Customer Reviews

Origins of the Bill of Rights (Yale Contemporary Law Series)

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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.

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.

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.

The upset with politicians today is nothing new. "Origins.." puts a human history face on the Bill of Rights. Amazing that our country has retained the original hopes of our founders. Levy is excellent in his description and inspiration.

All Americans cherish their rights given to them by God and our Bill of Rights. This book should be read by all people interested in the origins and formation of our Bill of Rights. This book refreshes our memory of celebrated cases in English and American History that led the way in the formation of our Bill of Rights. The Zenger case in New York became the symbol for freedom of the press and freedom of speech. The Wilkes case in England challenged general warrants and the seizures of private papers; a case that would also be felt on both sides of the Atlantic. This book also enlightens us of the importance and the influence on our Bill of Rights that the Magna Carta and the English Bill of Rights had. We also have the oppurtunity to explore the thoughts of some of our key founding fathers, most notably James Madison. Whatever you learn from this book, the most understood fact that the reader comes out with is that Americans, even before the formation of our constitution, had the innate belief that the government was under subjection by the people, and the rights of the people could not be infringed upon by any government.

Levy, the author of many books on this & related topics, oudoes himself with this gem. It's a refreshing change from the insinuations of today's anti-rights crowd, who seem to have never heard of the 9th Amendment (or pretend not to understand it), that the exact language in the first 10 amendments gives us (or delimits) our rights. All the Bill of Rights does is to guarantee the rights we already have. By delving into the history of the most important amendments and showing why they were needed and enacted, Levy shows clearly that they are indeed inalienable -- and that they were intended to be limitations on the power of the government. To use an analogy, suppose all of the Framers were atheists, and that one of the amendments in the Bill of Rights specifically PROHIBITED (i.e., made illegal) the construction or existence of churches. Would the fact that the Founders had written this and had it ratified by the states mean that we have no legal or moral right to build or attend houses of worship? How could the Framers have possessed the authority to deny us this right? As Levy's analysis makes clear, human rights antedate governments and therefore cannot be abridged or violated by them. This well-written book is very clearly presented and easy to understand; one need not be an expert on the subject, or a lawyer, to be enlightened by it. Read it yourself and then recommend it to both high school and college students.

Thanks to this book, I understand my constitutional rights better than ever before, and I have a tremendous amount of respect for the Founding Fathers'courage and integrity to do what is right, even if unpopular (yes, the Bill of Rights was very unpopular with many of their peers).

This book also helped me understand how relevant these rights are to modern society and how dark it can get when they're lost (sometimes we forget this). It also helped me better understand why the "controversial" rights granted by the Second Amendment were included in such a short, sacred list, and why it too must be preserved.

Mr. Levy is a consummate expert on the subject and an entertaining writer. I wish every American would read this book so we could all stand together united to forever protect the foundations of what was the greatest social experiment in human history.

With all of the claims made by politicians from both parties and political pundits about their opponents trampling on the constitution or "according to our forefathers". This book is an invaluable source at separating fact from fiction by today's "experts" or designated spokespersons. What I enjoy most are the contexts and historical background in which these articles were arrived at. All I can say is that there is a lot of uneducated rabble rousing going on today.

Leonard Levy's Origins of the Bill of Rights is a concise monograph that traces the development of the first ten amendments to the U.S. Constitution from English common law through the American colonial period to the point of their inclusion into one of the world's premier documents. Levy uses only historical sources to make his case, leaving constitutional scholarship alone.

Levy's efforts are mostly successful and the reader will come away with a solid understanding of the types of laws the framers of the Bill of Rights had to work with when they undertook their endeavor. He is critical of both Federalists and Anti-Federalists (he seems to poke fun at Patrick Henry throughout the book) and seems to argue that we have the Bill of Rights in spite of our Founding Fathers.

One weakness of Levy is his apparent conservative innuendo regarding the differences between the time of the Bill of Rights authorship and our modern world. He laments the world of 1791 as not anticipating modern free speech issues regarding pornography (though he fails to acknowledge libel and slander laws of today). He emphasizes the militia element of the second amendment while not wholeheartedly endorsing unlimited gun ownership rights.

Levy counters his weaknesses with a particularly impressive argument regarding the fourth amendment. This, according to Levy, did not trace its roots to England or colonial times but rather was a backlash against past practice. Unreasonable searches and seizures and general warrants were common in colonial America and the fourth amendment was specifically drafted to cure this ailment.

One final weakness is the lack of a concluding chapter that would have served to tie the whole work together, but Levy's overall effort is worthwhile to any with an interest in constitutional history.

These quotes from the book should interest you.

"Americans resorted to arms in 1775 not to establish new liberties but to defend old ones" in this history of the Bill of Rights. "Unencumbered by a rigid class system, an arbitrary government, or a single established church squelching dissent, colonial Americans understood freedom in a far more comprehensive and liberal way than the English". "In colonial America, political theory, law, and religion all taught that government was limited". The book provides an analysis of the background of the Bill of Rights and of current legal understanding of each of its provisions. "The people of the United States, aided by a persistent James Madison and by traditions of freedom" supported both the Constitution and the Bill of Rights".

The theory that the Second Amendment vests only a collective right to bear arms (state militias) would only mean that soldiers are allowed to bear arms - which doesn't need a Constitutional Amendment for that! The history of the last two centuries shows that this is an individual right. To "keep and bear arms" refers to individuals; soldiers' weapons are government property. No "National Guard" soldier can keep his arms - that would be "theft of Government Property".

The book explains how the Bill of Rights had its origins in centuries old laws and customs, and Colonial experiences.

Refer also to William Weir's "A Well Regulated Militia: The Battle Over Gun Control" for more information.