One of the most ardent proponents of a Bill of Rights for the U.S. Constitution was Patrick Henry. During the Virginia Ratifying Convention he repeatedly and doggedly advocated that a list of fundamental liberties – free speech, freedom of religion, right to a jury trial – be explicitly listed as being out of reach from federal power.
At the time of the Convention, states had adopted their own Bills of Rights enshrined in their respective Constitutions. Virginia was no exception. As Henry viewed it, if the people saw fit to impose such express limitations on their state governments, then it was absolutely imperative to include similar restrictions on a new central government with powers greater than any that had been proposed among the American states.
On June 16, 1788 he said:
“The necessity of a Bill of Rights appears to me to be greater in this Government, than ever it was in any Government before. I observed already, that the sense of the European nations, and particularly Great-Britain, is against the construction of rights being retained, which are not expressly relinquished.
“It is so in Great-Britain: For every possible right which is not reserved to the people by some express provision or compact, is within the King’s prerogative. It is so in that country which is said to be in such full possession of freedom. It is so in Spain, Germany, and other parts of the world.
“If you intend to reserve your unalienable rights, you must have the most express stipulation. For if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up.” [Emphasis added]
Federalist supporters of the Constitution argued a Bill of Rights was not necessary, due to the structure of delegated and reserved power. James Wilson, most prominently, noted that adding it “would have been superfluous and absurd.”
In other words, writes Dave Benner, “the proposed Constitution only allowed the general government to exercise the powers enumerated. To restrict it from exercising powers it was never granted in the first place – through a bill of rights – was counterintuitive.”
However, Henry insisted that this was novel, and the Constitution would inevitably be construed to mean that the only limitations on the new government were those specifically mentioned.
On June 17, 1788, he said:
“Give me leave to remark, that there is a Bill of Rights in that Government. There are express restrictions which are in the shape of a Bill of Rights: But they bear the name of the ninth section. The design of the negative expressions in this section is to prescribe limits, beyond which the powers of Congress shall not go. These are the sole bounds intended by the American Government. Where abouts do we stand with respect to a Bill of Rights? Examine it, and compare it to the idea manifested by the Virginian Bill of Rights, or that of the other States. The restraints in this Congressional Bill of Rights, are so feeble and few, that it would have been infinitely better to have said nothing about it.” [Emphasis added]
Henry argued further that there was no reason not to include a Bill of Rights. Were it put into the Constitution, it would not endanger any rights nor potentially be construed as to deny the federal government of powers the Constitution expressly delegated to it. But without a bill of rights more extensive than the limitations in Article 1 Sec. 9, the new government would have extensive power over the people.
“That Bill of Rights secures the great and principal rights of mankind. But this Bill of Rights (Section Nine) extends to but very few cases, and is destructive of the doctrine advanced by the friends of that paper
“Our own Government triumphs with infinite superiority when put in contrast with that paper.—The want of a Bill of Rights will render all their laws, however oppressive, constitutional. If the Government of Virginia passes a law in contradiction to our Bill of Rights, it is nugatory.” [Emphasis added]
While Article 1 Sec. 9 erected safeguards against certain potential powers, Henry noted that other cherished rights were not protected anywhere in the document. While the ratifiers might agree as to whether Congress lacked the power to undermine those rights, what was to stop Congress itself from doing so sometime in the future?
As Henry put it:
“You are told, that your rights are secured in this new Government. They are guarded in no other part but this ninth section. The few restrictions in that section are your only safeguards. They may control your actions, and your very words, without being repugnant to that paper. The existence of your dearest privileges will depend on the consent of Congress: For these are not within the restrictions of the ninth section.
“I trust that Gentlemen, on this occasion, will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right secured, before they agree to that paper. These most important human rights are not protected by that section, which is the only safeguard in the Constitution.—My mind will not be quieted till I see something substantial come forth in the shape of a Bill of Rights.” [Emphasis added]
Henry and many others who pushed for a bill of rights prevailed, and the Bill of Rights were ultimately added to the newly-ratified U.S. Constitution.
Among them was the Tenth Amendment:
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.
The Bill of Rights conveyed two philosophical beliefs Henry championed. First, it made it undeniably clear that certain liberties were to be guaranteed and/or beyond the scope of the federal government. Secondly, it made it evident that the new government was limited to powers expressly delegated, rather given broad authorities only restricted when specifically stated.
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