One theme of my next book is that in the nineteenth century many texts vied for the title of our national bill of rights. Thus, when you see references to the Bill of Rights before the 1890s, you can’t be sure what you’re seeing.
Here’s an example that I’ve finally figured out. In 1867, President Andrew Johnson vetoed the Second Reconstruction Act, which was part of Congress’s plan to impose military rule on the South until the Fourteenth Amendment was ratified. In that veto, Johnson quoted Daniel Webster, who said: “[T]he military must be kept, according to the language of our bill of rights, in strict subordination to the civil authority. Wherever this lesson is not both learned and practiced there can be no political freedom.”
Now at first this is puzzling. While you can construe parts of the Bill of Rights, like the Third Amendment, as being about civil supremacy over the military, there certainly is not any clear language on that. Then I thought, “Well, maybe Webster and Johnson were referring to the Declaration of Independence.” People back then did call that a bill of rights, and it does speak directly to the issue of civil/military relations in one passage condemning George III.
So then I looked for the original Webster quote. It’s in an oration he gave in 1843 to dedicate the monument at Bunker Hill. (He gave an even better speech there when they began building the monument in 1825.) Turns out Webster was talking about the Massachusetts Bill of Rights (by “our” he meant “in our state”), which also talks about keeping the military subordinate to civil authority.
Indeed, during Reconstruction you see “our Bill of Rights” defined as
- The Massachusetts Bill of Rights (by Johnson)
- Article I, Section 10 of the Constitution (by the Supreme Court)
- The first eight amendments (by some members of Congress)
- The first ten amendments (by other members of Congress)
- The Declaration of Independence (by still others)
There were other candidates (maybe I’ll do another post on that later in the week).