414
Defending the Constitution
‘‘Words are tools that break in the hand.’’ We therefore need to define the
concepts which lie behind the words of the Bill of Rights.
Another way to ascertain what the framers of the Bill of Rights intended by their amendments, and what the first Congress and the ratifying State legislatures understood by the amendments’ language, is to
consult Sir William Blackstone’s Commentaries on the Laws of England
(1765), and the early Commentaries on the Constitution (1833) and Commentaries on American Law (1826), written, respectively, by Joseph Story
and James Kent. As eminent judges during the early decades of the Republic, both Story and Kent were more familiar with the constitutional
controversies of the first five presidential administrations than any judge
or professor of law near the close of the twentieth century can hope to be.
The comments on the Bill of Rights that follow are based on such
sources of information, and also on the books, letters, and journals of political leaders and judges from 1776 to 1840.
It should be noted, moreover, that the Northwest Ordinance of 1787
also sheds light on the ideas and ideals of the generation that drafted the
Constitution and the Bill of Rights. Passed by the Continental Congress
on July 13, 1787, while the Federal Convention was meeting in Philadelphia, the Northwest Ordinance was later affirmed by the first Congress
under the new Constitution. Its purpose was to provide a frame of government for the western territories that later became the States of Ohio,
Indiana, Illinois, Michigan, and Wisconsin.
The Ordinance has been called our first national bill of rights, or ‘‘the
Magna Charta of American Freedom.’’ The great American statesman
Daniel Webster said he doubted ‘‘whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked
and lasting character than the Ordinance of 1787.’’ In addition to protecting many civil liberties that later appeared in the Bill of Rights, the
Northwest Ordinance also banned slavery in the Northwest Territory.
The wording of the Thirteenth Amendment (1865) providing for the abolition of slavery in the United States was taken directly from the Northwest Ordinance. On the subject of religion, the ordinance provided that
‘‘No person, demeaning himself in a peaceable and orderly manner, shall
ever be molested on account of his mode of worship or religious sentiments, in said Territory.’’ The Ordinance also declared as a matter of pub-