The US Bill of Rights and Democracy

Article excerpt

THE key events in the founding of the United States as a new nation took place over a span of roughly 20 years - beginning with increased national self-consciousness and militant protests over aspects of British rule in the early 1770s, and concluding with the successful introduction of new political institutions in the late 1780s and early 1790s. The ratification of the first 10 amendments to the US Constitution - popularly known as the Bill of Rights - 200 years ago this month was the last great event of the founding.

The bicentennial has been accompanied by the publication of a raft of new books looking at the Bill of Rights, their legacy, and more generally at the democratic idea in America. Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Johns Hopkins University Press, 323 pp., $42.50 cloth, $10.95 paper), edited by Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford - three scholars who have guided the "Documentary History of the First Federal Congress 1789-1791" project - is a legislative history of the progress of the amendments through the Congress's first session. Work on the amendments was completed in September 1789, at which point they were submitted to the states for ratification.

Reading through the excerpts from the congressional debates reprinted in this volume, we are reminded again of the huge part played by James Madison in every stage of the drafting of the Constitution. Just as he had dominated the Constitutional Convention in Philadelphia two years earlier, so he steered the Bill of Rights through Congress in 1789, from his leadership in the House of Representatives.

Madison had a long life (1751 to 1836) and a distinguished public career; interestingly, though, his major contribution did not come during the time of his greatest political power, his two terms as president (1809 to 1817). It came instead when, while still a young man, he managed better than anyone else to grasp and articulate the new political institutions the infant republic was seeking.

The main pressure for a Bill of Rights came from the antifederalists - those who opposed the new Constitution. They argued that the amendments were needed to curb the national government, which they feared would be too strong and abusive of popular liberties. The Bill of Rights restrictions were written initially solely as checks on national authority, with no thought that they would apply to state government. Thus, the First Amendment requires that "Congress shall make no law respecting an establishment of religion... ."

In fact, though, most court decisions in modern times based on the key provisions of the Bill of Rights - found in the First, Fourth, Fifth, Sixth, and Eighth amendments - have involved state, not federal, action. This has come about through a series of Supreme Court decisions handed down between 1925 and 1969, involving what is known as "selective incorporation." The court ruled that various specific guarantees of the first eight amendments were applied against state infringement through the due process clause of the 14th Amendment. That is, the latter's requirement that states may not deny any person "life, liberty, or property without due process of law" now means in American constitutional law that states may not curb rights of speech and press or pass laws respecting "an establishment of religion specific First Amendment provisions; let their law-enforcement officials engage in "unreasonable searches and seizures" as prohibited by the Fourth Amendment; or deny defendants in their courts access to counsel for any reason, including indigency, a Sixth Amendment guarantee, and so on.

The 200th anniversary of the ratification of the Bill of Rights is marked by the publication of A People's Charter: The Pursuit of Rights in America, a fine narrative history, by James MacGregor Burns and Stewart Burns (Alfred A. …