The Constitution of 1787 was offered by its Framers with the evident expectation that citizens of the United States would understand it. Terms such as habeas corpus drew upon a generally respected political heritage. That heritage was drawn on as well in the argument heard in some quarters, during the Ratification Campaign of 1787-1989, about the immediate need for a bill of rights.
Bills of Rights were part of the heritage of the English-speaking peoples, as displayed in the English Bill of Rights of 1688. Such restraints upon exercises of governmental power went back to Magna Carta of 1215 (and even earlier). Various personal relations and property arrangements are thus taken for granted (some of them of long standing).
Also taken for granted, of course, is a common language, a language which accepts long-established authoritative texts. Among these was the King James translation of the Bible, a Protestant document which could appeal as well (because of its grandeur) to Roman Catholics, Jews, and agnostics. Then there was, of course, the deeply–engrained cultural heritage that had been provided by William Shakespeare and others.
It is, therefore, a mistake to regard the 1787 Framers as creating a constitutional system virtually from scratch. Nor are their “personalities” as critical as some now take them to have been. Political developments were much more important in determining who would be influential in various circumstances.
Such developments were also important in determining what aspects of a long-established System would be emphasized. Adjustments were called for in that system once Independence was secured and a permanent arrangement could be developed. Particularly dramatic was the thorough repudiation (for the States was well as for the United States) of titles of nobility.
Related to this insistence upon a thoroughgoing republicanism was the provision of a process by which an executive veto might be overridden by a legislature. This made explicit what was already happening among the British. The ultimate supremacy of the House of Commons was then well on its way to that general recognition evident today.
A different approach to those matters may be implicit in how various of the Framers are regarded. Thus, a distinguished scholar can refer (as many others do) to James Madison as the Father of the Constitution (Chicago Tribune, Oct. 2, 2013, sec. 1, p.18). This can evidently be done without any fear of rebuke either by esteemed colleagues or by informed editors.
This kind of recognition makes the fairly young Madison much more influential during the Constitutional Convention than he was. Much is made of him (as by a distinguished columnist in the Chicago Tribune, October 3, 2013, sec. J, p. 27), who can speak of “Madison having crafted our constitutional architecture of incentives” — much is made of him because of the notes he was able to make of the Convention debates. These, the most extensive notes made by any delegate during the months that the Convention sat behind closed doors in Philadelphia, are often regarded by many scholars as virtually “official”.
If there was any “Father of the Constitution,” it was Gouverneur Morris (of New York and Pennsylvania). He seems, that is, to have been the principal draftsman of the document we know as the Constitution of 1787. What he did, however, was not really to “father” the Constitution but rather to collect in a coherent form what had been agreed on by the Convention during months of debate, perhaps even having to fill gaps left by the Convention in an overall system.
Those who regard Madison as the “Father of the Constitution” are among those who also make much of him as one of the authors of the Federalist Papers. The author of the October 2, 2013 Chicago Tribune essay I have drawn on quotes what are generally regarded by scholars as one of the Federalist articles authored by Madison (the other authors being Alexander Hamilton and John Jay). It can probably never be determined precisely how many of the eighty-five articles were published without any significant modification by any of their authors’ colleagues.
But there are still other considerations with respect to the Federalist that should be noticed. Far more important is the recognition that these articles were designed to address issues that bore on the ratification in New York State of the proposed Constitution. The challenge in New York was anticipated by what had happened in the Constitutional Convention itself, where two of the three members of the New York delegation went home fairly early upon recognizing how “nationalistic” the overall Convention personnel were (among them, their fellow-New Yorker, Alexander Hamilton, was quite influential, partly because of his intimate connection with George Washington).
However important the Federalist articles may be as political discourse, they should not be regarded as authoritative interpretations of the Constitution. What is said in them depended, in part, on circumstances in New York, which could be quite different with respect to various provisions of the Constitution than what might be said in States where the proposed Constitution could be readily ratified. Indeed, the importance here of circumstances is reflected in the shifts in arguments made during the months during which the Federalist Papers were developed for New Yorkers.
To proclaim anyone as the “Father of the Constitution” is to be curiously uninformed as to what did, and did not happen, in 1789. But Madison can properly be recognized as the “Father of the Bill of Rights”. His 1789 efforts, as a Member from Virginia in the House of Representatives (in the First Congress) were critical in the development of the first ten amendments we know as the Bill of Rights.
Advocates of the Constitution had argued, during the Ratification campaign, that the elements that would be included in a Bill of Rights (something that was being insisted on by opponents to immediate ratification of the proposed Constitution) were already rights of the people whether or not recognized in any new document. Besides, it had been argued, various elements in a Bill of Rights were in the proposed Constitution. But Madison had been obliged to assure his Virginia constituents that he would promote, in the First Congress, a Bill of Rights – and this he did again and again.
There could be seen in the development of the Bill of Rights that we know as the first ten amendments to the Constitution the same kind of reliance upon a long-established system that may be seen in the development of the Constitution itself. Madison, when he made his efforts in the First Congress, could be confident that what was being proposed was quite familiar. All this was part of a system, it should again be recalled, that had been centuries in development among the English-speaking peoples on both sides of the Atlantic Ocean.
Among these traditional rights of the Anglo-American system, included in the Constitution of 1787 was an assurance of the writ of habeas corpus. Such an assurance presupposed a system of law quite familiar to citizens at large. It could be contrasted by some to such a system as that epitomized by the institution of the infamous Bastille in France.
It should be evident, upon examining various elements found in the bills of rights of the States as well as of the United States, that elaborate systems of personal liberty and property are taken for granted. Such systems can be so familiar as even to appear natural. This appearance can be reinforced by the apparent ease with which immigrants to the United States from around the world can, within two generations adapt to the system that they encounter here.
Such a system can be contrasted with that implied by such ambitious endeavors as the 1948 Universal Declaration of Human Rights. Such efforts can be respected as promulgations of aspirations. But the rights listed there come from diverse traditions, which can mean that most people worldwide are ill-equipped to understand them, let alone to act on them effectively.
We have noticed some of the things that happened, and did not happen, in 1787-1791 in the development of the Constitution and its Bill of Rights. Reminders of what happened there can be provided by the development in 1861 of a Constitution for the Confederate States of America. Critical to that effort was the considerable use made by the Secessionists of the Constitution they had inherited.
They knew what they wanted to keep of that inheritance, something reflected in their incorporation in the body of their Constitution of the bill of rights developed in 1789-1791. They also knew, of course, what they wanted to change, as may be seen in what is added (such as a pious exhortation in the Preamble) and in what is excluded (such as a power in the new government to minister to the general welfare). Fundamental, of course, to many of the 1861 changes made by the Secessionists to the Constitution of 1787 was the concern to protect not only the existence but also the extension of chattel slavery.
Their forebears had been inclined to identify slavery as a troubling institution that they chanced to have had imposed upon them. But the Secessionists, since they could not continue to regard slavery as an institution “in the course of ultimate extinction”, considered themselves obliged to extol slavery as “a positive good” for both the slaves and their masters. It should be instructive to consider what long-inherited principles are relied upon to develop such an apologia for the continuance of an institution that could once be recognized (by someone such as Lord Mansfield) as “odious”.
Critical both to the Constitution of 1787 and to its Bill of Rights of 1791 is the reliance on processes that are usually out in the open. It seems to be understood that questionable developments cannot bear public examination. At least, this is so wherever the public is sensible and has a say about who rules and how.
Such an understanding is implicit in an assurance of public access to the writ of habeas corpus. It seems to be implicit as well in such provisions as the requirement of a Congressional declaration before this Country can go to war. The States, on the other hand, are quite limited in what they can do in waging war.
The political system known to have been inherited is taken for granted throughout the Constitution. It is drawn on not only in the institutions that are established and the rights that are recognized but also in the insistence that each State in the Union is to have a republican form of government, something that is obviously on display in the General Government provided for the United States.
It should be instructive to reflect upon what can seem an odd feature of the Constitution, something that is seldom noticed. There are, for Presidents, Vice Presidents and Members of Congress, citizenship, age, and residence requirements. But there are no such requirements for the Judges of the United States.
This suggests that judges are expected to perform routinely duties that are not political in character. Rather, they are to study and interpret what others have written. Political judgments are obviously not expected in what they do.
This can remind us that there is no provision in the Constitution of 1787 for any routine exercise, by the Courts of the United States, of any power to review for constitutionality the laws enacted by Congress (except, perhaps, any law which may interfere with prescribed duties of the courts). This is consistent, of course, with the constitutional principles that had been inherited from the British by the Framers of 1787. The experience we have had, with routine judicial review of Acts of Congress, can encourage us to believe that the British have long known what they are doing when they refuse to permit judges to act as de facto legislators.
These remarks (prepared for a Loyola Chicago School of Law constitutional law seminar, October 7, 2013) should be included in Volume X (Reflections on Habeas Corpus¸ the Bill of Rights and the Constitution) in my projected ten-volume Reflections series (the fifth volume of which was published in 2013). See further, on James Madison as the supposed craftsman of the Constitution of 1787, Chicago Tribune, October 1, 2013, sec. J, p. 17.