The political machinery of the state was controlled in the east. At the time the poll tax was passed all the members of the Council lived in the east. In 1770 only 15 members of the 81 member council represented western counties, yet that part of the state accounted for about one third of the state population.
The local public officials and Militia officers were selected by the Crown, including the Justices, who in turn selected the sheriff. Frequently they were corrupt or oppressive or both. Regulators complained of these corrupt public officials on numerous occasions. Their complaints fell on deaf ears.
Riots broke out in several locations, with demonstrations elsewhere. Although the public was made aware of the unjust trial and imprisonment of several pioneers, the Council refused to take any action. The representative of the Crown ordered the local sheriff to arrest two leaders of the Regulators. Both were charged with inciting a crowd to riot. A crowd of 700 got their muskets and went to Hillsboro to rescue them. One was tried and freed; but the other (William Butler) was found guilty. Upon the advice of Governor Tryon, Butler was pardoned by the King.
The Governor in 1769 made an attempt at forming a new assembly with proportionate representation of the Regulators. Before the assembly could accomplish it goals the Governor disbanded it because he was offended by some of its resolutions. Finally, on 16 May 1771 there was a confrontation at Hillsboro, N.C. between 2,000 Regulators and a Militia force of 1,452, of whom 1,068 were from the east. Last minute efforts were made to discuss the grievances of the Regulators, but they refused to first disband and retreat. A short battle ensued.
Although the Militia won the battle of Almance, the Governor and the Council renewed their respective attempts to insure the fairness in the selection process for local officials and the regulation of their fees.
THE FIRST CONTINENTAL CONGRESS (1774)
The First Continental Congress met in 1774. It's purpose was to discuss the problems between the Colonists and England. Committees of Safety were being formed throughout the colonies. Civilian militia consisting of Minutemen were formed. On April 19, 1775, the "shot heard round the world" was fired at Lexington and Concord. The fighting ensued for over one year before the Declaration of Independence was drafted by Thomas Jefferson.
DECLARATION OF INDEPENDENCE (1776)
The Declaration of Independence proclaimed the sovereign rights of the colonists; directly challenged Britain's sovereignty over the colonies; and renounced the monarchy itself.
AMERICAN REVOLUTIONARY WAR (1776-1783)
The Revolutionary War was a reaction by the colonists to the repressive acts of Britain. New trade restrictions and taxes caused a festering sore. The Stamp Act, the Quartering Act of 1765, the Tea Act of 1773, and the Intolerable Acts, were among the laws the colonists felt were unfair. The major problem erupted when Britain challenged the colonists' belief in a representative form of government and the refusal of the English government to recognize the natural rights of the colonists. The phrase "no taxation without representation" sums up the problem. Patriots, such as the Sons of Liberty rebelled against the new acts. The Boston Tea Party, which immediately followed the Tea Act, heightened tensions between Britain and the colonies.
ARTICLES OF CONFEDERATION (1781)
The Articles of Confederation was the first honest attempt by the leaders of the colonists to create a new government, but it was like a toothless tiger. Each state was given one vote in Congress. Although it organized the former colonies into a "nation", the government had little power. It was intentionally created as a weak national government because the colonists feared a strong government. They had just left a strong monarchy. This government had no taxing power, and was forced to rely upon gifts from the states. It had no power over commerce among the states; could not enforce trade agreements; nor protect citizen's property rights.
CONSTITUTIONAL CONVENTION (1787)
Members of the Constitutional Convention were elected to make suggestions on how to change the existing government (Articles of Confederation). The Constitutional Convention was designed to give the central government some teeth. Instead, the delegates to the convention ignored the rules and created an entirely new constitution. It needed the power to raise revenues and the power to enforce it's laws . The Convention pitted big states against smaller states. The larger states felt it was unfair that states such as New Jersey , with a small land mass and less population should have as much power as the larger states, such as Virginia . Many plans were submitted, but the final decision about how our government would be formed was divided into two plans: the “Virginia Plan” and the “ New Jersey Plan” .
The Virginia Plan was promulgated by James Madison. It provided for a strong national government, which could make and enforce it's own laws, and collect taxes. It provided as follows:
Three branches of government: Legislative, Executive and Judicial. Under this plan the legislative branch was to become the most powerful branch. The executive branch and the U.S. Supreme Court Justices were to be selected by the legislators.
The legislative branch would consist of two houses:
- The House of Representatives, elected by the people, and
- The Senate, to be elected by the members of the respective state legislatures.
The two houses of the congress would be empowered to regulate commerce; collect taxes; to strike down state laws deemed to be unconstitutional, and to authorize the use of armed forces to enforce laws.
Both houses of Congress were to be represented proportionally to the population in each state.
Under the Virginia Plan, larger states were granted more congressmen and senators, and thus could control congress.
The New Jersey Plan favored the smaller states: It provided:
Three branches of government: Legislative, Executive and Judicial.
The legislative branch would appoint the executive branch.
The executive branch would select the Supreme Court Justices.
The legislative branch would have only one house, in which each state would be represented equally, so that all states would have the same power.
Congress would be empowered to regulate commerce; collect taxes; and state laws would be subordinate to those enacted by the national congress.
The New Jersey Plan in many respects mirrored the ineffective Articles of Confederation.
The Great Compromise (or Connecticut Compromise) took some provisions from each plan. The compromise was approved by a majority of only one vote. Our U.S. Constitution was based upon the following provisions:
Three branches of government: Legislative, Executive and Judicial.
A clear separation of powers among the branches
Congress was empowered to make laws, but the president was granted a power to veto them. His veto could be overridden only by a two-third majority.
Each state was to have two senators, making the voice of each state equal in the upper house. Each was be elected for a six year term.
Each state was to have congressmen based upon the population of the respective states. In the lower house, larger states controlled. Congressmen were to be elected for a two year term.
All laws passed by congress must be approved by both houses.
The President was empowered to make treaties; to appoint his cabinet members, ambassadors and Consuls; and to nominate members of the Federal Judiciary, subject to the “advise and consent” of the U.S. Senate.
The Supreme Court was empowered to rule upon the constitutionality of all laws passed by Congress.
Congress was prohibited from interfering with slave trade until 1808.
Since the Southern states were primarily involved in agriculture and were sparsely populated; and because the northern states were densly populated and primarily engaged in commerce; it was agreed that each slave would count as three fifths (3/5) of a person for the purposes of determining the number of congressmen allotted to each state.
The president was to become the Commander-in-chief of the military forces, but only Congress could declare war. Congress controlled the purse strings, so it could limit the power of the president to wage war.
The president was to be elected not by a popular vote of the people, but rather by “Electors”. Each state was allotted a number of electors equal to the total of it's congressmen and senators. This still favored the smaller states, since each has two senators, and was guaranteed one congressman no matter how small the population..
RATIFICATION OF THE U. S. CONSTITUTION (1788)
Ratification of the U.S. Constitution by the states was acrimonious. Those proposing ratification came to be known as “Federalists”. Opponents were called the “Anti-Federalists”.
The Anti-Federalists did not want the states to ratify the constitution because:
Too much power was given to the national government at the expense of the state governments. They were for “States Rights”
There was no “Bill of Rights.”
The national government could maintain an army during peacetime.
Congress, because of it's stated powers to pass all laws “necessary and proper”, wielded too much power.
The executive branch was also given too much power.
The Federalists argued that
The separation of powers into three independent branches protected the rights of the people.
That a listing of some rights in a bill of rights might fail to protect some rights not listed.
The Federalists, in order to obtain approval of the tenth state needed for ratification (New Hampshire), agreed that once Congress met, it would draft a Bill of Rights, which consisted of the first ten Amendments to the U.S. Constitution.
THE BILL OF RIGHTS (1788)
The Bill of Rights is contained in the first 10 Amendments to the U.S. Constitution. It provided that each U.S. citizen should have certain inalienable rights. The Bill of Rights, by Amendment number, are as follows:
Protected freedom of religion, press, speech and assembly.
Preserved the right to keep and bear arms.
Prevented the quartering of soldiers in private homes.
Prohibited unreasonable searches and seizures.
Required an indictment by a grand jury for crimes; prohibited double jeopardy; and prevented a person from being required to testify against himself, or be deprived of life, liberty or property without “due process of law”. It also prohibited the taking of private property without just compensation.
Guaranteed the right to a speedy and public trial, by an impartial jury, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the effective assistance of counsel for his defense.
Guaranteed the right to civil trial by jury.
Prohibited excessive bail, excessive fines and cruel and unusual punishment.
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” This was the cornerstone of the defenders of “states rights”.
Our constitution has weathered over 200 years. During those centuries, it has proved to be a strong, yet malleable framework for our government. It has been flexible enough to meet the challenges of a changing world.
The U.S. Constitution, with the Bill of Rights, is the end product of thousands of years of political thought and governmental experiment. It is the model used by other new democracies.
I like to think of the U.S. constitution as an accordion. It bends and stretches to meet the needs of the people, but yet is strong and reliable, and always comes back to it's original position. It provides a workable blueprint for the operation of government. At the same time, it is the most perfect document to protect the rights of the individual citizen against the power of the government.
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United States Constitution
ABOUT THE AUTHOR
Judge Edward F. Butler, Sr., is a retired U.S. Federal Administrative Law Judge. He obtained his B.A. degree in Political Science from the University of Mississippi in 1958. In 1961, he received his Juris Doctor degree, with honors, from Vanderbilt University School of Law, where he was a Ford Foundation Scholar. He has served as a Professor of Law and as an Adjunct Professor of Political Science, and has taught American Constitutional Law and Government at the university level.
Judge Butler currently serves as Vice President General of the International District, and as National Trustee of the National Society, Sons of the American Revolution. He also is the current president of the Mexico Society, SAR, and is president elect of the San Antonio chapter.
Ripley's Believe It Or Not, Jan. 27, 2005.
It contains many of the safeguards found in the 5th Amendment to the U.S. Constitution.
The language is strikingly similar to the provisions of the 5th Amendment to the U.S. Constitution.
Although the U.S. Bill of Rights provides for habeas corpus , president Lincoln repeatedly violated that Amendment to the constitution by placing newspaper editors and socialites in jail for expressing their views toward Lincoln and the atrocities committed by his troops. Many citizens languished in jail for the duration of the war, while others died there.
Why two senators? Why not just one? Each state would still have been represented proportionately the same in the Senate. The only difference is that the electoral college (which elects the president), in each state, contains the number of electors equal to the total number of senators and congressmen in that state. Thus, each of the small states received an extra vote in the electoral college. Question: which of the U.S. presidential elections would have resulted differently, had each state been allotted only one senator? Would Lincoln have won? Would there have been a war when the South left the Union?
The six year term of office of Senators versus the two year term for Congressmen, clearly provided more continuity, and thus more power in the Senate. This also favored the small states.
Note that during the War For Southern Independence, Lincoln pursued a war against the South without the aid of Congress. Each year from 1860 to 1865 he sent a request to Congress that the Union declare war against the Confederacy, but Congress repeatedly refused. It did however, allow him the funds to pay for the army and it's supplies. For this reason this war has been viewed by many scholars as an illegal war.
The tenth amendment was the crux of the battle between the southern states, which argued that if the power was not expressly granted to the federal government, then it was reserved to the states. This “States Rights” contention was brushed aside by the U.S. Supreme Court in upholding the constitutionality of the several Civil Rights Laws and Voting Rights Laws. They were upheld based upon the “due process of law” clauses of the 5th and 14th Amendments and the “equal protection clause” of the 14th Amendment.