Week 2 - Origins of the Bill of Rights

What did George Mason argue about in regards to the bill of rights?

bills of rights in the state constitutions were not adequate to protect, need national bill of rights

What specific freedoms did Mason want to be preserved in the bill of rigths?

liberty of the press, trial by jury in civil cases; against the danger of standing armies in time of peace.

How did the bill of rights come to be?

Congress proposed 12 amendments, 10 ratified and became bill of rights

Federalist were obligated…

defend Constitution as it had been proposed

According to Wilson, what can state legislatures do?

Anything that isn’t specifically forbidden in state’s constitution

According to Wilson, what can Congress do?

only what the Constitution specifically gives it the power to do. If a power isn’t listed, the federal government doesn’t have it.

Why Wilson believes Bill of rights is unnecessary

Since the federal government only has powers explicitly granted to it, it cannot take away people’s rights

Why does Wilson believe addings a Bill of Rights can be potentially dangerous?

wording can imply that Congress starts with a broad general power over your life and rights, and the Bill of Rights just carves out a few exceptions.

Why does Wilson believe Bill of Rights is risky in government with only listed (enumerated) powers?

“imperfect enumeration” of rights, if you try to list all the rights of the people, then anything not listed might be treated as if it is not protected

Why does Wilson believe listing (enumerating) powers of only the government is better?

This “imperfect enumeration” of powers is safer, because then anything not listed is assumed to belong to the people, not the government.

What does Wilson argue is impossible to do in the Bill of rights?

list all the rights of the people

Why does Wilson argue that listing all the rights of people is impossible?

• People have rights as humans (natural rights like life, liberty) and as citizens (political rights in a society), rights are countless and hard to pin down completely even by experts

How does James Iredell analogize the Constitution?

like a power of attorney: it spells out exactly what the government can do, government cannot go beyond that list

What does Iredell say about basic unalienable rights and the power government has over them?

unalienable rights (like life, liberty) are never given up, No need to list them; because government wasn't granted power to take them anyway

Why does Iredell think listing rights could backfire?

Iredell says for any list you make, he can name "20 or 30 more" rights left out, incomplete list creates a dangerous illusion that unlisted rights might be fair game for government control

Why was Jefferson claimed was assumed by Wilson’s arguments?

federal government only has explicitly listed powers, so everything else stays safe with the people automatically. Jefferson called this an unproven assumption — a "gratis dictum"

What two red flags did Jefferson point out in the Constitution that suggest unlisted rights don’t automatically go to the people?

1. Constitution's actual wording and structure as suggesting broader federal power (ex: Necessary and Proper Clause)

2. Omission of Confederation clause in Constitution that explicitly reserved powers to people

What was Jefferson’s belief regarding the necessity of the Bill of Rights?

Bill of Rights isn't optional; it's what people deserve against every government — federal or state, must explicitly promise not to violate core right

What does Brutus believe people must do with some of their natural rights?

surrender some natural rights to government to protect the common good (security, order), But keep essential rights like conscience, life, and liberty — these can’t be given up.

What does Brutus essay say about why the government needs something like a Bill of Rights?

governments need explicit limits, like laws restrain individuals.

How does Brutus essay describe the federalist argument?

“specious” (looks good but false)

How does the Brutus essay counter the federalist belief that feds get “only listed powers” while states get all unreserved powers?

Constitution grants sweeping, complete authority over its domains (commerce, taxes, war) — touching life, liberty, property directly, just like state
- Iif states needs rights list, feds do too

What are four examples in the original constitution does the Brutus essay list are expressly stated in Constitution that block implied powers in other broad clauses?

• No suspending habeas corpus (right to court challenge imprisonment) except in rebellion/war.

• No bills of attainder (punishing people without trial).

• No ex post facto laws (retroactive crimes/punishments).

• No titles of nobility.

Why these implied powers are threatening to the American people?

Same implied powers threaten Bill of Rights stuff (speech, guns, searches, religion). Selective protection = incomplete & suspicious — full list required.

What does the Brutus suspect why framers didn’t include bill of rights?

didn't want limits — they picked minor protections (habeas, etc.) but skipped big ones (speech, religion) to keep federal hands free. A full Bill of Rights would force real restraints.

What did Madison say the Amendments would prove to Anti-Federalist?

Anti-Federalists fear losing freedoms they fought for in the Revolution, allow Federalists to prove their sincerity by adding requested safeguards — without weakening the government

What did Madison say the amendments would guard against?

against all power abuse (including federal), amendments provide extra security for liberty without harming government's benefits

What did Madison want the scope of the amendments to be?

narrow amendments — only rights declarations that two-thirds of Congress + three-fourths of states will approve

What was the main complaint that Madison said some opposed Constitution? How did the Amendments solve this?

No explicit individual rights protections (speech, jury, press), objections of amendments focus on missing rights, not government structure.

What were the two points in Madison’s proposed “First Amendment”?

All power comes from people; government exists for their life, liberty, property, happiness, safety.

People can reform/abolish bad government.

Why did Madison say government in Britain couldn’t compare to America?

Britain's rights protect against kings, not Parliament (which violated press/conscience anyway).

America needs protections against all government branches — states already have them.

What 5 types of rights were included in state bills? What were the goals in this bills of rights?

• Equality declarations.

• Forming government rights.

• Retained rights vs. government powers.

• Positive rights from social compact (jury trial).

• Structural rules (separate powers).

Goal: Limit government in specific cases.

What according to Madison was the real danger without having the Bill of Rights?

Majority abusing minorities (property, religion). Paper rights shape public opinion and inspire resistance

What according to Madison were the dangers of the Necessary & Proper Clause?

lets Congress define "necessary" laws — could justify abuses like general warrants
- State got protections, feds need them too

How does Madison solve the problem that some have that listing some rights implies others are surrendered?

9th Amendment: "Unlisted rights still retained; listed ones don't expand federal power — just caution."

How does Madison say Courts and states work to create protection (two points)?

1. Judges will guard written rights as "impenetrable bulwark."

2. State legislatures will watch federal overreach jealously

How does the 14th amendment limit state abuses?

states that no state shall violate conscience, press, jury. Double security proves everyone's commitment.

How does the 10th amendment reassure states?

"Powers not delegated = reserved to states."

How does Madison describe the amendments?

proper (morally right) and politic (smart politics)

What is the Federalist approach on how to protect the background rights of the people?

enumerating and defining the scope of legislative power

What is the Anti-Federalist approach on how to protect the background rights of the people?

expressly enumerating and defining those rights that may not be violated.

How does our government deal with these two general approaches to the background rights of people?

Government can follow both at the same time

Which amendment secures the natural right of freedom of speech?

First Amendment

What are positive rights?

rights that are created by the Constitution itself, provide limitations

Why are positive rights different from natural rights?

if these positive rights were omitted from the text, they would not limit Congress’s powers.

What amendments secure the positive right to trial by jury?

Sixth and Seventh Amendments

What amendment states that unlisted rights are retained by the people?

Ninth amendment

What does the 9th amendment also protect in for unlisted natural rights? What are the two things the feds can’t do in regards to these rights?

Protects the declaratory natural rights — "shall not deny or disparage" means feds can't ignore OR belittle these pre-existing rights compared to listed ones.

What was Madison’s assumption about the treatment of unlisted vs. listed rights?

assumes listed and unlisted rights get equal protection — both fully retained by people.

What did Roger Sherman propose about where new amendments should be placed?

be appended at the end of the Constitution as a separate list, leaving the original text of the Constitution unchanged

What did the Court do with the 9th and 10th amendment in the Mitchell case that was wrongt?

Court lumped them together, saying 9th adds nothing new — just repeat the power check. This kills Madison's solution: unlisted rights get no extra protection beyond listed ones. No bill of rights might have better protected all rights equally through power limitation alone

What did Congress’s preface to the Bill of rights reveal about two types of clauses to be amended?

• Declaratory clauses: Remind everyone of pre-existing natural rights that people already had — feds never got power over them. Just "greater caution" (Madison's words).

• Restrictive clauses: Actually limit federal powers (no taxes on exports, no quartering soldiers).

What does the 10th amendment limit the federal government to?

only powers listed in Constitution, leftover powers go to states or people

What does the 9th amendment protect?

Protects unlisted (unenumerated) rights people already have, like privacy, Listing rights in constitution doesn't deny others