How History Made The Constitution


The framers adopted one additional break from the past. In England conviction of treason entailed consequences beyond the usual death penalty: forfeiture to the crown of the defendant’s personal possessions and lands (or interest in land) and corruption of blood—meaning disqualification from inheriting land or, obviously more important, transmitting title. Thus sometimes personal greed reinforced hopes of political advantage and fomented accusations of treason. The delegates prohibited the concept of corruption of blood entirely and allowed forfeiture only “during the Life of the Person attainted.”

Treason is the only crime the Constitution defines, or (except for counterfeiting, piracy, and “Offenses against the Law of Nations”) mentions, in connection with Congress. Yet concern remained that the national government would use the criminal law to destroy liberty. The losing minority in the Pennsylvania ratification convention asked for an amendment stating that the judiciary power of the United States extend “in criminal cases, to such only as are expressly enumerated in the constitution.”

No one could satisfactorily address this view because no government could long exist if it did not reserve the implicit right to meet changing conditions with new definitions of criminal conduct. The Constitution, in fact, gave Congress explicit authority to make “all Laws [including criminal laws] which shall be necessary and proper for carrying into Execution” the government’s vested powers.

The place and mode of criminal trials, however, were more controllable subjects of popular alarm. American fear of trial in a distant court had solid historical roots. One of the grounds for the impeachment in 1667 of Lord Clarendon, the Stuarts’ powerful minister, was his sending defendants out of the realm. Later and closer, during the decade just before the Revolution, a series of acts ancient and recent had threatened Americans, especially Bostonians, accused of various anti-Establishment offenses with trial in England, before English jurors.

In some instances Parliament or the local authorities had sought to eliminate the jury right entirely. Revenue legislation in 1764 and 1768 put the customs enforcement into the juryless courts of the vice admiralty. Twice, in celebrated murder prosecutions with maritime connections, John Adams had battled for a jury trial—unsuccessfully, although each client gained acquittal.

To prevent similar threats from the new national government, the framers specified that trial of all crimes, save impeachment, “shall be by Jury,” the trial to be “held in the State where the said Crimes shall have been committed....”

As aware of the past as they were conscious of posterity, the delegates had tried to make the Constitution what Hamilton called the “bill of rights of the Union.” Americans could say, he conceded, that the Constitution “does not go far enough,” but not that it ignored rights. Although the first ten amendments later clarified much of what had been merely assumed, Hamilton was right to exult: “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

It was an overall declaration of rights because its authors collectively recalled the perils that had confronted English and American liberty. If the Constitution in a sense made history, history even more certainly made the Constitution.