"Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: * * *"[1]
FORMULATION AND ADOPTION OF THE BILL OF RIGHTS
Two months later, at the very end of its labors, the Constitutional Convention rejected, with scant consideration, a proposal by Gerry and Mason, to prepare a bill of rights.[2] This omission furnished the principal argument urged against ratification of the Constitution. Hamilton replied with the following ingenious argument: "* * * bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * It is evident, therefore, that according to their primitive signification, they have no application to the constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."[3]
The people did not find this line of reasoning persuasive. Several States ratified only after Washington put forward the suggestion that the desired guarantees could be added by amendment.[4] No less than 124 amendments were proposed by the States.[5] Shortly after the First Congress convened, Madison introduced a series of amendments,[6] designed "to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable * * *"[7] After prolonged debate seventeen proposals were accepted by the House two of which were rejected by the Senate. The remainder were reduced to twelve in number, all but two of which were ratified by the requisite number of States.[8]
THE BILL OF RIGHTS AND THE STATES: BARRON v. BALTIMORE
One of the amendments which the Senate refused to accept—the one which Madison declared to be "the most valuable of the whole list"[9]—read as follows: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State."[10] The demand for assurance of these rights against encroachment by the States would not die. In spite of the deliberate rejection of Madison's proposal the contention that the first Ten Amendments were applicable to the States was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron v. Baltimore[11] in 1833, the argument was consistently rejected. Nevertheless the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection. Expression such as the statement of Justice Miller in Citizens Savings and Loan Association v. Topeka that: "It must be conceded that there are * * * rights in every free government beyond the control of the States"[12] probably account for the fact, reported by Charles Warren that: "In at least twenty cases between 1877 and 1907, the Court was required to rule upon this point and to reaffirm Marshall's decision of 1833, * * *"[13]
THE BILL OF RIGHTS AND AMENDMENT XIV
After the adoption of the Fourteenth Amendment, a fresh attack was launched on that front. The rights assured against encroachment by the Federal Government were claimed as privileges and immunities which no State may deny to any citizen.[14] As early as 1884 the further contention was made that the procedural safeguards prescribed by these articles are essential ingredients of due process of law.[15] For many years, the Court continued to reject these arguments also, over the vigorous and prophetic dissents of Justice Harlan. With respect to the due process clause it held that these words have the same meaning in the Fourteenth Amendment as in the Fifth, and hence do not embrace the other rights more specifically enumerated in the latter, there being no superfluous language in the Constitution.[16] In 1897, however, it retreated from this position to the extent of holding that the Fifth Amendment's explicit guarantee against the taking of private property without just compensation is included in the due process clause of the Fourteenth.[17] Later cases have established that the terms, "liberty" and "due process of law" as used in Amendment XIV, render available against the States certain fundamental rights guaranteed accused persons in the Bill of Rights[18] and the substantive rights which are protected against Congress by Amendment I.[19]
Notes