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Wednesday, January 16, 2013

Fun With The Bill Of Rights

Tired of being in bed, which is making my back hurt, so what the heck, let's read some records from the First Congress!

First of all, I'm still no closer to solving the mystery of why the 2nd Amendment's language was changed from the militia being good for a "free country" (Madison's original) to "a free state".  The early debate is a bit opaque because the amendments were referred to a committee which, as far as I can tell, took no notes beyond the report it presented to the House a month later.  It's quite possible that it was deemed better to revert to what was written in Virginia's Declaration of Rights, which Madison cribbed from, and maybe that's because of the strong desire of slave states to deal with insurrections by people in bondage.  Dunno.

What I do know is that not everybody was enamoured of the idea to even debate changing the new Constitution, at least amongst the whole House when there was so much other work to do organizing a government and all.  For example, Mr Sherman:

The provision for amendments made in the fifth article of the Constitution, was intended to facilitate the adoption of those which experience should point out to be necessary. This Constitution has been adopted by eleven States, a majority of those eleven have received it without expressing a wish for amendments; now, is it probable that three-fourths of the eleven States will agree to amendments offered on mere speculative points, when the Constitution has had no kind of trial whatever? It is hardly to be expected that they will. Consequently we shall lose our labor, and had better decline having any thing further to do with it for the present.

But if the House are to go into a consideration, it had better be done in such a way as not to interfere much with the organization of the Government.

And Mr Ames:

He was sorry to hear an intention avowed by his colleague, of considering every part of the frame of this Constitution. It was the same as forming themselves into a convention of the United States. He did not stand for words, the thing would be the same in fact. He could not but express a degree of anxiety at seeing the system of Government encounter another ordeal, when it ought to be extending itself to furnish security to others. He apprehended, if the zeal of some gentlemen broke out on this occasion, that there would be no limits to the time necessary to discuss the subject; he was certain the session would not be long enough; perhaps they might be bounded by the period of their appointment, but he questioned it.

And thus:

Ordered, That the Committee of the Whole House on the state of the Union be discharged from proceeding on a motion referred to the said committee, on the eighth day of June last, stating certain specific amendments proper to be proposed by Congress to the Legislatures of the States, to become, if ratified by three-fourths thereof, part of the Constitution of the United States; and that the said motion, together with the amendments to the said Constitution, as proposed by the several States, be referred to a committee, to consist of a member from each State, with instruction to take the subject of amendments to the Constitution of the United States generally into their consideration, and to report thereupon to the House.

The members elected, Mr. Vining, Mr. Madison, Mr. Baldwin, Mr. Sherman, Mr. Burke, Mr. Gilman, Mr. Clymer, Mr. Benson, Mr. Goodhue, Mr. Boudinot, and Mr. Gale.

There were still objections to dealing with amendments in August, a few weeks after the committee of eleven had reported their 17 proposals (which were eventually whittled down to 12 by the Senate).  Mr Page had the last word:

[W]as positive the people would never support the Government unless their anxiety was removed. They, in some instances, adopted it, in confidence of its being speedily amended; they will complain of being deceived unless their expectations are fulfilled. So much time has elapsed since the subject was first brought forward, said he, that people will not think us serious, unless we now set about and complete it.

He begged gentlemen to consider the importance of the number of citizens, who were anxious for amendments; if these had been added to those who openly opposed the constitution, it possibly might have met a different fate. Can the Government, under these circumstances, possess energy, as some gentlemen suppose? Is not the confidence of the people absolutely necessary to support it?

The question was now put, and carried in the affirmative.

So the debate began, and derision continued.  Mr Sedgwick:

If the committee were governed by that general principle [these rights inherently belonged to the people]...they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed.

And there was a good deal of concern expressed about the 2nd Amendment.  Mr Gerry:

This declaration of rights, I take it, is intended to secure the people against the mal-administration of the government; if we could suppose that in all cases the rights of the people would be attended to, the occasion for guards of this kind would be removed. Now, I am apprehensive, sir, that this clause would give an opportunity to the people in power to destroy the constitution itself. They can declare who are those religiously scrupulous, and prevent them from bearing arms. What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.

Yes, the big bone of contention was the clause allowing for conscientious objection, essentially.  And I find the ensuing discussion humorous. Mr Jackson:

Did not expect that all the people of the United States would turn Quakers or Moravians, consequently one part would have to defend the other, in case of invasion; now this, in his opinion, was unjust, unless the consitution secured an equivalent, for this reason he moved to amend the clause, by inserting at the end of it "upon paying an equivalent to be established by law."

And Mr Sherman:

Conceived it difficult to modify the clause and make it better. It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other — but he did not see an absolute necessity for a clause of this kind. We do not live under an arbitrary government, said he, and the states respectively will have the government of the militia, unless when called into actual service; beside, it would not do to alter it so as to exclude the whole of any sect, because there are men amongst the quakers who will turn out, notwithstanding the religious principles of this society, and defend the cause of their country. Certainly it will be improper to prevent the exercise of such favorable dispositions, at least while it is the practice of nations to determine their contests by the slaughter of their citizens and subjects.

Both men were correct.  You'll note that the clause was ultimately removed (though it remains in the VT Constitution amongst others).  Ah well.

Oddly enough, there was some issue regarding parliamentary rules, and then Mr Hartley said:

He hoped the people of America would always be satisfied with having a majority to govern. He never wished to see two-thirds or three-fourths required, because it might put it in the power of a small minority to govern the whole union.

Or perhaps obstruct and misgovern.  So now we'll see what an industry lobby "representing" an incredibly small minority of Americans can do to stymie efforts to balance the need to own a Bushmaster for defense against zombies with the right of 300M Americans to life.

ntodd

January 16, 2013 in Constitution, Schmonstitution, RKBA | Permalink

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