English Antecedents to the Constitution and the Bill of Rights

English Antecedents to the Constitutionand the Bill of RightsI have worked rather loosely with the last topic of this session: English antecedents to theConstitution and the Bill of Rights. I am going to talk about English antecedents to theBill of Rights, but I also want to expand this topic to look at the Constitution and the Billof Rights as progressions, modifications, and Americanizations of English liberties. Mythesis is that in the Constitution and the Bill of Rights that we codified some Englishliberties from English antecedents, expanded and modified others, and in general gaveEnglish liberties a particular form and flavor.I want to begin in this session with the ending: the Bill of Rights becoming a part of theConstitution. How did the Bill of Rights become a part of the Constitution.The Formation of the Bill of Rights as the First response to public opinionThe Federalists (including James Madison) really did not believe that Bill of Rights wasnecessary and indeed was dangerous. Madison, James Wilson and Hamilton argued that abill of rights was not necessary because the government created was one of enumeratednot implied powers. The government had no power over these rights and thus would notviolate them. Also, the Federalists argued that it was dangerous to list the rights that wereprotected against violation by the government because any such list would be incompleteand the government could be led to assume power over areas where it had none.Sometimes the Anti-Federalists are said to be the champions of the Bill of Rights, butthey really were not worried so much about the protections for civil liberties as for"amendments" that would protect the powers of the state governments and prevent theExecutive, Congress, and the Judiciary from extending their powers.The leadership during the ratification struggle, then, did not so much care about the Billof Rights as they cared about the Constitution, either insuring its acceptance or rejection.The public, however, was deeply committed to provisions in the Constitution protectingan array of individual rights. Initially, the Anti-federalists used public fears that theConstitution contained no Bill of Rights to excite opposition to the Constitution. But afterthe VA and NY had ratified, Madisn pushed for a bill of rights to insure that theConstitution was instituted and that a second constitutional convention was not called.But why did the people want a Bill of Rights so much? Why did this issue become suchan important one in the ratification struggle? The answer to that question is that theirexpectations represented the culmination of several centuries of evolution in the rights -first of Englishmen and then of Americans. In asking for a bill of rights they were askingfor protections that their history had taught them that they needed and deserved. Tounderstand their expectations - especially why they had these expectations - and the

2rights that were eventually included in the Constitution and the Bill of Rights we have togo back to a series of documents that perserved liberties from the 13th century on:Americans drew inspiration from and looked to two English documents in particular (theMagna Carta and the English Bill of Rights), they looked and t colonial charters (whichof course are also "English antecedents"), and the state bills of rights to shape thesubstance and form of the Bill of Rights.These are the English Antecedents to Constitution and the Bill of Rights1. Magna Carta ("The Great Charter") - First passed in 1215, the Magna Carta is the mostsignificant of the documents in early English history that contributed to the historicalprocess that established constitutional rights and the rule of law. The Magna Cartaoriginally arose as a means of settling disputes between Pope Innocent III, King John,and his barons about the extent of monarchial authority and the obligations owed tonobles. King John was a weak and disrespected King whose right to the throne wascontested. Acting against King John, his barons took London by force and forced KingJohn to sign the agreement that eventually became known as Magna Carta. Section 61 ofthis Magna Carta - known as the "security clause" - established a committee of 25 baronswho were given the power to meet and overrule the King and to seize his castles andtakes his possessions.After signing this document under duress, King John immediately recanted and plungedthe nation into Civil War. But he then promptly died. His nine year old son was the heirto the throne and Henry III's regents had him resign the Magna Carta with section 61ommitted. Magna Carta was actually signed in 1216, 1217, and 1225.If you read Magna Carta today - especially if you do not have a solid understanding ofEnglish history - you will be perplexed by its significance. it is mostly a combination offeudal rights and obligations, specifying liberties for English Barons, not ordinaryEnglishmen. But it also contains a series of judicial rights that allowed for a fixed court,held that fines should be proportionate to the offense, and that people should be tried bytheir peers. In general, Magna Carta required that the King respect certain legalprocedures and accept that the will of the King could be bound by law. Magna Carta thusrepresents a prominent step toward limited, constitutional monarchy and the rule of lawover the rule of men. Magna Carta became retrospectively important to later generationsof Englishmen and Americans as a charter of liberty.2. English Bill of Rights - A second important document in the evolution of libertytoward the understanding set forth in the Bill of Rights is the English Bill of Rights. TheEnglish Bill of Rights was the culmination of the Glorious Revolution that led to theascendancy of William and Mary to the throne. William of Orange landed with his armyin England on 5 November1688. After defeating James II, William was offered thethrone with Mary in April 1689. They agreed to the Declaration of Right, which was theEnglish Bill of Rights, as a condition of accepting the throne.

3The English Bill of Rights is a basic document of English liberties and Englishconstitutional law. It provides for a long list of positive rights that citizens ought to haveand it requires that actions of the Crown receive the consent of the governed asrepresented in Parliament. It was thus a list of specific individual rights and a statementabout the collective rights of Englishmen as represented in their Parliament.The English Bill of Rights possessed certain immutable civil and political rights. TheKing was forbidden from establishing his own courts or acting as a judge himself.Freedoms from taxation without agreement by Parliament. Freedom to petition the King.Freedom from a standing army in a time of peace unless Parliament agreed. Freedom forProtestants to have arms for defense. Freedom of Speech in Parliament - not questionedoutside of parliament for what they said inside it. (Article I, Section 6 of the Constitution:"They shall in all cases except treason, felony, and breach of the peace be priviledgedfrom arrest during their attendance at the session of their respective Houses, and in goingto and returning from the same; and for any speech and debate in either House, they shallnot be questioned in any other place." Freedom from cruel and unusual punishments andexcessive bail. Freedom from fines and forteitures without trial.3. Colonial Charters: A final English antecedent to the Bill of Rights was the colonialcharters that Americans fashioned as they settled the new world. Some examples include"the Massachusetts Body of Liberties"4. The most important antecedent to the Bill of Rights was the state Bills of rights -especially George Mason's Virginia Declaration of Rights- that were passed followingindepedence. The call for Independence on July 4th, 1776 led all but two of the states towrite new constitutions. Connecticut and Rhode Island simply adopted their colonialcharters as their form of government, eliminating the monarchial references. When theywrote these constitutions, almost all of the states These documents contained essentiallyall of rights that were eventually contained in the Bill of Rights.5. The recommendatory amendments of the state ratifying Conventions.My point then is that if you want your students to understand the form and substance ofthe Bill of Rights and why ordinary Americans could not think of a constitution withoutone, then you need to march them through some of the foundational documents thatestablish English liberties and in their colonial and revolutionary experience. When youhave finished with that take them to the Constitution and the Bill of Rights and examinethe liberties protected in each to show them the codifications, modifications, andexpansions of English liberties.6. The United States Constitutiona) Treason - Considered in Article III, Section 3 (I and II) of the Constitution: "Treasonagainst the United States, shall consist only in levying War against them, or in adheringto their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treasonunless on the Testimony of two Witnesses to the same overt Act, or on Confession in

4open Court. (II) "The Congress shall have the Power to declare the Punishment ofTreason, but no Attainder of Treason shall work Corruption of Blood, or Forfeitureexcept durng the Life of the Person attained."Notice three things here. First, treason is given a very strict and difficult to provedefinition. It consists only of actually levying war and giving aid and comfort to theenemy. Parliament in England until 19th century used treason as a broad catch allaccusation. To prove treason in the US, you must have two witnesses to the same overtact. Second, the Constitution guarantees a public trial to those accussed of treason. InEngland, Parliament - not the Courts- had often tried Englishmen for treason and putthem to death. Third, Article III barred the federal government from imposing anycorruption of blood in treason cases. The property of the child or the family could not betaken as a result of the actions of the father. In the United States, no child could bepunished for the sins of the father. In England until 1834, "a feudalistic treason ruleallowed the Crown to lawfully seize a traitor's homestead from the family." (Amar,America's Constitution: A Biography. 242-245.)b) The Writ of Habeas CorpusArticle I, Section 9 (Under prohibitions against Congressional Power): "The privilege ofthe Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion orInvasion the public Safety may require it." The Writ of Habeas Corpus is one of the mostimportant constitutional guarantees and a legacy of English common law traditions.Habeas Corpus means literally, "you have the body." A writ of habeas corpus makes thegovernment explain why it is holding someone. What Article I, Section 9 this means isas, Akhil Reed Amar put it, "in the absence of any extreme circumstnance, courts wouldremain open to hear all challenges to the lawfulness of executive detention."The power to suspend the writ of habeas corpus lies in Congress, but what if Congress isnot in session. Can a President do this. Lincoln of course did it and argued that it wasconstitutional because it was necessary. Taney rejected Lincoln's contention (in a rulingthat he made alone) and Lincoln ignored Taney's ruling.c) Prohibitions against Bills of Attainder, Ex Post Facto Laws, Titles of NobilityUnder both sections 9 and 10 of Article I, Congress and the states are prohibited fromissuing Bills of Attainder, Ex Post Facto Law, and granting any titles of nobility. A Billof Attainder is when a legislature names a particular individual and pronounces him orher guilty of a capital crime. Parliament had done this often. Most infamously, they hadissued a bill of attainder calling for the death of Thomas Wentworth, the Earl of Stafford,an influential crown adviser in 1641.Ex Post Facto Laws are "retroactive statutes making conduct that was innocent whencommitted, criminally punishable." This was possible under English common law at thetime of the drafting of the Constitution, not in the United States.

5Neither a state nor the national government can confure a title of nobility under theConstitution. Obviously, England with a King has a noble with a title. Republicancharacter of the Constitution.Prohibition Against Religious Test Oaths in Article VIThe Senators and Representatives before mentioned, and the members ofthe several state legislatures, and all executive and judicial officers, bothof the United States and of the several states, shall be bound by oath oraffirmation, to support this Constitution; but no religious test shall ever berequired as a qualification to any office or public trust under the UnitedStates.d) Slavery in the United States Constitution1. 1808 Slave Trade Provision2. Fugitive Slave Clause3 3-5 fifths clause. Population is determined and then representatives are apportionedamong the states according to the percentage of the population that a state has. Under theoriginal Constitution, men, women, children, and .60 of slaves were counted for eachstate for purposes of apportioning representatives. There was a synergy between theslave trade provision and the 3-5 clause. Because of the three-fifths clause, states had anincentive to increase the number of slaves in the state and thus to increase theirrepresentation in Congress.7. The Bill of RightsSome generalizations.a) Roughly half of the rights protected in the Bill of Rights are rights of the accused.Americans may complain that "the criminal goes free because the constantableblundered," but the Bill of Rights is set up to make sure that the constable is restrained.b) Many of these rights are legacies of British practices during the American Revolution.The third amendment ban on the quartering of troops was enacted because the British hadquartered troops. A warrant was required specifying the persons and place to be searchedbecause the British had engaged in general warrant searches or writs of assistance.c) Some of the rights protected in the Bill of Rights clearly have the status of naturalrights, some do not. The rights to freedom of speech, press, and religion are among thenatural rights protected. A jury trial in civil or even criminal cases is not easilyestablished as a natural right.d) The 9th amendment addressed the Federalists concerns that unenumerated rightswould not be protected.

6Some Generalizations:1. The American Constitutional system codified a great deal of English liberty.Constitutional liberty might well be first thought as a product of English inheritance, butAmericans made the inheritance grow and the English Antecedents to the Bill of Rightsdiffer in a number of ways from the Bill of Rights:1. The Magna Charta and the English Bill of Rights were concessions demanded - andwon - from a sovereign (The King). The Bill of Rights recognizes rights as autonomousspheres of power that the state cannot invade.2. The adoption of the Bill of Rights was the culmination of the recognition of naturalrights - rights that have their authority in nature. Several of the rights recognized in theBill of Rights, particularly the rights to freedom of speech, the press, and especially theright to freedom of religion were recognized as natural rights by the Founders. Incontrast, the "rights" protected in English antecedents such as the Magna Charta and theEnglish Bill of Rights are pledges that the King has made to recognize certain privilegesof his subjects. No presumption is made that these rights adhere in individuals as a resultof the authority of nature or their nature as humans. The British Constitutional Systemrests more in the common law and positive law traditions than the natural law and naturalrights traditions adopted by Americans.3. The rights recognized in the Bill of Rights are strict prohibitiions against stateinterference. The rights recommended in the English Bill of Rights, Magna Charta,colonial charters, and the state bills of rights often take the form of recommendations.4. The Bill of Rights - the 1st ten amendments to the Constitution - and the Constitutionillustrate the secularization of constitutions in the United States from the colonial periodto the 18th century. The specifically Christian character of the colonial charters and theChristian character of the liberties protected in those documents and the crimes punishedcan be sharply contrasted with the secular character of the Bill of Rights and theConstitution.