bill of rights was not insignificant nor did Madison think so

[Paul Finkelman]

I don't think anyone says the BoR is "insignificant" post ratification,
but Mike's comments are very ahistorical. He is arguing that after 1791
the BoR has value.  Who could disagree?  I must say, however, that even
Mike's post-ratification point is not all that strong. What, for
example, did the BoR do to prevent the sedition act or prevent the
incarceration of people under it?  And how exactly did the BoR prevent
the Jefferson administration from using the federal courts to prosecute
(under common law) the editors of federalist paper in Connecticut?  As
far as I can tell, and perhaps someone has a better example, the first
time the federal courts ever used the BoR to protect "rights" was in
Dred Scott.  In Congress the Civil War-era Republicans  Mike is so fond
of totally ignored the Free Exercise clause in making war on the
Mormons.   MIke is right of course that there was a cultural argument of
the BoR, but it was relatively weak, as opponents of slavery found out. 


Paul Finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> "michael curtis" <curtism at bellsouth.net> 08/26/07 8:05 PM >>>
I think treating the Bill of Rights as of little significance is an
error & 
that it is a mistake to pull one sentence from Madison's speech to
support 
that idea..  He does say that conciliation is a major good from having a

Bill.  But he also says a declaration of the rights is worthwhile in 
themselves.  After saying he had doubted it was needed, Madison also
says 
that all power can be abused and that extra safeguards are worthwhile. 
As 
to the no-need-limited-power argument he notes the necessary & proper
clause 
and the possibility that general warrants could be found N&P to enforce
the 
revenue laws.  He also says that the Bill will help to establish public 
opinion in favor of the rights & that it is significant because courts
of 
justice will enforce the rights--be impenitrable bulwarks.

In the Sedition Act we do see the N&P clause invoked as Madison feared. 
We 
see the no delegated power to infringe free speechargument no longer has
any 
charm for the Federalists.

You might say the Bill was useless because it was not used by the courts
to 
void the sedition act and protect those prosecuted under it.  But it did

provide a rallying place for opponents of the bill--who developed some 
pretty impressive free speech arguments.  Furthermore, there were few if
any 
federal suppressions of speech before the Civil War.  The Sedition Act
was 
treated as a mistake.  States were a different matter, but here also 
Northern opponents of suppression of eg anti-slavery speech appealed to
the 
Bill of Rights and a national right of free speech--Barron not
withstanding. 
And they made progress with the argument.  See eg the slogan of the 
Republican Party in 1856, etc.

Then of course leading framers of the 14th Amendment tried to design it
to 
protect rights in the Bill esp. free speech and eventually it did
protect a 
lot.  Furthermore, Republicans in 1864-66 cited the suppression of free 
speech in the South, etc. in support of the need for national guarantees
of 
civil liberty.  They specifically referred to rights in the Bill.  The
words 
Privileges and Immunities had long been used to describe Bill of Rights 
liberties like free speech.  & some pointed to Barron to show why
amendment 
was important.

So 1. Madison's speech read entirely does not support the idea that he 
regarded the Bill as an insignificant sop to critcs.
2.  The Bill was important--though never fully effective.

Michael Curtis
----- Original Message ----- 
From: "Paul Finkelman" <pfink at albanylaw.edu>
To: <schweber at polisci.wisc.edu>; <whoooo26505 at yahoo.com>
Cc: <conlawprof at lists.ucla.edu>
Sent: Sunday, August 26, 2007 5:36 PM
Subject: Re: The Merits of Originalism


>I don't want to get too involved in this debate, but I do think that if
> Howard is going to argue for orginalism based on the "Framers" intent
it
> would be useful to actually give us examples of framers.  Neither
> Jefferson nor Adams were at the Philadelphia Convention, nor were they
> even involved in the framing of the Bill of Rights.  They may be
> founders -- they are emphatically not "Framers."
> Paul Finkelman
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
>     and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York   12208-3494
>
> 518-445-3386
> pfink at albanylaw.edu
>>>> Howard Schweber <schweber at polisci.wisc.edu> 08/26/07 10:52 AM >>>
>
> First, I have to take issue with Prof. Wilson's monolithic
> characterization of 18th century legal culture.  Certainly among the
> Framers there were individuals who believed in natural law ideals
> (Jefferson and Adams come to mind), but the principles of legal
> positivism have roots that go back into the tradition of customary
law,
> itself a highly positivistic (if decentered) conception of lawmaking
> authority.  Harold Berman has beautifully documented the way
> Blackstone's immensely influential treatises grew out of the
historical
> school of common law understanding in which natural law principles
> served an essentially ceremonial function, a point which emphasizes
the
> continuing importance of the tradition customary law.  And
Blackstone's
> Commentaries were more prescription than description; historical
studies
>
> of actual common law pleading and adjudicative practices give short
> shrift to any notion of common law lawyers and judges making arguments
> from eternal moral verities.
>
>
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