For nearly a quarter of a century, Americans debated the foundations of their republic and the nature of government in their new nation. Central to this argument were the individual protections from government and private intrusion vested to each person. The debate over human rights and whether they should be placed in the Constitution went to the very core of American citizenship and the value of individual liberty. Throughout this debate, and since, there has been an ongoing examination of what rights should be granted, and how those rights should be enforced (Kaminski and Leffler 12).
This debate came to a culmination during the drafting of the Constitution. Many states, who had enjoyed a fairly autonomous governmental existence from one another, feared that consolidating power in a central entity would result in surrendering much of their own influence and put their citizens at risk for possible intrusion from the newly created federal government. In order protect from this possible encroachment, these states argued for a guaranteed set of rights or liberties that protected citizens from imposition.
A central figure in the debate was Alexander Hamilton, who argued against this incorporation of a central set of rights. As a federalist, Hamilton wanted to establish a strong central government capable of competing with other nations on the international stage. His objections were numerous however his central argument was that by enumerating some specific rights, future yet unnamed rights may be precluded from protection. He wrote, in Federalist 84, “I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.(576)”
Others however pushed that it was vital for a guaranteed set of rights to be encased within the Constitution. Since ratification by nine of the original thirteen states was needed to pass the Constitution, in the end, it was James Madison, the Constitution’s author, who, although reluctant, proposed a Bill of Rights be added as a means to ensure ratification by the States. In his speech to the constitutional convention, he laid out the following argument,
I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary. (Madison)
With this proposal a Bill of Rights was drafted and added to Constitution, guaranteeing ratification by the states. We commonly view these rights as being negative in nature. Meaning that government is not obligated to provide benefits, but rather is capable of enforcing intrusions upon certain liberties that are protected as rights under the Constitution.
Since the ratification of the Constitution, the debate over rights for the last two hundred years has largely taken place within Congress and the US courts. After the Civil War, the 14th Amendment was added providing equal protection regardless of race. Still others have argued for the expansion of rights, namely in the sphere of economic protections for the poor. Over the course of the last century there has been significant debate over the foundations of our constitutional obligations with regards to rights. The United States has shifted from a strong focus on protecting property and contract rights to furthering protections for citizens and expanding the scope of individual liberty.
Many proponents have tried to argue that the Constitution should be seen as granting a charter of positive benefits requiring balance rather than a charter of negative liberties requiring checking. This approach would essentially call for finding basic rights where national and state legislatures have failed to act. In reflecting on the 200th anniversary of the Constitution, Justice Thurgood Marshall penned the following:
I do not believe that the meaning of the Constitution was forever “fixed” at the Philadelphia convention. Nor do I find the wisdom, foresight, and sense of justice exhibited by the framers particularly profound. To the contrary, the government they devised was defective from the start, requiring several amendments, a civil war, and momentous social transformation to attain the system of constitutional government, and its respect for the individual freedoms and human rights, that we hold as fundamental today. When contemporary Americans cite ‘The Constitution,’ they invoke a concept that is vastly different from what the framers barely began to construct two centuries ago. (23)
Thus the debate continues over the rights and protections that should be guaranteed under the Constitutional government of the United States. However, we are left to realize that references to the will of the “founding fathers” of the US Constitution does not necessarily mean that their will was unanimous but rather a great compromise in the name of rights and liberties for US citizens.
Works Cited
Kaminski, John P. and Richard Leffler. Federalists and Antifederalists: The Debate over the Ratification of the Constitution. 2nd ed. (revised). Lanham: Rowman & Littlefield, 1998.
Hamilton, Alexander. “On Opposition to a Bill of Rights.” Federalist 84. The Federalist Papers. Whitefish: Kessinger Publishing, 2004. 575--81.
Marshall, Thurgood. “Reflections on the Bicentennial of the United States Constitution.” 101 Harv. L. Rev. 1-5 (1987).
Madison, James. “Speech to House of Representatives Proposing Bill of Rights.” 1789. James Madison Center. 26 Apr. 2009. <http://www.jmu.edu/madison/center/main_pages/madison_archives/constit_confed/rights/jmproposal/jmspeech.htm>.
