| |
| The Bill of Rights |
| |
|
When our Constitution was first
established, it was assumed that the description of specific powers granted to the
government would leave no doubt as to what the government could and could not do, and that
the absence of powers over the rights of the people would leave those rights protected.
But Jefferson and others were wary of leaving such important matters up to inference. They
insisted on a Bill of Rights that would state in unmistakable terms those rights of the
people that must be left inviolate.
|
| |
 |
| |
|
"I disapproved from
the first moment... the want of a bill of rights [in the new Constitution] to guard
liberty against the legislative as well as the executive branches of the government."
--Thomas Jefferson to Francis Hopkinson, 1789. ME 7:300
|
| |
|
"I do not like... the
omission of a bill of rights providing clearly and without the aid of sophisms for freedom
of religion, freedom of the press, protection against standing armies, restriction against
monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by
jury in all matters of fact triable by the laws of the land and not by the law of
nations." --Thomas Jefferson to James Madison, 1787. ME 6:387
|
| |
|
"A bill of rights is what
the people are entitled to against every government on earth, general or particular; and
what no just government should refuse, or rest on inferences." --Thomas Jefferson to
James Madison, 1787. ME 6:388, Papers 12:440
|
| |
|
"The general voice from
north to south... calls for a bill of rights. It seems pretty generally understood that
this should go to juries, habeas corpus, standing armies, printing, religion and
monopolies. I conceive there may be difficulty in finding general modifications of these
suited to the habits of all the States. But if such cannot be found, then it is better to
establish trials by jury, the right of habeas corpus, freedom of the press, and freedom of
religion, in all cases, and to abolish standing armies in time of peace, and monopolies in
all cases, than not to do it in any. The few cases wherein these things may do evil cannot
be weighed against the multitude wherein the want of them will do evil." --Thomas
Jefferson to James Madison, 1788. ME 7:96
|
| |
|
"It astonishes me to find...
[that so many] of our countrymen... should be contented to live under a system which
leaves to their governors the power of taking from them the trial by jury in civil cases,
freedom of religion, freedom of the press, freedom of commerce, the habeas corpus
laws, and of yoking them with a standing army. This is a degeneracy in the principles of
liberty... which I [would not have expected for at least] four centuries." --Thomas
Jefferson to William Stephens Smith, 1788. (*) FE 5:3
|
| |
|
"I consider all the ill as
established which may be established. I have a right to nothing which another has a right
to take away." --Thomas Jefferson to Uriah Forrest, 1787. ME 6:388, Papers 12:477
|
| |
|
"I hope, therefore, a bill
of rights will be formed to guard the people against the federal government as they are
already guarded against their State governments, in most instances." --Thomas
Jefferson to James Madison, 1788. ME 7:98
|
| |
Purpose of a Bill of Rights |
|
"It had become an universal
and almost uncontroverted position in the several States, that the purposes of society do
not require a surrender of all our rights to our ordinary governors; that there are
certain portions of right not necessary to enable them to carry on an effective
government, and which experience has nevertheless proved they will be constantly
encroaching on, if submitted to them; that there are also certain fences which experience
has proved peculiarly efficacious against wrong, and rarely obstructive of right, which
yet the governing powers have ever shown a disposition to weaken and remove. Of the first
kind, for instance, is freedom of religion; of the second, trial by jury, habeas corpus
laws, free presses." --Thomas Jefferson to Noah Webster, 1790. ME 8:112
|
| |
|
"A constitutive act may,
certainly, be so formed as to need no declaration of rights. The act itself has the force
of a declaration as far as it goes; and if it goes to all material points, nothing more is
wanting... But in a constitutive act which leaves some precious articles unnoticed and
raises implications against others, a declaration of rights becomes necessary by way of
supplement. This is the case of our new Federal Constitution. This instrument forms us
into one State as to certain objects and gives us a legislative and executive body for
these objects. It should therefore guard against their abuses of power within the field
submitted to them." --Thomas Jefferson to James Madison, 1789. ME 7:310
|
| |
|
"The jealousy of the
subordinate governments is a precious reliance. But observe that those governments are
only agents. They must have principles furnished them whereon to found their opposition.
The declaration of rights will be the text whereby they will try all the acts of the
federal government. In this view, it is necessary to the federal government also; as by
the same text, they may try the opposition of the subordinate governments." --Thomas
Jefferson to James Madison, 1789. ME 7:311
|
| |
|
"In the arguments in favor
of a declaration of rights... one which has great weight with me [is] the legal check
which it puts into the hands of the judiciary." --Thomas Jefferson to James Madison,
1789. ME 7:309
|
| |
|
"[The objection has been
raised that] experience proves the inefficacy of a bill of rights. [This is] true. But
though it is not absolutely efficacious under all circumstances, it is of great potency
always, and rarely inefficacious. A brace the more will often keep up the building which
would have fallen with that brace the less. There is a remarkable difference between the
characters of the inconveniences which attend a Declaration of Rights, and those which
attend the want of it. The inconveniences of the Declaration are that it may cramp
government in its useful exertions. But the evil of this is short-lived, trivial and
reparable. The inconveniences of the want of a Declaration are permanent, afflicting and
irreparable. They are in constant progression from bad to worse." --Thomas Jefferson
to James Madison, 1789. ME 7:311
|
| |
|
"The declaration of rights
is, like all other human blessings, alloyed with some inconveniences and not accomplishing
fully its object. But the good in this instance vastly outweighs the evil." --Thomas
Jefferson to James Madison, 1789. ME 7:309
|
| |
|
"My idea then is, that
though proper exceptions to these general rules are desirable and probably practicable,
yet if the exceptions cannot be agreed on, the establishment of the rules in all cases
will do ill in very few." --Thomas Jefferson to James Madison, 1788. ME 7:98
|
| |
Basic Contents of a Bill of Rights |
| |
|
"By a declaration of rights,
I mean one which shall stipulate freedom of religion, freedom of the press, freedom of
commerce against monopolies, trial by juries in all cases, no suspensions of the
habeas
corpus,
no standing armies. These are fetters against doing evil which no honest
government should decline." --Thomas Jefferson to Alexander Donald, 1788. ME 6:425
|
| |
"No person shall be
restrained of his liberty but by regular process from a court of justice, authorized by a
general law... On complaint of an unlawful imprisonment, to any judge whatsoever, he shall
have the prisoner immediately brought before him, and shall discharge him if his
imprisonment be unlawful. The officer in whose custody the prisoner is shall obey the
order of the judge, and both judge and officer shall be responsible civilly and criminally
for a failure of duty herein.
... The Military shall be subordinate to the Civil authority.
... Printers shall be liable to legal prosecution for printing and publishing false facts
injurious to the party prosecuting: but they shall be under no other restraint.
... All pecuniary privileges and exemptions enjoyed by any description of persons are
abolished." --Thomas Jefferson, Draft of a Charter of Rights [for France], 1789. ME
7:372, Papers 15:168
|
| |
"The Constitutions of our
several States vary more or less in some particulars. But there are certain principles in
which all agree, and which all cherish as vitally essential to the protection of the life,
liberty, property, and safety of the citizen:
1. Freedom of religion, restricted only from
acts of trespass on that of others;
2. Freedom of person, securing every one from
imprisonment or other bodily restraint but by the laws of the land. This is effected by
the well-know law of habeas corpus;
3. Trial by jury, the best of all safeguards
for the person, the property, and the fame of every individual;
4. The exclusive right of
legislation and taxation in the representatives of the people;
5. Freedom of the press,
subject only to liability for personal injuries."
--Thomas Jefferson to A. Coray,
1823. ME 15:489
|
| |
|
"I like [the declaration of
rights] as far as it goes, but I should have been for going further. For instance, the
following alterations and additions would have pleased me:
|
| |
|
Article 4. The people shall not
be deprived or abridged of their right to speak, to write, or otherwise to publish
anything but false facts affecting injuriously the life, liberty, property or reputation
of others, or affecting the peace of the confederacy with foreign nations.
|
| |
|
Article 7. All facts put in issue
before any judicature shall be tried by jury except, 1, in cases of admiralty
jurisdiction, wherein a foreigner shall be interested; 2, in cases cognizable before a
court martial concerning only the regular officers and soldiers of the United States, or
members of the militia in actual service in time of war or insurrection; and 3, in
impeachments allowed by the Constitution.
|
| |
|
Article 8. No person shall be
held in confinement more than -- days after he shall have demanded and been refused a writ
of habeas corpus by the judge appointed by law, nor more than -- days after such a writ
shall have been served on the person holding him in confinement, and no order given on due
examination for his remandment or discharge, nor more than -- hours in any place at a
greater distance than -- miles from the usual residence of some judge authorized to issue
the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one
year, nor in any place more than -- miles distant from the State or encampment of enemies
or of insurgents.
|
| |
|
Article 9. Monopolies may be
allowed to persons for their own productions in literature, and their own inventions in
the arts, for a term not exceeding -- years, but for no longer term, and no other purpose.
|
| |
|
Article 10. All troops of the
United States shall stand ipso facto disbanded at the expiration of the term for
which their pay and subsistence shall have been last voted by Congress, and all officers
and soldiers not natives of the United States shall be incapable of serving in their
armies by land, except during a foreign war.
|
| |
|
These restrictions, I think, are
so guarded as to hinder evil only. However, if we do not have them now, I have so much
confidence in my countrymen as to be satisfied that we shall have them as soon as the
degeneracy of our government shall render them necessary." --Thomas Jefferson to
James Madison, 1789. ME 7:450, Papers 15:367
|
| |
| |
|
ME, FE = Memorial Edition, Ford Edition.
|
| |
