Origins of the Bill of Rights (Yale Contemporary Law Series) [Paperback]

Professor Leonard W. Levy (Author)

Book Description

ISBN-10: 0300089015 | ISBN-13: 978-0300089011 | Publication Date: March 1, 2001

In this fascinating history of the origins of the Bill of Rights, Pulitzer Prize-winning historian Leonard W. Levy offers a panoramic view of the liberties secured by the first ten amendments to the Constitution. Levy illuminates the behind-the-scenes manoeuvrings, public rhetoric, and political motivations of James Madison and others who overcame fierce opposition to ensure the ratification of these crucial liberties.

Editorial Reviews

From Publishers Weekly

When Americans began drafting a Bill of Rights suitable for their new republic, they were actually following longstanding Anglo-American tradition. In a well-researched, though hardly pathbreaking, history, Levy (Blasphemy, etc.), professor emeritus at the Claremont Graduate School, devotes chapters to important protections: freedom of speech, freedom of religion, habeas corpus, prohibitions on bills of attainder, etc. With each topic, he delves into its sourcesAEnglish common law, Enlightenment philosophy, colonial state constitutionsAably characterizing the social and historical forces that influenced the evolution of each right. It's an academic approach that's useful as history even if it solves few contemporary problems. Take, for example, Levy's discussion of the right to bear arms. When ratified, he notes, the Second Amendment created an individual rather than a collective right. But this settles the matter only if one believes that legal and constitutional history stopped in 1789. As recent constitutional theorists (e.g., Bruce Ackerman) have noted, law, including constitutional law, evolves, effectively undergoing amendment through a gradual consensus-building process involving courts, legislatures and the public. Indeed, Levy's own keen historical account illustrates how legal concepts have changed over time. His failure to confront or even acknowledge how this dynamism is at work in contemporary debates renders this book ultimately of only academic interest. (Sept.)
Copyright 1999 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.

From Library Journal

Constitutional historian Levy, author of 36 books concerning American politics and constitutional issues (e.g., The Palladium of Justice: Origins of Trial by Jury), provides a systematic and comprehensive analysis of the origins of the Bill of Rights and other constitutional provisions that protect rights. His historical analysis frames fundamental principles of "liberty" and "rights" by interpreting each of the first nine amendments to the Constitution and demonstrating differences between 18th-century American ideals and English common-law practice. His informative arguments in this important work concern nature and the sources of the Bill of Rights within American democracy, providing understanding for both scholars and citizens. Levy's approach to these controversial values, which protect the rights of the people, will be the source of future legal and public discussion. A significant contribution to understanding the Bill of Rights; highly recommended.ASteven Puro, St. Louis Univ.
Copyright 1999 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.

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Product Details

• Paperback: 320 pages
• Publisher: Yale University Press (March 1, 2001)
• Language: English
• ISBN-10: 0300089015
• ISBN-13: 978-0300089011
• Product Dimensions: 7.7 x 4.9 x 0.9 inches
• Shipping Weight: 8.8 ounces (View shipping rates and policies)
• Average Customer Review: 4.7 out of 5 stars  See all reviews (11 customer reviews)
• Amazon Best Sellers Rank: #689,556 in Books (See Top 100 in Books)

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42 of 48 people found the following review helpful:

5.0 out of 5 stars An excellent analysis by a leading constitutional historian, November 22, 1999

By 

Glenn H. Reynolds "Instapundit" (Knoxville, TN USA) - See all my reviews
(REAL NAME)   

This review is from: Origins of the Bill of Rights (Yale Contemporary Law Series) (Hardcover)

This is a very well-written and informative guide to the history and development of the Bill of Rights by one of our leading constitutional historians. It is clearly written, and can easily be followed by non-lawyers and non-historians. Nonetheless, the analysis is sophisticated.

The two parts most likely to draw attention are Levy's treatment of the Second and Ninth amendments to the Constitution. With regard to the Second, Levy joins the overwhelming number of constitutional scholars and historians who believe the Second Amendment protects an individual right to arms. And he does so unequivocally: "Believing that the amendment does not authorize an individual's right to keep and bear arms is wrong. The right to bear arms is an individual right. . . . Moreover, the right to bear arms does not necessarily have a military connotation, because Pennsylvania, whose constitution of 1776 first used the phrase 'the right to bear arms,' did not even have a state militia." (pp. 134-35). Levy even criticizes Harvard professor Laurence Tribe for saying otherwise (136) -- though in fact Tribe has changed his position and now agrees with Levy. But this took place as Levy's book was in press. At any rate, revisionist writers such as Garry Wills will find little comfort in this book.

On the Ninth Amendment, Levy may annoy many who disagree with him about the Second (and vice versa). Levy argues that the Ninth Amendment was meant to protect both positive rights (e.g., voting, the presumption of innocence, etc.) and natural rights, which he identifies with the Declaration of Independence's "Life, Liberty and Pursuit of Happiness." He has little patience with those who claim otherwise: "To argue that the Framers had used natural rights as a means of escaping obligations of obedience to the king but did not use natural rights 'as a source for rules of decision' is hogwash. One has only to read the state recommendations for a bill of rights to know that the natural rights philosophy seized the minds of the Framers as it had the minds of the rebellious patriots of 1776. One can also read natural rights opinions by members of the early Supreme Court to arrive at the same conclusion." (p. 255). So much for the narrow originalist theories of, for example, Robert Bork.

That the book heaps scorn on the half-baked theories of Garry Wills and Robert Bork is just a bonus, though. In substance, it is strong. The writing style is graceful. And the coverage is remarkably complete for such a slim volume. Great work, indeed.

10 of 11 people found the following review helpful:

5.0 out of 5 stars A Carefully Written History about Fragile Civil Liberties, January 7, 2008

By 

James E. Egolf "James E. Egolf, MA" (Florida) - See all my reviews
(VINE VOICE)    (TOP 1000 REVIEWER)    (REAL NAME)   

This review is from: Origins of the Bill of Rights (Yale Contemporary Law Series) (Paperback)

G.K. Chesterton wrote that if men do not learn history, they will lose their rights. Leonard Levy's book titled THE ORIGINS OF THE BILL OF RIGHTS justifies this remark, and this book gives a solid account of what should be important to Americans. Unfortunately, too many Americans do not know history and care little about their civil liberties. Yet, Levy' book is there for the record. Levy gives detailed background to civil liberties and explains that the Bill of Rights document was assure in early National U.S. History. THE ORIGINS OF THE BILL OF RIGHTS is a book that explains the modifications and enhancements of rights which are too often taken for granted or have been forgotten.

The Framers, as Levy calls them, did not include a Bill of Rights when they wrote the Constitution in the summer of 1787. Some of the Framers did not think they were necessary. Others argued that the state constitutions provided for civil liberties rendering a Bill of Rights unnecessary. However, the Anti-Federalists used the fact that because the U.S. Constitution did not have a Bill of Rights, that was reason not to ratify the document. The Federalists looked foolish when arguing that a Bill of Rights was unnecessary and quickly changed their views in support of the Bill of Rights. The political bargain was that a Bill of Rights would be proposed to be added to the U.S. Constutition, and ratificastion was based on this promise. The Anti-Federalists' complaint about a Bill of Rights is important. This reviewer wrote elsewhere that without the Anti-Federalists, there would be no Bill of Rights. Without a Bill of Rights, there would be no U.S. Constitution.

Levy begins the assertion of rights with the rights of Habeas Corpus and protection of Bills of Attainder. Habeas Corpus (to have the body or person) meant that one could not be detained indefinately without a formal charge of a specific criminal act. The Petition of Right (1628)provided this protection in an attempt to prevent English monarchs from arresting political opponents and dissenters and holding them without formal charges. This protection afforded those arrested a chance to inform a judge that charges were bogus, and defendants knew exactly what charges they faced. Therefore defendents and their attornies were able to mount a defense against the charges.

Bills of Attainder are forbidden in the U.S. Constitution. The English monarchs used Bills of Attainder to get death sentences against political opponents. A Bill of Attainder was a Parliamentary Act designed to punish someone without due process. Henry VIII got rid of Cromwell by this method.

Levy's book deals extensively with First Amendment Rights. At the time of ratification of the U.S. Constitution, most Americans were Protestant, and Protestants were given considerable religious freedom. Catholics found safe haven in Maryland, and aside from some Puritan excesses, there was almost complete religious freedom. Some colonial legislatures disestablished the Church of England. Unlike Europe, people could enter professions and businesses regardless of religious convictions. As an aside, the Pennsylvania colonists probably had the most religious freedom.

Other First Amendment Rights included Freedom of the Press and Speech. Blackstone's COMMENTARIES served as a guide which only provided that there should be no prior restainst. However, men could be charge for seditious libel for what was written and published. Criminal libel was enforced even after ratification of the Bill of Rights. Both the Federalists and Anti-Federalists, including Thomas Jefferson, used criminal libel laws against political opponents. But when the Alien and Sedition Acts were passed in 1798, there was vigorous protest against criminal libel. These criminal actions stopped between 1798-1800 when men argued that since the government was of the people, they could not libel themselves by dissent and criticism.

The Right to Keep and Bear Arms was part of English Law. Levy explains that this was in part to keep men ready for militia duty, and men could use arms to protect their homes and loved ones. Pennsylvania which did not have a militia, still allowed men to be armned. This right has been debated with the improvement and lethal effect of modern firearms.

Levy's examination of the Fourth and Fifth Amendments is interesting. Originall English authorities could use general warranst which violated privacy and security. Levy patiently explained that protest over Writs of Assistance used by British authorites gradually led to specific search and arrest warrants. This development was based on Chapter 39 of Magna Carta (1215) which Levy contends was misinterpretated.

Levy also explains that the Fourth Amendment overlaps the protection against self incrimination of the Fifth Amendment. If authorities had general warrants, they could use the abuse of search to incriminate men and women. Levy also gives a good explanation of the use of Grand Juries beginning with King Henry II (1154-1189). The problem of grand jurors is that they were used as trial jurors which tainted criminal cases. As early as 1352, the English separated grand juries from trial or petite juries. In other words, the due process clause of the Fifth Amendment and the mention of grand juries blended with Sixth Amendment Rights.

Trial by jury originally gave defendents the right to challenge prosecutors and their witnesses. Gradually, defendants could confront hositle witnesses and present witnesses and evidence on their behalf. The use of 12 jurors may have been based on the 12 Tribes of Isreal or the 12 Apostles of Christ.

Seventh Amendment Rights provided that Common Law Rules would apply to civil cases. Anti-Federalist opponents complained about this until Madison & co. included it in the Bill of Rights.

Eighth Amendment protections against excessive fines and cruel and unusal punishment are self explanatory. Flogging was not considered cruel, and the English used flogging on women as late as 1841. The death penalty was not considered cruel as long as the execution did not involve torture. Basically, this amendment was based on the premise that the punishment fit the crime.

Levy explains that the Ninth Amendment protection of unenumerate rights was dormant until 1965 when the U.S. Supreme Court struck down a Connecticut law that forbade family planning and contraception. Levy explains that Ninth Amendment rights are part of natural law and includes decisions of marriage, family life, careers, etc. This amendment tried to protect those rights that could be forseen in the late 18th century.

Leonard Levy wrote a comprehensive book re The Bill of Rights. He could have cited the Catholic Canon Law as a source of Natural Law. He is one of the few to suggest that Trial by Jury originated with the Catholic Council of Lyon in 1215. Yet this book is important for anyone who appreciates his or her civil liberties. Unfortunately, those who do care are few in number these days.

6 of 6 people found the following review helpful:

5.0 out of 5 stars Wonderful historical reference for the Bill of Rights, September 6, 2001

By A Customer

This review is from: Origins of the Bill of Rights (Yale Contemporary Law Series) (Paperback)

Well written and interesting. This book gives a wonderful historical perspective of the laws, practices, and history that led up to the framing of the Bill of Rights. With careful study, Levy has built a window into the politics, thoughts, and fears that led to the inclusion of the BOR and includes many examples of the reasons that they were included. Well written and entertaining, this lesson in American history reads like series of short stories.