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Bill of Rights in U.S. Constitution

BILL OF RIGHTS IN U.S. CONSTITUTION

BILL OF RIGHTS IN U.S. CONSTITUTION. When the American colonists separated from Britain in 1776, most of the states wrote new constitutions to replace their defunct colonial governments. Many, although not all, of these new constitutions were accompanied by declarations or bills of rights. These documents recognized a combination of natural rights and essential civil liberties derived from Anglo-American common law jurisprudence and representative government. They also contained language that stated fundamental principles of republican government. Prior to the adoption of the Massachusetts constitution of 1780, these declarations of rights were not formally incorporated in the actual constitutions. Rather, they were companion documents that reminded Americans what their rights were; their legal authority remained uncertain.

Campaign for a Bill of Rights

When the Federal Convention met in 1787, only a handful of delegates expressed any interest in including a comprehensive list of rights in the new constitution of national government they were drafting. On 12 September 1787, five days before the convention was to adjourn, two of the three delegates still present raised the issue of including a bill of rights in the Constitution; these delegates indicated that they would refuse to sign the completed Constitution without such inclusion. George Mason, one of the two, apparently thought that the convention could simply imitate the influential Virginia Declaration of Rights that he had drafted in 1776. The convention dismissed the idea after perfunctory debate.

Once the Constitution was published, the omission of a bill of rights quickly became a rallying point for its Antifederalist opponents. Their concern deepened after James Wilson, a leading framer and Federalist from Pennsylvania, gave a speech maintaining that the inclusion of a bill of rights would have threatened liberty by implying that the new government possessed powers it had not been granted. The adoption of clauses protecting freedom of press or religion, Wilson asserted, would suggest that Congress had the authority to infringe those rights. In response, the Antifederalists noted that the Constitution did explicitly protect some rights and asked why including a clause prohibiting the suspension of habeas corpus was necessary, for example, if the power to infringe the "great writ" had never been delegated?

Antifederalists did not necessarily regard a bill of rights as a legally enforceable set of claims that individuals could invoke; rather, they thought of it as a statement of principles that would enable the people to judge the legitimacy of acts of government. Without such a document, the people could not determine whether or when government was abusing its power. No one in 1776 would have argued that such declarations created the rights they protected; they merely recognized the existence of rights whose authority was derived from other sources. But by asserting that rights would be insecure if they were not explicitly incorporated in the text of a written constitution, Antifederalists were moving toward the modern positivist conception of law that requires rights and other legal enactments to be grounded upon some explicit act of duly constituted authority. Without a strong textual foundation, rights would eventually be lost. Federalists did not initially take Antifederalist objections seriously, but as the ratification campaign progressed, they began to rethink their position. In states where the two sides were closely balanced, Federalists declared willingness to recommend various lists of amendments for the consideration of the new Congress to be elected after the Constitution was ratified. (Note that these amendments were only recommended, not required; Federalists successfully insisted amendments must follow ratification, not become a condition of it.) Many of the amendments that Antifederalists sought were structural, but others consisted of the kinds of articles that could also be found in the declarations of rights of various states.

Thomas Jefferson, the American minister to France, endorsed the inclusion of a bill of rights. Jefferson let it be known that he hoped that after the necessary nine states had ratified the Constitution, the remaining four would withhold their assent until agreement was reached on the adoption of a bill of rights. Jefferson expressed his support for a bill of rights in letters to James Madison. "A bill of rights is what the people are entitled to against every government on earth," he observed in December 1787. He was equally direct in dismissing the Federalist argument that the enumeration of particular rights would impair the authority of others left unstated. "Half a loaf is better than no bread," he wrote Madison in January 1789. "If we cannot secure all our rights, let us secure what we can."

Madison was not convinced. Like Wilson, he doubted the value of a federal bill of rights, but for other reasons. Madison was strongly committed to the protection of freedom of conscience, rights of property, and basic civil liberties. He thought the real danger to rights came from state governments, not national government. The best way to protect rights, Madison believed, would be to give the national government veto power over state laws, which it could use to guard individuals and minorities against the unjust laws that Madison believed the state legislatures were too prone to pass. The fact that many of the states had adopted declarations of rights only proved how ineffective they were. In Madison's view, such declarations were only "parchment barriers" that could never withstand the popular interests and passions that were the real source of too much state legislation. Madison had felt no qualms when the Federal Convention ignored Mason's plea for a bill of rights, and Antifederalist arguments in favor of a bill of rights left him unconvinced.

Nevertheless, as the leading advocate for the Constitution at the closely divided Virginia ratification convention, Madison found himself in the same position as Federalists elsewhere. To assure ratification, he reluctantly agreed that the convention could recommend amendments to the future federal Congress. In an equally difficult race against James Monroe for election to the first House of Representatives, he had to declare his public support for a bill of rights. Once elected, Madison took this campaign pledge seriously. At the same time, he continued to doubt that a federal bill of rights would do much good—unless it could somehow be extended to apply against the states. In Madison's thinking, its main value would be to quiet lingering Antifederalist reservations about the Constitution. If the First Congress acted quickly, he believed, it could address the lingering reservations of those well-meaning (if misguided) Antifederalists who found the omission of a bill of rights so troubling.

Madison's Proposals

In preparing his amendments, Madison reviewed all the proposals of the state conventions. Many of these amendments were structural, proposing alterations to the institutions of government and the powers these institutions would exercise. Neither Madison nor any of the Federalists who dominated the First Congress intended to consider such recommendations. Indeed, a majority of members in both houses probably believed that considering any amendments in any form was unnecessary. With the Constitution safely ratified and its supporters the clear victors in the first federal elections, they were inclined to deny that any firm bargain had been struck in the course of ratification. The new government had far more urgent matters to take up. The few Antifederalists elected to Congress were not great supporters of amendments. Because they knew the structural changes they desired had no chance of success, they saw little value in debating a bill of rights that would leave the new government in possession of all its powers.

Madison remained committed to his campaign promise, however. Structural amendments were unacceptable, but the addition of new articles protective of rights could still be useful. In drafting his amendments, Madison was also mindful of the defects of the states' declarations of rights. He did not want to draft a traditional bill of rights—supplemental articles or a distinct document standing apart from the main constitutional text. His preference was to insert the new provisions directly into those sections of the existing Constitution where they would be most relevant, principally Article I, Section 9. That section of the Constitution was devoted to limitations on the legislative authority of Congress. In his analyses of state constitutions and republican government more generally, Madison had repeatedly argued that the legislature was the most dangerous branch of government—an "impetuous vortex," as he called it in Federalist No. 48—and accordingly the task of protecting rights first and foremost required imposing limits on the legislative power of government. Moreover, by substituting the mandatory verb "shall" for the hortatory "ought" preferred by the state declarations, Madison further indicated that his articles were to be interpreted as legal commands rather than moral injunctions.

It was not only the legislative power of Congress that Madison wanted to limit, however. He still believed that the greater danger to rights was likely to arise not from the national government but from the individual states. He accordingly included in his original list of amendments another article providing that "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases"; this to be inserted in Article I, Section 10, which dealt with prohibitions on the powers of the states. Although this proposal fell short of the federal veto on state laws that he had championed at the Federal Convention, it represented one last effort to enable the national government to become a protector of rights within the individual states.

This article did not survive the eventual scrutiny of the Senate, but most of the other clauses Madison introduced on 8 June formed the foundation of the articles that Congress ultimately endorsed. For Madison, however, the introduction of these amendments was only the first step in an uphill struggle—"the nauseous project of amendments," he called it in August—to get his colleagues to take his proposals seriously. Congress had more pressing business, and neither Federalist nor Antifederalist members felt the same urgency as did Madison. It took the House six weeks to appoint a committee to consider Madison's amendments, and several more weeks passed before the House was ready to take up the committee's report.

The House made two substantial changes in Madison's proposals. In addition to articles protecting specific rights, Madison had also proposed adding language to the preamble to the Constitution. These clauses were more reminiscent of the state declarations of rights; they would have affirmed the basic principles that government derives its authority from the people; that it exists to secure to the people the benefits of their fundamental natural rights; and that the people retain the right "to reform or change their government" whenever it was proved "ad-verse or inadequate" to these ends. On 19 August, the House deleted these provisions, evidently on the grounds that including such general statements in the Constitution was redundant.

On that same day, the House made a second and arguably more momentous change in Madison's proposed amendments. Rather than "interweave" these articles separately into the original text of the Constitution, at the point where they seemed most salient, the House now agreed to treat these proposals as supplemental or additional articles. The impetus for this change came from Roger Sherman of Connecticut, an elder statesman of the Revolution. Sherman had proposed his own version of a bill of rights, much closer in form and substance to the state declarations. Sherman's articles generated little interest, but after two rebuffs, he at last persuaded a majority of the representatives that Congress had no right to tamper with the original Constitution as proposed and ratified. The amendments were to be treated as a postscript. Arguably one effect of this change was to make less clear which institutions of government were deemed most dangerous to rights or most responsible for their enforcement.

On 24 August 1789, the House approved seventeen amendments and submitted these to the Senate. Unlike the House, the upper chamber met behind closed doors, and the records of its debates are largely lost to history. The Senate made a number of editorial changes in the House amendments. It rejected Madison's article protecting freedom of conscience, freedom of speech, and trial by jury against state infringement, and another article affirming the principle of separation of powers. It bundled together the separate House articles on freedom of religion and the freedom of speech and press, and the right of petition, into one article, implying a strong link between freedom of religion and political rights. It also seemingly narrowed the House provision stating that "Congress shall make no law establishing religion" by stating instead that "Congress shall make no laws establishing articles of faith, or a mode of worship," implying that it might "establish" religion in other ways. It made several noteworthy changes in the article protecting "the right of the people, to keep and bear arms." As that article came from the House, it read: "A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." The Senate deleted this last clause as well as the qualifying definition of the militia as "composed of the body of the People," thereby strongly implying that it would remain in the power of Congress to determine the composition of the militia.

The Senate returned twelve articles to the House, and these then went to a conference committee on which Madison sat for the lower chamber. The committee made one key change in the religion clause of the third article, replacing the Senate's narrow prohibition of laws "establishing articles of faith, or modes of worship," with the broader if more ambiguous phrase, "respecting an establishment of religion." On 28 September 1789, the completed set of amendments was submitted to the state legislatures for ratification.

Ratification and Impact

The first two amendments proposed did not address issues of rights. The first, which failed of ratification, related to the apportionment of representatives in the House. The second, requiring a new election of representatives to occur before congressional pay raises take effect, was also rejected (it eventually became the 27th Amendment, ratified in 1992). The remaining articles became the first ten amendments to the Constitution following their ratification by Virginia in December 1791. The provisions protect the following rights: freedom of religion, speech, press, and assembly and petition (First Amendment); a right "to keep and bear arms," most likely conceived as a reminder that a republic should maintain organized state militias as an alternative to a national standing army (Second Amendment); a now unimportant restriction on quartering soldiers in civilian homes (Third Amendment); a guarantee against unreasonable searches and seizures (Fourth Amendment); essential civil liberties relating primarily to the rights of individuals accused of crimes or otherwise involved in legal proceedings (Fifth, Sixth, and Seventh Amendments); and prohibitions on excessive bail and cruel and unusual punishments (Eighth Amendment). The Ninth Amendment restates the Federalist concern that a positive enumeration of rights carried with it the risk of relegating other rights, potentially of equal value, to an inferior status simply by virtue of their omission; it suggests that the eight previous articles do not establish a comprehensive list of constitutional rights. The Tenth Amendment similarly echoes Wilson's original argument against a bill of rights by suggesting that all powers not vested in the national government by the Constitution remain with the states or the people.

Following its ratification, the Bill of Rights (as it gradually came to be known) had little noticeable effect on the development of the Constitution. An early test of its potential use came in 1798, when Congress adopted the Sedition Act to enable the administration of President John Adams to punish critics of its foreign and domestic policies. Neither the free speech nor free press clauses of the First Amendment nor the Tenth Amendment's affirmation of the limited powers of the national government proved effective against this controversial act. In an important decision of 1833, the Supreme Court held (in Barron v. Baltimore) that the Bill of Rights acted as a restraint only on the national government, not the states; and because the national government played only a minimal role in the lives of most Americans, the original amendments had little practical effect.

A generation later, many of the Republican congressmen who drafted the Fourteenth Amendment in 1866 thought that its critical first section could be read to repudiate the result in Barron, and thereby make the Bill of Rights judicially and legislatively enforceable against the states. That interpretation did not prove persuasive to the Supreme Court in subsequent decades. Only after World War I did the justices gradually began to apply the Bill of Rights against the states, first in the realm of freedom of speech and religion, then more extensively in other areas. Under the so-called incorporation doctrine, the Fourteenth Amendment was reinterpreted to protect the wide array of civil rights recognized in the original amendments against the authority of state and local governments—and by implication, the national government. The climax of this reinterpretation of the meaning and impact of the Bill of Rights came during the 1960s, under Chief Justice Earl Warren, making the original amendments proposed by Madison in 1789 the most controversial elements of the Constitution.

BIBLIOGRAPHY

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 1996.

Bodenhamer, David J., and James W. Ely, Jr., eds. The Bill of Rights in Modern America: After 200 Years. Bloomington: Indiana University Press, 1993.

Cogan, Neil H., ed., The Complete Bill of Rights. New York: Oxford University Press, 1997.

Levy, Leonard. Origins of the Bill of Rights. New Haven, Conn.: Yale University Press, 1999.

Rakove, Jack N. Declaring Rights: A Brief History with Documents. Boston: Bedford Books, 1998.

Rutland, Robert A. The Birth of the Bill of Rights, 1776–1791. Boston: Northeastern University Press, 1983.

JackRakove

See alsoConstitution of the United States ; Federalist Party ; andvol. 9:The Call for Amendments ; Virginia Declaration of Rights .

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Bill of Rights

BILL OF RIGHTS

A declaration of individual rights and freedoms, usually issued by a national government.

A list of fundamental rights included in each state constitution.

The first ten amendments to the U.S. Constitution, ratified in 1791, which set forth and guarantee certain fundamental rights and privileges of individuals, including freedom of religion, speech, press, and assembly; guarantee of a speedy jury trial in criminal cases; and protection against excessive bail andcruel and unusual punishment.

As a fundamental guarantee of individual liberty, the U.S. Bill of Rights (see appendix volume for primary document) forms a vital aspect of American law and government. It establishes many legal principles that have had a decisive effect upon law and society, including the functioning of the criminal justice system, the separation of church and state, and the exercise of freedom of speech.

The concept of a bill of rights as a statement of basic individual freedoms derives in part from the English Bill of Rights, passed in 1689 (see appendix volume for primary document). This document, which was created after the Glorious Revolution of 1688, established the terms by which William and Mary were accepted as king and queen of England. It forbade the monarchy to suspend laws, raise taxes, or maintain an army without consent of Parliament. It also declared that freedom of speech in Parliament could not be challenged, protected those accused of crimes from "excessive bail" and "cruel and unusual punishments," and provided a number of other privileges and freedoms (1 Will. & Mar., Sess. 2, C. 2).

Nearly a century later, seven of the 13 states of the newly independent United States of America adopted a bill of rights as part of their state constitutions, and the remaining six included elements of the English Bill of Rights in the bodies of their constitutions. Virginia, the first state to adopt a bill of rights, passed the virginia declaration of rights in 1776. Drafted largely by george mason, Virginia's declaration became a model for later state bills of rights and ultimately for the federal Bill of Rights, and it remains a part of that state's constitution.

At the Constitutional Convention of 1787, the Framers of the U.S. Constitution used the English Bill of Rights and state bills of rights as resources as they sought to define the fundamental principles and institutions of U.S. government. However, they declined to add a bill of rights to the Constitution, on the grounds that the Constitution itself provided adequate protection from intrusive government. Indeed, the Constitution contained some elements of the English Bill of Rights, including Congress's exclusive power to maintain armed forces and, on the federal level, to pass laws and impose taxes. The Constitution also incorporated other specific rights traditional in english law, including that of habeas corpus, which protects against unlawful imprisonment. However, the Constitution made no mention of other basic rights of constitutional government such as freedom of speech, press, and religion, and the rights of those accused of crimes.

During the Constitution's ratification process, from 1787 to 1789, state ratifying conventions pointed out the lack of such fundamental guarantees in the Constitution and submitted lists of proposed constitutional amendments. The Federalists, who supported ratification of the Constitution, eventually conceded and promised to attach a bill of rights to the document. The leading contributors to the creation of these amendments—which came collectively to be called the Bill of Rights—were George Mason, thomas jefferson, and james madison, with Madison serving as their principal author and sponsor on the floor of the U.S. House during the First Congress.

On September 25, 1789, 12 amendments to the Constitution were submitted to the states by the required two-thirds majority of Congress. Two of the amendments—which dealt with congressional pay and the apportionment, or assignment, of congressional seats to the states—were voted down by the states. The other ten amendments were ratified by December 15, 1791.

Scholars have described the Bill of Rights as protecting three different types of human rights: (1) rights of conscience, including the First Amendment's freedom of speech and religion; (2) rights of those accused of crimes, such as the Eighth Amendment's protection against excessive bail and fines; and (3) rights of property, such as the Fifth Amendment's provision that no one may be deprived of property without due process of law.

One vital issue in the history of the interpretation of the Bill of Rights has concerned its application to the states. In the case of Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), the Supreme Court ruled that the Bill of Rights applied only to the federal government. However, by the 1920s, the Court, using a principle known as the incorporation doctrine, had begun to apply selected elements of the first ten amendments to the states. According to this doctrine, elements of the Bill of Rights may be applied to the states through the Due Process Clause of the fourteenth amendment, which holds that no state shall "deprive any person of life, liberty, or property, without due process of law." Thus in 1925 the Supreme Court ruled that the first amendment protections of freedom of speech applied to the states as well as the federal government (gitlow v. new york, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138). Incorporation gave the Supreme Court wide power to strike down state laws that it deemed to be in violation of the Constitution's Bill of Rights.

By the end of the twentieth century, nearly all provisions of the Bill of Rights had been declared binding on the states. Only five provisions of the Bill of Rights had not been applied to the states: (1) the Second Amendment's right to bear arms; (2) the Third Amendment's prohibition against involuntary quartering of troops; (3) the Fifth Amendment's requirement of grand jury indictment in capital cases; (4) the Seventh Amendment's provision for trial by jury in civil cases; and (5) the Eighth Amendment's prohibition of excessive bail and fines.

States are free to provide additional protections beyond those offered in the federal Bill of Rights, but they may not reduce civil rights or liberties to standards lower than those of the federal Constitution.

Other countries have passed bills of rights that differ from those of England and the United States. In 1789 the Constituent Assembly of France passed the Declaration of the Rights of Man, a document that stated the philosophical principles of the French Revolution. Canada adopted the Act for the Recognition and Protection of Human Rights and Fundamental Freedoms in 1960 (8-9 Eliz. II, ch. 44, § 1[c]-[f] [Can.]) and the Charter of Rights and Freedoms in 1982 (Can. Const. [Constitution Act, 1982] pt. I).

further readings

Amar, Akhil Reed. 1998. The Bill of Rights: Creation and Reconstruction. New Haven: Yale Univ. Press.

Coleman, John. 1998. What You Should Know about the U.S. Constitution and the Bill of Rights. Carson City, Nev.: Bridger House.

Lewis, Thomas T., ed. 2002. The Bill of Rights. Pasadena, Calif.: Salem Press.

Monk, Linda R. 2000. The Bill of Rights: A User's Guide. Alexandria, Va.: Close Up Pub.

Reese, Lee F. 1986. George Mason's Part in Framing the Constitution of the U.S.A. and the Bill of Rights. Lexington, Ky.: Lexington Books.

cross-references

Constitutional Amendment; Eminent Domain; English Bill of Rights (Appendix, Primary Document); Equal Protection; Freedom of Association and Assembly; Freedom of the Press; Privilege Against Self-Incrimination; Religion; Right to Counsel; Search and Seizure; Speedy Trial; U.S. Bill of Rights (Appendix, Primary Document). See also entries on each amendment to the U.S. Constitution (e.g., First Amendment).

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Bill of Rights in State Constitutions

BILL OF RIGHTS IN STATE CONSTITUTIONS

BILL OF RIGHTS IN STATE CONSTITUTIONS. Each of the states has its own constitution, and each state constitution has a bill of rights, sometimes called a declaration of rights. A bill of rights is composed of provisions protecting individual liberties, such as free speech, the right to assemble, and the free exercise of religion, and protecting an accused in a criminal prosecution by ensuring, for example, the accused an impartial jury and the right to confront witnesses.

Bills of rights were part of colonial charters and early state constitutions. They inspired the text of the first ten amendments to the U.S. Constitution, generally referred to as the federal Bill of Rights. The federal Bill of Rights and state bills of rights in turn influenced the text of later state constitutions.

Thus many rights set forth in state constitutions parallel those in the federal Bill of Rights. In addition, several state constitutions recognize individual rights that are not explicitly expressed in the federal Constitution or in sister state constitutions. For example, about ten state constitutions expressly recognize the right that every person shall be secure against unreasonable invasions of privacy, a right not explicitly mentioned in the federal Constitution.

From the beginning of the country's history until 1925, the United States Supreme Court interpreted the federal Bill of Rights as limiting the conduct of the federal government but not protecting against abuses by the states. Thus during this time the state bills of rights were the primary protectors of individual rights against state government. For example, in the nineteenth century criminal defendants were entitled to the assistance of counsel under some state constitutions but not under the federal Bill of Rights.

Beginning in 1925 with Gitlow v. New York, the United States Supreme Court began interpreting the due process clause of the Fourteenth Amendment to the Constitution as incorporating provisions of the federal Bill of Rights to restrain state governments. The process of applying certain provisions of the federal Bill of Rights to state action is referred to as selective incorporation. Selective incorporation increased significantly after 1960, when the United States Supreme Court required state courts to accord a criminally accused many federal constitutional protections, including for example, the assistance of counsel. As a result of the selective incorporation process, at the end of the twentieth century many provisions in the federal Bill of Rights restricted the conduct of state governments as well as the federal government. Although individuals had the protection of both the federal and state constitutions, the importance of the state bills of rights waned as federal and state courts and claimants relied primarily on the federal Bill of Rights rather than on state bills of rights to protect individuals against abusive state government action.

A renewed interest in and emphasis on state bills of rights began in the last quarter of the twentieth century with the growth of a legal movement called "new federalism." Proponents of new federalism urged litigants and state courts to base civil liberty claims solely on state bills of rights or in addition to the federal Bill of Rights. They argued that reliance on state constitutional law would strengthen the role of states in the federal system, would enable states to ensure greater protection to their people than granted under the federal Constitution, and would protect state court decisions from federal court review and reversal.

The federal Constitution defines the minimum level of individual rights and leaves each state free to provide greater rights for its people through its state constitution, statutes, or rules. Thus a state court could construe state constitutional protections to give persons greater protection than the United States Supreme Court does when applying the Fourteenth Amendment to the federal Bill of Rights.

In interpreting the federal Constitution, a state court applies federal case law, and its decision may be reviewed and reversed by the United States Supreme Court. In contrast, in interpreting its state constitution a state court applies state law, and its decision is generally not reviewable by the United States Supreme Court, so long as the state decision rests on independent and adequate state grounds and does not authorize action that is prohibited by the federal Constitution.

A state court's interpretation of the state constitution can differ from an interpretation of an overlapping federally protected right. The variance may arise from a number of circumstances, including textual differences, different legislative histories, and disagreement among courts about the correct interpretation of constitutional language. For some, independent state interpretation of state bills of rights has the benefit of allowing states to be laboratories of experimentation for new or different legal doctrines. Moreover, a state court may be better able to provide stability and clarity of law than a distant federal court.

Although no one disputes the right of a state court to interpret its state constitution independent of federal case law interpreting the federal Constitution, some criticize new federalism as destroying national uniformity; undermining the authority of the United States Supreme Court; requiring additional education and training of professionals such as lawyers and law enforcement officers; generating uncertainty and confusion for the public; creating pressure to amend state constitutions to overcome judicial interpretations; and placing state courts at the center of controversial issues and putting pressure on state judges, many of whom are elected, to decide cases on the basis of public opinion, rather than legal principles.

Considering the arguments of the proponents and opponents of new federalism, state courts have, in the last quarter of the twentieth century, issued hundreds of opinions declaring that state constitutions grant individuals more protection than do analogous provisions of the federal Constitution. In many more cases, however, state courts have taken a "lockstep" approach in interpreting their state constitutions—that is, they adopt the United States Supreme Court case law in interpreting their analogous state constitutional provisions.

State bills of rights will continue to play a significant role in the changing concepts of individual liberties and federalism in the twenty-first century. United States Supreme Court Justice William H. Brennan Jr., the intellectual leader of new federalism, characterized new federalism as "an important and highly significant development for our constitutional jurisprudence and for our concept of federalism."

BIBLIOGRAPHY

Abrahamson, Shirley S. "State Constitutional Law." In Encyclopedia of the American Judicial System. Edited by Robert J. Janosik. New York: Scribners, 1987.

Brennan, William J., Jr. "State Constitutions and the Protection of Individual Rights." Harvard Law Review 90 (1977): 489–504.

Friesen, Jennifer. State Constitutional Law. 3d ed. Charlottesville, Va.: Michie Law Publishing, 2000.

Gitlow v. New York, 268 U.S. 652 (1925).

Shirley S.Abrahamson

See alsoColonial Charters ; Constitution of the United States ; Declaration of Rights ; Virginia Declaration of Rights .

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Bill of Rights

Bill of Rights

The Bill of Rights, which consists of the first ten amendments to the U.S. Constitution, was drafted by the first Congress of the new government in 1789 and went into effect on December 15, 1791, when Virginia became the eleventh state to ratify the amendments.

The Bill of Rights followed a tradition in Anglo-American law of drawing up a list of basic rights to which all the people in the state were entitled. The English Bill of Rights, enacted in 1689, included the right to petition the government with grievances, the right to trial by jury, and the right not to be subjected to cruel and unusual punishments. In 1774 the First Continental Congress drew up a Declaration of Rights, which included such liberties as freedom of the press and a prohibition against standing armies in peacetime.

The virginia declaration of rights, enacted in 1776, quickly became the model for other states. By 1781 eight states had enacted bills of rights, and four others had included statements guaranteeing individual rights either in the prefaces to their constitutions or in supplementary statutes. The articles of confederation did not include a bill of rights, however. The drafters of the Articles believed that the protection of individual rights was a state responsibility.

At the 1787 constitutional convention, edmund randolph and george mason of Virginia and Elbridge Gerry of Massachusetts sought unsuccessfully to include a bill of rights in the new constitution. Most delegates took the view that the state bills of rights would continue to protect individual rights at the state level and that Congress would resist any attempts to infringe upon individual liberties at the federal level.

When the lack of a bill of rights became an issue in the ratification process, James Madison promised that the first Congress would enact a bill of rights as part of its business. As a member of the first House of Representatives, Madison reminded the members of this pledge. He drafted much of the final document, using Mason's virginia declaration of rights as a model.

The Bill of Rights plays a central role in the protection of civil liberties and civil rights. When enacted, the ten amendments applied only to the actions of the federal government. In a long series of decisions, however, the U.S. Supreme Court has ruled that almost all the provisions in the Bill of Rights also apply to the states. Therefore, the Bill of Rights safeguards the basic rights of individuals from encroachment by all levels of government.

Source: The United States Government Manual.

Bill of Rights

AMENDMENT 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

AMENDMENT 2

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT 3

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

AMENDMENT 4

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

AMENDMENT 5

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand jury, except, in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

AMENDMENT 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the Assistance of Counsel for his defence.

AMENDMENT 7

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

AMENDMENT 8

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

AMENDMENT 9

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT 10

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

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Bill of Rights (in British history)

Bill of Rights, 1689, in British history, one of the fundamental instruments of constitutional law. It registered in statutory form the outcome of the long 17th-century struggle between the Stuart kings and the English Parliament. Its principles were accepted by William III and Mary II in the Declaration of Rights as a condition for ascending the throne after the revolution in which James II was dethroned (1688). The Bill of Rights stated that certain acts of James II were illegal and henceforth prohibited; that Englishmen possessed certain inviolable civil and political rights; that James had forfeited the throne by abdication and that William and Mary were lawful sovereigns; that the succession should pass to the heirs of Mary, then to Princess Anne (later queen) and her heirs; and that no Roman Catholic could ever be sovereign of England. By its provisions and implications it gave political supremacy to Parliament and was supplemented (1701) by the Act of Settlement.

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Bill of Rights

Bill of Rights. Passed by Parliament in December 1689 this gave statutory force to the Declaration of Rights presented to William and Mary on 13 February 1689, and agreed by them after they had jointly accepted the crown of Great Britain. The bill closely followed the declaration in its recital of ancient rights, and the recent abuses of the royal prerogative by the catholic James II, deemed to have abdicated and hence vacated the throne. The question of any contractual character the crown might possess was skirted. The succession was now stated to lie in the heirs of the bodies of the protestant Mary, and then her younger sister Anne. None could succeed who were of the catholic faith, or had married catholics. Prerogative power to dispense with law in specific instances was rendered subject to statutory sanction; and Parliament claimed the right to override a royal pardon. This received statutory recognition in 1701 through the Act of Settlement.

David Denis Aldridge

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Bill of Rights

Bill of Rights Name given to the first ten amendments to the Constitution of the United States, ratified in 1791. Several states had agreed to ratify the Constitution (1787) only after George Washington promised to add such a list of liberties. The main rights confirmed were: freedom of worship, of speech, of the press, and of assembly; the right to bear arms; freedom from unreasonable search and seizure; the right to a speedy trial by jury; and protection from self-incrimination.

http://www.archives.gov/exhibit_hall/index.html

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Bill of Rights

Bill of Rights (1689) British statute enshrining the constitutional principles won during the Glorious Revolution. It confirmed the abdication of James II and bestowed the throne on William III and Mary II. It excluded Roman Catholics from the succession and outlawed some of James' abuses of the royal prerogative, such as manipulation of the legal system and use of a standing army. In general, its provisions hastened the trend towards the supremacy of Parliament over the Crown.

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Bill of Rights

Bill of Rights • n. Law a statement of the rights of a class of people, in particular: ∎  the first ten amendments to the U.S. Constitution, ratified in 1791 and guaranteeing such rights as the freedoms of speech, assembly, and worship.

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Bill of Rights (in U.S. history)

Bill of Rights, in U.S. history: see Constitution of the United States.

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