The Patriot Post® · Talking Individual Rights
If you have been following our nation’s story (please say YES!), then you know it’s taken us weeks to draft a Constitution and then months for the states to ratify the documents. The opposition mounted by the Anti-Federalists threatened to derail the project, and the governmental structure would have reverted to the Articles of Confederation — disaster revisited.
While the Anti-Federalists — most notably George Mason, Patrick Henry, and Mercy Otis Warren — demanded a Bill of Rights, the majority felt English common law guaranteed the rights enumerated in the English Bill of Rights (1688-89). The Anti-Federalists argued that, with the separation from Great Britain, those rights — while even appreciated by tradition — would only be valid if they were a part of the United States Constitution. Otherwise, the governmental situation could change quickly if informed and engaged citizens lost interest in self-government.
The Federalists pointed to the number of “rights” already guaranteed in the completed document.
First, there were specific rights given to members of Congress so that civic discourse and debate could freely direct policy.
Members of Congress could not be arrested for anything said while in open debate. (We’ll see that immunity stretched during some of the more heated moments in our history.)
Neither can a member be arrested for any minor crime committed during session. (Let’s define “minor”…)
If any member of the executive or judicial branch were to be accused of misconduct, he would be guaranteed a fair hearing during the impeachment process. (Oh, another of those vague words…)
No person holding federal office could be forced to respond to a “religious test” before being installed in office. (Finally, a firm protection…)
Further guarantees protected individuals in states from their rights being violated by the state in which they resided.
States were required by constitutional provision to return any slave who had fled from one state to another. Slaves were considered “personal property” and, therefore, the Constitution protected the “property rights” of slaveowners. Imagine the decades of debate in Congress over the issues of slavery, slave trade, and slave expansion into the territories. In this case, perhaps the most volatile of issues was simply deferred to be settled later — by civil war and the 13th Amendment.
Congress was restrained from passing ex post facto law and bills of attainder. Not familiar with those terms? Most citizens would not be. An ex post facto law would make an act a crime even if it was not a crime when the person committed the act. (A sneaky way to deal with a difficult citizen or group of citizens, right?) A bill of attainder is a punishment prescribed by the Congress, not by a court. That guarantee also protects “unpopular” citizens or groups of citizens.
And then there is a category of rights of individuals protected from violation by the federal government.
Citizens accused of significant crimes are guaranteed the right to trial.
No habeas corpus! Long a right treasured by English citizens, habeas corpus guaranteed that no person under arrest could be detained for a lengthy time before being brought before a judge or into court. The individual’s release could be demanded unless lawful grounds are shown for the detention.
And then there’s the strict protections provided for any individual accused of treason. Think how easy it would be to remove political opposition if one could be charged with treason for unpopular ideas. Treason is more narrowly defined under the Constitution: 1) Treason can only be used if a citizen is fighting against the United States or he/she is “giving aid and comfort” to its enemies. 2) “No person shall be convicted of treason UNLESS on the testimony of two witnesses to the same overt act, or on confession in open court.” Breathe a sigh of relief. A charge of treason, so strictly defined, is much less likely to threaten the rights of individuals and the stability of the new republic.
But were these rights sufficient to satisfy the opposition?
No. And compromise — the mark of civic discourse and the new republic — is in the wind. Once again, it will be James Madison to the rescue. Ah, Jimmy, we never “knew ye”!