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The Daily Signal
Without This
Woman, America Might Not Have a Bill of Rights
Sen. Mike Lee
May 30, 2017
You didn’t log on to the internet or switch on cable television in 1788
Boston to obtain breaking news of the Constitutional Convention in
Philadelphia.
You hiked to the nearest tavern or coffeehouse to pick up a copy of the
latest newspaper to learn what—in those days of rudimentary
communication—passed for the latest news.
When the latest missive on the new Constitution came out in 1788,
Boston’s Green Dragon Tavern would have been buzzing.
“Did you see this?” one Bostonian, a pro-Constitution Federalist,
demanded as he waved a freshly printed pamphlet to catch the attention
of a friend at the next table, who nearly spilled his mug of ale.
“‘Observations on the New Constitution, and on the Federal and State
Conventions,’ they call it, and it’s just outrageous. It dares to claim
we need something called a ‘bill of rights’ in our new Constitution!
More confounded delays! Hang it all—we must adopt our new Constitution
now! Blasted idlers! Pernicious! Pernicious!”
The other Federalists in the tavern murmured their assent. But none
among them knew the identity of the author behind “Observations on the
New Constitution.” All they knew was the pseudonym under which it had
been printed: “A Columbian Patriot.”
Because Elbridge Gerry of Massachusetts had emerged as one of just
three delegates who refused to sign the proposed Constitution, many
logically assumed Gerry was the author.
They were wrong. Mercy Otis Warren’s mighty pen had struck again. (Not
until 140 years later, through the research of one of her descendants,
the legal scholar Charles Warren, was her authorship discovered.)
Her “Observations” attacked the proposed new Constitution left and
right, giving voice to concerns that a new, strong, and distant federal
government could trample the rights both of the individual states and
of the people.
A “many-headed monster,” she called it, “of such motley mixture, that
its enemies cannot trace a feature of democratic or republican extract;
nor have its friends the courage to denominate it a monarchy, an
aristocracy, or an oligarchy.”
Among her observations:
There are no well defined limits of the judiciary powers, they seem to
be left as a boundless ocean, that has broken over the chart of the
Supreme Lawgiver, “thus far shalt thou go and no further,” and as they
cannot be comprehended by the clearest capacity, or the most sagacious
mind, it would be an Herculean labor to attempt to describe the dangers
with which they are replete…
… The executive and the legislative are so dangerously blended as to
give just cause of alarm, and everything relative thereto, is couched
in such ambiguous terms—in such vague and indefinite expression, as is
a sufficient ground without any objection, for the reprobation of a
system, that the authors dare not hazard to a clear investigation …
… There is no provision for a rotation, nor anything to prevent the
perpetuity of office in the same hands for life; which by a little
well-timed bribery, will probably be done, to the exclusion of men of
the best abilities from their share in the offices of government—By
this neglect we lose the advantages of that check to the overbearing
insolence of office, which by rendering him ineligible at certain
periods, keeps the mind of man in equilibrio, and teaches him the
feelings of the governed, and better qualifies him to govern in his
turn.
An overreaching judiciary. Executive orders. A permanent governing
class. “Insolence of office.” Her concerns may sound familiar to us
even today.
Some of her strongest rhetoric emerged when she discovered the lack of
protections from unlawful searches and seizures:
I cannot pass over in silence the insecurity in which we are left with
regard to warrants unsupported by evidence … such a detestable
instrument of arbitrary power, to subject ourselves to the insolence of
any petty revenue officer to enter our houses, search, insult, and
seize at pleasure.
What was there in this new Constitution that would prevent officials of
the new American government from overstepping the same boundaries as
their British predecessors? What was the point of a revolution against
the old regime if the new one had the potential to be just as bad?
To that end, she concluded: “There is no provision by a bill of rights
to guard against the dangerous encroachments of power in too many
instances to be named.”
She had developed the invaluable skill of losing a battle but winning a
war. Warren and her “Observations” failed to convince her own state of
Massachusetts to reject the Constitution, but Bay State delegates
hardly rejected all her arguments.
Massachusetts’ February 1788 vote on ratification was very close
(187–168), and it succeeded only because Gov. John Hancock (himself a
delegate) proposed that ratification be accompanied by clarifying
amendments, including a bill of rights.
Other states voted in the wake of Massachusetts’ narrow, qualified
decision. New York was a key to ratification. If it rejected the
Constitution, the new nation would be geographically cut in half. The
whole experiment might still fail.
Anti-Federalists, others like Mercy opposed to a strong central
government, shipped 1,600 copies of her “Observations on the New
Constitution” for distribution around the battleground state. In April
1788, the New York Journal published her arguments.
In the end, New York voted for ratification—but repeated the Bay
State’s call for inserting highly specific guarantees of liberty into
the Constitution.
New York’s memorandum supporting ratification (the longest by far of
any state) echoed much of what was found in Mercy’s “Observations,”
particularly her antipathy to broad-brush searches and seizures.
New York’s ratification convention declared:
That every freeman has a right to be secure from all unreasonable
searches and seizures of his person, his papers, or his property; and
therefore, that all warrants to search suspected places, or seize any
freeman, his papers, or property, without information, upon oath or
affirmation, of sufficient cause, are grievous and oppressive; and that
all general warrants (or such in which the place or person suspected
are not particularly designated) are dangerous, and ought not to be
granted.
Three other states supported Massachusetts’ and New York’s demands,
ratifying the new compact but strongly suggesting a bill of rights. The
idea came to be called the Massachusetts Compromise, after the state
that first proposed it, having been influenced by Warren’s passionate
plea.
That compromise—based on Warren’s work—helps guarantee our civil
liberties to this day.
Read this article, plus others, at The Daily Signal
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