Bill of Rights

Bill of Rights (1791), the first ten amendments of the Constitution.Although elements of the Bill of Rights can be traced back to ancient Greece, the Roman Republic, the Bible, medieval Germany, the Reformation, the Renaissance, and the Enlightenment, its more immediate origins are found in English history and in the colonial and revolutionary experiences of Americans themselves. Magna Carta (1215) proclaimed a commitment to limited government and legal process. The seventeenth‐century Whig ideology that developed during the struggles against Stuart absolutism in England was revived in the political literature of the American revolutionaries a century later to warn against governmental abuse of power. Both eras ended in monumental enunciations of rights.

Background.

English and colonial American rights were rooted in the unwritten doctrines of the common law. On rare occasions, usually in response to specific violations of rights by the monarch, Englishmen specified some rights in documents such as Magna Carta, the Petition of Right (1628), the Nineteen Propositions (1642), the Habeas Corpus Act (1679), and the Bill of Rights (1689). Americans in every colony, however, codified their rights in detail in dozens of documents limiting government. The fullest such assertion of rights appeared as early as 1641, in the Massachusetts Body of Liberties. In both England and America, written statements were viewed as tangible manifestations of rights already in existence.

As the movement toward independence advanced, Americans added the natural‐rights philosophy to their common‐law foundation of liberty. The Declaration of Independence abandoned the common law and based liberty exclusively upon natural rights by stating “these truths to be self‐evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

When they created their state constitutions, Americans either prefaced these documents with a bill of rights or incorporated various protections within the body of their constitution. The Massachusetts Declaration of Rights (1780), for example, declared “All men are born free and equal, and have certain natural, essential and unalienable rights.” Interpreting this fundamental tenet, the state supreme court declared an end to slavery in Massachusetts.

On occasion, state legislatures protected specific rights thought to be endangered, confirmed earlier enactments of rights, or even enacted full‐fledged bills of rights as statutes. All of these guarantees were based upon the social‐compact theory in which people surrendered some rights to government but retained certain rights essential to liberty. Government was supposed to protect these retained rights, but frequently during the Revolutionary era, state legislatures violated their bills of rights with impunity.

Because the Confederation Congress acted directly only on states and not on people, the Articles of Confederation contained no bill of rights. The Northwest Ordinance (1787, reconfirmed in 1789), however, contained a limited bill of rights because Congress could indirectly act on people through its appointed territorial governor, secretary, and judges.

The Constitutional Convention of 1787 included a limited number of specific protections of rights in its draft constitution. Near its conclusion, however, the Convention by a vote of ten states to none defeated a motion to appoint a committee to draft a bill of rights. This omission, which Antifederalists asserted endangered liberties, proved to be the single most powerful argument raised against ratifying the Constitution. Federalists maintained that a bill of rights was unnecessary because the federal government would have only delegated powers that would not threaten liberties. In fact, they suggested, an incomplete bill of rights would be dangerous since it would imply the abandonment of rights not listed. Furthermore, the Constitution itself was said to be a bill of rights, especially Article I, sections 9 and 10 that specifically prohibited the state and federal governments from actions violating rights. Only with the Federalists' promise that amendments to the Constitution, including a bill of rights, would be advocated in the first Congress, was ratification achieved.

Despite their promises, most Federalists ran for election to Congress opposed to any immediate amendments. Therefore, although President George Washington endorsed a bill of rights in his inaugural address and James Madison vigorously advocated a bill of rights in the House of Representatives in June 1789, most members of Congress opposed even discussing the matter. Madison, however, persevered and obtained the necessary two‐thirds vote to send draft amendments to the Senate. The Senate modified the amendments and eliminated some key provisions, particularly limitations on the states. On 25 September 1789, Congress agreed to twelve amendments, and by 15 December 1791, two years later, the necessary three‐quarters of the states had ratified ten of these amendments, which have become known as the Bill of Rights.

Contents of the Bill of Rights.

The first eight amendments in the Bill of Rights protect freedom of religion, speech, and the press and the right to petition the government, to assemble, to bear arms, and to be entitled to a jury trial in civil cases. Quartering troops in peacetime and unreasonable searches and arrests are prohibited. Common‐law protections are provided in criminal cases including “due process of law” and the right to counsel. Excessive bail and fines, and cruel and unusual punishments are forbidden.

The Ninth Amendment provides that the enumeration of certain rights in the Constitution or in subsequent amendments does not deny the existence of other rights that remain with the people. The Tenth Amendment explains that powers not delegated to the federal government by the Constitution are reserved to the states or to the people.

Later Court Rulings and Controversies.

In Barron v. Baltimore (1833) the U.S. Supreme Court ruled that the Bill of Rights applied only to the federal government, not to state or local governments. The Fourteenth Amendment (1868) added language that allowed later courts, beginning with Gitlow v. New York (1925), to apply the federal Bill of Rights to restrict the powers of state and local governments (the doctrine of incorporation). How far this incorporation extends the Bill of Rights is still a matter of debate.

Certain of the amendments in the Bill of Rights have proven particularly contentious and have generated much litigation, judicial interpretation, and public discussion. The First Amendment's ban on an “establishment of religion,” coupled with its prohition against any restrictions on the “free exercise” of religion, has been the basis of many court challenges involving the separation of separation of church and state. Similarly, the First Amendment's guarantee of freedom of speech and freedom of the press has led to numerous judicial pronouncements on issues relating to censorship, obscenity, and attempts to silence political dissidents or to curtail publications deemed seditious or dangerous, particularly in wartime. The Second Amendment's guarantee of “the right of the people to keep and bear Arms” remains deeply controversial, pitting gun‐control advocates against individuals and groups such as the National Rifle Association suspicious of any governmental restraints in this area. The Fifth Amendment's “due process” protections, including protection against self‐incrimination, have inspired many civil liberties battles and was the basis of the Supreme Court's landmark 1966 decision, Miranda v. Arizona, spelling out the rights of persons in police custody. The Tenth Amendment, reserving to the states or to the people “all powers not delegatated to the United States by the Constitution” has often been invoked by opponents of “big government” alarmed over what they see as the unwarranted expansion of federal power.

The Fourth Amendment's protection against unreasonable searches and seizures (along with other amendments) has been interpreted by the Courts to protect the right to privacy in cases involving birth control, abortion, and homosexuality.
See also Abrams v. United States; Alien and Sedition Acts; Civil Rights; Colonial Era; Early Republic, Era of the; Federalist Party; Holmes, Oliver Wendell, Jr.; Revolution and Constitution, Era of; Schenck v. United States; Sedition; Smith Act; Virginia Declaration of Rights.

Bibliography

Irving Brant , The Bill of Rights: Its Origin and Meaning, 1967.
Paul L. Murphy , The Historic Background of the Bill of Rights, 1990.
Kermit L. Hall, ed., By and For the People: Constitutional Rights in American History, 1991.
Bernard Schwartz , The Great Rights of Mankind: A History of the American Bill of Rights, Expanded Edition, 1992.
Patrick T. Conley and John P. Kaminski, eds., The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties, 1992.
Leonard W. Levy , Origins of the Bill of Rights, 1999.

John P. Kaminski