Rights Secured in the Constitution prior to the Bill of Rights

Introduction

Without stretching to make a point, I think it is possible to list twenty rights that are in the unamended or Philadelphia Constitution. These rights in the Constitution go beyond the obvious “big four”: the individual right to habeas corpus relief, the right to no bills of attainder or ex-post facto laws, and the right to no “tainting of blood” to the next generation with respect to conviction of treason. Also involved as we move from the Articles of Confederation to the Constitution is a reappraisal of the rights of the people of the nation over against the states, in which they also reside, and the rights of the people of the states over against the national government.

What follows is a compilation and it is not simply about individual rights to be protected from government, but about rights to participate in government and the kind of government that is supposed to protect rights. If we follow the argument of The Federalist and the preamble to the 1787 Constitution, a major objective of the Philadelphia Constitution was to secure liberty and justice. And to that end, more than “parchment barriers” were needed. In addition to an “extension of the orbit,” four institutional “improvements” were implemented: a bicameral legislature, the separation of Congressional and Executive powers, an independent judiciary, and “a scheme of representation.” According to Hamilton, in Federalist 84, the Constitution is a bill of rights because the whole purpose of a constitution is to secure rights against the abuse of power.

From 1776-1791, America changed the Bill of Rights story from a primary attempt to restrain the behavior of the one and the few toward the majority to an alternative attempt to restrain the behavior of the majority toward the one and the few. The Constitution is an important part in the shift in the nature of the narrative. The Philadelphia Constitution proposed to secure the rights of the one and the few by providing a constitutional framework within which the majority was supposed to operate.

The U.S. Constitution

Article I, Section 1: Bicameral Legislature

• “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Article I, Section 2: the right to vote for the First Branch

• “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…”

Article I, Section 2: the right to run for the First Branch

• “No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”

Article I, Section 2: the right to representation in the First Branch

• “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…[and] No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”

Article I, Section 3: the right to run for the Second Branch

• “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Article I, Section 6: the right of Congress members to free “speech and debate”

• “They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Article I, Section 9: Federal Writ of Habeas Corpus

• “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

Article I, Sections 9 and 10: No Federal, and No State, Ex-Post Facto Law

• Section 9: “No…ex post facto Law shall be passed.”
• Section 10: “No State shall…pass any…ex post facto Law…”

Article I, Sections 9 and 10: No Federal, and No State, Bill of Attainder

• Section 9: “No Bill of Attainder…shall be passed.”
• Section 10: “No State shall…pass any Bill of Attainder…”

Article I, Sections 9 and 10: No Federal, and No State, Title of Nobility

• Section 9: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
• Section 10: “No State shall…grant any Title of Nobility.”

Article I, Section 10: No State Impairing Obligation of Contracts

• “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts…”

Article II, Section 1: Separation of Legislative and Executive Powers

• “The executive Power shall be vested in a President of the United States of America.”

Article III, Section 1: Independent Judiciary

• “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”

Article III, Section 2: Trial by Jury in Criminal Cases

• “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Article III, Section 3: Conviction of Treason

• “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.”

Article IV, Section 1: Full Faith and Credit

• “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Article IV, Section 2: Privileges and Immunities

• “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”

Article V, Section 1: The right of the People to Alter and Amend

• “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress…”

Article VI, Section 1: No Religious Test for any US Office

• “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Article VII, Section 1: The Right of the People to Ratify the Constitution

• “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”