Thomas Jefferson’s Misunderstood “Letter to the Danbury Baptists”

On January 1, 1802, President Thomas Jefferson received a thirteen-foot mammoth cheese weighing some 1,200 pounds.  It was delivered by dissenting Baptist minister and long-time advocate of religious liberty, Reverend John Leland, who then preached a sermon to the president and members of Congress at the Capitol two days later.  Jefferson took the opportunity to compose a letter to the Danbury Baptists on the relationship between government and religion that would shape the course of twentieth-century jurisprudence.

Jefferson had been a staunch supporter of disestablishment and freedom of conscience for decades.   His Bill for Establishing Religious Freedom failed to pass in his home state in 1779, but it would eventually be adopted in 1786 as the Virginia Statute for Religious Freedom.  It combined the principles of disestablishment of the official Anglican Church and defended religious liberty as a natural right.  It read:

That no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. 

In his Notes on the State of Virginia, Jefferson reaffirmed these principles while answering a series of queries to a European audience.  Jefferson again averred that religious liberty was a natural right that was free of coercion by the state particularly in a republic rooted upon popular sovereignty.  “Our rulers can have authority over such natural rights,” he wrote, “only as we have submitted to them.  The rights of conscience we never submitted, we could not submit.”  The government, he states, cannot impose restrictions or civil liabilities upon the governed for their religious opinions.  “We are answerable for them to our God.” 

Although he was in Paris when the Constitutional Convention was held and the new Constitution ratified, Jefferson kept abreast of events in his country and consistently prodded his friend, James Madison, to include a Bill of Rights to protect the inalienable rights of mankind.  Eventually, Madison would introduce amendments in the First Congress and secure their passage, including the First Amendment, which read, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

The First Amendment was meant as a limit on the national Congress only.  Madison wanted limits on the states but they were rejected.  State limitations on religious liberty and establishment persisted after the First Amendment was adopted.  Religious tests for office remained in place in most states, and Connecticut (1818) and Massachusetts (1833) did not disestablish their official state churches until decades after.  The Supreme Court reinforced the idea that the Bill of Rights did not apply to the states but rather only to the national government in Barron v. Baltimore (1833).

In the 1800 Election, Federalists attacked Jefferson for atheism and warned their followers to hide their Bibles should Jefferson be elected.  While Jefferson certainly had heterodox personal religious views, and he broke with the precedent of Presidents Washington and Adams regarding the constitutionality of issuing days of thanksgiving or fasts, he did not keep religion out of the public square.

In his First Inaugural Address, Jefferson appealed to the unity of Americans centered on the principles of a natural rights republic.  He included freedom of religion as one of the “essential principles of our government.”  Moreover, he finished the address with a prayerful supplication.  “May that infinite power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.”

Jefferson made many other prayerful statements in his official capacity as President of the United States.  For example, in his First Annual Message to Congress, Jefferson stated:

While we devoutly return thanks to the beneficient Being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude to be thankful to him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth and to practice and improve those arts which tend to increase our comforts.

In his Letter to the Danbury Baptists, Jefferson reiterated his belief in religious liberty free of government interference by supporting the Danbury Baptists who were suffering under establishment in Connecticut.  “Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions,” he wrote.

While Jefferson personally opposed state establishments of religion, and had been the father of disestablishment in Virginia, he respected American constitutionalism.  He recognized that neither he nor Congress had no authority over religious policies of the states, which had their own constitutions and bills of rights.  Even though he saw the natural right of religious liberty violated by any establishment, he firmly respected the federal relationship between the national government and the states.  The view is analogous to Abraham Lincoln’s constitutional belief that while he thought slavery violated natural rights and the principles of the Declaration of Independence, it was an issue that was left to the states, and the president had no authority over slavery.

This helps us understand the rest of the letter in which he wrote about the constitutional limits the First Amendment imposed on Congress: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church and State.”  This metaphor has been (mis)used by the Supreme Court in the Everson (1947) case and subsequent jurisprudence on issues of school prayer and Bible readings as to read that there should be no religion in the public square.  It also helped “incorporate” the Bill of Rights and apply them to the states contrary to the original intention of the founders.  Moreover, Jefferson explicitly recognized the Establishment Clause as a limitation on the national Congress not local schools or state governments.

Finally, Jefferson encourages the states to imitate the national Congress and follow the principle of disestablishment in order to protect natural rights.  “Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.”

The Supreme Court unfortunately "cherry-picked" a quote from a letter of a president to a congregation.  They could easily have used one of the letters that George Washington wrote to the congregations or from his official Farewell Address in which he states that religion is essential to virtue, morality, and self-government.  Instead, the Court decided to pull out a quote which best suited their needs or desires.

In 1800, Jefferson wrote to Benjamin Rush, “I have sworn upon the altar of God, eternal hostility against every form of tyranny over the mind of man.”  Indeed, he was following this promise when he defended religious liberty, promoted disestablishment, and respected constitutionalism in his Letter to the Danbury Baptists.  

Tony Williams is the Program Director of the Washington, Jefferson & Madison Institute in Charlottesville, Virginia.  He has written four books and teaches history in Williamsburg, VA. 

Conscience is the Most Sacred of Property: James Madison’s Essay on Property

By: Tony Williams

On January 24, 1774, James Madison wrote to a college friend praising the Boston Tea Party, which had occurred only weeks before.  He praised the Boston patriots for their boldness in “defending liberty and property.”  Equating political and civil liberty, he warned that if the Church of England had established itself as the official religion of all the colonies, then “slavery and subjection might and would have been gradually insinuated among us.”

         Madison had in mind the religious tyranny that he was then witnessing in Virginia.  In an adjacent county to his home, a half dozen itinerant Baptist ministers were in jail for preaching the Gospel to all who would listen, even from their jail cells.  Baptists and other dissenting Christians had suffered horrific violations of their religious liberty when they were horsewhipped on stage or violently driven out of towns for preaching without a license.  Madison lamented that a “diabolical Hell-conceived principle of persecution rages,” and asked his friend to “pray for liberty of conscience to revive among us.”  

The young Madison believed that religious liberty was an essential right of mankind.  Educated at Princeton under the tutelage of Rev. John Witherspoon, he was imbued with the ideas of religious and political liberty from the Scottish Enlightenment.  Madison told his friend, “That liberal catholic and equitable way of thinking as to the rights of conscience, which is one of the characteristics of a free people.”

Following the revolution of 1776, Madison would be at the center of the struggle over religious establishment a decade later when Virginian legislators took up the issue of Patrick Henry’s bill for a general assessment for religion.  After some brilliant politics that delayed the consideration of the bill and pushed Henry into the governorship, Madison led the forces of disestablishment with his 1785 “Memorial and Remonstrance” against religious taxes.  He wrote, “The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.  This right is in its nature an unalienable right.”  Madison continued, stating that, “It is unalienable also, because what is here a right towards men, is a duty towards the Creator.”  That duty is built into the fabric of human nature and precedes the claims of civil society.  “We maintain therefore that in matters of religion, no man’s right is abridged by the institution of civil society and that religion is wholly exempt from its cognizance.”  If there is a sense here of separation of church and state, Madison’s understanding is that the government must not interfere with the inalienable rights of liberty of conscience.

In the First Congress, Madison fulfilled the promise of the Federalists to ratify amendments to the Constitution protecting essential liberties though not altering the structure of the government.  The First Amendment reflected decades of Madison’s serious thought and work protecting religious liberty.  Although Madison wanted the Bill of Rights applied to the states, he lost the debate, and the First Amendment specifically limited the power of Congress to establish an official national church or to interfere with freedom of conscience.  “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  He had been at the forefront of the twin goals of disestablishment and religious liberty as a natural right in Virginia during the American Revolution and now at the national level during the founding of the American republic.

In 1791 and 1792, Madison wrote a series of essays on the principles of republican government for Philip Freneau’s highly partisan National Gazette.  On March 29, 1792, Madison published his “On Property” essay, which posited a new understanding of a property in natural rights.  Madison writes that property is much more than merely land or wealth, and “embraces every thing to which a man may attach a value and have a right.”  In this sense, every person “has a property in his opinions and the free communication of them.”  The most essential right in human nature is religious liberty, in Madison’s estimation.  “He has a peculiar value in his religious opinions, and in the profession and practice dictated by them.”  He sums up his thinking about property by stating, “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”  

Madison then brilliantly explored the very purpose of republican self-government to protect the inalienable rights of mankind, striking another Lockean chord.  “Government is instituted to protect property of every sort,” he writes, “This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own.”  For Madison, it was a moral principle that the government must act justly and fulfill its purposes.  His social compact thinking mirrored that of the Declaration of Independence.  He wrote:

More sparingly should this praise be allowed to a government, where a man’s religious rights are violated by penalties, or fettered by tests, or taxed by a hierarchy.  Conscience is the most sacred of all property; other property depending in part of positive law, the exercise of that, being a natural and unalienable right . . . [There is] no title to invade a man’s conscience which is more sacred than his castle, or to withhold from it that debt of protection, for which the public faith is pledged, by the very nature and original conditions of the social pact.

            Madison averred that the United States government was not a government that violated the sacred rights of mankind.  Indeed, it was instituted to protect those rights.  “If there be a government then which prides itself in maintaining the inviolability of property . . . and yet directly violates the property which individuals have in their opinions, their religion, their persons, and their faculties . . . that such a government is not a pattern for the United States.”  Madison finished his essay with more conditional logic, stating that if the new republic wished to be known for wise and just government, it would “respect the rights of property, and the property in rights.” 

           James Madison spent a lifetime thinking about the natural right of religious liberty and in public service doggedly working to protect it at the state and national level from government intrusion.  The current administration shows either a willful ignorance or a remarkable disregard for Madison’s career-long defense of freedom of conscience to so openly and blatantly violate the property rights that Roman Catholics and other religious people have in their conscience.  Thus, we are reminded of the importance of studying history and the Constitution that we may understand American founding principles and firmly stand united against any violations of religious and civil liberty by the government. 

Tony Williams is the Program Director for the Washington-Jefferson-Madison Institute in Charlottesville, VA, and the author of four books including, America’s Beginnings: The Dramatic Events that Shaped a Nation’s Character.   

Aristotle’s Nicomachean Ethics & American Republican Government

After George Washington was sworn-in as the first president of the new American republic on April 30, 1789, he delivered his First Inaugural Address to the people’s representatives in Congress.  He started the speech with his characteristic humility, stating that although he wished to retire to Mount Vernon and did not have the requisite skill to govern a country, he was nevertheless answering the call of his country.  The address struck a distinctly Aristotelian chord in Washington’s wishes for his country.

In his Nicomachean Ethics, the ancient Greek philosopher, Aristotle, describes his understanding of the basic nature of man.  Humans are rational creatures, he maintains, and must use that reason to exercise self-restraint over their passions.  That same rationality allows humans to be ethical, choosing between good and evil, right and wrong. Over time, these decisions become habits of vice or virtue that shape character.

Since the end of human life is happiness, Aristotle holds that true happiness is rooted in the well-ordered, good, and virtuous life. Self-government becomes possible when each individual literally governs himself and controls his passions.  It is a liberty governed by natural law.

Aristotle’s ethics laid the foundation of his political views.  He held that man is a political animal who finds his highest end in civil society.  The goal of the art of politics is to promote human happiness through just governance.  Because of the fact that politics deals with truths that are not always absolute or clearly discoverable by reason, the rightly-ordered state allows rational citizens to deliberate and attempt to persuade each other through rhetoric based upon right principles.

When attempting to measure the relative influence of any particular philosopher on the American founders, it is sometimes more subtle than adding up references in an index or looking at the personal libraries of the founders.  It is clear that Aristotle’s ethical and political views profoundly shaped the founders’ understanding of the nature of man and government.

Aristotle’s political philosophy was plainly evident in the new republican state constitutions.  The 1776 Virginia Declaration of Rights stated in Article XV that, “No free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.”  The 1780 Massachusetts Constitution argued in Aristotelian terms that, “Government is instituted for the common good; for the protection, safety, prosperity, and happiness of the people.”  The Northwest Ordinance later established schools because, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind.”  Republican self-government was founded upon a virtuous citizenry.

Coming back to President Washington’s First Inaugural, we see that he was expressing several Aristotelian sentiments.  Washington stated that, “There is no truth more thoroughly established than that there exists in the economy and course of nature an indissoluble union between virtue and happiness.”  Besides this essential ethical chord, he also struck another about the purposes of government made up of virtuous citizens.  He asked that God, the providential author of their rights, might “consecrate to the liberties and happiness of the People of the United States, a Government instituted by themselves for these essential purposes.”  Washington closely tied the virtue of American citizens to the success of the new republic, alluding to American exceptionalism and the idea of a “city upon a hill.”  If the Americans were virtuous, their republic would succeed; if they practiced fall, it would crumble.  He averred that,

The foundation of our national policy will be laid in the pure and immutable principles of private morality . . . . we ought to be no less persuaded that the propitious smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained: and since the preservation of the sacred fire of liberty and the destiny of the republican model of government are justly considered, perhaps, as deeply, perhaps as finally, staked on the experiment entrusted to the hands of the American people.

Washington finished the speech by neatly summarizing Aristotelian purposes of government.  Reason and deliberation would furnish the Americans with tranquility and happiness in just and wise government.  God had blessed the American People with “opportunities for deliberating in perfect tranquility, and dispositions for deciding with unparalleled unanimity on a form of government for the security of their union, and the advancement of their happiness, so his divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this Government must depend.”

In his Farewell Address, Washington gave his advice to his country for their future success with their republican experiment in liberty.  He told them in Aristotelian terms that religion and morality were indispensable supports for “the dispositions and habits which lead to political prosperity.”  The great duties of man were the “great pillars of human happiness.”  He clearly and strongly believed in Aristotle’s idea that virtue was necessary for self-government.  “Tis substantially true, that virtue or morality is a necessary spring of popular government.”  Aristotle’s vision of a well-ordered republic of free, virtuous individuals shaped the founding and should inform our discussion of the duties of citizens today.  

Tony Williams is the Program Director of the Washington, Jefferson & Madison Institute in Charlottesville, Virginia.  He has written four books and teaches history in Williamsburg, VA. 

Lincoln & Jefferson

By: J. David Gowdy

On February 12th we celebrate Abraham Lincoln’s birthday. He once said: “I have never had a feeling politically that did not spring from the sentiments embodied in the Declaration of Independence.”(1)  Lincoln admired, for a lifetime, Thomas Jefferson -- the man who had "the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times...."(2) A brief look at the early roots of those sentiments…

“'He read diligently,' Sarah Lincoln said. Young Lincoln studied in the daytime, but did not study much at night. He went to bed early, got up early, and then read. She recalled that "Abe read all the books he could lay his hands on; and, when he came across a passage that struck him he would write it down on boards if he had no paper and keep it there till he did get paper." Then he would re-write it, looked at it, and repeat it. Like Thomas Jefferson, he kept a notebook of his early readings, but it has not survived. Lincoln read histories, papers, and other books...

[I]n the pristine woods of Indiana Lincoln began to idolize Washington and Jefferson. The founding fathers, and the documents of American liberty became an integral part of Lincoln's entire life, political career, and even his own death and funeral at the end of the "final sentence" which Thomas Jefferson had feared during the Missouri crisis back in 1819.(3)

It may have been while young Lincoln was in Troy, near the Anderson River where Lincoln helped operate a ferry, and not far from where the Lafayette party had suffered the great Ohio River disaster in 1825, that Lincoln was introduced to a new field of reading; newspapers. The town was an official post office, and newspapers were delivered there by the post rider and were certainly available to anyone who might be interested to read them. Located only a mile and a half from the Lincoln family cabin; Gentry's Store became a post office on June 15, 1825. There were sixteen papers published in Indiana in the mid 1820s. Certainly occasional copies of Indiana papers would reach Gentry's Store, but also papers from Louisville, Cincinnati, Lexington, and other eastern cities. It could be days, weeks, or even months before they might arrive, but news was still news to the people of Little Pigeon Creek, Indiana.

A friend of the Lincolns, John Romine, later related that he had loaned young Lincoln a paper which contained an editorial on Thomas Jefferson. When the boy returned it, Romine declared, "it seemed he could repeat every word in that editorial and not only that but could recount all the news items as well as all about the advertisements." This particular issue may have been published in July, 1826, when newspapers were filled with editorials and articles commemorating the fiftieth anniversary celebration of the signing of the Declaration of Independence, and the sudden deaths, a double apotheosis, of the penman and the congressional advocate, Thomas Jefferson and John Adams, on the very day July 4, 1826.

This unusual occasion of both men dying on the fiftieth anniversary of American's Charter of Liberty made a lasting impression on Abraham Lincoln. He recalled that event thirty-seven years later after a July 4 celebration in the middle of civil war, and a significant northern military victory at a place called Vicksburg, Mississippi.(4)

While in Indiana "a playmate, schoolfellow, associate and firm friend," David Turnham of Gentryville, loaned Lincoln The Revised Laws of Indiana [1824] ... to which Are Prefixed the Declaration of Independence, The Constitution of the U. S., the Constitution of the State of Indiana and Sundry other Documents, connected with the Political History of the Territory and State of Indiana. It was through this volume, the first law book he ever read, that Lincoln became acquainted with the Declaration of Independence which became "his political chart and inspiration," according to John Nicolay, his White House secretary. Such reading led Lincoln to try his own hand at such writing. William Wood, a Lincoln neighbor, remembered that "A. Wrote a piece on national politics, saying that the American government was the best form of government in the world for an intelligent people; that it ought to be kept sacred and preserved forever.... that the Constitution should be sacred, the Union perpetuated, and the laws revered, and enforced.... This was in 1827 or '28."

Neighbor Wood showed Lincoln's article to a lawyer, John Pitcher, practicing in Posey County at that time. "I told him one of my neighbors' boy wrote it," said Wood. "He couldn't believe it till I told him Abe did write it ... said to me this: 'The world can't beat it.' He begged for it. I gave it to him and it was published, can't say what paper it got into." The seeds of Lincoln's future reverence for the Union and the determination to keep it sacred and to preserve it forever" may be found in this writing of a young Hoosier boy. This was probably Abraham Lincoln's first published piece.”(5)

From: Rietveld, Ronald D., “Abraham Lincoln's Thomas Jefferson” (White House Studies, NOVA Science Publishers, Inc., 2005).

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(1) Speech at Independence Hall, February 21, 1860, American Patriotism, S. Hobart Peabody, ed. (American Book Exchange, New York, 1880), p. 507.
(2) "To Henry L. Pierce and Others," April 6, 1859," in The Collected Works of Abraham Lincoln, ed. Roy P. Basler, 9 vols (New Brunswick, N.J.: Rutgers University Press in association with the Abraham Lincoln Association, 1953-1955), 3:375-376, hereafter cited as CWAL. 
(3) Douglas L. Wilson and Rodney O. Davis, eds., Herndon's Informants (Urbana and Chicago: Univ. of Illinois Press, 1998), p. 107; Noah Brooks, Abraham Lincoln and the Downfall of American Slavery (New York: G.P. Putnam's Sons, 1894), pp. 23-24; "Address to the New Jersey Senate at Trenton, New Jersey, February 21, 1861," in CWAL, 4:236.
(4) John Romine to William H. Herndon, September 14, 1865, in Herndon-Weik MSS, Library of Congress; Louis A. Warren, Lincoln's Youth: Indiana Years, Seven to Twenty-One, 1816-1830 (New York: Appleton-Century-Crofts, Inc., 1959), pp. 168-169; CWAL, 6:319-20
(5) Warren, Lincoln's Youth: Indiana Years, pp. 201-202; 169; 265; Wilson and Davis, eds., Herndon's Informants, pp. 120-123.

Teaching the Bill of Rights

The Washington, Jefferson & Madison Institute's next semi-annual educational seminar will be on the subject of “The Bill of Rights: Charter of Freedom.” The Seminar includes presentations by Tony Williams, Williamsburg Author and Teacher, and David J. Bobb, Director of the Allan P. Kirby Jr. Center for Constitutional Studies (Hillsdale College), on the topics of English Traditions, Colonial Charters, and State Constitutions; Madison-Jefferson Correspondence about a Bill of Rights; and Madison's June 8, 1789 Speech & Prudential Statesmanship.  The seminar is primarily for Virginia middle and high school U.S. Government, U.S. History and Social Studies teachers, and will be held Friday morning, February 15^th from 9:00 a.m. to 1:30 p.m. at Prospect Hill near Charlottesville.  A complementary luncheon is included.  There is no cost for teachers to attend.  For an invitation contact jody@wjmi.org.

The President of the Texas State Bar Association recently wrote, “We hear a lot of talk these days about the U.S. Constitution and how important it is to protecting our liberties. But surveys continue to show a disturbing trend of many Americans not understanding the Constitution and its relevance to our lives today….

For starters, just imagine life without the Bill of Rights, the first 10 amendments to the U.S. Constitution. The Bill of Rights guarantees some of our most precious liberties, including freedom of religion, speech, and press, freedom from unreasonable search and seizure, and private property rights. The Constitution created the framework for a strong but limited national government and established the fundamental rights of all U.S. citizens.

...we also should take this time to renew our focus on civics education in our schools and society. Today’s young people soon will be voting, sitting on juries and running for political office, and they must have the civics knowledge to make informed decisions and be engaged citizens. Research has shown that individuals who receive a solid civics education are more likely to be involved in their communities through activities such as volunteering and voting.

In today’s economy, the need for math, reading, writing and science knowledge is obvious, but civics education is an essential part of a comprehensive education. It is also essential to develop informed, effective and responsible citizens. Our future depends on individuals who understand their history and government, have a sense of what it means to be an American, and know their rights and responsibilities as a citizen.

“The better educated our citizens are, the better equipped they will be to preserve the system of government we have,” said retired U.S. Supreme Court Justice Sandra Day O’Connor, a longtime civics education advocate.  “And we have to start with the education of our nation’s young people. Knowledge about our government is not handed down through the gene pool. Every generation has to learn it, and we have some work to do.” (Texas Bar Page, 09/11/12). 

The mission of the Washington, Jefferson & Madison Institute is “To instill within educators and students of the rising generation a greater understanding of and appreciation for the Founding Fathers and the Founding Documents of the United States of America.”  We encourage all Americans to actively support their local Civics, Government and Social Studies teachers in this great task.

A Brief History of the Bill of Rights

“The original Constitution, as proposed in 1787 in Philadelphia and as ratified by the states, contained very few individual rights guarantees, as the framers were primarily focused on establishing the machinery for an effective federal government.  A proposal by delegate Charles Pinckney to include several rights guarantees (including "liberty of the press" and a ban on quartering soldiers in private homes) was submitted to the Committee on Detail on August 20, 1787, but the Committee did not adopt any of Pinckney's recommendations.  The matter came up before the Convention on September 12, 1787 and, following a brief debate, proposals to include a Bill or Rights in the Constitution were rejected.  As adopted, the Constitution included only a few specific rights guarantees: protection against states impairing the obligation of contracts (Art. I, Section 10), provisions that prohibit both the federal and state governments from enforcing ex post facto laws (laws that allow punishment for an action that was not criminal at the time it was undertaken) and provisions barring bills of attainder (legislative determinations of guilt and punishment) (Art. I, Sections 9 and 10).  The framers, and notably James Madison, its principal architect, believed that the Constitution protected liberty primarily through its division of powers that made it difficult for oppressive majorities to form and capture power to be used against minorities.  Delegates also probably feared that a debate over liberty guarantees might prolong or even threaten the fiercely-debated compromises that had been made over the long hot summer of 1787.

In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that.  With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session.  The concession was undoubtedly necessary to secure the Constitution's hard-fought ratification.  Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison called the omission of a Bill of Rights a major mistake: "A bill of rights is what the people are entitled to against every government on earth."

James Madison was skeptical of the value of a listing of rights, calling it a "parchment barrier."  (Madison's preference at the Convention to safeguard liberties was by giving Congress an unlimited veto over state laws and creating a joint executive-judicial council of revision that could veto federal laws.)  Despite his skepticism, by the fall of 1788, Madison believed that a declaration of rights should be added to the Constitution. Its value, in Madison's view, was in part educational, in part as a vehicle that might be used to rally people against a future oppressive government, and finally--in an argument borrowed from Thomas Jefferson--Madison argued that a declaration of rights would help install the judiciary as "guardians" of individual rights against the other branches.  When the First Congress met in 1789, James Madison, a congressman from Virginia, took upon himself the task of drafting a proposed Bill of Rights.  He considered his efforts "a nauseous project." His original set of proposed amendments included some that were either rejected or substantially modified by Congress, and one (dealing with apportionment of the House) that was not ratified by the required three-fourths of the state legislatures.  Some of the rejections were very significant, such as the decision not to adopt Madison's proposal to extend free speech protections to the states, and others somewhat less important (such as the dropping of Madison's language that required unanimous jury verdicts for convictions in all federal cases).

Some members of Congress argued that a listing of rights of the people was a silly exercise, in that all the listed rights inherently belonged to citizens, and nothing in the Constitution gave the Congress the power to take them away.  It was even suggested that the Bill of Rights might reduce liberty by giving force to the argument that all rights not specifically listed could be infringed upon.  In part to counter this concern, the Ninth Amendment was included providing that "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people"....

Most of the protections of the Bill of Rights eventually would be extended to state infringements as well federal infringements though the "doctrine of incorporation" beginning in the early to mid-1900s.  The doctrine rests on interpreting the Due Process Clause of the Fourteenth Amendment as prohibiting states from infringing on the most fundamental liberties of its citizens.

In the end, we owe opponents of the Constitution a debt of gratitude, for without their complaints, there would be no Bill of Rights.  Thomas Jefferson wrote, "There has just been opposition enough "to force adoption of a Bill of Rights, but not to drain the federal government of its essential "energy"….”

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http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html

Remember Morristown!

On this day, January 4^th, in the year 1780, a major snow storm hit General Washington and his troops encamped at Morristown, New Jersey.  The weather from January through March was extremely cold with snow accumulating to 12 feet high in places. It is well that we remember the sufferings of the Revolutionary soldiers at that time. A brief account follows:

“Washington again decided upon Morristown for his winter encampment and on November 30^th (1779), informed General Nathanael Greene of his decision. The various units marched to Morristown arriving between the first week of December and the end of the month. An area southwest of Morristown, called Jockey Hollow, was selected. It is estimated that 600 acres of forest were cut down to build more than 1,000 1og huts. It became known as "log-house city". Each hut was built to specifications required by General Washington measuring about 14 by 15 feet. The height at the eaves was 6 feet 6 inches. They were built of notched logs, with clay used as chink to seal the huts from the cold, and with a door at one end and a fireplace at the other. …Each hut held 12 men. The officers' huts were somewhat larger, with one to four officers, depending on rank to occupy each….

General Washington set up Headquarters at the Ford Mansion, some five miles from Jockey Hollow. Across what is now Morris Street, some 75 yards from Ford Mansion, the Commander-in-Chief's Guards constructed twelve huts of the same design as the main army and one officer's hut for Major Caleb Gibbs and Captain William Colfax. Gibbs, in personal correspondence, referred to his hut as "Gibb's Manor".

By 1780, the Continental Army had been at war six long years. It was in deplorable condition. Congress had exhausted all their resources, including the promised assistance from France. The Continental paper dollar had depreciated to 3,000 to 1! Even those supporting independence would not accept "Continentals", hence what money available to the army was worthless. The expression "Not worth a Continental" originated at this time.

George Washington wrote the Marquis de Lafayette on March 18th, 1780 from the Ford Mansion. "... The oldest people now living in this Country do not remember so hard a winter as the one we are now emerging from. In a word the severity of the frost exceeded anything of the kind that had ever been experienced in this climate before. "

When the Army arrived at Jockey Hollow, there was already a foot of snow on the ground. Doctor James Thacher, whose journal is one of the best sources of first person descriptions of events during the war, wrote: "The weather for several days has been remarkably cold and stormy. On the 3rd instance, we experienced one of the most tremendous snowstorms ever remembered; no man could endure its violence many minutes without danger to his life. ... When the storm subsided, the snow was from four to six feet deep, obscuring the very traces of the roads by covering fences that lined them. "

…General Johann de Kalb wrote: "...so cold that the ink freezes on my pen, while I am sitting close to the fire. The roads are piled with snow until, at some places they are elevated twelve feet above their ordinary level." 

Private Joseph Plumb Martin's memoirs, writing in the rollicking style of a soldier, reported: "We are absolutely, literally starved. I do solemnly declare that I did not put a single morsel of victuals into my mouth for four days and as many nights, except for a little black birch bark which I gnawed off a stick of wood. I saw several men roast their old shoes and eat them, and I was afterward informed by one of the officer's waiters, that some of the officers killed a favorite little dog that belonged to one of them." He then wrote that he wore "what laughingly could be called a uniform, and possessed a blanket thin enough to have straws shoot through it without discom­moding the threads "

…All roads were impassable and would stay that way until the snow melted. Not a single cart or wagon load of supplies could move.” The Continental Army was in danger of utter starvation.

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May we never forget the sacrifices of these early patriots for our precious liberty. 

http://www.revolutionarywararchives.org/coldwinter.html