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Reflecting on the Bill of Rights from the Founders to the Present Day
​By Ray Smock

This year marks the 225th anniversary of the ratification of the Bill of Rights, the first ten amendments to the U. S. Constitution. Congress Week pays special attention to this significant anniversary and offers a reflection on how the Bill of Rights has come to be an essential document that guarantees certain rights and liberties to citizens of the United States. The full history of the Bill of Rights over more than two centuries is a fascinating story with many twists and turns, some of which have long been forgotten.

The Constitution, adopted on September 17, 1787 and sent to the states for ratification, did not have a bill of rights. Many of the delegates at the Federal Convention expressed the view that such a listing of rights was not necessary given that the rights of citizens resided in their respective states, some of which had their own lists of rights, such as Virginia’s Declaration of Rights, adopted in 1776, written by George Mason, which would form the basis for much of the language in Thomas Jefferson’s Declaration of Independence.

We often fail to note that the delegates to the Federal Convention in Philadelphia were there representing states. In creating a new federal government they had no intention of overturning or unduly limiting state constitutions or various state provisions regarding the rights of citizens. Alexander Hamilton was one of the delegates that did not see the need for a bill of rights. He saw in the Constitution a list of limits on the powers of the federal government that he felt was sufficient to protect the states and the citizens from excessive federal power.

Hamilton listed the parts of the Constitution that could be considered to protect the citizens from the federal government in Federalist 84, perhaps the clearest statement of the position that no bill of rights was necessary in the Constitution. Hamilton wrote: “The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” George Mason disagreed and said a specific bill of rights was needed to calm the people and make them more likely to ratify the Constitution. Mason refused to sign the Constitution because it lacked a bill of rights.

James Madison, reluctant at first to take up the issue, became convinced that a bill of rights should be added as a device to help guarantee the successful launch of the new government, and true to his campaign promise in his run for a seat in the First Congress, he went to work on creating the bill of rights in the opening months the First House of Representatives, where he was a representative from Virginia. The promise to add a bill of rights helped immensely in the ratification of the Constitution, especially in New York and Virginia, where the vote was close.

Madison was ready to keep his promise just 9 weeks into the first session of the First Congress on June 8, 1789. While Madison was ready, others objected. The government was not yet fully formed, they argued, and Madison was too eager to amend it.

James Jackson, of Georgia, rose on June 8, 1789, to say that any discussion of a bill of rights should come only after the new government had some experience with the Constitution. It was too new to amend. He compared the new nation to a newly-built ship that Madison wanted to modify before it even set sail. Following the ship analogy, Jackson argued that Congress should see how well the new craft would sail before any modifications were made to improve it.

Several months later, due in large part to Madison’s diligence the House and Senate began the serious deliberations that led to the adoption of 12 Amendments to the Constitution, of which ten were ratified by the states in less than two years. These first ten amendments, now universally known as the Bill of Rights, at first an afterthought of the Federal Convention of 1787 were now part of the Constitution. The Bill of Rights was, however, not something that had immediate impact in terms of law or the rights of citizens to be protected from the federal government. In some ways Congressman Jackson, who was not so keen on the passage of the Bill of Rights so soon, was prophetic. The ship of state had to sail on for many years of change and court challenges before a body of law and precedent grew up around cases brought to court using the Bill of Rights. Many of these did not occur until the twentieth century.

But there is no question that in the present day, the Bill of Rights has become what Supreme Court Justice William Brennan said almost two centuries after its ratification, “The American Bill of Rights, guaranteeing freedom of speech, religion, assembly, and the press, along with other important protections against arbitrary or oppressive government action, provides a noble expression and shield of human dignity. Together with the Civil War Amendments, outlawing slavery and involuntary servitude and ensuring all citizens equal protection of the laws and due process of law, the Bill of Rights stands as a constant guardian of individual liberty.”

One can easily say 225 years after its ratification that the creation of the Bill of Rights in the First Federal Congress of the United States was one of the nation’s finest hours and a landmark achievement in the annals of Congress and human liberty.
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Ray Smock is Director Emeritus of the Robert C. Byrd Center for Congressional History and Education at Shepherd University and was the Historian of the U. S. House of Representatives from 1983-95.

Why Study Congress?

By Ray Smock

The answer should be obvious but often it isn’t. James Madison gave the best answer when he said an informed citizenry was the best guarantee that this nation’s great experiment in representative democracy would work and survive for future generations. The Founders gave us a republican form of government, where the ultimate power and the final check on government was the people themselves. If We the People lost faith in government, if we turned away from it for any number of reasons, if we didn’t understand the Constitution and how the three branches of the federal government work then the system could collapse.

Another Founder, Benjamin Franklin, replied to those who asked what kind of government the Constitution provided, by saying “A republic, if you can keep it.” He didn’t know for sure if the work of the Federal Convention of 1787 had produced a lasting government. Now, 226 years later, the Constitution is still our foundational document, and we still operate with three branches of government pretty much as outlined in the beginning. But not without much strife, uncertainty, a colossal Civil War, and constant debate and controversy about how well government is working and addressing the needs of the nation.

​As Congress prepared for its 200 anniversary more than a quarter century ago, the Library of Congress in cooperation with the Senate and House historical
offices conducted a conference on researching Congress that brought together top political scientists, historians, journalists, and current and former members of Congress. One of the main speakers was David McCullough who gave another answer on why we should study Congress. He said “We need to know more about Congress because we need to know more about leadership. We need to know more about Congress because we can never know enough about human nature. Above all, we need to know more about Congress because we are Americans. We believe in governing ourselves.”

Congress is the people’s branch, the part of government designed to be closest to the people and the most likely to reflect the sentiment of the people. Yet it has not been the subject of systematic study and research over the years to the same extent as the Executive Branch or the Supreme Court.

Look at the political section of any book store and you will find scores of books on presidents, biographies, campaign studies, and histories of the United States written from the perspective of presidential administrations. School textbooks favor presidents and the historical view from the perspective of presidential administrations. Congress, if mentioned at all, is in a supporting role of the executive branch and not examined as the branch that for most of American history was the fulcrum of the government and the center of debate in setting the national agenda.

Look at our magnificent presidential library system, where all presidents since Herbert Hoover have special places that are museums for the public and archives for scholarly research on presidents and their administrations. These facilities are administered by the National Archives and Records Administration (NARA) with regular appropriations from Congress.

NARA also stores and facilitates the use of the official committee records of Congress, which are controlled by the House and Senate but maintained by NARA. These voluminous committee records, which are as vast as the holdings of the presidential libraries, are only part of the records generated by Congress. Each Senator and each House member creates records of their individual service, their voluminous correspondence with constituents, bills they worked on, and causes they championed. Yet these records are not systematically preserved and there are no regular appropriations from Congress to save them and make them available for research by scholars and journalists whose job it is to explain government and monitor its actions.

There is no provision by law to preserve the papers of House and Senate leaders even though these individuals play a large role in shaping the national agenda. Occasionally, in the past, Congress has made small appropriations to help preserve the papers of long-serving committee chairman or House and Senate leaders, usually through earmarks for the purpose. While these earmarks have helped establish small study centers and funds for the processing and archiving of such collections, there is no ongoing funding to guarantee that the papers are preserved and utilized by scholars in the same way that presidential records are maintained. Congress has never found a good way to address the long range study of the legislative branch, even though in 2008 the House and Senate passed a concurrent resolution that declared the private papers of members of Congress are important historical records that should be preserved.

Another reason Congress is not studied as regularly and systematically as the executive branch is that Congress is a greater challenge for writers and researchers. A president is one person who sits astride a large executive branch of many agencies. The president’s personality shapes the way we write about a whole administration. We do the same with the Supreme Court, which often takes on the personality of the Chief Justice. But what is the personality of a Congress with 100 Senators and 435 House members? Only 43 individuals (Cleveland gets counted twice) have served as president in the past 226 years. Only 112 have served on the Supreme Court in the same time, with just 17 chief justices. Yet Congress has been populated by more than 11,000 House members and 1,900 senators.

The members of the Association of Centers for the Study of Congress (ACSC) represent a variety of institutions, often on college and university campuses, that hold the private papers of former members of the Senate and House. Some of these study centers focus on training future leaders, discussing national policy issues, doing research in the history of Congress, encouraging scholarship on Congress with small grants, and showcasing their collections and demonstrating how they can be studied to enrich our understanding of the people’s branch.

​The ACSC organizations are proud of the work they do, but they would be the first to say that it is not enough. Congress deserves to be regularly and systematically studied for the benefit of an educated public and for the benefit of Congress itself. Institutional memory, scholarship, journalistic investigations, and public scrutiny of this vast rich body of American history should not be lost. It is too great a historical treasure to allow it to perish from neglect. Our republic will be stronger if we better understand how it works. The three co-equal branches should be studied co-equally.

​The Powers of Congress: Few Americans Know What Congress Does or the Role It Plays in our Federal Government

By Ray Smock
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In introductory civics classes, we teach young students that there are three co-equal branches of the federal government, each with their own powers. Students are taught the basics that Congress makes laws, the executive branch executes the laws, and the Supreme Court is the final arbiter of the constitutionality of the law.  We explain why the government has three branches with the term “separation of powers.”  Power is divided so that no one branch of government can have dominance over the others. A president, for example, could not exceed his power without facing a check from Congress or from federal courts. A Congress that passes laws that violate aspects of the Constitution, can be checked by the Supreme Court. Arbitrary or illegal actions by Supreme Court justices can be checked by Congress’s power to impeach federal judges for wrong doing in office.

​Whatever we are imparting to new generations of Americans about how Congress works and what it does, we are failing in our mission.  A 2016 survey conducted by the Annenberg Public Policy Center found that citizen knowledge of government basics is at a new low.  Only 25% of Americans can name the three branches of government and an even smaller percentage can explain what each branch does.

While citizen knowledge of Congress is at a low ebb, surveys also show that the clear majority of Americans do not think much of Congress.  A Gallup poll taken in 2015, on the subject of overall confidences Americans have in their institutions revealed the highest confidence is in our military (72%) and our lowest confidence is in Congress.  Only 8% of Americans have confidence in the law making branch of government even though Congress is the very branch of government that funds and oversees the military and has the power to declare war. This 8% level represents a new low in public confidence in Congress since these polls have been taken.

For our Congress Week theme this year, we focus on the powers of Congress because we need to do more to educate citizens about the importance of Congress as the central component of our three-branch system. Why is Congress the vital component, and not the presidency?  The answer lies in the story of the Federal Convention of 1787, where the Constitution was drafted, and it is borne out by the longest part of American political history, where the real action and the debates over national policy were conducted in Congress, not at the White House. We should not assume that just because we live in a time when the executive branch, sometimes derogatorily called the “Imperial Presidency,” seems dominant that this is the way things have always worked. The dominance of the presidency in setting the national agenda is a phenomenon of the 20th Century, and largely a product of the United States’ rise to world power during and after World War II.
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Look at the U. S. Constitution from the perspective of the “geography” of the document. The Framers of the Constitution spent more time describing in detail the powers of Congress than the other two branches combined.  The Constitution begins with Article I, which describes the powers of Congress. Article I takes up a good bit of the physical “real estate” of the Constitution. It was intended to be the branch closest to the people and the most responsive to their concerns. It is the First Branch of government, not just because it is first in order in the Constitution but because it had the vital role of being the main engine of government.  The legislative branch is the only one that is divided into two components. We talk about “Congress,” but when we want to understand what Congress is doing we must pay attention to the Senate and the House, the two distinctive bodies that form Congress.  We often use Congress as a shorthand term for both. Often this clouds our understanding. To know what Congress is doing requires us to examine what is going on in both chambers and in the committees of both the Senate and House.

The actual powers of Congress are considerable and well established. These powers are described in detail in Article I, Sec. 8. I urge you to read the full list of impressive powers, which includes the power to collect taxes, to borrow money on the credit of the United States, to regulate commerce with foreign nations and within the United States, to coin money, to declare war, to raise and support armies and a navy, and “to make all Laws necessary and proper” to carry out its powers.  Congress also has the sole power of impeachment of presidents and federal judges. The House brings charge of impeachment and the Senate conducts a trial to determine guilt or innocence.

Congress also has implied powers, those functions not specifically spelled out in the Constitution but implied by the necessity of doing its work. For example, Congress has the power to conduct investigations. From the early days of Congress the power to investigate has been a powerful tool to ferret out wrong-doing, to deal with malfeasance in government, to uncover waste and fraud, and to explore matters of national security. Private citizens and government officials can be called to testify before Congress during its investigations.

Understanding the powers of Congress cannot be done in a vacuum or just from a listing of powers. There is always a context to how power is exercised. There is always a history of the circumstances that leads to Congress exercising its powers. Congress works in a political atmosphere. This is the most important context. Partisan politics can be the essential life blood of the American debate over priorities in budgets and in the passage of certain laws. But when taken to extremes, partisan politics can weaken Congress, paralyze its ability to do its job, and disrupt the normal methods of doing its work, often called “the regular order.”

Let me end this brief essay on the powers of Congress with a story of how I learned a great lesson about Congress and its powers, not from civics books, not from history or political science courses, or from being a Congress watcher for many years. It is a lesson I learned from a poet. During the Bicentennial of the Congress in 1989, I asked the Poet Laureate of the United States, Howard Nemerov,  if he would write a poem for the 200th anniversary of Congress and then read it before a joint meeting of Congress on March 2, 1989. I was on the floor of the House that day, with members and guests filling the chamber and the galleries for this special tribute to Congress. No one, including me, had any idea what the Poet Laureate would say.

His opening sentence was so powerful and so insightful that he changed forever the way I would feel about Congress and its role in our government.  Howard Nemerov’s opening line was: “Here at the fulcrum of us all.”  Only seven words but they contained the wisdom of the ages.  He said Congress was the fulcrum of government, the central balancing point. But he also said it was the fulcrum of us all. Congress in our democracy is us.  Congress is composed of people we all elect to conduct the business of creating all the laws, including all the appropriations bills that make up the annual budget and a tax system to pay for it that affects every single American. What are our responsibilities in the process of governance?  How can we send people to Washington to do the people’s business if we have no confidence in them or in this central institution of government?

As we reflect on Congress this year during the time we set aside as Congress Week, let our reflections include this question:  What will it take to restore Congress to its rightful place as the fulcrum of us all? What will it take for us to be proud of Congress and the rest of our government again?  Public education about Congress needs serious attention. James Madison said the people must arm themselves with information about government because knowledge would give us power. If we are going to govern ourselves, if the people retain the ultimate power of government, then we had better be informed about it.  If citizens need to step up to the plate, so do our representatives in Congress. We are in an era of hyper-partisanship that has stifled the will of our elected officials to act. Hyper-partisanship means no one can compromise on important legislation. Our vast and diverse country cannot be governed by ideology and partisanship. It can be governed by ideas and cooperation. Congress is at its best when it is solving problems for America.
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Here is Howard Nemerov’s poem in its entirety. I hope you will find it as insightful and inspiring about the real power of Congress, as I have. Congress has the power to keep our Republic intact.

Because reverence has never been America’s thing, this verse in your honor will not begin “O thou.” But the great respect our country has to give may you all continue to deserve and have.

To the Congress of the United States Entering Its Third Century, With Preface

Here at the fulcrum of us all,
The feather of truth against the soul
Is weighed, and had better be found to balance
Lest our enterprise collapse in silence.

For here the million varying wills
Get melted down, and hammered out
Until the movie’s reduced to stills
That tell us what the law’s about.

Conflict’s endemic in the mind:
Your job’s to hear it in the wind
And compass it in opposites,
And bring the antagonists by your wits

To being one, and that the law
Thenceforth, until you change your minds
Against and with the shifting winds
That this is and that way blow the straw.

So it’s a republic, as Franklin said,
If you can keep it; and we did
Thus far, and hope to keep our quarrel
Funny and just, though with this moral:—

Praise without end for the go-ahead zeal
Of whoever it was invented the wheel;
But never a word for the poor soul’s sake
That thought ahead, and invented the brake.

​The poem appeared in the Congressional Record, 101st Cong. 1st Sess., March, 2, 1989, H 501. It also can be found in Howard Nemerov, Trying Conclusions, New and Selected Poems, 1961-1991 (Chicago: The University of Chicago Press, 1991), p. 142-43.

The author is a former Historian of the U.S. House of Representatives and is Director Emeritus of the Robert C. Byrd Center for Congressional History and Education, located at Shepherd University.