U.S. First Congress: Adoption of First Ten Amendments to U.S. Constitution, 1789-1791

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. [1]

Because there had been considerable public concern that the U.S. Constitution did not contain provisions protecting certain rights of the citizens, one of the most important tasks facing the First Congress was developing and adopting constitutional amendments on these subjects to propose to the states for ratification followed by the states’ ratification of ten of these proposals. [2]

Congress’ Adoption of Proposed Amendments

The House of Representatives opened this “Great and Delicate Subject” on June 8, 1789, when Representative James Madison introduced his nine proposed amendments. He said they were to meet objections by some citizens that the Constitution “did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power.” For illustration, Madison’s fourth article of amendment stated, in part, as follows:

  • “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.”
  • The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
  • “The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.”

Madison’s proposals, however, were not immediately welcomed, by his own Federalists and by the Antifederalists. Many saw them as a waste of time or premature and preventing attention on more pressing business. Therefore, the proposals would have to wait.

On July 21, 1789, Madison unsuccessfully tried to move his amendments to the House floor. Instead they were assigned to a pro-Federalist select committee. Madison was aided in his amendment project by quoting from a not-quite-secret private letter from President Washington saying, “I see nothing exceptionable in the proposed amendments. Some of them, in my opinion, are importantly necessary; others, though in themselves not very essential, are necessary to quiet the fears of some respectable characters and well meaning Men. Upon the whole, not foreseeing any evil consequences that can result from their adoption, they have my wishes for a favorable reception in both houses.”

Thereafter the select committee reshuffled, tightened, and reconfigured Madison’s proposals into a more coherent list of nineteen, but still including what we now know as the Bill of Rights with narrower language for freedom of conscience. Madison argued that this language meant that Congress could not enforce the legal observance of any religion nor compel anyone to worship God in any way contrary to his conscience.

The select committee also revised Madison’s militia amendment—he had proposed an absolute individual right to bear arms—to make clear that the amendment applied specifically to organized, officially sanctioned militias, which were seen as the front line of defense against any foreign military invasion.

On August 24, 1789, the House after a cursory, mostly non-substantive debate approved 17 articles of amendment, including these important rights. Federalists thought they were self-evident, and Antifederalists were more interested in states rights. These articles then were sent to the Senate, which was not very enthusiastic about considering them.

On September 2, 1789, however, the Senate took up the amendments that had been approved by the House and altered and consolidated them into 12 articles that passed the Senate on September 9. Thereafter the House agreed to most of the Senate’s changes, and a conference committee reconciled the remaining differences.

On September 25, 1789, the First Congress approved these revised 12 articles of proposed amendments. According to Bordewich, “the collective mood [of the Congress] was less one of triumph than of sheer exhaustion. No one in Congress regarded passage of the amendments as more than an exercise in political housekeeping” or “paper guarantees.”

States’ Ratification of First Ten Amendments to Constitution

These 12 articles of proposed amendments then were sent to the states for ratification. Although nine states so ratified 10 of the 12 articles within ten months, their actual ratification did not happen until December 15, 1791.[3] Here are the ratified amendments (now the Bill of Rights) or Articles I through X in “Addition to, and Amendment of, the Constitution:”

  • Article I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
  • Article II. “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
  • Article III. “No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law.”
  • Article IV. “The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon principal cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
  • Article V. “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
  • Article VI.“In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.”
  • ArticleVII. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined, in any court of the United States, than according to the rules in common law.”
  • Article “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
  • Article IX. “The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
  • Article “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
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[1] U.S. First Congress: Overview, 1789-1791, dwkcommentaries.com (Feb. 15, 2017).

[2] Bordewich, The First Congress at 13, 85-93, 107, 115-143, 158-59, 312 (Simon & Schuster, New York, 2016); House of Representatives, Amendments to the Constitution, The Founders Constitution.

[3] Article II of these proposed amendments was ratified on May 7, 1992, and is now the 27th Amendment to the U.S. Constitution. Article I of the proposed amendments from 1789, therefore, is still pending. (Twenty-seventh Amendment to the United States Constitution, Wikipedia.)

U.S. First Congress: Creation of Federal Judiciary, 1789

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. We now look at its creation of the federal court system in the Judiciary Act of 1789, which was adopted on September 24, 1789.[1]

The Constitution

The backdrop for this legislation was Article III of the Constitution of the U.S.A., which provided the following:

  • Section 1 “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.”
  • Section 2 “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
  • “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
  • “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.”

Judiciary Act of 1789

The previously mentioned Judiciary Act of 1789 had the following key provisions:

  • Section 1. The “supreme court of the United States shall consist of a chief justice and five associate justices . . . .” [The Supreme Court’s cognizance or jurisdiction was established in Section 13.][2]
  • Section 2. The U.S. “shall be, and they hereby are divided into thirteen districts [as defined in that section].[3]
  • Section 3. There shall be “a court called a District Court, in each of the aforesaid districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge. . . .” [The cognizance or jurisdiction of each of the District Courts was specified in Sections 9 and 10.][4]
  • Section 4. These thirteen districts, except those of Maine and Kentucky, “shall be divided into three circuits, and be called the eastern, the middle and the southern circuit. . . . and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court and the district judge of such districts . . . .’ [The cognizance or jurisdiction of the Circuit Courts was specified in Section 11, and certain of their procedures were contained in Section 5.] [5]
  • Section 12 [Procedure for removal of certain cases from state court to federal court.]
  • Sections 6, 8, 14-26, 29-35. [Established rules of procedure for the federal courts.]
  • Section 7 [Supreme Court and District Courts have power to appoint clerks with specification of their duties.]
  • Sections 27-28. [District courts have power to appoint marshals with specification of their duties.]

According to Fergus Bordewich, the author of a leading book about the First Congress, the bill’s primary author was Senator Oliver Ellsworth, a staunch Federalist from Connecticut and an experienced litigator and state court judge. Ellsworth was especially concerned about maritime issues because virtually all of the federal government’s revenues would derive from import duties. Another maritime issue was regulating privately owned raiders by validating captured prizes and ensuring that they did not commit outright piracy. [6]

There was “vigorous debate” about the bill. Some believed that having only six Supreme Court justices was insufficient to combat the state courts; that it would be wrong to allow state courts to have jurisdiction over some federal cases; that there was insufficient federal revenue to support the federal courts; that this judiciary was intended to enrich lawyers; that the federal judges would have too much “inquisitorial power;” that the federal courts should not have the power to invalidate state laws that were believed to conflict with the Constitution or federal laws or treaties. James Madison in the House of Representatives thought the bill was too complicated and too expensive. Some even thought that having two overlapping judicial systems (state and federal) was totally unnecessary.

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[1] U.S. First Congress, 1789-1791: Overview, dwkcommentaries.com (Feb. 15, 2017); Judiciary Act of 1789, http://avalon.law.yale.edu/18th_century/judiciary_act.asp.

[2] Over the years Congress has passed various acts to change the number of Supreme Court justices from six to a low of five and a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. (U.S. Sup. Ct., Frequently Asked Questions (FAQ). https://www.supremecourt.gov/faq.aspx#faqgi

[3] There now are 94 U.S. district courts as some states like New York have more than one such district and as some non-states (e.g., Puerto Rico) have such courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[4] Most, if not all, of today’s U.S. district courts have more than one judge. Thus, as of May 2012 there were 2,758 such judges.

[5] The U.S. circuit courts have been replaced by 13 U.S. courts of appeal, and as of May 2012 there were 714 judges on these courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[6] Bordewich, The First Congress at 105-12, 141-43, 159-60 (Simon & Schuster, New York, 2016). http://www.simonandschuster.com/books/The-First-Congress/Fergus-M-Bordewich/9781451691931