Latest / Creating America / Episode 16: Brutus, The Anti-Federalist | The Bill of Rights (Amendments 1-10)
Transcript
- Welcome to the Creating America Podcast, the documents and speeches that shaped the United States I’m Will Sarris. I’m an actor and media professional and I’ve always loved the study of history. I was thinking about the 250th Anniversary of the founding of the United States recently, ad I realized that often I know ABOUT various speeches and documents that shaped the history of the US, but had often never actually read them. And I thought that likely many of you were in the same place. In addition, many of these texts were meant to be heard more than read (especially in the cast of speeches), since many people were illiterate. And I’m a voice actor I hope I can not only bring you the text of the document or speech, but make it come alive. So what I want to do is simply read to you these speeches and documents. Many of them are well known, others only known by name, and others almost entirely forgotten in the public consciousness. Some are inspirational, others will probably shock you. A few quick things before we get going. I’m interested in and have studied history over my lifetime, but I am not a historian. So while I will provide some context for each speech or document, I will offer little commentary other than to point you to respected historians who can give some insight every once in a while. Additionally, I’m a white man. Many of the documents and speeches were written by white men. However I want to try to bring in other diverse voices as we go. The country has always benefited from a diversity of opinions, and that should be reflected here. So, I’ve tried to somewhat organize this chronologically, however I’m sure I will miss things that many of you think are relevant or that I simply don’t know exist. That’s ok! Contact me and I’ll try to bring in those texts as well as we go . The email address is CreatingAmericaPod@gmail.com. It is my hope that as you listen to these documents and speeches you will gain an appreciation of what our country was, what it is, and what it hopes to be. Last episode we concluded our reading of the Federalist Essays (or Federalist Papers) by reading Essays 84 and 85. While essay 85 is essentially some concluding remarks by Hamilton, Essay 84 contained his argument AGAINST passage of a Bill of Rights. One of the main reasons for opposition to the new US Constitution was that it did not contain and enumeration of the rights of the people under the new central government. Since one of the main reasons the colonies had declared independence and formed a new country was that Britian had consistently violated their rights (to things like assembly and speech) the people in the states did not fully trust that a new central government would not also violate those rights if they were not somehow enumerated and protected. Many states who ratified the new constitution did so with a requirement that the new government draft amendments enumerating those rights (and pass it quickly). One forceful argument for the need for the Bill of Rights was an essay published in September 1787 in New York by “Brutus” (who was actually Robert Yates, a delegate to the Constitutional Convention from New York who famously left the convention because he felt it was exceeding it’s authority in drafting a new form of government). This essay by Brutus is what promted Hamilton to write the Federalist Papers in the first place. I thought that we’d read it this episode to understand why many people wanted a Bill of Rights attached to the Constitution. ON THE LACK OF A BILL OF RIGHTS By "BRUTUS" When a building is to be erected which is intended to stand for ages, the foundation should be firmly laid. The Constitution proposed to your acceptance is designed, not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made. But on this subject there is almost an entire silence. If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self-evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows. The origin of society, then, is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate. The mutual wants of men at first dictated the propriety of forming societies: and when they were established, protection and defense pointed out the necessity of instituting government. In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest, therefore, directed that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order that what remained should be preserved. How great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not inquire. So much, however, must be given, as will be sufficient to enable those to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned in order to attain the end for which government is instituted; these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential rights as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression and violence, on the other, that men came together, and agreed that certain rules should be formed to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested, for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries. This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience. Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their magna charta and bill of rights have long been the boast, as well as the security of that nation. I need say no more, I presume, to an American, than that this principle is a fundamental one, in all the Constitutions of our own States; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high, and when an appeal was made to the people to form Constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is, therefore, the more astonishing, that this grand security to the rights of the people is not to be found in this Constitution. It has been said, in answer to this objection, that such declarations of rights, however requisite they might be in the Constitutions of the States, are not necessary in the general Constitution, because, “in the former case, every thing which is not reserved is given; but in the latter, the reverse of the proposition prevails, and every thing which is not given is reserved.” It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers, rights and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any State government — it reaches to every thing which concerns human happiness — life, liberty, and property are under its control. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the State governments. To set this matter in a clear light, permit me to instance some of the articles of the bills of rights of the individual States, and apply them to the case in question. For the security of life, in criminal prosecutions, the bills of rights of most of the States have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself — the witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that of a particular State? The powers vested in the new Congress extend in many cases to life; they are authorized to provide for the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be in the State where the said crimes shall have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New York, or carried from Kentucky to Richmond for trial for an offense supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to face, or that he shall be fully heard in his own defense by himself or counsel? For the security of liberty it has been declared, “that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. That all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.” These provisions are as necessary under the general government as under that of the individual States; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as the other. For the purpose of securing the property of the citizens, it is declared by all the States, “that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.” Does not the same necessity exist of reserving this right under their national compact, as in that of the States? Yet nothing is said respecting it. In the bills of rights of the States it is declared, that a well regulated militia is the proper and natural defense of a free government; that as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controlled by, the civil power. The same security is as necessary in this Constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no control in the exercise of it; yet nothing of this is to be found in this new system. I might proceed to instance a number of other rights, which were as necessary to be reserved, such as, that elections should be free, that the liberty of the press should be held sacred; but the instances adduced are sufficient to prove that this argument is without foundation. Besides, it is evident that the reason here assigned was not the true one, why the framers of this Constitution omitted a bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance. We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion, — that no bill of attainder, or ex post facto law, shall be passed, — that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution. So far is it from being true, that a bill of rights is less necessary in the general Constitution than in those of the States, the contrary is evidently the fact. This system, if it is possible for the people of America to accede to it, will be an original compact; and being the last wilt, in the nature of things, vacate every former agreement inconsistent with it. For it being a plan of government received and ratified by the whole people, all other forms which are in existence at the time of its adoption, must yield to it. This is expressed in positive and unequivocal terms in the sixth article: “That this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution, or laws of any State, to the contrary notwithstanding.” “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.” It is therefore not only necessarily implied thereby, but positively expressed, that the different State Constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States. Of what avail will the Constitutions of the respective States be to preserve the rights of its citizens? Should they be pled, the answer would be, the Constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the General or State governments, are bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the State governments, can limit the power granted by this, or restrain any laws made in pursuance of it. It stands, therefore, on its own bottom, and must receive a construction by itself, without any reference to any other. And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made. This will appear the more necessary, when it is considered, that not only the Constitution and laws made in pursuance thereof, but alt treaties made, under the authority of the United States, are the supreme law of the land, and supersede the Constitutions of all the States. The power to make treaties, is vested in the president, by and with the advice and consent of two-thirds of the senate. I do not find any limitation or restriction to the exercise of this power. The most important article in any Constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage. Now let’s turn to the Bill of Rights itself. The United States Bill of Rights comprises the first ten amendments to the United States Constitution. It was proposed following the often bitter 1787–1788 debate over the ratification of the Constitution and written to address the objections raised by Anti-Federalists. The Bill of Rights added to the Constitution specific guarantees such as freedom of speech, the right to practice religion, possess firearms, to assemble, and other natural and legal rights. It also includes explicit declarations that all powers not specifically granted to the federal government by the Constitution are reserved to the states or the people. James Madison studied the deficiencies of the Constitution pointed out by Anti-Federalists and then crafted a series of corrective proposals. Congress approved twelve articles of amendment on September 25, 1789. Articles Three through Twelve were ratified as additions to the Constitution on December 15, 1791, and became Amendments One through Ten of the Constitution. Article Two became part of the Constitution on May 5, 1992, as the Twenty-seventh Amendment. Article One is still pending before the states. Although Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government. Their application upon state governments was opened following ratification of the Fourteenth Amendment in the 1860s. We’ll get to the other amendments in later episodes. For now let’s read The U.S. Bill of Rights (or Amendments 1-10 to the US Constitution). Amendment 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. Amendment 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. Amendment 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 to be prescribed by law. Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment 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. Amendment VI In all criminal prosecutions, the accused shall enjoy the right to 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. Amendment VII 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 re-examined in any Court of the United States, than according to the rules of the common law. Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X 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. Thanks for listening to this episode of Creating America, the documents and speeches that shaped the United States. I’m Will Sarris, your host and narrator. This show is written and produced by me. If you like this podcast, please subscribe and rate the show and share it with your friends. I’ve also started a Patreon, patreon.com/williamsarris, where you can support this project, which is something I do on my own time. Anything you can contribute is appreciated! If you’d like to send in a comment or request that I read a speech or document you think I missed, the email is CreatingAmericaPod@gmail.com. You can find the show on social media by searching CreatingAmerica, and you can find me there too. If you want to know more about what I do professionally, visit my website williamsarris.net. Till next time! Copyright 2026 William Sarris All rights reserved.