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10 Subtle Insights into the Constitution
by Daniel June
Robert J. McWhirter, author of the book Bills, Quills, and Stills: An Annotated, Illustrated, and Illuminated History of the Bill of Rights, has provided a list of 10 common misconceptions about the Constitution and the Bill of Rights in an article he wrote on ABA Journal. As this relatively short document is the DNA of our country and the most important political document we have ever produced, it is worthwhile to take a close look at it. McWhirter gives us a closer view.
1.) Though we celebrate that “all men are created equal,” the spirit of this egalitarian creed only slowly embodied itself in Constitutional law. Originally, women, blacks, Catholics, and white men with little property could not vote. Abigail Adams wrote a letter to her husband John Adams on March 31, 1776, asking him to “remember the Ladies.” They wouldn’t be remembered until the 19th Amendment, nor black men until the 15th.
2) Some of what we as Americans take as universal rights were not included in the original Constitution. It provided no universal public education or worker’s rights, for instance. Though it recognized the right to civil jury, a habeas corpus petition, and prohibition on ex post facto laws, other rights such as the right to travel come from the Magna Carta of 1215, which is also the source of right to due process, and the presumption of innocence in a criminal case.
3) The Constitution and the Bill of Rights justified themselves in the name of “the People” and not in relation to the divine, or “God,” a word that doesn’t appear in the Constitution.
4) Another word not to be found in the Constitution or Bill of Rights is “democracy,” and indeed the Federalist Papers argued against a democracy. We live in a Republic.
5) The Bill of Rights were so called because the English Parliament passed a “Bill of Rights” in 1689. They were not a “bill” in Congress, and the need for such a “Bill of Rights” was debated before there was a Congress. James Madison intended to distribute the first ten amendments throughout the constitution, but Roger Sherman said they should be added at the end as “amendments.”
6) Furthermore, the Framers felt the Bill of Rights to be superfluous. Alexander Hamilton said “The Constitution is itself, in every rational sense, and to every useful purpose, a bill of rights,” and besides, every state already had their own bill of rights.
7) The Bill of Rights began not as 10 amendments, but over 200 proposals Madison culled from the states and political leaders, submitting 17 to Congress, based mostly on George Mason’s Virginia Declaration of Rights of 1776. Though the House approved all 17, the Senate rejected a few of them and combined others.
8) Though some claim the first amendment is first because of its priority, it was not originally first. It was originally the third, after an amendment about Congress’s size, and another about its pay. The first never passed, and the second passed on May 7, 1992, as the 27th Amendment.
9) The Bill of Rights did not meet universal approval. Some states balked, and Connecticut, Georgia, and Massachusetts only ratified it on the sesquicentennial of the Constitution in 1939.
10) If we count the Bill of Rights as part of the original Constitution, than it begins and ends with the People. The first words read “We the People,” and the final words in the Tenth Amendment are “to the people.” This is the natural stress of the document, which puts sovereignty in the republic that stands on the people, without direct reference to a divine order, nor of course to a king or singular human authority.
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