When our Constitution was first established, it was assumed that the description of specific powers granted to the government would leave no doubt as to what the government could and could not do, and that the absence of powers over the rights of the people would leave those rights protected. But Jefferson and others were wary of leaving such important matters up to inference. They insisted on a Bill of Rights that would state in unmistakable terms those rights of the people that must be left inviolate.
"I disapproved from the first moment... the want of a bill of rights [in the new Constitution] to guard liberty against the legislative as well as the executive branches of the government." --Thomas Jefferson to Francis Hopkinson, 1789. ME 7:300
"I do not like... the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of nations." --Thomas Jefferson to James Madison, 1787. ME 6:387
"A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440
"The general voice from north to south... calls for a bill of rights. It seems pretty generally understood that this should go to juries, habeas corpus, standing armies, printing, religion and monopolies. I conceive there may be difficulty in finding general modifications of these suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press, and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any. The few cases wherein these things may do evil cannot be weighed against the multitude wherein the want of them will do evil." --Thomas Jefferson to James Madison, 1788. ME 7:96
"It astonishes me to find... [that so many] of our countrymen... should be contented to live under a system which leaves to their governors the power of taking from them the trial by jury in civil cases, freedom of religion, freedom of the press, freedom of commerce, the habeas corpus laws, and of yoking them with a standing army. This is a degeneracy in the principles of liberty... which I [would not have expected for at least] four centuries." --Thomas Jefferson to William Stephens Smith, 1788. (*) FE 5:3
"I consider all the ill as established which may be established. I have a right to nothing which another has a right to take away." --Thomas Jefferson to Uriah Forrest, 1787. ME 6:388, Papers 12:477
"I hope, therefore, a bill of rights will be formed to guard the people against the federal government as they are already guarded against their State governments, in most instances." --Thomas Jefferson to James Madison, 1788. ME 7:98
Purpose of a Bill of Rights
"It had become an universal and almost uncontroverted position in the several States, that the purposes of society do not require a surrender of all our rights to our ordinary governors; that there are certain portions of right not necessary to enable them to carry on an effective government, and which experience has nevertheless proved they will be constantly encroaching on, if submitted to them; that there are also certain fences which experience has proved peculiarly efficacious against wrong, and rarely obstructive of right, which yet the governing powers have ever shown a disposition to weaken and remove. Of the first kind, for instance, is freedom of religion; of the second, trial by jury, habeas corpus laws, free presses." --Thomas Jefferson to Noah Webster, 1790. ME 8:112
"A constitutive act may, certainly, be so formed as to need no declaration of rights. The act itself has the force of a declaration as far as it goes; and if it goes to all material points, nothing more is wanting... But in a constitutive act which leaves some precious articles unnoticed and raises implications against others, a declaration of rights becomes necessary by way of supplement. This is the case of our new Federal Constitution. This instrument forms us into one State as to certain objects and gives us a legislative and executive body for these objects. It should therefore guard against their abuses of power within the field submitted to them." --Thomas Jefferson to James Madison, 1789. ME 7:310
"The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government. In this view, it is necessary to the federal government also; as by the same text, they may try the opposition of the subordinate governments." --Thomas Jefferson to James Madison, 1789. ME 7:311
"In the arguments in favor of a declaration of rights... one which has great weight with me [is] the legal check which it puts into the hands of the judiciary." --Thomas Jefferson to James Madison, 1789. ME 7:309
"[The objection has been raised that] experience proves the inefficacy of a bill of rights. [This is] true. But though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen with that brace the less. There is a remarkable difference between the characters of the inconveniences which attend a Declaration of Rights, and those which attend the want of it. The inconveniences of the Declaration are that it may cramp government in its useful exertions. But the evil of this is short-lived, trivial and reparable. The inconveniences of the want of a Declaration are permanent, afflicting and irreparable. They are in constant progression from bad to worse." --Thomas Jefferson to James Madison, 1789. ME 7:311
"The declaration of rights is, like all other human blessings, alloyed with some inconveniences and not accomplishing fully its object. But the good in this instance vastly outweighs the evil." --Thomas Jefferson to James Madison, 1789. ME 7:309
"My idea then is, that though proper exceptions to these general rules are desirable and probably practicable, yet if the exceptions cannot be agreed on, the establishment of the rules in all cases will do ill in very few." --Thomas Jefferson to James Madison, 1788. ME 7:98
Basic Contents of a Bill of Rights
"By a declaration of rights, I mean one which shall stipulate freedom of religion, freedom of the press, freedom of commerce against monopolies, trial by juries in all cases, no suspensions of the habeas corpus, no standing armies. These are fetters against doing evil which no honest government should decline." --Thomas Jefferson to Alexander Donald, 1788. ME 6:425
"No person shall be restrained of his liberty but by regular process from a court of justice, authorized by a general law... On complaint of an unlawful imprisonment, to any judge whatsoever, he shall have the prisoner immediately brought before him, and shall discharge him if his imprisonment be unlawful. The officer in whose custody the prisoner is shall obey the order of the judge, and both judge and officer shall be responsible civilly and criminally for a failure of duty herein.
... The Military shall be subordinate to the Civil authority.
... Printers shall be liable to legal prosecution for printing and publishing false facts injurious to the party prosecuting: but they shall be under no other restraint.
... All pecuniary privileges and exemptions enjoyed by any description of persons are abolished." --Thomas Jefferson, Draft of a Charter of Rights [for France], 1789. ME 7:372, Papers 15:168
"The Constitutions of our several States vary more or less in some particulars. But there are certain principles in which all agree, and which all cherish as vitally essential to the protection of the life, liberty, property, and safety of the citizen: 1. Freedom of religion, restricted only from acts of trespass on that of others; 2. Freedom of person, securing every one from imprisonment or other bodily restraint but by the laws of the land. This is effected by the well-know law of habeas corpus; 3. Trial by jury, the best of all safeguards for the person, the property, and the fame of every individual; 4. The exclusive right of legislation and taxation in the representatives of the people; 5. Freedom of the press, subject only to liability for personal injuries." --Thomas Jefferson to A. Coray, 1823. ME 15:489
"I like [the declaration of rights] as far as it goes, but I should have been for going further. For instance, the following alterations and additions would have pleased me:
Article 4. The people shall not be deprived or abridged of their right to speak, to write, or otherwise to publish anything but false facts affecting injuriously the life, liberty, property or reputation of others, or affecting the peace of the confederacy with foreign nations.These restrictions, I think, are so guarded as to hinder evil only. However, if we do not have them now, I have so much confidence in my countrymen as to be satisfied that we shall have them as soon as the degeneracy of our government shall render them necessary." --Thomas Jefferson to James Madison, 1789. ME 7:450, Papers 15:367
Article 7. All facts put in issue before any judicature shall be tried by jury except, 1, in cases of admiralty jurisdiction, wherein a foreigner shall be interested; 2, in cases cognizable before a court martial concerning only the regular officers and soldiers of the United States, or members of the militia in actual service in time of war or insurrection; and 3, in impeachments allowed by the Constitution.
Article 8. No person shall be held in confinement more than -- days after he shall have demanded and been refused a writ of habeas corpus by the judge appointed by law, nor more than -- days after such a writ shall have been served on the person holding him in confinement, and no order given on due examination for his remandment or discharge, nor more than -- hours in any place at a greater distance than -- miles from the usual residence of some judge authorized to issue the writ of habeas corpus; nor shall that writ be suspended for any term exceeding one year, nor in any place more than -- miles distant from the State or encampment of enemies or of insurgents.
Article 9. Monopolies may be allowed to persons for their own productions in literature, and their own inventions in the arts, for a term not exceeding -- years, but for no longer term, and no other purpose.
Article 10. All troops of the United States shall stand ipso facto disbanded at the expiration of the term for which their pay and subsistence shall have been last voted by Congress, and all officers and soldiers not natives of the United States shall be incapable of serving in their armies by land, except during a foreign war.
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