When drafting any written constitution or even any law, there is a question of whether every right should be explicitly laid out in the document. Where there are express rights in a constitution—such as the right to freedom of speech—a reader (including judges) may conclude that the list of rights are exhaustive and that there are no rights but those mentioned in that constitution. A reader could also reason that those rights which are expressed in the constitution are not a complete list but only the most important rights and may, in fact, include other rights. Additionally, a constitution may have express prohibitions such as the United States Constitution at Article I, Section 9: “The privilege of the writ of Habeas Corpus shall not be suspended.” Questions of interpretation, such as these, led to debates between friends in the winter of 1787 and 1788, and a letter from Thomas B. Wait to George Thatcher illustrated those debates.
The United States Congress was not above adopting its own rules that would silence abolitionist views. While mass mailings to southerners became a regular occurrence for abolitionists, creating significant tension between proslavery and anti-slavery factions, those had occurred outside the purview of government. The House of Representatives, when it used a gag rule to prevent discussion of petitions relating to abolition, was striking a blow to abolitionists all over the country.
The debate surrounding the adoption of the Bill of Rights revealed to many Americans the stark differences between Federalists and Antifederalists. Edmund Pendleton, in the Virginia Convention, stated that opposition to the Constitution “rested on ‘mistaken apprehensions of danger, drawn from observations on government which do not apply to us.'” Gordon Wood, The Creation of the American Republic: 1776-1787, 543 quoting Pendleton (Va.), in Elliot, ed., Debates, III, 36-37. Pendleton pointed out that many governments in the world were ruled by dictators. Id. Those governments had “bred hostility between ‘the interest and ambition of a despot’ and ‘the good of the people,’ thus creating ‘a continual war between the governors and the governed.'” Id. Pendleton believed that these beliefs led Antifederalists to demand a bill of rights and to have other unfounded fears about the Constitution. Id.
A bill of rights was not contemplated at the Constitutional Convention, until George Mason mentioned it in the last days of the Convention. Every state ruled it out. Rufus King, however, suggested that “as the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of the States in the National Constitution?” Gordon Wood, The Creation of the American Republic: 1776-1787, 536 quoting Farrand, ed., Records of the Federal Convention, II, 375-76, 378-79, I, 492-93.
Prior to the American Revolution, the colonists had become familiar with the concept of charters. Charters, whether royal, corporate, or proprietary, operated “as the evidence of a compact between an English King and the American subjects.” Gordon Wood, The Creation of the American Republic: 1776-1787, 268; see also Leonard Krieger, The Politics of Discretion: Pufendorf and the Acceptance of Natural Law (Chicago, 1965), 121.