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§ 434. It was further added, that, in truth, the Constitution itself, was, in every rational sense, and to every useful purpose, a Bill of Rights for the Union. It specifies, and declares the political privileges of the citizens in the structure and administration of the Government. defines certain immunities and modes of proceeding, which relate to their personal, private, and public rights and concerns. It confers on them the unalienable right of electing their rulers; and prohibits any tyrannical measures, and vindictive prosecutions. So that, at best, much of the force of the objection rests on mere nominal distinctions, or upon a desire to make a frame of government a code to regulate rights and remedies.
§ 435. Although it must be conceded, that there is much intrinsic force in this reasoning, it cannot in candor be admitted to be wholly satisfactory, or conclusive on the subject. It is rather the argument of an able advocate, than the reasoning of a constitutional statesman. the first place, a Bill of Rights (in the very sense of this reasoning) is admitted in some cases to be important and the Constitution itself adopts, and establishes its pro priety to the extent of its actual provisions. Every reason, which establishes the propriety of any provision of this sort in the Constitution, such as a right of trial by jury in criminal cases, is, to that extent, proof, that it is neither unnecessary nor dangerous. It reduces the question to the consideration, not whether any Bill of Rights is necessary, but what such a Bill of Rights should properly contain. This is a point for argument, upon which different minds may arrive at different conclusions. That a Bill of Rights may contain too many enumerations, and especially such, as more correctly belong to the ordinary legislation of a government, cannot be doubted. Some of our State Bills of Rights contain clauses of this description, being either in their character and phraseology quite too loose, and general, and ambiguous; or covering doctrines quite debatable, both in theory and practice; or even leading to mischievous consequences, by restricting the Legislative power under circumstances, which were not foreseen, and if foreseen, the restraint would have
been pronounced by all persons inexpedient, and perhaps unjust. Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude and visionary aphorisms of government, requires to be guarded against with the most unceasing vigilance.
$436. In the next place, a Bill of Rights is important, and may often be indispensable, whenever it operates as a qualification upon powers, actually granted by the people to the government. This is the real ground of all the Bills of Rights in the parent country, in the Colonial constitutions and laws, and in the State constitutions. In England, the Bills of Rights were not demanded merely of the Crown, as withdrawing a power from the Royal prerogative; they were equally important, as withdrawing power from Parliament. A large proportion of the most valuable of the provisions in Magna Charta, and the Bill of Rights in 1688, consists of a solemn recognition of the limitations upon the powers of Parliament; that is, a declaration, that Parliament ought not to abolish, of restrict those rights. Such are the right of trial by jury; the right to personal liberty and private property, according to the law of the land; that the subjects ought to have a right to bear arms; that elections of members of Parliament ought to be free; that freedom of speech and debate in Parliament ought not to be impeached, or questioned elsewhere; and that excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. Whenever, then, a general power exists, or is granted to a government, which may, in its actual exercise or abuse, be dangerous to the people, there seems a peculiar propriety in restricting its operations, and in excepting from it some at least of the most mis chievous forms, in which it may be likely to be abused And the very exception in such cases, will operate with a silent, but irresistible influence, to control the actual abuse cft in other analogous cases.
§ 437. In the next place, a Bill of Rights may be important, even when it goes beyond the powers supposed to be granted. It is not always possible to foresee the extent of the actual reach of certain powers, which are
given n general terms. They may be construed to extend (and perhaps fairly) to certain classes of cases, which did not at first appear to be within them. A Bill of Rights, then, operates, as a guard upon any extravagant or undue extension of such powers. Besides; (as has been justly remarked,) a Bill of Rights is of real efficiency in controlling the excesses of party spirit. It serves to guide and enlignten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights. It requires more than ordinary hardihood and audacity of character, to trample down principles, which our ancestors have consecrated with reverence; which we imbibed in our early education; which recommend themselves to the judgement of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of Rights are a part of the muniments of freemen, showing their title to protection; and they become of increased value, when placed under the protection of an independent judiciary, instituted as the appropriate guar dian of the public and private rights of the citizens.
§ 438. In the next place, a Bill of Rights is an important protection against unjust and oppressive conduct on the part of the people themselves. In a government modified like that of the United States, (it has been said by a great statesman,) the great danger lies rather in the abuse of the community, than of the legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter, where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in the executive or legislative departments of government; but in the body of the people, operating by the majority against the minority. It may be thought, that all paper barriers against the power the community are too weak to be worthy of attention. They are not so strong, as to satisfy all, who have seen and examined thoroughly the texture of such a defence. Yet, as they have a tendency to impress some degree of respect or them, to establish the public opinion in their
favor, and to rouse the attention of the whole community, it may be one means to control the majority from those acts, to which they might be otherwise inclined.
§ 439. The want of a Bill of Rights, then, is not either an unfounded or illusory objection. The real question is not, whether every sort of right or privilege or claim ought to be affirmed in a constitution; but whether such, as in their own nature are of vital importance, and peculiarly susceptible of abuse, ought not to receive this solemn sanction. Doubtless, the want of a formal Bill of Rights in the Constitution was a matter of very exaggerated declamation and party zeal, for the mere purpose of defeating the Constitution. But, so far as the objection was well founded in fact, it was right to remove it by subsequent amendments; and Congress have (as we shall see) accordingly performed the duty with most prompt and laudable diligence.
$440. The first amendment is, "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.'
§ 441. The same policy, which introduced into the Constitution the prohibition of any religious test, led to this more extended prohibition of the interference of Congress in religious concerns. We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity, (which none could hold in more reverence, than the framers of the Constitution,) but to a dread by the people of the influence of ecclesiastical power in matters of government; a dread, which their ancestors brought with them from the parent country, and which, unhappily for human infirmity, their own conduct, after their emigration, had not, in any just degree, tended to diminish. It was also obvious, from the numerous and powerful sects existing in the United States, that there would be perpetual temptations to struggles for ascendency in the National councils, if any one might thereby hope to found a perma
nent and exclusive national establishment of its own, and religious persecutions might thus be introduced, to an extent utterly subversive of the true interests and good order of the Republic. The most effectual mode of suppressing the evil, in the view of the people, was, to strike down the temptations to its introduction.
§ 442. How far any government has a right to interfere in matters touching religion, has been a subject much discussed by writers upon public and political law. The right and the duty of the interference of government in matters of religion have been maintained by many distinguished authors, as well by those, who were the warmest advocates of free governments, as by those, who were attached to governments of a more arbitrary character. Indeed, the right of a society or government to interfere in matters of religion, will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice. The promulgation of the great doctrines of religion, the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues ;—these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive, how any civilized society can well exist without them. And, at all events, it is impossible for those, who believe in the truth of Christianity, as a Divine revelation, to doubt, that it is the especial duty of government to foster, and encourage it among all the citizens and subjects. This is a point wholly distinct from that of the right of private judgement in matters of religion, and of the freedom of public worship, according to the d'ctates of one's conscience.
§ 443. The real difficulty lies in ascertaining the limits, to which government may rightfully go, in fostering and encouraging religion. Three cases may easily be supposed. One, where a government affords aid to a particular religion, leaving all persons free to adopt an