So bitter was their experience that, when the people of the various Colonies came to frame constitutions for "a government of the people, by the people, and for the people" independent of the British crown and all other external authority, they very generally insisted that even such a government should have its powers defined and limited, that some rights of the individual should be specified which the government should not infringe nor have the lawful power to infringe. From their own experience the people were convinced that such definitions and limitations were necessary for the security of the individual even under a popular government.
The first step of the representatives of the people of Virginia toward a declaration of independence of the British crown, and the setting up an independent government, was the adoption of a declaration of rights in the individual which no government should infringe. This was adopted and promulgated sometime before the constitution proper was framed. The statement was declared to be necessary in order that the government might be "effectually secured against maladministration." Similar limitations upon the powers of the government were imposed in the early constitutions of Massachusetts, New Hampshire, New Jersey, Delaware, Pennsylvania, Maryland, North Carolina, and South Carolina; also in the first constitution of Connecticut in 1818, and in the first constitution of Rhode Island in 1842. The people of New Jersey in 1844 made the limitations more definite, and the people of Maryland imposed additional limitations in 1864. The people of New York did not in their first constitution of 1777 expressly in terms guarantee individual rights, but they impliedly did so by making the Declaration of Independence the preamble, and in their constitution of 1821 they incorporated an explicit statement of individual rights not to be infringed. The example of the original states in this respect has been followed by most of the subsequent states of the Union.
In 1778 a convention chosen to draft a constitution for Massachusetts submitted a draft to the people, who rejected it by a large majority mainly because it did not contain a "Bill of Rights." To quote from Harry A. Cushing, a writer on the History of Commonwealth Government in Massachusetts, "No demand was more general than that for a Bill of Rights which should embody the best results of experience." In 1780 a second convention submitted another draft of a constitution containing the famous Massachusetts Declaration of Rights, and this the people adopted by a majority of more than two to one. The only objection urged against the Declaration of Rights was that it did not go far enough.
In the convention that drafted the Federal Constitution it was strongly urged that a Bill of Rights should be incorporated in the draft, but it was deemed, by the majority at least, unnecessary and even dangerous to make a specific declaration of individual rights, inasmuch as the federal government contemplated was in its very nature limited to such powers as were expressly, or by necessary implication, conferred by the Constitution, and hence to specify certain things the government should not do might be construed as permitting it to do anything not so specified. This argument prevailed and the draft submitted to the states contained no Bill of Rights. Immediately, however, a storm of objections was raised against it because of the omission. Despite the arguments of Hamilton and Madison that a Bill of Rights was unnecessary, ratification was finally obtained only by a general assurance and understanding that a sufficient Bill of Rights should be added immediately upon the organization of the new government. The necessary amendments, therefore, were submitted at the first session of the new Congress and were unanimously adopted by the states. Other limitations have since been imposed, notably those in the XIVth amendment, assuring to every citizen equal consideration in legislation by the states.
By the Federal Constitution as it now stands the citizen, in time of peace at least, is guaranteed, among other matters, the protection of the writ of habeas corpus; freedom from bills of attainder and ex post facto legislation; freedom of religious belief and worship; freedom of thought and its expression; freedom peacefully to assemble with others and petition for redress of grievances; freedom from unreasonable searches and seizure; the right not to be prosecuted for infamous crimes except first accused by a grand jury; the right in all criminal prosecutions to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him and to have assistance of counsel; that he shall not be deprived of life, liberty, or property without due process of law; that his private property shall not be taken from him even for public use without just compensation; that the obligations accruing to him under lawful contracts shall not be impaired; that he shall not be denied the equal protection of the laws. The guarantees in the state constitutions are generally of the same nature.
It is difficult to see how any of these guaranties, or such other guaranties as may be contained in the federal and state constitutions, prevent legislative or executive action necessary for the welfare of the people generally. There is certainly an ample field for such action without overstepping these boundaries. Nevertheless, it is today urged by some impulsive persons, eager to impose their theories on the people at once, that all or many of these limitations upon the powers of government should be removed or disregarded and the majority of the people allowed unrestricted sway in all matters of governmental action. Others who do not go so far, yet urge that the majority should be free to suspend these guaranties temporarily or in some particular classes of cases. Against this opinion I submit that after so many centuries of experience of the tendency of all governments to enlarge their powers over the subject, and of struggles to limit the powers of government over private rights and to protect the individual from governmental oppression, the burden of evidence and of argument is heavily on those who would now advocate unlimited powers even for the most democratic government. A government directly by the people is of course in practice a government by a shifting and often narrow majority of the people. It is not yet demonstrated by experience or reason that such a government, unlimited, would be as regardful of individual rights or welfare as a republican form of government with its checks and balances and constitutional restrictions. The excesses of the unlimited democracies of ancient Greece and of the unrestrained democracy of France during and after the revolution of 1789 and the lynchings in this country do not contribute to such demonstration.
It is not those who defend our present form of government with its constitutional guaranties, who resist political action tending to weaken them, that should be called unprogressive, undemocratic, or wanting in love of country. Those of our ancestors, English and American, who fought for these guaranties, who obtained them only after years of strife, who incorporated them in our federal and state constitutions and safeguarded them against the varying impulses of the populace, were not unpatriotic nor unmindful of the welfare of the people,—were not indifferent to human liberties or human rights. Neither are they such who today strive to preserve those guaranties won at such expense of blood and treasure. On the contrary, it is those who would override these guaranties and revert to the old days of unlimited governmental power, that are the reactionaries.
It may be admitted that some of these limitations if enforced do now and then impede and even prevent some governmental action desired by some group or section of the people, but while action in violation of these limitations might benefit its sponsors it would necessarily be at the expense of others. Those who seek such legislation against others would quickly appeal to these limitations if legislation were directed against themselves. The noisiest declaimers against these guaranties fall back for protection upon the constitutional guaranty of freedom of speech. So long as these barriers are maintained every individual, no matter how poor and feeble, will be, theoretically at least, secure in some rights against the attacks of the many. Without such barriers every individual is at the mercy of an inconstant majority. Without such barriers justice cannot be said to be secured. Lord Treasurer Burleigh of Queen Elizabeth's time declared that England could never be ruined by its kings, but only by its Parliament. If the safeguards of the federal and state constitutions are maintained, neither Congress nor the state legislatures can ruin America. If the American people should ever consent to the removal of these safeguards they would give evidence of their want of self-restraint, of their unwillingness and even incapacity to govern themselves, and would pave the way for the man on horseback as the French Revolution paved the way for Napoleon. To deprive a single one of his rightful liberty is to endanger the liberties of all.