Vol. 10 No. 2 (February 2000) pp. 108-110.

ORIGINS OF THE BILL OF RIGHTS by Leonard W. Levy. New Haven, CT: Yale University Press, 1999. 306 pp. Cloth $30.00.

Reviewed by Ruth Ann Watry, Department of Political Science, West Virginia University.

Leonard Levy has written a fascinating book that summarizes his previous studies of the origins of the Bill of Rights. I would highly recommend this book to anyone who is interested in the history of the Bill of Rights or in the debates surrounding the ratification of the Constitution.

Levy's first chapter discusses why there is a Bill of Rights, and he follows it with eleven chapters focusing on specific rights guaranteed in the U.S. Constitution. He address rights found in the body of the Constitution, including habeas corpus, and Bills of Attainder (Chap. 2 and Chap. 3). The remaining chapters address the origins of the Bill of Rights guarantees of no establishment of religion, freedom of the press, right to bear arms, the protection against unreasonable searches and seizures, the protection against self incrimination, the no double jeopardy provision, grand and petty jury rights, no excessive bail, no excessive fines, no cruel and unusual punishment, and Ninth Amendment un-enumerated rights.

In the first chapter Levy discusses why we have a Bill of Rights. In doing this, he dispels some of the accepted descriptions or myths of events surrounding the Bill of Rights. The first of these myths is the belief that the individuals involved in writing and ratifying the Constitution were merely trying to protect the rights that had been protected under British law and under the English Bill of Rights. Levy notes on page 2 that the freedoms experienced in colonial America were a "product of New World conditions, the English legal inheritance, and skipping a feudal stage." Americans, even prior to the revolution, were the "freest people," and the "old liberties"
being defended during the revolutionary war, were actually new liberties that had developed in the New World. Americans had already moved well beyond the English in securing individual rights. Levy carries this theme through the remaining chapters of the book. He offers comparisons of what a certain right or liberty involved in England, whether that right was protected in colonial state constitutions, and if so to what extent, and finally, what the founding fathers imagined that right to be. Levy finds that many of the rights protected in the Constitution and the Bill of Rights were not included in many of the states' constitutions and were not protected in England to the degree that they would be protected in the United States Constitution and Bill of Rights.

The second of these accepted myths surrounds the passage of the Bill of Rights in Congress, and Madison's role in that passage. Many American government and civil liberties texts seem to indicate that the passage of the Bill of Rights was one of the first acts of the new Congress, and that passage was a simple and routine process. Levy's discussion of this event makes it

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apparent that the passage of the Bill of Rights was not simple, and if not for Madison's dedicated involvement, it may not have been ratified. States had ratified the Constitution with the agreement that Congress would pass a Bill of Rights, and failure to pass that Bill of Rights could have resulted in a second constitutional convention. Levy notes on page 34 that some states were hoping that if a second convention were held, limits could be made, among other things, on Congress' power to tax. Because of these conflicting goals held by member of Congress (some members wanted a Bill of Rights but felt there were more important matters to address, whereas some other members wanted a second constitutional convention), there was not strong support for action on a Bill of Rights. Levy notes that although Madison initially introduced amendments on June 8, 1789, most members of Congress were either apathetic towards a Bill of Rights or opposed. On 13
August, Madison is finally able to get Congress to act on the amendments. Had Madison not been as persistent as he was, the Constitution, as we know it
today, would probably not exist.

It is tempting to jump in at this point and describe each of the chapters in detail, but I will leave the pleasure of exploring the chapters to the readers. Each of the chapters could stand on its own, if one were interested in only one or some of the provisions of the Bill of Rights. Levy's general pattern within each chapter, as mentioned above, is to discuss the right in terms of: 1) whether it was protected in state constitutions, and the degree of that protection; 2) whether the right was protected in England, and the degree of that protection; and 3) what the members of Congress (and the writers of the Constitution in the case of habeas corpus
and bills of attainder) intended that right to include. Levy's writing style is pleasant and enjoyable to read. His discussion of specific events and views of specific individuals makes it an enjoyable book to read.

Levy provides several very useful appendices, including a Table for Sources of the Provisions of the Bill of Rights, the English Bill of Rights, the Virginia Bill of Rights, amendments proposed by the Virginia Convention, amendments offered in Congress by James Madison, amendments reported to the Select Committee, and amendments passed by the House of Representatives. Although some of this material is readily accessible to scholars, I found the information included in the Table for Sources of the Provisions of the Bill of Rights both fascinating and enlightening. I have know for years that there were multiple amendments suggested to Madison when he was drafting amendments to present to Congress, but first Levy's appendix was my first exposure to exactly what they were and where they came from.

My one disappointment with Levy's book was his use of sources -- or lack thereof. Levy provides a bibliography listing a dozen sources at the end of the text, but at no place in the text is one informed as to which of these sources is being referenced. He often talks about the words or actions of specific individuals, but the reader is left unaware as to whether Levy had access to personal papers, or which of the twelve items cited in the bibliography the information came from. I find this disappointing in that there were many places in the book where Levy would be speaking of individuals and events that I desired to learn more about. The ideal way to pursue further knowledge would have been to go to a cited source. Since there was no mention of sources in the body of the text, it was not possible for me to do this. Levy's writing

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informed me about issues surrounding the Bill of Rights of which I was not previously aware and it inspired me to want to learn even about the events surrounding the Bill of Rights, but it did not provide the specific information for my pursuit of this goal.

Overall, ORIGINS OF THE BILL OF RIGHTS is an excellent book. It is a book that I would highly recommend to colleagues interested in an initial study of the topic, and it is one that I would consider assigning to honors level undergraduates or graduate students in a civil liberties or a constitutional history course.