The Constitution without a Bill of Rights: Thoughts by Roger Sherman, November 22, 1787

The Constitution without a Bill of Rights: Thoughts by Roger Sherman, November 22, 1787

When the Constitutional Convention had done its work and the Constitution was conveyed to the several States for consideration, some rose to support and others to oppose the document via convention debates, newspaper editorials and the like. In general, supporters were known as Federalists and opponents Anti-Federalists.

One Anti-Federalist criticism of the Constitution was the absence of a bill of rights. In this passage, Convention delegate, Roger Sherman (writing as "A Countryman" in the New Haven Gazette) addressed this concern with some unique and interesting arguments concerning the relationship between rights and privileges vis-a-vis government institutions.

August Glen-James, editor

On examining the new proposed constitution, there cannot be a question, but that there is authority enough lodged in the proposed federal Congress, if abused, to do the greatest injury.

It is enough that you should have heard, that one party has seriously urged, that we should adopt the New Constitution because it has been approved by Washington and Franklin: and others, with all the solemnity of apostolic address to Men, Brethren, Fathers, Friends and Countrymen, have urged that we should reject, as dangerous, every clause thereof, because that Washington is more used to command as a soldier, than to reason as a politician—Franklin is old—others are young—and Wilson is haughty. You are too well informed to decide by the opinion of others, and too independent to need a caution against undue influence.

Of a very different nature, tho’ only one degree better than the other reasoning, is all that sublimity of nonsense and alarm, that has been thundered against it in every shape of metaphoric terror, on the subject of a bill of rights, the liberty of the press, rights of conscience, rights of taxation and election, trials in the vicinity, freedom of speech, trial by jury, and a standing army.

These last are undoubtedly important points, much too important to depend on mere paper protection. For, guard such privileges by the strongest expressions, still if you leave the legislative and executive power in the hands of those who are or may be disposed to deprive you of them—you are but slaves. Make an absolute monarch—give him the supreme authority, and guard as much as you will by bills of right, your liberty of the press, and the trial by jury; he will find means either to take them from you, or to render them useless.

The only real security that you can have for all your important rights must be in the nature of your government. If you suffer any man to govern you who is not strongly interested in supporting your privileges, you will certainly lose them. If you are about to trust your liberties with people whom it is necessary to bind by stipulation, that they shall not keep a standing army, your stipulation is not worth even the trouble of writing. No bill of rights ever yet bound the supreme power longer than the honey moon of a new married couple, unless the rulers were interested in preserving the rights; and in that case they have always been ready enough to declare the rights, and to preserve them when they were declared.

The famous English Magna Charta is but an act of parliament, which every subsequent parliament has had just as much constitutional power to repeal and annul, as the parliament which made it had to pass it at first. But the security of the nation has always been, that their government was so formed, that at least one branch of their legislature must be strongly interested to preserve the rights of the nation. . . .

Your General Assembly under your present constitution [i.e., Articles of Confederation] are supreme. They may keep troops on foot in the most profound peace, if they think proper. They have heretofore abridged the trial by jury in some causes, and they can again in all. They can restrain the press, and may lay the most burdensome taxes if they please, and who can forbid? But still the people are perfectly safe that not one of these events shall take place so long as the members of the General assembly are as much interested, and interested in the same manner as the other subjects.

On examining the new proposed constitution, there cannot be a question, but that there is authority enough lodged in the proposed federal Congress, if abused, to do the greatest injury. And it is perfectly idle to object to it, that there is no bill of rights, or to propose to add to it a provision that a trial by jury shall in no case be omitted, or to patch it up by adding a stipulation in favor of the press, or to guard it by removing the paltry objection to the right of Congress to regulate the time and manner of elections.

If you cannot prove by the best of all evidence, viz. by the interest of the rulers, that this authority will not be abused, or at least that those powers are not more likely to be abused by the Congress, than by those who now have the same powers, you must by no means adopt the constitution: No, not with all the bills of rights and all the stipulations in favor of the people that can be made.

But if the members of Congress are to be interested just as you and I are, and just as the members of our present legislatures are interested, we shall be safe, with even supreme power, (if that were granted) in Congress, as in the General Assembly. If the members of Congress can take no improper step which will not affect them as much as it does us, we need not apprehend that they will usurp authorities not given them to injure that society of which they are a part.

The sole question, (so far as any apprehension of tyranny and oppression is concerned) ought to be, how are Congress formed? how far are the members interested to preserve your rights? how far have you a control over them? Decide this, and then all the questions about their power may be dismissed for the amusement of those politicians whose business it is to catch flies, or may occasionally furnish subjects for . . . the residue of that rabble of writers.