Leonard W. Levy.
Origins of the Bill of Rights.
Contemporary Law series. New Haven and London: Yale University Press,
1999. xii + 306 pp. Appendices, Index. $30.00 (cloth), ISBN 0-300-07802-1
Gaspare J. Saladino , Documentary History of the Ratification of the
Constitution, University of Wisconsin, Madison.
Synthesizing the Origins of the Bill of Rights
Leonard W. Levy, dean of American constitutional historians, has produced
another book on the Bill of Rights, a subject on which, for four decades,
he has been prolific, instructive, and controversial. By Levy's own
admission, Origins of the Bill of Rights draws "heavily" on his
earlier writings, although it represents his "first attempt to be
systematic and comprehensive concerning the origins of rights" (p. ix).
attachment to the subject is deep and profound. For him, the Bill of
Rights and the Constitution (also protective of rights) represent one of
history's noblest themes -- "the triumph of individual liberty against
government power" (p.12). They remind Americans of "their view that the
citizen is the master of the government, not its subject" (p. 194).
first of the book's twelve chapters -- "Why We Have a Bill of Rights" --
traces its origins from the first Virginia charter (1606) through the
ratification of the U.S. Bill of Rights by the states (1791). To retain
their English liberties (embodied in the great liberty documents and the
common law), colonial Americans resisted imperial encroachments, while
they simultaneously created new rights in their frames of government and
charters of liberties. For them, "broad libertarian practices were the
rule, not the exception" (p. 3). By 1776, "the dominant theory" in America
"was that the fundamental law limited all branches of the government," not
just the Crown (p. 24). When Americans broke with England, they drafted
new constitutions because the word "constitution" had come to mean "a
supreme law creating government, limiting it, unalterable by it, and
paramount to it" (p. 8). Beginning with Virginia's
Declaration of Rights (1776), several states also drafted declarations of
rights as another means of restraining government. The hasty and
unsystematic drafting of these declarations bordered on "ineptness."
"Those documents which we uncritically exalt, were imitative, deficient,
and irrationally selective" (p. 186). The rights omitted "were as numerous
and important as those included" (p. 23). Nevertheless, state
constitutions and declarations were "the most important, creative, and
dynamic constitutional achievements in history" (p. 167).
the Constitutional Convention (1787) drafted a new constitution to replace
the Articles of Confederation (1781), many Americans objected to the
Constitution's lack of a bill of rights -- a fact that made its
ratification difficult. Both sides heatedly debated the question,
committing dangerously misleading rhetorical excesses. In some states,
ratifying conventions recommended scores of amendments, many of them based
upon rights protected in state declarations of rights. These conventions
recommended every part of what we now know as the Bill of Rights, except
the Fifth Amendment's just compensation clause.
1789 James Madison, who had opposed a bill of rights during the
Constitution's drafting and until the very end of the ratification
controversy, brilliantly and persistently shepherded through the U.S.
House of Representatives, against much opposition and apathy, seventeen
amendments that he was largely responsible for drafting. The Senate
adopted twelve of them, of which the states ratified ten. In drafting some
-- moved by reasons of "statecraft and political expediency" (p. 32) --
was an innovator; in others, what he recommended was commonplace. For his
efforts, he deserves to be called "father of the Bill of Rights" (p. 34).
outmaneuvered Antifederalists who wanted Congress to recommend sweeping
structural amendments to the Constitution; if Congress did not recommend
such changes, Antifederalists desired the calling of a second
constitutional convention, which Madison feared might
drastically alter the Constitution. His amendments quieted people's fears
raised in the debate on ratifying the Constitution and the opposition to
the Constitution disappeared.
Chapters Two and Three, Levy considers the Constitution itself as a bill
of rights, focusing on its provisions protecting the writ of habeas corpus
and banning bills of attainder. Levy traces the writ's development from
its beginnings (predating Magna Carta ), analyzing and discussing
the great liberty documents, court cases, and parliamentary statutes. In
his Commentaries on the Laws of England (1765-1769), the English
jurist William Blackstone called the writ "the most celebrated in the
English law"; it was issuable at any time to anyone in the king's
dominions, superseding other proceedings. Americans used the writ
sparingly since imperial authorities restricted its use by vetoing
colonial laws incorporating provisions of the Habeas Corpus Act (1679).
Moreover, the writ was ineffective against a powerful executive or
legislature. Some state constitutions protected it. Although the right is
not mentioned in many state constitutions, it is protected through the
states' incorporation of the common law.
Bills of attainder (legislation imposing penalties on named persons
without due process of law) originated in fourteenth-century England and
were used there until 1798. In America, they were rare except during the
Revolution, when governments often employed them against Loyalists. Levy
discusses Virginia's "notorious" Josiah Philips case (1778) and
criticizes, for their roles in it, his two favorite whipping boys --
Patrick Henry (a "first-rate demagogue") and Thomas Jefferson (an endorser
of outlawry). Several state constitutions and the Northwest Ordinance
(1787) prohibited bills of attainder, while the Constitutional Convention
(1787) prohibited them without discussion.
Chapters Four and Five cover the First Amendment's establishment and free
press clauses. Levy states that a freedom against an establishment of
religion has no "superior"; such a freedom belongs in the First Amendment
because establishments bring up "historical memories associated with
religious persecution" (p. 79). Levy notes that American colonial
establishments were different from European ones, which were limited to
state support of one church. In America,
"an establishment of religion meant government aid and sponsorship of
religion, principally by impartial tax support of the institutions of
religion, the churches" (p. 101). Therefore, the First Amendment prohibits
both state preference for one religion and nonpreferential support for
many or all. "Above all the establishment clause functions to protect
religion from government, and government from religion" (p. 102).
maintains that, in defining freedom of the press, Americans at first
accepted Blackstone's notion of no prior restraints. They too believed
that printers could be punished for publishing false opinions and
malicious scandals against government. But before 1789 the press, acting
as if the law of seditious libel did not exist, was rarely punished.
Seditious libel did exist, states Levy, although "the threshold of public
tolerance had significantly widened" (p. 123) -- a fact the free press
chapter six Levy states that the right to bear arms -- a right connected
to freedom -- was treasured in England,
where it was both an individual and a collective right. In America, it was
the personal right of freemen to protect themselves against lawbreakers,
especially since they distrusted standing armies. Therefore, gun ownership
was common. Another protection against standing armies was a person's
right to serve in a disciplined militia. The Second Amendment's preamble
does not refer only to a collective right of individuals. "The right to
bear arms is an individual right ... even if it is a right that must be
regulated" (pp. 134, 149). The Second Amendment also prohibits the
national government from destroying state militias.
Chapter Seven treats the Fourth Amendment's right against unreasonable
searches and seizures. This ancient right, based upon Magna Carta and the
delightful fiction that a man's house is his castle, was not secure before
1776. Colonial opposition to general warrants in the early 1760s,
particularly in Massachusetts, was probably the beginning of the American
Revolution. At the same time, John Wilkes, the radical English Whig
politician and member of the House of Commons, led the fight in the mother
country against general warrants. Framers of state constitutions condemned
general warrants, often inserting specific clauses restricting searches
and seizures. When Madison
proposed the Fourth Amendment, he employed the broadest language, some of
it borrowed from state constitutions. But he went beyond state
constitutions, using the admonitory "shall not" instead of the ineffectual
"ought not" and employing the term "probable cause."
Chapters Eight, Nine, and Ten discuss the Fifth and Sixth Amendments,
which declare and protect, respectively, rights against self-incrimination
and double-jeopardy, and rights to a grand jury indictment and to a jury
trial of one's peers. In England, the right against self-incrimination was
"above all ... closely linked to freedom of speech and religious liberty"
(p. 201). It was invented by individuals guilty of religious and political
crimes. The right grew slowly in America, but it was well known by the
mid-eighteenth century, when Americans associated it with Magna Carta and
the law of nature. Once such a connection is made, a right "receives
genuflection and praise, not critical analysis; and it gets exalted as a
fundamental liberty that receives constitutional expression" (p. 202).
Madison's clause on the right was broad because, although he was silent
about his intent, he sought "to incorporate into the Constitution the
entire scope of the common-law right" (p. 181). This meant that the right
applied to criminal and civil cases, to the deposition stage, and to the
initial questioning stage in a criminal case. Like other Fifth Amendment
rights, it was basic to the survival of other "treasured rights."
right against double-jeopardy goes back to the era of the Bible and
ancient Rome. It was accepted in criminal cases (felonies only) by the
seventeenth century, both in England and America. Few states, however,
inserted the right in their constitutions. By including the right, Madison
showed how conscientiously he drafted his amendments. Levy believes the
clause was meant to apply to all crimes, not just felonies, but he is
uncertain. "The Framers of the Bill of Rights were rarely exact with
respect to their intentions and as often as not failed to say what they
contemplated or mean[t] what they said" (p. 208).
double-jury system (under which individuals are indicted or charged with
crimes by a grand jury and tried by a trial or petit jury) developed from
the inquest used in English law in the era of Henry II. Trial by jury
developed first in civil cases and then in criminal ones. By the latter
half of the fourteenth century, the practice of a unanimous vote of twelve
jurors (in felony cases) had developed; such a vote represented the sense
of the community. Jurors were often punished by royal officials for not
rendering desired verdicts, but that practice ended with Bushell's case
(1670). Most public trials were fair. "The grand jury, like the trial
jury, evolved into a bastion of popular rights rather than a crown agent"
(p. 219). Grand juries defended individual freedoms, protecting people
against unfair and spiteful prosecutions. They stood between the royal
prosecutor and the trial jury; representatives of localities, they often
criticized government policies.
America, the jury trial was perhaps the most common right -- a particular
right of Englishmen. Between 1774 and 1776, Americans frequently asserted
this right and criticized Britain for using jury-less vice-admiralty
courts. Every state constitution and the Northwest Ordinance (1787)
secured the right; the Constitution,itself provided for jury trials in
criminal cases. Madison's amendments also called for guarantees of speedy
and public trials and jury trials in civil cases. Grand juries were common
in colonial and revolutionary America, where they mimicked their English
Eighth Amendment, the focus of chapter elevan, came from the English Bill
of Rights (1689). Six state constitutions also copied that liberty
document. The relevant provision in the English Bill of Rights was derived
from the case of Titus Oates, whose punishment for his involvement in the
Popish Plot (1678), was deemed excessive and cruel. Madison's
version of the amendment, in which he employed the admonitory "shall not"
with respect to punishments, was accepted verbatim by Congress.
finds the notion of non-barbarous punishment as early as the Bible and
Magna Carta. The English were proud that their punishments were not as
barbarous as European ones; American punishments were even more lenient.
Death was an acceptable punishment in England
and America, providing the accused received due process of law and the
punishment was proportionate to the crime.
declares in chapter twelve that Madison
wanted the Ninth Amendment to protect unenumerated rights against
endangerment from the enumeration of particular rights. The amendment also
avoided the difficult task of a systematic and complete enumeration of
rights. The Ninth "is a repository of natural rights, including the right
to pursue happiness and the right to equality of treatment before the law"
(p. 254). The commonplace notion of natural rights, of which the pursuit
of happiness was one, is crucial to understanding this amendment. The
Framers were as committed to this pursuit as they were to liberty and
property. The amendment -- intended to have vitality -- also protects
positive rights, such as voting, free elections, and office holding, all
of which are also protected in state constitutions and statutes. Levy even
maintains that the Ninth was possibly meant to protect rights not yet
Levy fulfilled his stated purpose? The book is not as "systematic" and
"comprehensive" as he seems to intend it to be, but he succeeds admirably
in summarizing in vivid and compelling prose his writings on liberty. More
than twenty-five rights are embedded in the Bill of Rights. Excepting the
right to keep and bear arms, Levy treats only those rights on which he has
previously written. He ignores the First Amendment's right to assemble and
right of petition clauses and the free exercise clause; the Fifth
Amendment's due process and just compensation clauses; and the Sixth
Amendment's right to counsel and confrontation clauses. The Third
Amendment's prohibition on the quartering of troops receives no mention,
even though it demonstrates concern for the sanctity of homes, the
protection of property, and the subordination of the civilian to the
military -- all themes of Levy's other scholarship. Levy omits discussion
of some rights found in the Constitution -- the prohibition of ex post
facto laws and religious tests for office-holding and the narrow
definition of treason. Although Origins of the Bill of Rights does
not consider all rights, it is a lucid and valuable examination of those
it does address, and it surpasses all comparable overview studies in its
analysis and presentation of the English background.
probably tackled the Second Amendment for the first time in these pages
because the amendment and its interpretation concern modern Americans
greatly. Neither gun-control advocates nor the National Rifle Association
will be happy with his interpretation, while proponents of citizen
militias will be outraged. Levy describes the views of militia advocates
as "bizarre" and "loony." He lands smack in the middle of the debate,
which is probably where, based upon the available historical evidence, he
should land. As a true believer in rights, his stance is understandable;
the amendment gives individuals the right to keep and bear arms.
Levy mostly draws together his own writings without doing very much more
is further demonstrated by his book's brief bibliography and lack of
footnotes. This bibliography, which includes only the work of other
historians, has a mere dozen titles, most published before 1980. Levy
refers in his text to still other historians; he is generous to the fine
work of two of his students, Thomas J. Curry (religion clauses) and
William Cuddihy (searches and seizures). The page facing the title page
lists more than thirty of Levy's publications and as such it constitutes a
second, more significant bibliography. Levy's bibliography of the works of
other historians is supplemented by the extensive bibliography found in
his Original Intent and the Framers' Constitution (New York and
London: Macmillan, 1988). Substantial bibliographies also appear in his
Origins of the Fifth Amendment: The Right Against Self-Incrimination
(New York: Oxford University Press, 1968; rev. ed., New York: Macmillan,
1988), and his Emergence of a Free Press (New York and Oxford:
Oxford University Press, 1985) -- the latter a thorough revision and
updating of his pathbreaking 1960 study Legacy of Suprression
(Cambridge, Mass.: Belknap Press of Harvard University Press, 1960).
Although Levy scores both Federalists and Antifederalists for their
rhetorical excesses, he is overly harsh about the sincerity of
Antifederalist leaders, often dismissing them as demagogues. Many
Antifederalist leaders unquestionably preferred sweeping structural
changes to the Constitution, but the fears of many others were sincere
respecting the document's lack of a bill of rights. The Constitution
created a powerful central authority and fear and suspicion of such an
authority had deep roots in American history. Revolutionary Americans --
influenced by their experience with a powerful central authority (imperial
Britain) -- insisted on written constitutions and declarations of rights
to protect their rights and liberties. Why then should the Constitution
not have a bill of rights? Such thinking was part of the Revolution's
constitutional heritage, so eloquently praised by Levy.
seems oblivious to the burgeoning literature that looks favorably on
Antifederalist contributions to political and constitutional thought.
Antifederalists are being taken more seriously; few scholars now dismiss
them as intellectually deficient or demagogic "men of little faith." Many
were intelligent, complicated, and diverse, representing a variety of
interests and positions. Moreover, it is important to understand their
thought because their arguments did much to shape Federalist arguments.
Antifederalists were the primary shapers of the ratification debates on
the Constitution and the Bill of Rights. Levy also seems to be unaware of
(or has chosen to disregard) the work of several historians, such as
Gordon S. Wood, who have convincingly questioned Richard Henry Lee's
authorship of the Letters from the Federal Farmer.
Nonetheless, Origins of the Bill of Rights is an excellent
synthesis of a lifetime of scholarship by an unabashed champion of rights
and liberties. It is a splendid addition to Professor Levy's bulging
bookshelf of monographs and edited works. It gives historians, lawyers,
and the general public considerable insight into a document that defines
Americans as a people.
Library of Congress
Call Number: KF4749.L488 1999
* United States. Constitution. 1st-10th Amendments. -- History.
* Civil rights -- United States -- History.
Citation: Gaspare J. Saladino . "Review of Leonard W. Levy, Origins of the
Bill of Rights," H-Law, H-Net Reviews, October, 1999. URL:
“The book is wonderful reading but probably targeted
more for popular than scholarly consumption…Much of Origin has its
origins in Original Intent and the Framers’ Constitution, Levy’s
well-known 1988 book, and thus although Origins of the Bill of Rights
may have been originally original, that claim cannot now be staked.
Nevertheless, readers – particularly those new to Levy – will find this
volume invigorating and engaging.”
Rodney A. Smolla, review of Origins of the Bill of
Rights, by Leonard W. Levy, The William and Mary Quarterly 57
(October 2000): 891-893.