Origins of the Bill of Rights

Levy, Leonard W. Origins of the Bill of Rights. New Haven: Yale University Press, 1999.
Reviewed by James Booker April 20, 2015

516YwbLPpzL._SX316_BO1,204,203,200_Professor’s Leonard W. Levy’s book, Origins of the Bill of Rights is detailed and extremely terse. With laconic fashion, he delves into the rich history of English law and the colonies showing how the Bill of Rights amendment to the Constitution evolved over time. This book is brilliant in some respects; notably how it reveals – for example – the real motives behind some of the Anti-federalist, why some of the Federalist were against a Bill of Rights, and John Locke’s notion of rights. But it has its issues as well.

Levy cleverly demonstrates that the Founders understood rights in a Lockean theory. Rights are by nature with us when we are born. For example, right to life, liberty, and property. Humans are within a state of nature when they are born and if they live outside civil society. Outside civil society there are very few Rights and laws except the ones one is born with. But once people gather together they form governments; hence, according to Levy, certain rights have to be modified. For instance, why would anyone one need a trial by jury when in a state of nature. But Levy never really expounds on what he calls “modifications to rights.”

Another one of his brilliant insights is on the First Amendment: Congress shall make no law respecting an establishment of Religion. The current interpretation is wrong, Levy seems to suggest as much, and has nothing to do with separation of church and state. According to Levy, the American colonial governments and culture had a non-preferential religious establishment – whereas in all of the European countries there was a religious preferential establishment. In other words, each colonial government preferred no religion over the next – in that each received aid from the government, even in Massachusetts where both the Congregationalist and non-Congregationalist received aid. When the Founders addressed the First Amendment, it was this experience, this history, and within this context they understood religion. Oddly, Levy never addresses the second part of the amendment, “nor the free exercise thereof.” Nonetheless, this interpretation could possibly explain, for example, why President Thomas Jefferson directed federal aid to establishing a Protestant missionary school for “Cherokees near Knoxville, Tennessee,” (The Jefferson Lies, by David Barton, 43.

Levy also sheds light on the more complex issue of the Ninth Amendment, which seems to have shrouded in mystery to this day. In short, the context is within the battle between the Federalist and the Anti-federalist. The Federalist were worried that if a Bill of Rights were enumerated it would give power to the Federal government over everything else that is not mentioned or enumerated in the Constitution. Hence, the Ninth Amendment would blockade the government from violating any other Right not addressed in the document. In addition, Levy believed the Ninth Amendment is not a Tabula Rasa for anything (e.g. homosexual marriages). For Levy, it is to be understood within the context of Natural Right theory. James Madison was the architect of the Ninth Amendment and he was steeped in Lockean theory, Natural Law, and Natural Rights. Therefore, what the Constitution did not express in the Bill of Rights or otherwise, was reserved to the people – a Lockean theory of Natural Rights.JamesMadison

In an non-chronological approach Levy laid out the historical roots of the Bill of Rights: Starting with, The English Bill of Rights of 1689, the English Common Law, Blackstone’s commentaries, the Articles of Confederation, to how most states enacted rights within their laws – long before the Bill of Rights were ensconced in the Constitution.

There were several issues with this book, however, as noted earlier. First, for a book to have been written by a scholar and used by other scholars, it has no foot notes. This is problematic especially when researching English sources. Setting aside some of his brilliant insights, another issue is that it reads like a legal brief at times.
In addition, it becomes tiresome reading between what state did what on each issue. The back and forth broke up the flow of some of his excellent themes. Moreover, there are some obvious gaps. He skips the Third Amendment and the Tenth Amendment. The book is incomplete; he does not offer a reason why. I would not recommend this book to the average reader – for a scholar? – Yes. Many of the major interpretations he brings forth are brilliant, nonetheless.

© By James Booker
April 20, 2015

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