4.6 America Was Founded On Two Rivers part 6

Virginia was a Southern, slave holding state with a continental style government: semi monarch and aristocrats. It seems inconsistent that it would refuse to ratify the Constitution without an accompanying bill of rights. its demand, along with Massachusetts’, reflected the split between the old guys concerned about individual freedom and the young would-be aristocrat merchants: The Anti-Federalists and the Federalists.

Virginian Patrick Henry, one of the most influential voices bringing commoners to fight in the Revolutionary War, demanded a Bill of rights.¹ Some Federalists, Benjamin Franklin for example, also thought it a good idea. Fear that failing to meet Patrick Henry’s demand would lead to a wider rejection of the Constitution forced the Federalists to create the bill. The committee proposed seventeen rights. Negotiations revised them into twelve amendments that they submitted for ratification.

We are broadly aware of the ten amendments that the white, male property owners ratified. A commonality is that they restored rights infringed by the Crown and Patriots who attacked loyalists and British institutions. Those rights needed to be restored because actions during the war had stripped them from the common law. However, some they restored served purposes now misunderstood or forgotten.

We idolize a history praising the Patriots’ fight for “freedom”, leading us to accept the Constitution as their fight to protect freedom. That ignores the historical record. The Patriots wanted liberation from British rule. They did not want freedom for…blacks, women, indigenous peoples, or even propertyless white men. The Federalist framers wanted rules that would keep them, the privileged, in power.

The First Amendment protection of speech, press, and assembly restored the nonviolent weapons the Patriots used to overturn British rules. The religious protection was pragmatic. It extended beyond the Constitution’s prohibition of religious tests. We talk of religion, speech, press, and assembly as personally held rights, without understanding the substance of freedom. The substance of freedom is greater than what you can say. No one cares what you pray, say, or write when you lock yourself in a closet. Repressive governments care about controlling what others hear you say or can read that you wrote. The freedom of speech, press, and assembly is your right to hear the information others want to share regardless of what the government wants. That freedom comes with the rights of everyone in the public to walk away, ignore your book or paper, or skip the meeting.

Similarly, the I Amendment protection of religion made the Constitutional ban on religious tests meaningful. Banning the “establishment of religion, or prohibiting the free exercise thereof” guaranteed every person freedom from religion. Not only do you not have to have any specific Christian faith, you have a right to having no religion.

How do we know the Bill of Rights was forced on Federalists who opposed them? The states ratified the Bill of Rights in 1791. In 1798 the Federalist congress and Senate passed the Alien and Sedition Act, which President John Adams signed. In the intermission between the Revolutionary War and the War of 1812, Federalists eased toward supporting British in its fight with France. Wealthy merchants seeking economic gains from a closer alliance with Britain, thought it might help reduce War debts, and  favored Britain. Democratic-Republicans generally sided with the French, who had been the colonists’ ally during the Revolutionary War

Feeling threatened by support for the French, just seven years after ratifying the Bill of Rights, the Federalist Violated it.² They passed and used the 1798 Alien and Sedition Act to quash public debate and response to their pro British efforts. The act empowered the government to censor speech and the press, to jail dissidents, and deport noncitizens who challenged Federalist governance.

Article 1, Section 9, Clause 2 of the Constitution established habeas corpus without enforcement authority: individuals could not be held unless they were charged with a specific crime. A legacy of torture and throwing people in prison without being brought to trial that traced through European history proved habeas corpus alone was insufficient. The Bill of Bill of Rights provided specific protections that gave the right of habeas corpus protective power: search and seizure, due process, speedy trial, protection from self incrimination, double jeopardy, excessive bail, and the right to confront witnesses.

That list of eight rights was not sufficient to protect individual freedom. The Anti-Federalists supporting the Bill Of Rights were victims of target fixation. That is when someone, fighter pilots, are so focused on the target that they lose awareness of the world around them that they fly into the side of the mountain. The colonists’ understanding of the totality of law, their weltanschauung,³ drew from Renulf de Glanville’s defense of unwritten laws. He explained that the law was too broad on complex to reduce to writing. Some rights, like awareness of air, are so pervasive that we lose awareness of them.

When the Bill of Rights was ratified only the children of the wealthy families received formal educations. The idea that children might be compelled to go to public schools against their parents’ wishes was was beyond imagination. That made it impossible to anticipate a time when states would force children to attend public schools against their parents’ wishes. Consequently there was no way parental education rights could be included in a Bill of rights.

The Federalists’ warning that a list of rights would overlook important rights was correct. Normal daily actions were so buried in the weltanschauung that they were invisible. The IX amendment was the attempt to prevent the violation of rules “so old and venerable, so rooted in the traditions and the consciousness of our people[s] as to be ranked as fundamental” Arriving in America from English common law that reached back beyond the Magna Carta and Charter of the Forest these were “natural” or “Higher” law.

The current, conservative Court, in the guise of “originalism” has dismissed Higher Law.

Next: The missing Amendment followed by 5.1 The Mudsill Theory

¹ The principle Anti-Federalists include: Patrick Henry (VA), George Mason (VA), Richard Henry Lee (VA), James Monroe (VA), Samuel Adams (MA), Eldrige Gerry (MA), Amos Singletary (MA, Mercy Otis Warren (MA), George Clinton (NY), Melancton Smith (NY), Luther Martin (MD) Joshua Atherton (MD).

 ² The pro-British Federalist position destroys the party by 1800.

 3 Weltanschauung is introduced in 1. Two Rivers