The bill of rights

Several delegates at Philadelphia considered that it was not necessary to incorpo­rate a bill of rights into the text of the Constitution since the Federation would not be conferred with powers able to abridge citizen's liberties.

it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence.

In a similar vein, Madison emphasized that federalism, that is, the precise enu­meration of the powers given to the national government, and the separation of powers would both emerge as guarantees to protect fundamental rights (Tushnet, 2009, pp. 15-16). But during the ratification campaign, Madison himself and other Federalists realized that the absence of a bill of rights in the constitutional draft was the Anti-Federalists' most politically effective argument (see Kenyon, 1955, pp. 18-21) and that the success of the establishment of a central government hinged on the promise that the Constitution would soon be amended in order to add the rights able to be invoked at the federal level. It is likely that the Federalist commitment to fundamental rights was crucial for the ratification of the Constitution in New York where the fight with the opposi­tion was close. The debate around the bill of rights was also relevant at both the Massachusetts and Virginia Conventions (Middlekauff, 2007, pp. 682-683). Afterwards, when the Constitution entered into force and the elections to the first Congress were organized, Madison went to the campaign for the seat in the House of Representatives (the Virginia legislature had already refused to elect him to the Senate) upholding as well the promise to introduce a bill of rights (Tushnet, 2009, p.

Once assumed by people such as Madison or Hamilton that there would not be federation without rights, they did their best to redirect the sense of the bill of rights to the general intention that they had in building the national government, that is, to make a strong central government able to trump the States in case of dissidences. The federal bill of rights was not conceived as a device to limit the power but to create power. On the first stance this move did not accomplish its goals but, nevertheless, it laid the foundations for the constitutional change that would take place more than half a century later with the Reconstruction.

If we look closer at the elaboration of the current First Amendment (I leave aside now the circumstance that the first and the second original amendment proposals were not ratified in 1791), we shall find that Madison had in mind to protect “freedom of speech,” “freedom of the press,” or “free exercise of religion” from State interference, the action of which through the majorities gathered in the State legislatures, was deemed more dangerous than any eventual regulation provided by the federal Congress (Amar, 1998, p. 22). Madison's proposal, however, was not passed in the Senate and the possibility to include, for instance, the speech and press clauses against the States would have to wait until the approval of the Equal Protection Clause of the 14th Amendment occurred after the Civil War.

It may be argued that Federalists had more success in using the bill of rights to strength the Federation vis-a-vis the States through other clauses such as the Second Amendment, guaranteeing the right to raise “a well-regulated Militia, being necessary to security of a free State” and “the right of the people to keep and bear Arms.” The argument might be outlined by underscoring the authority

Violence and constituent power in America 125 that Article I of the Constitution gives to the Congress to federalize the “well- regulated Militia” of the Second Amendment and eventually launching against States in case of insurrection (Amar, 1998, p.

The considerations of the ten first amendments to the U.S. Constitution here presented allow me to stress the already mentioned (in the previous chapter) difference between a “constitutional amendment” and a “constitutional transformation.” As suggested, the 1791 inclusion of the bill of rights was achieved without great convulsions and the promise of its drafting made by the Federalists represented a relevant argument to persuade the representatives in the Conventions where the ratification had to be discussed. The bill of rights, thus, as some scholars argued (Berkin, 2002, p. 179; Collier and Collier, 1986, pp. 249-250), rather than being perceived as a constitutional change, it might even be doubted if it was a constitutional amendment at all (though formally it was) or a mere epigone of the constitutional foundation. The point here is that the violence and open wars that accompanied some of the further U.S. constitutional developments accurately illustrate to what extent a real constitutional change, a structural one, is rather linked to extreme conflicts and political catastrophes than to public involvement and deliberations. Precisely the different role of the bill of rights bestowed by the 14th Amendment and its capacity to be invoked, from the Civil War onwards, against the States, demonstrates that idea.