During and after the ratification debates the citizens of the United States seemingly grew more concerned about the protection that they would be afforded against arbitrary actions of the federal government.537 Delivering on his promise to the ratifying convention in Virginia, Madison, the ‘father of the Bill of Rights,’ presented to the First
531 Irving Brant, The Bill of Rights: Its Origin and Meaning (Bobbs-Merril 1965) Brant (n 517) 40 – 41;
Levy (n 422) 32, 39 and 41.
532 Brant (n 517) 41.
533 Rakove (n 420) 326; Levy (n 422) 22.
534 Levy (n 422) 31–32.
535 Ratification of the Constitution by the State of Rhode Island 1790; Ratification of the Constitution by the State of New York 1788.
536 Ratification of the Constitution by the State of North Carolina 1789.
537 Brant (n 517) 3.
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Congress his proposed amendments to the Constitution.538 From the seventeen amendments Madison submitted to Congress, many were adopted from the Declaration of Rights of Virginia, resembling some provisions of the Magna Carta and further included some proposals suggested by the ratifying conventions.539 It is, however, to be highlighted that Madison originally argued for the amendments to be made in the original text of the Constitution by adding the specific sections to specific articles in the original Constitution.540 However, ten of the proposed seventeen amendments by Madison were subsequently adopted as amendments and were added to the end of the original Constitution. Madison subsequently claimed, that this resulted in ‘great quiet’ in between the people for calling for a federal Bill of Rights.541
IV.2. The Bill of Rights
Even though the ‘American Magna Carta’542 comprises of ten amendments, an amendment is often found to include several rights guaranteed to the citizens of the Unites States against the federal government. The First Amendment, for example, contains a prohibition of the adoption of laws that would be in breach of either of four separate rights that can be found in the bill of rights and constitutions of most states of the United States of America. These are namely the ‘establishment’ and ‘exercise’
of religious freedom, ‘the freedom of speech or of the press’ or the right of peaceful assembly, and the right ‘to petition the Government for redress of grievances.’543
The Second Amendment ensures the establishment and maintenance of the armed forces of a state in its preamble, and grants people the right ‘to keep and bear arms.’544 Even though this right is often debated at current times, the provision to bear arms
538 Levy (n 422) 34.
539 Brant (n 517) 41; Levy (n 422) 34.
540 Richard Labunski, James Madison and the Struggle for the Bill of Rights (Oxford University Press 2006) 200.
541 Levy (n 422) 43.
542 Campbell v Georgia (1852) 11 GA 353, 367 - 368; Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (Yale University Press 1998) 155.
543 Constitution of the United States of America 1787, Amendment I.
544 Levy (n 422) 133.
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could notably even be found in the bill of rights of several states, such as Massachusetts and New York, not as a right, but as a legal requirement.545
Whilst the Third Amendment grants protection to the people of the United States from the quartering of soldiers in times of peace and war, similar to the provisions available in Massachusetts and New York, the Fourth provides protection against unreasonable searches and seizure, similarly to the protections in Massachusetts and Delaware.546
The Fifth Amendment contains five procedural fundamental rights mostly aimed at the protection of a person accused of a crime, some of which could also be found in the laws of Connecticut, Rhode Island, New Hampshire, Vermont, New York, New Jersey, Delaware, Pennsylvania, South Carolina and Georgia.547 The Fifth Amendment firstly guarantees a trial by grand jury for capital or ‘infamous crimes;’ secondly, prevents a person to be placed in double jeopardy for the same offence; thirdly, protects individuals self-incrimination; fourthly, prohibits the deprivation of ‘ life, liberty, or property, without due process of law;’ and fifthly requires ‘just compensation’ to be provided when a ‘private property’ is nationalised.
The Sixth Amendment also guarantees further protections for the accused person in criminal proceedings. These include the guarantee of ‘a speedy and public trial by an impartial jury’ in the state where the crime was committed, the right to be informed
545 Murrin (n 462) 73; Klein (n 440) 225 and 240.
546 Murrin (n 462) 10 and 88; Klein (n 440) 238; Gaspare J Saladino, ‘Delaware: Armed in the Cause of Freedom’ in Patrick T Conley and John P Kaminski (eds), The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison House 1992) 294–295; Levy (n 422) 10.
547 Christopher Collier, ‘Liberty, Justice, and No Bill of Rights: Protecting Natural Rights in a Common-Law Commonwealth’ in Patrick T Conley and John P Kaminski (eds), The Bill of Rights and the States:
The Colonial and Revolutionary Origins of American Liberties (Madison House 1992) 110–113; Conley (n 425) 132; Meyers (n 453) 168 – 171 and 175; H Nicholas Muller III, ‘Freedom and Unity: Vermont’s Search for Security of Property, Liberty, and Popular Government’ in Patrick T Conley and John P Kaminski (eds), The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison House 1992) 202; Levy (n 422) 7, 9 and 10; Klein (n 440) 236 – 237; Sheridan (n 447) 267–268; Saladino (n 547) 294–295; Alexander (n 426) 309–314; Sheridan (n 447) 267–268;
Saladino (n 547) 294–295; Alexander (n 426) 309–314; Michael E Stevens, ‘"Their Liberties, Properties and Priviledges”: Civil Liberties in Sourth Carolina 1663 – 1791’ in Patrick T Conley and John P Kaminski (eds), The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Madison House 1992) 412 and 420; Coleman (n 427) 453–454.
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about the charges against them, ‘to be confronted with the witnesses’, to obtain witnesses in their favour and the right to instruct a defence counsel.
Whilst the Seventh Amendment only provides for a single guarantee of a civil law ‘trial by jury’ for cases arguing for more than ‘twenty dollars’, this could be found in most laws of the states that have provisions similar to the Fifth Amendment. The Eighth Amendment prohibits three separate breaches of rights. These are the prohibition of
‘excessive bail’ and ‘fines’ – similar to the provisions of Delaware, Pennsylvania, South and North Carolina and Georgia548 - and the prohibition of the infliction of ‘cruel and unusual punishments’, parallel to the laws of Massachusetts, Connecticut, Delaware and South Carolina.549
As a resolution to avoid the criticism that the Bill of Rights does not enumerate all fundamental rights of the citizens of the United States, and following the proposal of the Anti-Federalists of the Virginia Convention, the Ninth Amendment provides a guarantee of the protection of rights not listed in the Constitution. This amendment further seems to signal that the Framers of the Constitution adopted the natural law approach: they were aware that not all rights could be enumerated in the Constitution as these may not have been discovered yet. Therefore, it is claimed, that the non-originalist interpretative method of the Constitution would be the most appropriate to allow for new rights or values to be included in the Constitution, in line with the developments of society. Therefore, if one was to follow the originalist method interpretation, this may prove more challenging as it could only be the rights not enumerated at the time of the adoption of the Bill of Rights that would be acknowledged as those deemed to be protected under this amendment.
The Tenth Amendment, similar to Article IV of the Declaration of Rights of Massachusetts, further grants powers ‘to the States respectively, or to the people’
when those are not delegated to the federal government in a constitutional
548 Saladino (n 547) 301; Alexander (n 426) 309–314; Levy (n 422) 7 and 9; Stevens (n 548) 420; Price (n 450) 430; Coleman (n 427) 453–454.
549 Murrin (n 462) 73, 74 and 88; Levy (n 422) 10; Collier (n 548) 110–113; Saladino (n 547) 301;
Stevens (n 548) 420.
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provision.550 Whilst this amendment aims to address a fundamental constitutional uncertainty over where the powers of the states commence and end, due to the unclear provisions that grant powers to the federal government, it becomes quite uncertain when the power of the states would stay with a state or be granted to the federal government.
IV.3. The proposed Amendment number XIV by Madison: The origins of the