Roger Sherman and the Bill of Rights

Polity

Volumn 28, Issue 4, 1996, Pages 520-531

  Gerber, Scott D ^a  

^a NONE

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[No Author keywords available]

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EID: 0030167060     PISSN: 00323497     EISSN: None     Source Type: Journal    
DOI: 10.2307/3235344     Document Type: Article

References (51)

1. Herbert Mitgang, "Handwritten Draft of a Bill of Rights Found," New York Times, 29 July 1987, p. Al.
2. "Library of Congress Confirms Discovery of Bill of Rights Draft by Roger Sherman," Library of Congress Information Bulletin, 46 (August 10, 1987), pp. 349, 351.
3. 3. Christopher Collier is Professor of History at the University of Connecticut, Connecticut State Historian, and the author of the most recent biography of Roger Sherman, Roger Sherman's Connecticut: Yankee Politics and the American Revolution (Middletown: Wesleyan University Press, 1971). Robert Rutland is Professor Emeritus of History at the University of Tulsa, former editor of The Paper of James Madison, and author of a pioneering study, The Birth of the Bill of Rights, 1776-1791 (Chapel Hill: University of North Carolina Press, 1955). Charles Hobson is editor of The Papers of John Marshall and a former editor of The Paper of James Madison.
4. Christopher Collier is Professor of History at the University of Connecticut, Connecticut State Historian, and the author of the most recent biography of Roger Sherman, Roger Sherman's Connecticut: Yankee Politics and the American Revolution (Middletown: Wesleyan University Press, 1971). Robert Rutland is Professor Emeritus of History at the University of Tulsa, former editor of The Paper of James Madison, and author of a pioneering study, The Birth of the Bill of Rights, 1776-1791 (Chapel Hill: University of North Carolina Press, 1955). Charles Hobson is editor of The Papers of John Marshall and a former editor of The Paper of James Madison.
5. Christopher Collier, "Draft Bill of Rights Was Most Likely Not by Sherman," New York Times, 5 September 1987, p. A22;
6. Letter from Robert A. Rutland to Bruce Tapper, 15 February 1988 (copy on file with the author); Letter from Charles F. Hobson to James H. Hutson, 9 March 1988 (copy on file with the author). There is also discussion in the correspondence about whether Hutson was actually the first scholar to "discover" the draft Bill. The 1965 index to the microfilm edition of The Papers of James Madison contains the following entry: "Sherman, R Amendments to the Constitution 1789 J1." Index to the James Madison Papers (Washington, DC: Library of Congress, 1965), p. 51. Although this entry supports Rutland's and Hobson's position that they had seen the draft at least as early as 1965, the document itself is not include in the published Madison papers collection.
7. Bernard Schwarts, ed., The Bill of Rights: A Documentary History, vol. 1 (New York: Chelsea House, 1971), p. 435.
8. The records of the Federal Convention of 1787, ed. Max Farrand (New Haven: Yale University Press, 1966), vol. 2, p. 587.
9. Records of the Federal Convention, 2: 588.
10. Records of the Federal Convention, 2: 588.
11. Records of the Federal Convention, 2: 617-18.
12. 10. See James Wilson, "Speech on the Federal Constitution, delivered in Philadelphia," 6 October 1787, in Pamphlets on the Constitution of the United States, ed. Paul L. Ford (Brooklyn: 1888; repr., New York: De Capo Press, 1968), pp. 115, 156; James Madison, "Speech in the Virginia Convention," 25 June 1788, in The Writings of James Madison, ed. Gaillard Hunt (New York: Putnam's Sons, 1900-10), vol. 5, p. 231;
13. See James Wilson, "Speech on the Federal Constitution, delivered in Philadelphia," 6 October 1787, in Pamphlets on the Constitution of the United States, ed. Paul L. Ford (Brooklyn: 1888; repr., New York: De Capo Press, 1968), pp. 115, 156; James Madison, "Speech in the Virginia Convention," 25 June 1788, in The Writings of James Madison, ed. Gaillard Hunt (New York: Putnam's Sons, 1900-10), vol. 5, p. 231;
14. and The Federalist, No. 84 (Alexander Hamilton), ed. Clinton Rossiter (New York: New American Library, 1961), p. 513.
15. Wilson and Madison also argued that a federal bill of rights was dangerous (not just unnecessary), because an enumeration of rights would imply that those rights not enumerated were not protected. Records of the Federal Convention, 3: 143 (remarks of James Wilson);
16. and James Madison, "Speech in the Virginia Convention," in The Writings of James Madison, 5: 231.
17. Roger Sherman, "Letters of a Countryman, II," 1787, in Essays on the Constitution of the United States, ed. Paul L. Ford (New York: Burt Franklin, 1872; repr., 1970), pp. 218, 219 (emphasis in origininal).
18. Roger Sherman, "A Citizen of New Haven," 24 March 1789, in Creating the Bill of Rights: The Documents from the First Federal Congress, ed. Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford (Baltimore: Johns Hopkins University Press, 1991), PP. 220, 222.
19. See, e.g., The Federalist, No. 49, p. 314 (James Madison).
20. See, e.g., William Lee Miller, The Business of May Next: James Madison and the Founding (Charlottesville: University P ress of Virginia, 1992), pp. 246-49.
21. Schwartz, The Bill of Rights, 2: 1020.
22. Schwartz, The Bill of Rights, 2: 1023-34.
23. Schwartz, The Bill of Rights, 2: 1057.
24. Madison's reason for wanting to integrate the provisions of the Bill of Rights into the text of the Constitution is not altogether clear. Portion of his remarks suggest that he was concerned with matters of form: with "neatness," "propriety," and "simplicity," as he put it. Other portions indicate, however, that Madison had a more substantive concern: He wanted to insure that the Constitution and the Bill of Rights would not be subjected to comparative analysis and consequently appear as opposing (or contradictory) statements. See Schwartz, The Bill of Rights, 2: 1066-67.
25. Elbridge Gerry's statement that to spend time on the question of "form" was "to be trifling about matters of little consequence" and Thomas Hartley's observation that "the time of the House was too precious to be squandered a way in discussing a mere matter of form" imply that at least some of the representatives present did not believe that Madison's proposal to interweave the amendments into the text of the Constitution was motivated by substantive concerns. See Schwartz, The Bill of Rights, 2: 1069-72.
26. Schwartz, The Bill of Rights, 2: 1066.
27. 20. Schwartz, The Bill of Rights, 2: 1066. See also 2: 1073.
28. Schwartz, The Bill of Rights, 2: 1066. See also 2: 1073.
29. Schwartz, The Bill of Rights, 2: 1039-40.
30. Christopher Collier, "Liberty, Justice, and No Bill of Rights: Protecting Natural Rights in a Common-Law Commonwealth," in The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, ed. Patrick T. Conley and John P. Kaminski (Madison, WI: Madison House, 1992), pp. 100, 119.
31. Collier, "Draft Bill of Rights Was Most Likely Not by Sherman," p. a22.
32. Schwartz, The Bill of Rights, 2: 1088.
33. Schwartz, The Bill of Rights, 2: 1110.
34. Schwartz, The Bill of Rights, 2: 1117.
35. Christopher Collier discusses the draft in a book-length manuscript that chronicles the history of the Constitution from a Connecticut perspective. Scholars will learn much from Collier's discussion.
36. James H. Hutson, "The Birth of the Bill of Rights: The State of Current Scholarship," Prologue (Fall 1988): 143, 153.
37. Of course there were actually two amendments proposed that, if ratified by the states, would have preceded what has come to be known as the "First" Amendment. That said, the placement of the First Amendment contributes, at least symbolically, to its importance.
38. Madison considered freedom of the press to be one of three rights significant enough to warrant, in his proposed bill of rights, express restrictions on the states' power to regulate.
39. Schwartz, The Bill of Rights, 2: 713, 1137.
40. See generally Herbert Hovenkamp, Enterprise and American Law, 1836-1937 (Cambridge, MA: Harvard University Press, 1993), p. 242. This assumes that the antitrusttype guarantee would have been incorporated to the states. The laissez-faire-minded Supreme Court did incorporate one property-oriented guarantee: the just compensation clause. See Chicago, Burlington and Quincy Railroad v. Chicago, 166 U.S. 226 (1897).
41. 33. Collier, "Liberty, Justice, and No Bill of Rights," p. 119. See also Schwartz, The Bill of Rights, 2: 1111 (where Sherman opposes a double jeopardy guarantee in the Bill of Rights because "courts of justice would never think of trying and punishing twice for the same offence").
42. Collier, "Liberty, Justice, and No Bill of Rights," p. 119. See also Schwartz, The Bill of Rights, 2: 1111 (where Sherman opposes a double jeopardy guarantee in the Bill of Rights because "courts of justice would never think of trying and punishing twice for the same offence").
43. 34. For an opposing view, see, e.g., Thomas C. Grey, "Do We Have an Unwritten Constitution?," Stanford Law Review, 27 (February 1975): 703, 715-16. See generally Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995).
44. For an opposing view, see, e.g., Thomas C. Grey, "Do We Have an Unwritten Constitution?," Stanford Law Review, 27 (February 1975): 703, 715-16. See generally Scott Douglas Gerber, To Secure These Rights: The Declaration of Independence and Constitutional Interpretation (New York: New York University Press, 1995).
45. James H. Hutson, "The Bill of Rights and the American Revolutionary Experience," in A Culture of Rights: The Bill of Rights in Philosophy, Politics, and Law - 1791 and 1991, ed. Michael J. Lacey and Knud Haakonssen (New York: Cambridge University Press, 1991), pp. 62, 71.
46. 36. Schwartz, The Bill of Rights, 2: 1029. The quoted remarks from Madison deal a fatal blow, in my judgment, to Hutson's claim that Madison "stripped rights of their natural rights status when drafting the Bill of Rights." Hutson, "The Bill of Rights and the American Revolutionary Experience," p. 91.
47. Schwartz, The Bill of Rights, 2: 1029. The quoted remarks from Madison deal a fatal blow, in my judgment, to Hutson's claim that Madison "stripped rights of their natural rights status when drafting the Bill of Rights." Hutson, "The Bill of Rights and the American Revolutionary Experience," p. 91.
48. Antonin Scalia, "Originalism: The Lesser Evil," University of Cincinnati Law Review, 57(1989): 849, 852.
49. 38. See Louis Henry Boutell, The Life of Roger Sherman (Chicago: McClurg, 1896); Roger Sherman Boardman, Roger Sherman: Signer and Statesman (Philadelphia: University of Pennsylvania Press, 1938); Collier, Roger Sherman's Connecticut.
50. See Louis Henry Boutell, The Life of Roger Sherman (Chicago: McClurg, 1896); Roger Sherman Boardman, Roger Sherman: Signer and Statesman (Philadelphia: University of Pennsylvania Press, 1938); Collier, Roger Sherman's Connecticut.
51. See Louis Henry Boutell, The Life of Roger Sherman (Chicago: McClurg, 1896); Roger Sherman Boardman, Roger Sherman: Signer and Statesman (Philadelphia: University of Pennsylvania Press, 1938); Collier, Roger Sherman's Connecticut.