The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins

by Neil H. Cogan

Overview

The fundamental, inalienable rights and privileges set forth in the Bill of Rights represent the very foundations of American liberty. The Complete Bill of Rights is a documentary record of the process by which these rights and privileges were defined and recorded as law. Now in its second edition, The Complete Bill of Rights contains double the content featured in the first edition. This new edition includes all the background texts for the origins and debate of the ratification of the Bill of Rights and presents them clause by clause in a complete, accurate, and accessible format. Arranged in chronological order, the work presents each clause in its finished form, and traces its development from its proposal through drafting through adoption. Cogan presents every draft of the text and every documentary source, including state convention proposals, state, colonial, and English constitutional texts, sources in caselaw and treatises, and State and Colonial statutory and decisional law. He includes data from diaries and correspondence, pamphlets and newspapers, as well as the Congressional and State debates, including the correspondence of George Washington, Thomas Jefferson, James Madison, and John Adams among many others who debated the issues that the Supreme Court considers law today. The book also contains each version of the drafts from the manuscript collections of the National Archives and Library of Congress. The result is the most detailed and useful record of the debate over the Bill of Rights available. This first new edition since 1997 substantially expands on the previous edition, providing the same invaluable texts for two fundamental protections of liberty found in the Constitution of 1789 (though not in the Bill of Rights): the protections under habeas corpus and the privileges and immunities clauses. Each chapter expands the background discussion of rights, and provides pertinent texts in contemporary legal dictionaries to meet the increasing interest of federal and state courts in additional sources for interpretation. The second edition also provides a chapter-by-chapter discussion of rights by treatise and abridgement writers in addition to Blackstone. Finally, all margin notes and footnotes in the dictionaries and treatises are included, so the reader has access to the totality of the original statues and case law upon which the drafters relied. The Complete Bill of Rights is the only comprehensive collection of texts essential to understanding the Bill of Rights. Organized in an accessible and practical manner, it is an invaluable tool for law students, judges, lawyers, and law clerks, as well as scholars of the law, history, and political science.

Product Details

ISBN-13:	9780190266479
Publisher:	Oxford University Press
Publication date:	06/30/2015
Sold by:	Barnes & Noble
Format:	eBook
File size:	2 MB

About the Author

Neil H. Cogan is Professor of Law at Whittier Law School. He was Dean of Whittier Law School and Vice President for Legal Education for the College from 2001 to 2009. During his deanship, the Law School established the Center for International and Comparative Law, the Institute for Legal Writing and Professional Skills, the Institute for Student and Graduate Academic Support, the Institute for Trial Advocacy, and six Summer Study Abroad Programs. He is a litigator, having tried both bench and jury trials and argued appeals in the federal and state courts. His The Complete Bill of Rights (Oxford University Press, 1997) has been frequently cited by the United States Supreme Court and in the scholarly literature.

Table of Contents

Abbreviations of Sources Preface Chapter 1: Amendment I - Establishment and Free Exercise Clauses Chapter 2: Amendment I - Free Speech and Free Press Clauses Chapter 3: Amendment I - Assembly and Petition Clauses Chapter 4: Amendment II - Keep and Bear Arms Clause Chapter 5: Amendment III - Quartering Soldiers Clause Chapter 6: Amendment IV - Search and Seizure Clause Chapter 7: Amendment V - Grand Jury Clause Chapter 8: Amendment V - Double Jeopardy Clause Chapter 9: Amendment V - Self-Incrimination Clause Chapter 10: Amendment V - Due Process Clause Chapter 11: Amendment V - Takings Clause Chapter 12: Amendment VI - Criminal Trial Clauses Chapter 13: Amendment VII - Civil Jury Trial Clauses Chapter 14: Amendment VIII - Bail/Punishment Clauses Chapter 15: Amendment IX - Unenumerated Rights Clause Chapter 16: Amendment X - Reservation of Powers Clause Chapter 17: Article I, Section 9, Clause 2 - Habeas Corpus Clause Chapter 18: Article IV, Section 2, Clause 1 - Privileges and Immunities Clause Appendix: Bill of Rights

Editorial Reviews

The documentary record and story of the origins and processes by which these rights were proposed, debated, and ratified. A chapter is devoted to each clause of the Bill of Rights, and includes each draft of the clause and every textual source, including the state convention proposals; the state, colonial, and English sources; and caselaw and treatises. All the relevant debates in the First Congress and in the constitutional ratifying conventions are included, as well as the debate and discussion in the pamphlet literature, letters, and diaries of the time. Annotation c. by Book News, Inc., Portland, Or.

Booknews

How should a reference work be reviewed? Several of the customary standards for reviewing a monograph (the identification of the book's thesis, the methodology employed by the author, the review and evaluation of the book's findings and conclusions, the contribution of the book to a body of substantive literature) do not apply. Instead, it seems reasonable to specify the purpose of a reference book, its organization and its breadth. Then a reviewer ought to consider what this reference work offers relative to comparable sources. Neil Cogan is quite clear about his purpose and the breadth of his book: "THIS BOOK'S AIM IS TO PROVIDE THE MOST COMPLETE, ACCURATE, and accessible set of texts available for interpreting the Bill of Rights. . . ." The organizing feature of the book is to devote a chapter to each clause of the Bill of Rights, except for the provisions for criminal due process, which are grouped together in Chapter 12. For example, Chapter 1 begins with the Establishment and Free Exercise Clauses. All of the drafts and proposals relative to those clauses are in the first section of the chapter; any contemporaneous discussion of these drafts and proposals is contained in the second section; and any antecedent or contemporaneous discussion of the rights to be protected by the clauses is gathered in the third section. The references within each section are arranged chronologically. This structure, coupled with the chronology, is especially important in the first section of each chapter. There one can see the evolution of the precise wording of a provision, such as the Establishment Clause, with the source of each change being clearly identified. It took an enormous amount of work to bring these proposals together within this structure. That work having been well done once saves incalculable time (consisting mostly of tedious effort) for other scholars. We should be grateful. Dean Cogan includes in his preface a brief section on the importance of "originalism." He suggests the vagaries of meanings of that term, but argues (quite reasonably I think) that whatever importance one may attribute to original intent, having a complete, accurate and accessible texts of the words in question is helpful to all. He says that otherwise, "there is no place where one can read all the drafts of the provisions of the Bill of Rights. One must piece the drafts together from journals, newspaper reports, and manuscripts." That brings us to the question of comparable sources. Of course there are plenty of accounts of the Constitutional Convention of 1787, all of them equally constrained by the notes and journals of the participants and witnesses. One account (Prescott, 1968) rearranged Madison's notes to facilitate consideration of the consecutive development of provisions of the original Constitution, somewhat like Cogan's efforts with the Bill of Rights. But, of course, none of the accounts of the Constitutional Convention treat the Bill of Rights. Cogan's principal competitor as a reference work on the Bill of Rights is the work of Bernard Schwartz. Schwartz's first version was THE BILL OF RIGHTS: A DOCUMENTARY HISTORY (1971) and his second was THE ROOTS OF THE BILL OF RIGHTS (1980). The second edition essentially is a popular edition of the first, with illustrations added. Cogan is quite right; his book makes the evolution of the text of provisions of the Bill of Rights much more accessible than other reference books. While Schwartz presents his sources chronologically, he offers them in their own context, (e.g., a day's entry from the ANNALS OF CONGRESS, which may cover a number of clauses) rather than using a particular clause of the Bill of Rights as the organizing principle. Cogan's presentation is much better. What Schwartz does, while Cogan does not, is to offer, in their entirety, various possible antecedents for the Bill of Rights, back to 1215 and Magna Carta on the English side, and to the First Charter of Virginia (1606) on the American side of the Atlantic. There are, of course, many other sources for such antecedents, one of the notable ones being the Perry and Cooper (1972) compilation for the American Bar Foundation, SOURCES OF OUR LIBERTIES which also begins with Magna Carta. What Cogan does, while Schwartz and the Perry and Cooper compilation do not, is to extract from antecedents particular words as they relate to the evolution of a particular clause of the Bill of Rights. For example, in the context of the Establishment Clause, Cogan quotes from the Mayflower Compact of 1620 the avowed purpose of the colonists to undertake for the "glory of God, and the advancement of the christian faith," the establishment of a colony in Virginia, while Schwartz does not include the Mayflower Compact among his antecedents. Schwartz gives us the entirety of the English Bill of Rights of 1689, while Cogan relates specific provisions from that document to a related provisions of the U.S. Bill of Rights. For those for whom "originalism" may be important, or indeed for those who doubt its relevance, Cogan's book offers the common ground of an accurate and accessible source. Every reference library should have a copy. REFERENCES Perry, Richard L. and John C. Cooper (eds.). 1972 [c.1959] SOURCES OF OUR LIBERTIES. New York: New York University Press. Prescott, Arthur T. 1968 [c1941]. DRAFTING THE FEDERAL CONSTITUTION. New York: Greenwood Press. Schwartz, Bernard. 1971. THE BILL OF RIGHTS: A DOCUMENTARY HISTORY. (2 vols.). New York: Chelsea House. __________. 1980. THE ROOTS OF THE BILL OF RIGHTS (5 vols.). New York: Chelsea House.

Donald W. Jackson

Reviews from previous edition:

"Every reference library should have a copy."—^

"All academic research libraries should buy this book."—^

"For anyone interested in our Constitution, our history, or our political theory, this book is an intellectual treasure chest. It is more than legislative history. It is constitution-drafting in the raw—all the proposals and all the give-and-take (some of it disturbing) that resulted in the adoption of the Bill of Rights."—Floyd A. Abrams, ^

"This wonderful collection offers one-stop shopping for the serious student of the Bill of Rights, for the casual reader, and for everyone in between."—Akhil Reed Amar, Southmayd Professor of Law, Yale Law School

"This book is an invaluable resource for constitutional scholars, teachers, litigators, and judges alike. It collects and collates the basic texts necessary for informed interpretation of the Bill of Rights and gives them to researchers in a compact, comprehensive, and reliable form that is wonderfully organized for both quick scanning and sustained critical analysis. It makes previously difficult research tasks easy and opens new lines of thinking at a glance."— Anthony G. Amsterdam, Judge Edward Weinfeld Professor and Director, Lawyering Program, New York University Law School

"What a treasure. In one volume, everything any constitutional scholar, lawyer, or history buff needs to know about the origins of our Bill of Rights. Now the debate about how these amendments should be interpreted can really begin."—Alan M. Dershowitz, Felix Frankfurter Professor, Harvard Law School

"The Complete Bill of Rights is a major occasion in American publishing. This volume will take its place on the reference shelf next to Farrand, Elliott, Storing, Kurland, and Lerner as essential to the understanding of the American constitutional tradition. Never before has it been possible to think seriously and completely about the text of the Bill of Rights, for never before have all of the texts relating to the final version of the Bill of Rights been easily and accurately accessible in one reference work. This is a triumph of careful and thoughtful scholarship. It is now one of the essential components of the library of constitutionalism. It will never be out of date."—Stanley N. Katz, President, American Council of Learned Societies

" . . . all students of the Constitution will find this a helpful and provocative work."—Pergamon

" . . .The Complete Bill of Rights contribute[s] significantly to our undersranding of a towering constitutional document that plays a major role in determining our national identity . . . "—Wisconsin Magazine of History

"...The Complete Bill of Rights is, by any reasonable standard of measurement, a magnificent accomplishment . . .[it] is likely to become the standard source book for those seeking to ground their examination of the issues posed by the first ten amendments in the original source materials describing their drafting, discussion and ratification."—Michigan Law Review

"It has been 18 years since Cogan (Whittier Law School) published the first edition (CH, Feb'98, 35-3573) of this indispensable compilation of primary sources on 16 individual provisions of the Bill of Rights. Cogan again provides numerous original drafts and excerpts from congressional debates, state conventions and constitutions, newspapers and pamphlets, and letters and diaries and an increased number of passages from legal treatises. Highly recommended." -J. R. Vile, Middle Tennessee State University, Choice

"A fascinating exploration of the words, debates, discussion, and source materials that later became the Bill of Rights. Ultimately, this book would fit nicely in academic law libraries (or other academic libraries) and public libraries. It is a repository (in one volume) of the basic texts that researchers need to interpret and critically analyze the Bill of Rights. It will satisfy both the serious researcher with its dense content and the casual reader with its ease of use and readability." -Danielle A. Becker, Law Library Journal

From the Publisher