There was a debate in Australia last year regarding adoption of its own bill of rights. Yes, as shocking as it first sounded to a foreigner like me, Australia does not have its own bill of rights.
Although the Chief Justice of the United States John Roberts insisted several times that he does not intend to participate in that Australian debate, I believe it is hard not to make a connection between his recently concluded lecture in Sydney and the debate in general. An article by the Financial Review reveals that he delivered another lecture on bill of rights in Melbourne yesterday.
It was just days ago when the New York Times ran a story how the US Supreme Court under Roberts is the most conservative in decades. One could not tell where he sits on the political spectrum based on the lecture however. I definitely could not as I stood at the back of the lecture theater.
The US at its independence in 1776 did not have a bill of rights. Its adoption itself was not automatic. As Roberts said, its adoption did not derive from the first principle but rather, it was through a political process. That political process was not too conducive to its adoption, regardless of the fact that it was eventually adopted later.
The US Chief Justice mentioned several theories why the Bill of Rights was not adopted early with respect to July 4 1776 and the ratification date of the US Constitution. If my memory is not one belonging to a goldfish, he mentioned that the weather as one of them. An uncharacteristic sweltering Philadelphian summer was making further discussion on the Constitution of the US unbearable. Most understood that a discussion on Bill of Rights would lengthen an already long meeting further and most wanted it to end.
Another theory, revolves around a matter of priority. The US was a young country then and there were multiple challenges that required to be addressed urgently. Despite history of individual freedom in America, bill of rights simply was not one of them.
Furthermore, the 13 founding states have already in one way or another have their own bill of rights although interpretations differ. For instance, some states have freedom of assembly included while others do not.
Although these factors may contribute to the late adoption of the Bill of Rights, nothing was more important than the division between the Federalists and the anti-Federalists. The anti-Federalists feared that an adoption of a national Bill of Rights might take power away from the states and to the federal government.
The battle regarding the Bill of Rights, according to Roberts, was really a proxy battle between the Federalists and the anti-Federalists. The anti-Federalists were playing up to states’ fear of losing influence to a powerful federal government.
When James Madison — who later became the fourth US President — proposed the then controversial Bill of Rights in the Congress, he had to personally see the Bill through it. When he pushed it, the Congress decided to have a committee to contemplate on the matter. Roberts said this in a humorous manner, perhaps as an acknowledgement how things move slowly at the Capitol Hill.
Roberts contrasted this to Madison. He stressed how notoriously hardworking Madison was. He joked that two of Madison’s Vice Presidents died in office.
Unwilling to let the matter drag, Madison sat in the committee and had the committee completed its work in only a week time, maybe, much to the chagrin of the Congress. There were some other political barriers but those were eventually overcome as the slowly anti-Federalists lost interest in defeating the Bill.
By December 15 1791, the influential Bill of Rights came into effect.