The Rights Not in the Bill of Rights

MARTIN D. TULLAI

December 13, 1991|By MARTIN D. TULLAI

When one of our Founding Fathers suggested in the Constitutional Convention that a Bill of Rights be drawn up, the state delegations unanimously rejected the idea. So the document was drawn up without one, and the Bill of Rights added only later. We celebrate its bicentennial Sunday. There were several reasons for this apparent flip-flop.

In the first place, most of the states in 1787 had bills of rights already. When Elbridge Gerry proposed that a federal version be drafted, Roger Sherman declared this was unnecessary because the state bill of rights were sufficient.

Secondly, the Founders felt they were creating a government with specific, limited powers. It could do, they thought only what the Constitution permitted it to do, and nowhere in that document was there permission to infringe on such rights as freedom of speech or press, or to impose cruel and unusual punishments. Some feared that to list the rights that were guaranteed might lead later government officials to assume they had the power to do anything not explicitly forbidden.

But perhaps most significant, the Founders did write into the body of the Constitution a greater number of protections of liberty than are in the Bill of Rights:

* ''The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.'' (Article I, Section IX, 2) The writ of habeas corpus enables a person under arrest to obtain an immediate examination in court to ascertain whether he or she is being legally held.

* ''No bill of attainder [a special legislative act condemning and punishing an individual without a judicial trial] or ex-post-facto law [one that fixes punishments for acts committed before the law was passed] shall be passed.'' (Article I, Section IX, 3)

* ''No title of nobility shall be granted by the United States.'' (Article I, Section IX, 8)

* ''No State shall . . . pass any bill of attainder, ex-post-facto law or law impairing the obligation of contracts; or grant any title of nobility.'' (Article I, Section X, 1)

* ''The trial of all crimes, except in cases of impeachment, shall be by jury; such trial shall be held in the State where the said crimes shall have been committed. . . .'' (Article III, Section II, 3)

* ''Treason against the United States shall consist only in levying war against them, or, in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act or on confession in open court.'' (Article III, Section III, 1)

* ''The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.'' (Article III, Section III, 2)

* ''Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States. . . .'' (Article I, Section III, 7)

* ''Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other state. . . .'' (Article IV, Section 1)

* ''The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.'' (Article IV, Section II, 1)

* ''The United States shall guarantee to every state in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the Executive (when the legislature cannot be convened), against domestic violence.'' (Article IV, Section IV).

* ''No religious test shall ever be required as a qualification to any office or public trust under the United States.'' (Article VI, 3)

The late Irving Brant, a distinguished journalist and historian, noted in his instructive work, ''The Bill of Rights,'' that the entire Constitution offers no fewer than 63 ''Pledges of Freedom.'' Of this, he said, ''Seen as a connected whole, the spirit is the same throughout. It is a spirit of unqualified devotion to human rights, human dignity, the liberty and equality of free men.''

And, Brant maintained, two misconceptions regarding the Founders of the American Republic must be dispelled. ''It is utter fallacy,'' he wrote, ''that the spirit of the Constitution is opposed to the spirit of the Declaration of Independence. Equally fallacious is the notion that the framers of the Constitution did not share the devotion to freedom of the congressmen who framed and submitted the 1789 amendments.''

So even as we celebrate the Bill of Rights -- which were proposed by Congress in 1789 and ratified by the states in 1791 -- we should also honor those at the Constitutional Convention for providing additional guarantees of individual rights in the body of the Constitution.

Martin D. Tullai teaches at St. Paul's School.

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