Vail Daily column: What the Constitution says | VailDaily.com

Vail Daily column: What the Constitution says

Editor’s note: This is the second part in a series.

The colonies were restless. What some might call sedition was in the air. Whatever it might have been called, the yoke of British rule — and what at least some considered British oppression — had begun to chafe.

The stirrings began in earnest in 1765 when the American fledglings rejected the authority of the British Parliament to tax them. Protests started and then grew, culminating in the Boston Tea Party of 1773. The British responded by imposing punitive laws — the Coercive Acts — on Massachusetts in 1774. The other colonies rallied behind Massachusetts and set up a Congress to take charge.

What was critical was the creation of a democratically elected representative form of government that was directly responsible to the will of the people. This was something wholly new under the sun.

Formal acts of rebellion against British authority followed.

‘SHOT HEARD ROUND THE WORLD’

In 1774, the Patriot Suffolk Resolves effectively replaced the royal government of Massachusetts and confined British control to the city of Boston. Tensions escalated resulting finally in the outbreak of fighting between Patriot militia and British regulars at Lexington and Concord in April 1775 — the famous “shot heard round the world.” To be precise, the phrase is originally from the opening stanza of Ralph Waldo Emerson’s “Concord Hymn” (1837). According to Emerson’s poem, this pivotal shot occurred at the North Bridge in Concord, Massachusetts, where the first British soldiers killed in the battles fell.

Patriots in each of the 13 colonies formed a Provincial Congress that usurped power from the old colonial governments and suppressed loyalism. Resistance to the British was coordinated through the Second Continental Congress. Claiming King George III’s rule was tyrannical and violated the rights of Englishmen (which is, in the main, what the colonists still considered themselves), the Continental Congress declared the colonies free and independent states in July 1776.

These 13 states declared themselves the United States of America, a loose confederacy under the 1777 Articles of Confederation. Warfare with the mother country blossomed. Ultimately, what was undeniably a ragtag army under Gen. Washington prevailed and in 1781, after a combined American–French force captured a British army at Yorktown, the war effectively came to an end. A peace treaty followed in 1783 that confirmed the new nation’s complete separation from the British Empire.

FORMING A NEW NATION

The United States took possession of nearly all the territory east of the Mississippi River and south of the Great Lakes, with the British retaining control of Canada and Spain taking Florida.

Now, it was time for the new nation to govern.

The period that followed the peace treaty involved passionate debate between “federalists” such as Washington, James Madison and Alexander Hamilton, who favored a strong national government, and leaders who wanted strong states but a weaker national government, what we would now refer to as “state’s rights” advocates. Famously among these was Thomas Jefferson.

Ultimately, the former group won with ratification of a sparkling new United States Constitution in 1788, which replaced the weaker Articles of Confederation. The new Constitution established a relatively strong federal national government that included a strong elected president, national courts, a bicameral Congress that represented both states in the Senate and population in the House of Representatives. Congress was conferred powers of taxation that were lacking under the old articles which has stood for 11 years.

What was critical was the creation of a democratically elected representative form of government that was directly responsible to the will of the people. This was something wholly new under the sun.

BILL OF RIGHTS DEBATE

The call for a bill of rights had been the anti-Federalists’ most powerful weapon. Attacking the proposed Constitution for its vagueness and lack of specific protection against tyranny, Patrick Henry asked the Virginia convention, “What can avail your specious, imaginary balances, your rope-dancing, chain-rattling, ridiculous ideal checks and contrivances?”

The anti-Federalists demanded a more concise, unequivocal Constitution, one that openly declaimed the rights of the people and limitations of the power of government. Richard Henry Lee despaired at the lack of provisions to protect “those essential rights of mankind without which liberty cannot exist.”

A bill of rights had been barely mentioned in the Philadelphia convention, most delegates holding that the fundamental rights of individuals had been secured in the state constitutions. James Wilson maintained that a bill of rights was superfluous because all power not expressly delegated to the new government was reserved to the people. Thomas Jefferson, generally in favor of the new government, wrote to Madison that a bill of rights was “what the people are entitled to against every government on earth.”

‘FUNDAMENTAL MAXIMS OF FREE GOVERNMENT’

By the fall of 1788 Madison — “father” and primary draftsman of the Constitution — had been convinced that not only was a bill of rights necessary to ensure acceptance of the Constitution but that it would have positive effects. He wrote, on Oct. 17, that such “fundamental maxims of free Government” would be “a good ground for an appeal to the sense of community” against potential oppression and would “counteract the impulses of interest and passion.”

10 AMENDMENTS RATIFIED

Madison’s support of the Bill of Rights was of critical significance. He worked tirelessly for its acceptance and was ultimately able to shepherd 17 amendments through the House of Representatives, a list that was later trimmed to 12 in the Senate.

On Oct. 2, 1789, President Washington sent to each of the states a copy of the 12 amendments adopted by the Congress in September. By Dec. 15, 1791, three-fourths of the states had ratified the 10 amendments now so familiar to Americans as the Bill of Rights, which will be the subject of our focus in Part 3.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. Robbins may be reached via phone at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.