The Origin of the U.S. Bill The Origin of the U.S. Bill of Rightsof RightsPart IPart I

Dr. donna Bair-Mundy

Before you read John Stuart Mill…

Magna Carta 1215

Magna

Carta

King John (c.1167 - 1216)

Seal of Baron Robert Fitzwalter

Magna Carta 1215 - BBC

Magna Carta

xhttp://www.bl.uk/magna-carta/videos/what-is-magna-carta

Magna Carta 1215

Magna

Carta

King John (c.1167 - 1216)

Magna Carta 1215 cap. 39

Nullus liber homo capiatur vel

imprisonetur, aut disseisiatur,

aut utlagetur, aut exuletur, aut

aliquo modo destruatur, nec

super eum ibimus, nec super

eum mittemus, nisi per legale

judicium parium suorum vel

per legem terrae.

Magna Carta

Magna Carta 1215 cap. 39

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Magna Carta

Reinterpreting the Magna Carta

Magna Carta1215

25 Edward III, c. 41351/1352

28 Edward III1354

No free man . . .

None . . .

No man of what estate or condicion that he be …

Reinterpreting the Magna Carta

Sir Edward Coke1642

“…for Justices of Peace to make warrants upon surmises, for breaking the houses of any subjects to search for felons, or stoln [sic] goods, is against Magna Carta.”

Coke, Edward. 1642. The fourth part of the institutes of the laws of England. London: M. Flesher.

English Bill of Rights - 1689

“That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently..”

English Bill of Rights - 1689

“That election of members of Parliament ought to be free;

That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;

That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;

That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;

That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;

And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently..”

All rights still inhere to the monarch. These

rights granted are exceptions.

Reinterpreting the Magna Carta

William Pitt1763

“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his force dares not cross the threshold of the ruined tenement.”

American Constitution

Heavily influenced by natural rights philosophy (esp. John Locke)

Natural Law & Natural Rights

John Locke’s Second treatise on civil government

The state of Nature has a law of Nature to govern it, which obliges everyone, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possessions... .

Declaration of Independence

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. (Declaration of Independence, 1776)

Natural Law & Natural Rights

John Locke’s Second treatise on civil government

…[in a natural state all men exist in] “a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of Nature, without asking leave or depending upon the will of any other man”

…however, free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in a society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name—property.

Natural Law & Natural Rights

John Locke’s Second treatise on civil government

[In an ideal society] “the power of the society or legislative [sic] constituted by them can never be supposed to extend farther than the common good....”

American Constitution

An anti-majoritarian document

American Constitution

We’re constituting a government.Should we include a Bill of Rights?

Bill of Rights debate: Mason, Jefferson, et al.

When assigning powers to the government must also limit those powers

General warrants and writs of assistance

Objections to Bill of Rights

Bill of Rights is stipulation a king gives to his subjects, granting a few exceptions to rights of the monarch

Bill of Rights dangerous—implies government has powers not

Could later be misconstrued as all-inclusive not granted

(Alexander Hamilton, Federalist paper no. 84, etc.)

The compromise

Amendment IX

The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Penumbra

1928Olmstead et al. v U.S.

277 U.S. 438

Justice Oliver Wendell Holmes (dissenting)

“I am not prepared to say that the penumbra of the Fourth and Fifth Amendments covers the defendant…”

Penumbra

1965Griswold v. Connecticut

381 U.S. 479Justice William O. Douglas (majority opinion)

“The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”

…

“In other words, the First Amendment has a penumbra where privacy is protected from governmental intrusion.”

Penumbra

Merriam-Webster:

1 a : a space of partial illumination (as in an eclipse) between the perfect shadow on all sides and the full light

b : a shaded region surrounding the dark central portion of a sunspot

2 : surrounding or adjoining region in which something exists in a lesser degree : fringe

Penumbra

FirstAmendment

Specific guarantees

Implied rights

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Freedom of 1st Amendment gives right to associate without surveillance (Lieber 1859)