Temperance and Prohibition

Temperance and Prohibition

Whiskey is all right in its place – but its place is hell,” truer words were never spoken than these by Reverend Billy Sunday. Not to be confused with the Navy diver from the movie Men of Honor, the Reverend Billy Sunday that I quote was an American evangelist during the early twentieth century. In these days before the advent of PA systems tent revivals were very common and Sunday was one of the best and most talented of his time. The Reverend Sunday preached against all manner of vice, however he equated alcohol with being the devils juice. The first prohibition movement started in the Americas before we were even a country. As Colonial America was becoming more industrialized, workers and the poor moved into towns. These workers, many of whom were recent immigrants, brought with them little money and the love of alcohol. With few ordinances and nothing in the way of a modern police force, these early American workers were viewed as a problem to many in polite society. The first temperance association was founded in Connecticut in 1789 with the goal of banning the manufacture of whiskey. Soon other organizations formed, many of which were being led from either the pulpit or from the Masonic type fraternal organizations which were popular at the time. By 1825 our young country had its first national organization known as the American Temperance Society (ATS). This society was founded on February 13, 1826 in Boston Massachusetts. Within five years the society had grown to having over 2,000 local chapters and having close to 200,000 members, all of who had taken a pledge to not drink alcohol. The ATS in addition to being our nation’s first temperance movement was also our nation’s first national social movement. The ATS enjoyed large support in the north and embraced a reform platform that promoted the abolition of slavery, expanding women’s rights, temperance and societal improvement. By the mid 1830’s over a dozen independent temperance journals were being published, and true to its roots the temperance movement found support in the Second Great Awakening and the following Social Gospel movement. To be truly effective however the message of temperance needed to be moved to those who did not regularly attend a protestant church service and this was the goal of two crusading women in the 1870’s.

Julia Coleman and Mary Hunt were both former teachers who believed that to make national prohibition possible that they must influence the minds of the youth of America and they attempted to do this through The Woman’s Christian Temperance Unions (WCTU) Department of Scientific Temperance Instruction. The Woman’s Christian Temperance Union was founded in Evanston, Illinois in 1873. It is currently the oldest continuing non-sectarian women’s organization worldwide. Early members would enter saloons and sing hymns and pray with the patrons all the while urging saloon keepers to stop selling alcohol. The WCTU in its early days was a promoter of social change and called for reform of labor, prostitution, public health, sanitation, woman’s suffrage and of course prohibition. The Department of Scientific Temperance Instruction (DSTI) was the educational reform arm of the WCTU and both Coleman and Hunt put pressure on school boards as well as state legislatures to adopt the teaching of “Scientific Temperance Instruction.” This was a novel approach which honestly was quite effective and in just a few years they had compulsory temperance education being taught in public schools thereby indoctrinating a whole new generation which would be adults by the time that prohibition was passed through the eighteenth amendment. Although the content of many textbooks was criticized by scientists and educators by the mid 1890’s, for almost 20 years publishers had difficulty selling textbooks that were not approved by Mary Hunt. During these twenty years students were taught that alcohol was a dangerous and seductive poison that once imbibed would create an unnatural appetite for more, it was also taught that it was not a very large step from drinking liquor to committing crime. The ending of compulsory “Scientific Temperance Instruction” came from the Committee of Fifty in 1893 (Mezvinsky, 1961). This committee of scholars and scientists from the American Physiological Society used contemporary social scientific research to study the claims of the temperance movement and Scientific Temperance Instruction once moralism was removed from the equation. After looking at the findings of the Committee of Fifty the American Physiological Society began investigating the tactics used by Mary Hunt and the WCTU. They found that the textbooks had been deliberately written to frighten children with both half-truths and false claims. They found that those who opposed the scientific temperance propaganda were often pressured with being voted out of office or losing their job. Though the WCTU and its Scientific Temperance Instruction were taught to all children in school it still did not stop people from drinking. In fact Annual consumption of alcoholic beverages increased between 1880 and 1920 which coincides with the beginning of the WCTU’s efforts at Scientific Temperance Instruction and Federal Prohibition.

Much like all legislation attempting to illegalize a substance, Alcohol prohibition was supported by the fringe hate groups. One of the largest supporters of prohibition in 1915 was the Ku Klux Klan which was “revived in Atlanta in 1915 to defend Prohibition which existed in Georgia at the time” and “Enforcement of Prohibition, in fact, was a central, and perhaps the strongest goal of the Ku Klux Klan.” (Norberg, 2004) The KKK was not the only hate group or even group compelled by racial or national origin bases. Mary Hunt, who had controlled the pedagogy of American education for a generation said in 1897 that she had concern over “the enormous increase of immigrant population flooding us from the old world, men and women who have brought to our shores and into our politics old world habits and ideas [favorable to alcohol].” (Hanson) This strong anti-foreign prejudice during World War I was especially turned on immigrants from Germany and it was argued at the time that the alcoholic beverage industry consumed needed grain from the war effort. After decades of Scientific Temperance Instruction being pounded into the heads of children at school, and with a fear of drunken foreigners, and the belief that the alcohol making industry was using up needed grains for the war effort, the United States was ready to pass the Eighteenth Amendment.

Upon passage of the Eighteenth Amendment the evangelist Reverend Billy Sunday staged a mock funeral for John Barleycorn and preached on how great prohibition would be. He said, “The rein of tears is over. The slums will soon be only a memory. We will turn our prisons into factories and our jails into storehouses and comcribs” The strange thing is that many Americans actually believed all of this. Some communities sold off their jails since alcohol, which was deemed to be the only crime happening in those communities, was illegal. The Eighteenth amendment made the making or selling of alcohol illegal, it however did nothing about the possession of alcohol. For one year after prohibition was passed, people were still able to horde liquor. Within a week of the passage of prohibition Sears began selling portable alcohol stills through their catalog as it was perfectly legal to sell things to make alcohol, just not legal to sell alcohol. During this time California’s grape producers saw growers increase their acreage over 700 percent as there was a huge demand to buy grapes to make homemade wine. A very interesting article appeared in the August 6, 1928 edition of Time Magazine which talks about unique ways that mail order companies were selling wine making paraphernalia. (“Prohibition: Wine Bricks”) Under Section 29 of the Volstead Act there is a clause that allowed farmers to continue to make his own applejack or berry wine as long as it was non intoxicating fruit juice for home consumption. A company called Virginia Dare Vineyards began shipping grape juice that they said would ferment into champagne in the home. A group of California grape growers formed Fruit Industries Inc. and made an all in one kit where the consumer just had to pull the bung on the wine cask and wait for the grape juice inside to ferment. A final grape producer, called Vino Sano, began selling what became known as wine bricks, these are the origins of the famed bath tub sherry. The flavored brick of grapes came with the following warning: “After dissolving the brick in a gallon of water, do not add three cups of sugar, do not shake twice daily, do not place the liquid in a jug away in the cupboard for twenty days, because then it would turn into wine”

The Eighteenth Amendment was passed on August 1, 1917. (Roth, p. 202)While the Eighteenth Amendment prohibited the production or sale of “intoxicating liquors” it did not define what was meant by the term “intoxicating liquor.” The statute that would define what this term meant was called the Volstead Act and even though it was vetoed by President Woodrow Wilson, his veto was overridden by the House of Representatives on the same day it was vetoed and by the Senate the following day. The Volstead Act had three distinct purposes. The first was to prohibit intoxicating beverages. The second was to regulate the manufacture, production, use and sale of high proof spirits for other than beverage purposes. The third purpose of the Volstead Act was to insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries and practices including religious events and rituals. In addition to the above the Volstead act said that “no person shall manufacture, sell, barter, transport, import, export, deliver, or furnish any intoxicating liquor except as authorized by this act.” The effects of Prohibition could not have been predicted by anyone. Once legitimate businesses controlled the production and distribution of alcoholic beverages, now this was the providence of criminal gangs, backyard brewers, and pharmacies.

“When I sell liquor, it’s called bootlegging; when my patrons serve it on Lake Shore Drive, it’s called hospitality,” so said Al Capone one of the most notorious of prohibition gangsters. Each city during prohibition had its share of gangsters. The traditional Italian Mafia often did not want to become involved in a racket so maligned by much of the public. In fact it is estimated that of the twenty four families across the United States that less than half conducted any business at all in the sale of bootlegged liquor, though it is known for sure that they procured liquor for their own use. Of the five families of New York: Bonnano, Columbo, Gambino, Genovese, and Lucchese, only three of the families are known to have dealt bootleg liquor to the public. Charles “Lucky” Luciano was the king of booze for the Mafia during this era. As a friend of the Genovese Family, Lucky used Frank Costello’s trucking company as a front to import Scotch directly from Scotland, rum directly from the Caribbean, and whisky from Canada. After killing Salvatore Maranzano Luciano established The Commission which put an end to war and brought the Italian Mafia into the modern era. Luciano could not have done it without his Russian Jewish buddy Meyer Lansky. Lansky had a lot of brains and preferred to stay in the shadows, he acted as a financial advisor and was most like a partner for Lucky Luciano. It was through Lansky’s advisorship that the Genovese Family became phenomenally wealthy and was able to expand their legitimate operations to hotels in Florida and to gambling in the newly founded Las Vegas and Cuban casinos. Lansky was so smart that he was recruited by the Office of Naval Intelligence in World War II for their Operation Underworld. Operation Underworld was a two part mission the first of which the five families of New York provided security for the ship yards in New York and secondly looked for any German spies that were looking to sabotage or spy on these yards. The second part of the operation involved Lucky Luciano signaling Don Cologero Vizzini the most powerful Mafia boss in all of Sicily. Through Luciano’s signals Vizzini climbed onto the lead American tank and traveled on top of the lead tank for six days through enemy territory, being greeted and protected by the local population and leading Patton’s Third Division into the heart of Italy. For all of his help for the war effort Lucky Luciano was forced, as part of a plea bargain, to leave his beloved America forever, living out the rest of his days in his hotel in Cuba. Alfonse Scarface Capone was not as noble or as lucky as Luciano. Al Capone was born in Brooklyn to Southwestern Italian immigrants. After joining the Five Points Gang he moved to Chicago in 1921. Capone made an estimated $100 million a year for his gang called The Outfit with the largest earner being liquer, though he also operated both prostitution and gambling networks. Capone formed a smuggling network which distributed alcohol to the East Coast and supplied The Purple Gang of Detroit. These young gangs are often refered to as the “Young Turks” and they did not respect the ways of the older and traditional Italian mafia often refered to in the era as Mustache Pete’s. The old Sicilian way was to work in the confines of the Itallian and immigrant communities, while the Young Turks were more interested in working with Jewish and Irish gangs and trying to get millions from the public at large. Capone used these Jewish and Irish gangs to his full advantage. He would deal with anyone as long as they had the cash. After a long turf war with an Irish gang known as Bugs Moran’s North Side gang, Capone became very upset with having his booze trucks hijacked and massacred Bugs Moran’s crew. This massacre has become known as the worst gangland killing of the century where Seven members of the Moran gang were lined up and executed by Capone’s gang disguised as police officers. Because of the increasing violent nature of his crimes the federal government tried creative ways of indicting Al Capone and finally succeded when Eliot Ness provided the evidence necessary for tax evasion charges. Capone served the next fifteen years in jail where his syphilis rotted his brain and destroyed him physically, after being paroled from Alcatraz in 1939 he was no longer able to run his crime family and died eight years later from a heart attack ironically in his bathtub while drinking gin. Capone was not the only person who was harmed by the combination of gin and the bathtub.

During prohibition the most common thing for your average American to buy was either moonshine or grain alcohol. Much like todays grain alcohol Everclear the moonshine or grain alcohol of the prohibition era was close to 190 proof which equates to 95% alcohol. The cocktail first really emerged in popularity during prohibition because most people before this time had consumed whiskey, rum, or gin which was usually only 80 proof or 40% alcohol and tasted much better allowing it to be drank straight or with a splash of water. The high potency moonshine and grain alcohol was sometimes mixed in a cocktail with juice, tea, or coffee, or some would fill a tall pot (too tall to fit in the sink) with their moonshine or grain alcohol, then add at least an equal part if not much more water, and then add juniper berries which could be found on juniper bushes throughout many metropolitan areas. This is actually almost how modern gin is made except that it goes through a charcoal filtration process to remove any impurities and it also was made correctly which many of the moonshine during prohibition were not, leading to severe illness and sometimes death. Another source of severe illness occurred during this time especially in the south. Blues musicians of the 1930’s sang about Jake Leg and many people today and in fact at the time believe that Jake Leg was caused by drinking poorly made moonshine. This is not the truth however and actually Jake Leg is a medical condition caused by drinking a patent medicine common in the 19th century known as Jamaican Ginger Extract.
Jamaican Ginger Extract was a patent medicine which like many patent medicines was actually a convienant way for pharmacies to sell small bottles of “medicine” which were actually about 140 proof or 70% alcohol. The US Department of Agriculture found that Jamaican Ginger Extract tasted too good and that people might want to drink a whole lot of it so they said that it was against Prohibition laws and that the makers would have to add so much ginger as to make the Extract not pleasant to drink. Since the department issued an order that so many solids would have to be present when the Jamaican Ginger Extract was boiled down the two chemists importing the extract had a great idea, they would put plasticizer in the extract and that way it would have the correct weight when boiled down and pass the US Department of Agricultures requirements. The only problem is that the plasticizer that they used known as triotolyl phosphate is today known as a powerful neurotoxin that damages the nervous system and causes nerve damage to the spinal cord. Between 30,000 and 50,000 victims of Jake Leg are thought to have received permanent disability from drinking Jamaican Ginger Extract in the three months that the plasticizer was put into the extract. After learning about their horrible mistake the owners changed the name to Walkers Pure Jamaican Ginger Extract and added the large amounts of ginger that they needed to pass the governments test. Most of the afflicted victims of Jake Leg never recovered.





Hanson, D. J. National Prohibition of Alcohol in the U.S. Retrieved from http://www2.potsdam.edu/hansondj/controversies/1091124904_6.html

Mezvinsky, Norton. (Mar., 1961). Scientific Temperance Instruction in the Schools. History of Education Quarterly, Vol.1, No.1.

Norberg, D. (2004). Ku Klux Klan in the Valley: A 1920’s Phenomenon (January 2009 ed.). White River Journal.

Prohibition: Wine Bricks. (1928). Retrieved from http://www.time.com/time/magazine/article/0,9171,742105,00.html

Roth, M. P. (2005). Criminal Justice in the Progressive Era. In Crime and Punishment: A History of the Criminal Justice System (1st ed., p. 202). Belmont California: Thomson Wadsworth.



Posted in Uncategorized | Leave a comment

The History of the Eighth Amendment

The History of the Eighth Amendment

Medieval Europe was a savage place.  Minor infractions such as cutting down a tree or stealing an animal were punished by death.  In all there were 222 crimes which were considered capitol and a person could be put executed for.  One of the most common of these crimes was that of witchcraft.  The methods of execution were very cruel and included drawing and quartering, crucifixion, brazen bull, impalement, and disembowelment among others (Alchin).  Trials of this age were extremely unjust and people were usually convicted once accused no matter what evidence was produced.  In 1689 an act of English Parliament was passed with the title: An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown (“English Bill of Rights 1689”) which is commonly called The English Bill of Rights.

One of the chief components that lead to the establishing of the English Bill of Rights was a controversy over bail which had existed for over five hundred years.  The original law which provided for the allowance of bail was called The Statute of Westminster the First which was enacted in 1275 AD.  This statute defined which offenses were bailable and which were not, with new offenses being added over the course of the next five and a half centuries.  Darnel’s Case (3 How. St. Tr. 1 (1627)) was argued over judges permitting the continued imprisonment of people only under the order of the King without bail.  This case was one of the central factors toward establishment of the Petition of Right in 1628.  This petition, established by English Parliament, is considered a major English constitutional document because it set out specific liberties of the subjects of the Crown and specified which liberties the King would not be allowed to infringe.  Those liberties include: taxes can only be levied by Parliament, martial law may not be imposed in time of peace, billeting of troops (similar to our Third Amendment to The Constitution here in the US), and most importantly to this paper that prisoners could challenge the legitimacy of their detentions through the writ of habeas corpus.  These rights were guaranteed to the people of England by the Crown in an effort to avert The English Civil War.  War however could not be stopped and The English Civil War was fought between 1642 and 1651 with a series of armed conflicts between Parliamentarians and Royalists.  After executing King Charles I and abolishing the monopoly of The Church of England, Parliament began enacting laws which were to protect the people from the Crown.  After another war called The Glorious Revolution in 1688 it was constitutionally established that the English monarch cannot govern without the consent of Parliament.

With the end of the Glorious Revolution in 1688, came the passage of The English Bill of Rights in 1689.  This bill at once stamped out any possibility of a Catholic monarchy and thereby any interference from The Vatican in English law.  The bill also ended the system of absolute monarchy in the British Kingdom by describing and limiting the monarch’s powers.  With these restrictions the King could no longer suspend laws, levy taxes, make royal appointments without the consent of Parliament, or maintain a standing army during peacetime.  All armed forces in England after this are not under direct control of the King, but instead are controlled by Parliament.  The passage of The English Bill of Rights in 1689 created the current constitutional monarchy in England which later became the United Kingdom.  The day after the Bill of Rights was passed in England, members of Parliament went before King William III and his wife Queen Mary II to read the bill.  These members of Parliament explained that The House of Commons especially condemned what they viewed as cruel and unusual punishment against a man named Titus Oates.

Titus Oates was a disgraced Anglican priest who had been removed from his rectory for either buggery or sodomy.  After being dismissed again from a Jesuit diocese in France, he returned to London.  Upon Oates’s return to London he wrote a manuscript that told of a conspiracy to kill The King that he had uncovered while working with the Jesuits.  This manuscript added to the general anti Catholic hysteria that was already afoot in England in the 1680’s and eventually Oates found the ear of Sir Edmund Godfrey, a member of Parliament and a strong supporter of Protestantism.  Godfrey championed Oates’s cause and called for an investigation to find the Catholic traitors who were out to assassinate the King.  The day after Godfrey called for this investigation he was found strangled and run through with his own sword, the commoners cried out that his murder had obviously been the work of conspirators of the Catholic Church who were there to assassinate the King and wanted to silence Godfrey.  What is rather odd is that the King actually seemed to be the only person who did not believe that the Catholic Church was attempting to kill him.  He called Oates to a meeting where the former Anglican priest accused five noblemen of being involved in the Catholic plot to kill him.  These men were eventually convicted of being traitors to the Crown and sentenced to death on the word of Oates.  After the trials of the noblemen were over, the King actually investigated Oates’s claims as well as talked to him for many hours personally.  After catching Oates in numerous lies the King had Oates thrown into prison for sedition.  Eventually Oates was tried and convicted of perjury.  Though the judge that condemned Oates to this punishment said, “There does not remain the least doubt, but that Oates is the blackest and the most perjured villain that ever appeared upon the face of the earth” (Donald) he was not sentenced to death for his perjury because the prevailing attitude was that if he was sentenced to death that future witnesses might not come forth with evidence. Instead he was stripped of his clerical dress and title, imprisoned for life, sentenced to hang on display from pillory stocks every year for two days and to be whipped for an entire day every year through the streets of London while chained to a moving cart for all to see.  The first day of his whipping many people turned out to watch as he was dragged through the streets of London, he received an estimated 1700 lashings and gushed so much blood that he eventually blacked out.  Many of the citizenry still believed Oates and in fact urban legends and rumors of conspiracy sprang up as cries rang out to free Oates who had become something of a martyr figure to many of the anti-Catholic crowd.  Whatever the truth was behind Oates’s crime, most of the commoners felt that his sentence was especially heinous and it was considered so terrible by the populace that the Oates case was talked of not only during the drawing up of The English Bill of Rights, but also during the drawing up of the Virginia Declaration of Rights almost 100 years and a continent away in a soon to be newly founded Republic.

The Virginia Declaration of Rights was drawn up in 1776 to lay down and proclaim the natural rights of men.  These rights were drawn up by the Virginia Convention of Delegates on June 12, 1776 .  The original document was written by George Mason with help from James Madison who assisted him with the section on religious freedom.  Mason based the Virginia Declaration on the English Bill of Rights produced almost a hundred years earlier.  This declaration was the first Constitutional protection for citizens living in North America as not all English protections were given to colonists.  This declaration was unique in that it defined which rights pertained to the people of Virginia and said that those people were the basis for the foundation of government.  In so doing the document rejected the notion of privileged political classes or royally inherited offices and in so doing condemned the royal members of Parliament as well as the House of Lords as well as the Crown itself.  The Virginia Declaration described the moral principles on which government would operate and affirmed the inherent nature of certain natural rights including the right to life, liberty, and property.

George Mason was not only the person who wrote the final draft of the Virgina Declaration but in fact he wrote more constitutional documents than any other person from any country to have ever lived (Pittman).  Mason was born in 1725 on the banks of the Potomac River on a farm that had been settled by his ancestors in the 1650’s.  As a young man he became a member of the Ohio Company in the 1740’s and by 1750 had been made its treasurer and had virtual control over the company.  The main business of The Ohio Company was establishing and trading supplies at Native American trading posts west of the Allegheny Mountains as well as settlement projects in western Virginia.  It was Mason who served as a mentor to his childhood neighbor George Washington and in fact got Washington a job with The Ohio Company.  Mason was not trained as a lawyer and in fact it was only his intensive tutoring by local Scotch Presbyterians as a child that Mason could count as formal education.  Mason did have a love of independent learning however and instructed himself in the areas of science, government, and politics.  When George Washington became a member of the house of Burgesses he asked his friend Mason to write every state paper, resolution, and bill for him.  Many of the original documents that were written by Mason for Washington are today located in the Washington Archives.  Other documents included there are ones written by Mason for people such as Thomas Jefferson, Patrick Henry, and R. H. Lee.  Mason was asked by George Washington to take his place on the Virginia Assembly in 1775 so that Washington could take command of the Continental Army.  It was at this post that Mason had the opportunity to draft the Virginia Declaration of Rights which was adopted June 12, 1776. The Virginia Declaration of Rights began “All men are born equally free and independent and have certain inherent natural rights, of which they can not by any compact, deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”  The Tories and Aristocrats of the time believed that Mason was inviting a slave insurrection.  The Virginia Declaration of rights eventually became the model used by all other states in their own state constitutions.  In addition Thomas Jefferson used the model as well as directly copied much of the language for the preamble for the Declaration of Independence. In addition Thomas Jefferson gave a copy of the Virginia Declaration of Rights to his good friend The Marquis de Lafayette who drafted the French Declaration of 1789 which became the primary document that caused The French Revolution and also was looked at again in France as recently as 1958 when the current Constitution of the French Fifth Republic was drawn up.

After preparing the Virginia Declaration Mason also drew up Virginias Constitution which was adopted July 5, 1776.  Mason served in the Virginia Assembly during the Revolutionary War.  He wrote many bills and when the Articles of Confederation was deemed too loose nit he was appointed by the Virginia Assembly as a delegate to the Constitutional Conventions.  A lifelong objector of slavery, Mason became enraged when the New England states traded with South Carolina and Georgia delegates to authorize interstate commerce laws in exchange for permitting slavery.  Mason had believed that by inserting a bill of rights into the US Constitution that all men would truly be viewed as equal and that there would be an immediate end to slavery which he viewed as a slow poison that would tear apart our young nation.  George Mason refused to sign the Constitution of The United States because of his opposition to slavery and its lack of a bill of rights and immediately sat out on a personal campaign to amend the constitution.  George Washington was outraged that Mason would not sign the Constitution and the two men never collaborated again.  Because of Mason’s adamant objections and refusal to sign the Constitution many of his former friends turned against him.  Mason’s objections to the constitution were published all over the nation and were widely discussed (Warren).  One might have thought that this would be the end of George Mason’s contribution to the Eighth Amendment; soon however a very unlikely supporter would show up with a copy of Mason’s Bill of Rights.

James Madison liked George Mason as a person, but had drastically different views.  Both were close friends with Thomas Jefferson and unlike Mason, Madison had lead a very educated and charmed life on the backs of slaves who worked at his family’s Tobacco plantation.  Madison agreed with most of what Mason had written in the Virginia Decleration, even though he was probably not too keen on the ideas of everyone being equal and free.  It was however the last article that concerned religious toleration that interested him the most.  Madison disliked that Mason had used the word “toleration” when creating the Virginia Declaration and believed that instead the wordage should consist of the idea that absolute equality in religious belief and exercise should be used.  It was because of this simple disagreement in language that Madison knew that when the people called for an amendment to the Constitution that it was his obligation to draft the Bill of Rights, even though he had opposed Mason during the drafting of The Constitution on its inclusion.

Madison truthfully did not believe that the Bill of Rights was very important.  He did however believe that if one was not included that the people might call for a new constitution or that the final two states might not ratify the one that was already in place.  In his later years his leters revealed that he was not especially proud of The Bill of Rights and in fact referred to them as “those safe, if not necessary, and those politic, if not obligatory, amendments.”  Madison had a keen memory and when he proposed the amendments before Congress he reviewed many of the arguments that had come up during the drafting of the Constitution.  Madison originally wanted the amendments to be inserted into the first article of the Constitution following the prohibition on bills of attainder.  Madison used George Mason’s Bill of Rights, and in fact his library contains a hand written copy that might have been used as reference in front of Congress.  Madison’s proposals did not all become law however.  First Madison wished to add a prefix to the Constitution, however it did not secure approval.  Next Madison’s wish to add to the right to bear arms a section dealing with conscientious objectors: “no person religiously scrupulous of bearing arms, shall be compelled to render military service in person” however Congress did not approve (Brent).  Another portion of Madison’s proposed changes also did not make it into the Constitution and that dealt with three restrictions on the states.  “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Another proposal by Madison also was not considered and that was an explicit statement recognizing the separation of powers, this was viewed as not needed as it was thought that the Constitution implied such already.  The final proposal that Madison submitted that was rejected by Congress eventually became law in almost 200 years later in 1992, and this called for the forbidding of an increase in Congressional pay until an election had been intervened.  There was little however that was called for by Madison that had not already been proposed by Mason, and even that had not already been written in the Virginia Decleration of Rights.  The following chart shows the difference between section 9 of the Virginia Decleration and the eventual Eighth Amendment of the Bill of rights. (Brent)

Declaration of Rights That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Madison to Congress Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Bill of Rights Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.


Alchin, L.K. Middle Ages Torture. Retrieved from http://www.middle-ages.org.uk/middle-ages-torture.htm

In Avalon (Ed.), English Bill of Rights 1689. New Haven, CT: Lillian Goldman Law Library. avalon.law.yale.edu/17th_century/england.asp

Brent, D. James Madison Proposes Bill of Rights. Congressional Register. Retrieved from http://www.jmu.edu/madison/gpos225-madison2/madprobll.htm

Donald, E. Biography of Titus Oates. University of Georgia School of Law Press. Retrieved from http://www.thegloriousrevolution.org/docs/titusoates.htm

Pittman, R. C. George Mason: Architect of Constitutional Liberty. Retrieved from http://www.rcarterpittman.org/essays/Mason/George_Mason-Architect_of_Constitutional_Liberty.html

Warren, J. D. George Mason, The Thoughful Revolutionary. Gunston Gazette. Retrieved from http://www.gunstonhall.org/georgemason/essays/warren_essay.html

Posted in Uncategorized | Leave a comment