Philadelphia Reflections

The musings of a physician who has served the community for over six decades

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...Ratification, Bill of Rights and Other Amendments
The 1787 Constitution lacked a Bill of Rights. Few except Madison himself were opposed to adding one, but many other delegates would have failed election without promising it. Negotiations at the Convention had proved so excitingly innovative that time ran out before the Convention had to adjourn with only a promise of a Bill of Rights, first thing. Almost immediately, political America was thrown into a year of state ratification conventions. Massachusetts initiated the concept of ratifying the Constitution, attached with eight or nine amendment proposals for the Bill of Rights. When the First Congress finally convened, it faced almost two hundred proposed amendments, and Madison made sure he was chairman of a committee to deal with them. Practically alone he pared them down to a succinct twelve which survived as the first order of business of the new Congress. Almost unnoticed, he made a deal with Oliver Ellsworth the leader of the Senate, to pass the Bill of Rights in exchange for passing the Senate's Judiciary Act in the House of Representatives. Out of this combined beginning, the power and scope of the Judiciary Branch was born. But while that is a subject for later chapters, Madison never achieved a more skillful moment in his political life, than this pivotal one.

Third Amendment and Privacy: The Constitution Wanders

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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. {bottom quote}
The Third Amendment

The Third Amendment to the Constitution received a few moments of attention during the War of 1812, and the Civil War, but has only been litigated once during a strike of prison guards in New York state. It is, however, the somewhat fanciful basis for the right of privacy, devised for Roe v. Wade, and related this to the controversy over abortion rights.

It would appear that requisitioning the homes of private citizens was largely an expense-saving feature of the peacetime standing armies of European nobility, and thus agitated the opponents of aristocracy and feudalism. Its expense-sparing feature was a source of discontent during the French and Indian War, with its long wilderness border making housing difficult to find. The memories of people living near the frontier were long, however, and Charles Pinckney introduced to the Constitutional Convention one of a great many ill-considered motions which were defeated by that body, opposing the quartering of troops in peacetime. This action was taken up in demagogic style by the Anti-federalist faction, and during the ratification process, quite an issue was made of woeful inadequacy of a Constitution which failed to protect a nation's defenseless households, etc., etc. Matters reached a point where Madison was afraid not to include the matter in the Bill of Rights.

The matter may come up again, however, not merely in abortion controversies, but related to the increasing tendency to wage undeclared wars. Apparently, it was Madison's intent to throw the issue into the Executive Branch in the case of "time of war". No declaration of war was made in the Civil War, or in several other conflicts so that the issue which remains unresolved is what to do about undeclared wars, wars against terrorism, and other conditions which are not exactly either peace or war.


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