The Bill of Rights by Carol Berkin

Published by Simon & Schuster on May 5, 2015

Carol Berkin's The Bill of Rights must be read in the context of its subtitle: The Fight to Secure America's Liberties. It is not so much a book about the Bill of Rights as it is a concise history of the adoption of the first ten amendments to the United States Constitution. It is not a legal treatise. The rights themselves are not explored in depth, nor is there a discussion of how courts interpreted those rights after they were adopted. That is not a fault, merely a caution that if you are looking for a book that explains the Bill of Rights, you should look elsewhere.

Berkin's thesis is that the Bill of Rights was "more a political strategy than a statement of America's most cherished values." She argues that the Federalists (primarily James "Jemmy" Madison) wanted to enact a Bill of Rights not so much to protect individual rights (although that was certainly a secondary motivation) as to thwart the Antifederalists who criticized the broad powers that the Constitution gave to the federal government. By limiting the federal government's ability to use its power oppressively or tyrannically through the Bill of Rights, Madison hoped to syphon support from the Antifederalists who wanted to amend the Constitution in ways that would weaken the federal government's power.

Early chapters in The Bill of Rights explore the origins of the tension between federal power and state's rights, an ideological divide that produced notable differences between the Articles of Confederation and the Constitution. Berkin argues that the need for a strong federal government became apparent after the Revolutionary War, as cooperation among states turned into competitive squabbling that threatened to destroy national unity. Although the Antifederalists lost steam after the first congressional elections gave them minority status in the legislature, Berkin's book traces their attempt to refight the battles they lost at the Constitutional Convention by supporting constitutional amendments that would shift federal power to the states (primarily by limiting the federal power to raise revenues and regulate trade).

Berkin explores the historical context that motivated Madison to urge the protection of rights that had been denied or limited by the British. She also discusses the contentious issue of the limit of federal power, exploding the modern myth that the federal government has only those powers that are expressly enumerated in the Constitution (a proposed Antifederalist amendment containing that exact language was firmly defeated).

After discussing the Articles of Confederation and the adoption of the Constitution as its replacement, Berkin's story moves to the first Congress and to Madison's championship of the constitutional amendments that later became the Bill of Rights. Madison's proposed amendments were less a Bill of Rights than a series of specific changes to the language of the Constitution, including some that had nothing to do with individual rights. Berkin recounts in detail the fascinating evolution of Madison's document until it became the Bill of Rights that the states ratified.

It is interesting to read about the vigorous debates that affected the wording of rights that are now so familiar, including freedom of religion and its supposed relationship to the right to bear arms. Particularly amusing was the objection that a prohibition of cruel and unusual punishments might put an end to the "necessary" punishments of whipping and dismemberment. Also interesting are the so-called "obstructionist tactics" used by the Antifederalists, an accusatory phrase that both political parties wield (with some justification) today.

The story follows the Bill of Rights from the House of Representative to the Senate, which simplified some of Madison's turgid language. Berkin then discusses state ratification of the amendments. Two of the twelve passed by Congress (addressing congressional salaries and the size of the House of Representatives) were rejected by the states, leaving the ten amendments that have become the backbone of America's commitment to individual rights (albeit a commitment that in practice has too often been unsteady). An appendix includes Madison's proposed amendments, the Bill of Rights as adopted, and brief biographies of the first elected senators and representatives.

Berkin suggests that supporters of the Bill of Rights, including Madison, did not envision the crucial role it would play over the course of history in protecting individual rights. Supporters of the Constitution as it was drafted argued that the political process, as controlled by the Constitution's scheme of checks and balances, would be sufficient to prevent the new American government from violating the basic rights of the governed. History shows just how wrong they were. Fortunately, the public understood that "social and cultural majorities" were just as likely to be oppressive as a monarchy. Their fear of majoritarian tyranny translated into reservations about a Constitution that did not protect their fundamental rights. Madison exploited that fear as a means of undercutting the Antifederalists, but regardless of his motivation, the fight Madison waged is a defining moment in American history.

Berkin's book is amply sourced and (although I am no historian) her research seems to be accurate and unbiased. She avoids the dull prose of academia and tells the story in a lively voice. While the mission of this brief book is limited, I think Berkin proves her thesis, making this an insightful contribution to the history of one of the nation's most important founding documents.

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