Bill of Rights
Bill of Rights
A bill of rights is a formal declaration of the fundamental rights of individuals within a particular domain. Its purpose is to protect those rights from any arbitrary , unfair, or capriciously applied actions by the government. Although such statements are sometimes promulgated by legislative enactments, most usually a bill of rights is part of a nation's constitution. Including a bill of rights in a constitution seeks to immunize them from infringement by legislation and other governmental policies and thereby to set limits on governmental actions on behalf of human rights.
The English Bill of Rights (1689) is usually considered to have ushered in the practice of having a distinct enumeration of "guarantees" designed to protect individual rights. In the Glorious Revolution (1688), parliament had deposed the hereditary King James II (1633–1701) for violating the "true, ancient, and indubitable rights and liberties" of the English people. Those rights and liberties were largely unwritten customary practices stemming from Magna Carta (1215). When parliament offered the throne to William of Orange (1650–1702) and his wife Mary (1662–1694), they wanted to make sure that the new monarchs would respect those rights. Hence parliament drew up the bill of rights and conditioned the offer of the crown on their acceptance by William and Mary.
Although since that time, English (later United Kingdom) governments have generally respected human rights, that same history revealed the potential weakness of a legislatively promulgated bill of rights. If parliament was the source of those rights—as opposed to stemming from the authority of the people themselves—a subsequent parliament could amend or even abridge those protections. This power of parliament led the American Revolutionary–era pamphleteer Thomas Paine (1737–1809), in his famous The Rights of Man (1791–92), to debunk British "pretensions" to even having a constitution.
Canadian and Israeli experiences have reinforced Paine's argument and explain why the general, worldwide consensus holds that a bill of rights ought to be part of a nation's constitution and thereby immune from ordinary shifts in policy. In 1960 the Canadian parliament promulgated a bill of rights. Because it was a federal legislative enactment and not part of the constitution, its provisions did not extend to protecting matters within the jurisdiction of the provinces or limit subsequent federal parliamentary laws. Most Canadians therefore date their "real" bill of rights to the Canadian Charter of Rights and Freedoms, which is Part I of the Canadian Constitution Act of 1982.
Similarly, Israel came into existence in 1948 and 1949 without the enactment of a formal written constitution. In 1950, a compromise was reached whereby the Knesset (parliament) would periodically enact Basic Laws, and in this piecemeal fashion, as a societal consensus developed, a constitution would emerge in a chapter-by-chapter process. To date, the Knesset has enacted eleven Basic Laws covering most important governmental institutions and procedures. In 1995, the Israeli Supreme Court announced that it would henceforth treat the Basic Laws as Israel's constitution and regard any governmental policies that conflicted with provisions of the Basic Laws as unconstitutional. Yet because the Basic Laws do not include a bill of rights, most Israelis still question whether their country actually has a constitution.
The belief in the value of constitutionalizing a bill of rights stems largely from the American experience. The U.S. Constitution that emerged from the 1787 convention did not contain a bill of rights. When it was submitted to the state ratification conventions that absence became the principal source of opposition. Only when the Federalists—the drafters and supporters of the constitution—promised to add a bill of rights via the amendment process did a sufficient number of state conventions approve the document. The first U.S. Congress kept that promise. In 1791, the first ten amendments to the constitution were ratified and became known as the U.S. Bill of Rights.
thomas paine's rights of man
The works of English-American writer and political pamphleteer Thomas Paine (1737–1809) helped fuel American colonists' desire for independence.
Paine was born in England and at the age of thirteen, he joined his father in the corset-making business. As a young adult he tried other careers but failed in each of them, and he decided to seek his fortune in America. Paine arrived in Philadelphia in 1744 and found work as an editor for Pennsylvania Magazine. He began writing his own articles and published many anonymously or under pseudonyms. His Common Sense pamphlet (1776) inspired the drafting and signing of the Declaration of Independence.
Paine took an early stand against slavery. He wrote passionately and extensively about his outrage over this practice. His abolitionist stance contributed to his notoriety in America and Europe.
In the late 1780s Paine returned to Europe and published his best-selling two-part political pamphlet called Rights of Man (1791–1792), which defended the French Revolution (1789–1799). In this political treatise, Paine spells out what he believes to be universal truths: a) Men are born free and equal; b) everyone has a right to liberty, property, security, and to resist oppression; and c) rights are derived from the state, which is the source of sovereignty. The British banned Paine from England after the publication of Rights of Man because, in addition to writing about the need to overthrow the monarchy, he also tried to organize for it. He found asylum in France, where he was a member of the National Convention. The French revolutionaries threw him in jail, however, because he opposed the execution of the king. American intervention won his release from prison and he returned to the United States, where he died in poverty and relative obscurity in New Rochelle, New York.
problems raised and lessons learned
The American experience also illustrates the problems posed by inserting a bill of rights into a written constitution. First, there is the issue of what rights are to be included. When the Federalists initially defended the omission, they argued that, similar to the theoretical controversies surrounding natural rights , there was no agreement as to what rights defined liberty. Moreover, as times changed, different values and rights might well come to be considered to be fundamental (e.g., those provisions in the original U.S. Constitution that recognized the existence of slavery are now considered as denials of the basic equality of all humans). Better, the Federalists argued, to protect individuals' rights by strictly limiting the authority of government to certain areas.
There is a related issue. The Federalists argued that any enumeration might lead to the conclusion that individuals were entitled to only those rights that are specified in the bill of rights. This would jeopardize the status of those rights overlooked at the time a bill of rights was adopted or that later came to be seen as fundamental.
The latter issue was resolved by inserting into the constitution words that explicitly stated that the constitutional text, including the bill of rights, was not exhaustive. The Ninth Amendment reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The very process of amending the constitution to add the bill of rights indicated one method of recognizing other fundamental rights. Thus the abolition of slavery and other forms of involuntary servitude (except as punishment for a crime) in the Thirteenth Amendment (1865) was a major step in the American recognition of the basic equality of all humanity.
The new American nation had to confront a second major issue: how to implement the bill of rights. Unless a way was found to protect individuals from arbitrary and capricious governmental actions, a bill of rights was potentially little more than a series of admonitions to the policy makers. Because policies that could infringe human rights would most likely stem from legislative or executive actions, Americans came to believe that the judiciary was best suited to serve as the guardians of those rights. In the words of James Madison (1751–1836), the principal author of the U.S. Bill of Rights, "Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights … [and] resist every encroachment upon rights expressly stipulated … by the declaration of rights" (Annals of Congress 1789, 457).
Generally, the American model has worked well, although there have been serious violations of human rights. Black Americans were denied civil rights for a century after the abolition of slavery. Japanese Americans were incarcerated during World War II (1939–1945). Political rights were violated during the "Red Scares" (i.e., the reaction to the acute fear of communism infiltration in the United States) after World War I (1914–1918) and World War II. Additionally, criminal justice was frequently not available to the poor.
Yet over time, the United States became increasingly supportive of human rights. Partly the increased protection of human rights was the result of constitutional amendments, such as the extension of voting rights to women by the Nineteenth Amendment (1920). Partly it was the result of legislation, such as the granting of citizenship to Native Americans in 1927, the 1964 Civil Rights Act, and the 1965 Voting Rights Act.
A significant part of the extension of human rights in the United States stems from judicial implementation of the bill of rights. The Supreme Court extended most guarantees in the original bill of rights—originally designed as protections only against the federal government—to the actions of state and local governments. Belatedly, the courts enforced constitutional prohibitions against racially discriminatory governmental actions. American courts have come to protect vigilantly and broadly those individual rights essential in a democratic society, including the freedoms of speech, press, association, religion, and conscience.
Moreover, the Supreme Court has recognized certain rights not specified in the text as worthy of constitutional protection. An example of the judicial expansion of basic rights is the Supreme Court's recognition of a private individual's autonomous freedom in matters concerning intimate sexual relations. Thus for all the missteps along the way, the U.S. Bill of Rights is generally functioning as intended.
The success of the American model can be seen by its emulation around the world. Of the 191 member states in the United Nations, all but seven have formal written integrated constitutions with bills of rights. Additionally, most of those nations also provide for judicial procedures to protect against governmental actions that violate the individual rights incorporated into their constitutions. Moreover, the blatant disregard and contempt of human rights in the first half of the twentieth century that resulted in horrendous acts such as the Nazi Holocaust prompted a series of international bills of rights in an effort to secure effective recognition of individual rights.
In 1948, the United Nations General Assembly promulgated the Universal Declaration of Rights, which was followed by the European Convention of Human Rights in 1950. In 1969 the American Convention on Human Rights was signed by the nations of the Western Hemisphere. The post–World War II era was also marked by increased efforts to implement those international bills of rights to find ways to protect rights enumerated therein. International courts and non-governmental organizations were instituted for that purpose.
Although the utility of having a bill of rights incorporated into written constitutions and international agreements is now universally accepted, some of the original problems remain. First, at issue is what rights are to be considered fundamental. This, in turn, has a dual aspect. Some individuals seek to have their behavior recognized as a basic right and thereby immune from governmental interference. At the turn of the twenty-first century the most prominent example of this demand for a "negative freedom" is the claim by gays and lesbians to a right for private, autonomous, and individual choice in matters of consensual sexual relations.
Other individuals seek to have certain needs recognized as human rights and thereby entitled to government support. At the turn of the twenty-first century the most prominent examples of these demands for "positive freedom" are the insistent claims that education and health be classified as fundamental rights. The continuing demands to extend the scope of matters incorporated into bills of rights are a sign of the increased importance of human rights on the political agenda of the nations of the world.
As illustrated by the U.S. experience, there are several ways to extend the scope of a bill of rights. The original enumeration can be enlarged via the appropriate amendment process. Between 1952 and 1966, for example, five protocols were added to the European Convention of Human Rights. Formally adopted amendments do more than create new legal rights; the public recognition of a societal consensus also provides significant political leverage for those individuals and groups claiming those rights. That is why, for example, women's rights advocates attempted to add an Equal Rights Amendment to the U.S. Constitution in the 1970s and 1980s. With the failure of that effort, legislative and judicial implementation of the Equal Protection Clause of the Fourteenth Amendment was successfully utilized to advance equal rights for women. However, legislatively and judicially defined rights are narrower in scope and more vulnerable to future corrosive acts.
The idea of "natural rights" as the basis for "natural law" has caused controversy for centuries, because scholars have found it very difficult to agree on a universal definition of natural rights. Philosophers in ancient Greece and Rome first developed the concept of natural rights; they stated that certain laws of the gods and of nature superseded the laws of the state.
English philosopher John Locke (1632–1704) further advanced the idea of natural rights. He argued that, as human beings, all individuals have certain inherent rights that predated the introduction of civilized societies. Locke believed these natural rights included the right to life, liberty, and property. Others, however, argued that humans were mere savages in their natural state and therefore had no natural rights.
Even though philosophers could not agree on the existence or the definition of natural rights, the concept evolved during the eighteenth and nineteenth centuries, and sparked countless revolutions. Natural rights were written into constitutions around the world, such as the U.S. Bill of Rights and France's Declaration of the Rights of Man and of the Citizen.
The second—and more significant continuing issue—involves the actual implementation of bills of rights. Unless ways are found to guarantee that actual individuals are able to enjoy the freedoms enumerated, bills of rights are no more than paper barriers to potentially harmful governmental actions. The American example points to the utility of having courts serve as the primary guardians of individual rights, and the absence of independent tribunals has indeed permitted tyrannical invasions of human liberty. Throughout its existence, the Union of Soviet Socialist Republics (1917–1991) had a splendid articulation of human rights, which were routinely ignored by dictatorial communist governments. Thus, as more nations became democratic, they adopted constitutions with independent judicial tribunals to protect their bills of rights.
Truly independent courts, however, are not in themselves sufficient to guarantee that a nation's population enjoys the maximum feasible freedom. There must also be a societal commitment to seek that goal. No one in the United States—the nation with the longest continuous commitment to a bill of rights—believes that a perfectly just society has already been achieved. Problems still exist. For example, despite the explicit wording of the Ninth Amendment, there are still political leaders and judges who insist that constitutional protection can only be accorded those rights explicitly stated in the text and that the scope of those rights must be limited to those actions current at the time the protections were added to the constitution.
Just as important, even when there is a shared consensus about the rights that are protected by the constitution, the nature and extent of those rights remains problematic. To claim a right is to claim that a certain human action is entitled to government protection. Given the diversity of human nature and the vast variety of conditions, few people are willing to claim that any right is absolute , that it is always and under all conditions entitled to governmental protection. In the entire history of the United States under the constitution (since 1787) only two justices of the U.S. Supreme Court have made that claim about any right. The rest have recognized that a claim of a right must be assessed in terms of the context, that it is always a question of proximity and degree.
The issue is especially problematic when a claim is made on behalf of a positive freedom—a right that always requires governmental action. Many of the post–World War II bills of rights have included an individual's right to such things as decent housing, basic education, and health care, but governments always struggle with the allocation of limited resources. They frequently cannot fund one of those rights without denying funds to another important objective. Additionally, courts lack the means to require legislative and executive agencies compliance. This is true even in the wealthiest of nations. Several state constitutions in the United States, for example, require equal education of all their children. The courts of those states have been uniformly unsuccessful in enforcing the state constitutional provisions requiring equal educational opportunities.
The nature and scope of negative freedoms enumerated in a bill of rights also remain indeterminate. For example, if it is generally assumed that the exercise of a right must be evaluated in context, activities permitted in peaceful times may legitimately be restricted in times of war. What then is the extent of an individual's right during such prolonged conflicts as the Cold War or the War on Terrorism? Should the U.S. courts interpret the First Amendment's guarantee of the freedom of the press to protect a journalist's sources when the government is concerned about security leaks? If not, how is the press to scrutinize and criticize governmental activity, the very reason that freedom of the press was deemed so fundamental as to be enshrined in the bill of rights?
Bills of rights are significant for several reasons. Historically, their development and spread indicate an ever-increasing worldwide recognition of the importance of human rights. At the very least, such articulations of rights provide a standard of the freedoms human beings are entitled to enjoy within a particular country. The existence of that standard enables the citizens of a country to evaluate and contest governmental policies: Are they supporting, restricting, or extending individual rights? The post–World War II international agreements are an effort to extend such standards, to say that there is a global consensus that everyone, simply by virtue of their shared humanity, ought to enjoy certain fundamental rights regardless of where they reside. In other words, the human species has come to be defined largely in terms of individual rights.
Functionally, bills of rights provide much of the substance of contemporary politics. Both nationally and internationally, policies are proposed and opposed in terms of whether they advance or retard positive freedoms such as health, education, freedom from want, and so on. Similarly, groups are mobilized and resources are raised to protect individual rights such as religious freedom and racial equality within the confines of a single nation or globally.
As a result, in the last analysis, the effectiveness of a bill of rights is grounded in societal values. The matters to be included depend on a popular consensus. A bill of rights deals with governmental action. Governments will advance only those positive freedoms that have widespread public support, for there are always competing uses for public resources. Similarly, individual freedoms will be protected from government encroachment only so long as there is general public agreement that such rights are fundamental. Courts can enforce the provisions of a bill of rights in the short term, but absent a societal consensus, judicial decisions cannot overcome societal hostility or indifference. As Thomas Jefferson (1743–1826) said, "The price of liberty is eternal vigilance" (Bartlett 1980, 397).
See also: Constitutions and Constitutionalism.
Bartlett, John. Familiar Quotations, 15th ed. Boston: Little Brown, 1980.
Brant, Irving. The Bill of Rights: Its Origin and Meaning. New York: Mentor Books, 1965.
Epp, Charles E. The Rights Revolution. Chicago: University of Chicago Press, 1998.
Rutland, Robert Allen. The Birth of the Bill of Rights, 1776–1791. New York: Collier Books, 1962.
Smith, Christopher E. Constitutional Rights: Myths and Realities. Belmont, CA: Thomson/Wadsworth, 2004.
Sunstein, Cass R. The Second Bill of Rights: FDR's Unfinished Revolution. New York: Basic Books, 2004.
Tate, Neal C., and Torbjorn Vallinder. The Global Expansion of Judicial Power. New York: New York University Press, 1997.
U.S. Congress. Annals of Congress. 1st Cong., 1st sess., 1789. Vol. I: 457.
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.
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.
Bodenhamer, David J., and James W. Ely, Jr., eds. The Bill of Rights in Modern America: After 200 Years. Bloomington: Indiana University Press, 1993.
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.
Bill of Rights
BILL OF RIGHTS
The Bill of Rights, as the twelve proposed amendments submitted by Congress to the states were called at the time and as the ten ratified in 1791 have been called since, came in the twentieth century to symbolize American liberty. At the time of their drafting and ratification, however, and for over a century thereafter, their significance was understood to be highly limited; their draftsmen thought them unnecessary; and those who had insisted on the necessity of amendments considered the twelve that Congress drafted to be entirely inadequate.
The history of bills of rights in the English-speaking world dates to the Glorious Revolution of 1688 and the subsequent succession of William III and Mary to the English throne. The Stuart dynasty, to which Queen Mary was related, had experienced nearly constant friction with Parliament in the seventeenth century, and James II's expulsion was understood as having solved both the issue of the Protestant succession and the question of the relationship between the crown and Parliament. From 1688, Parliament was sovereign in England.
The English Bill of Rights of 1689, then, can be understood as a set of conditions to which William and Mary were required to subscribe before they could assume the throne. Had they refused, Parliament likely would have sought a new monarch elsewhere. Unlike American bills of rights, the English Bill of Rights included a series of severe limitations on royal authority. Specific provisions prevented future monarchs from emulating their Stuart predecessors in raising taxes without Parliament's consent, creating new courts without agreement from Parliament, attempting to rule without calling Parliament into session over a number of years, or refusing to hold new parliamentary elections over a long period of years.
When the American Revolutionaries set about creating republican governments for themselves in 1776, many of them looked to the example of England in this regard. In Virginia, which adopted the first American Declaration of Rights in 1776, George Mason, that document's chief draftsman, styled himself "a man of 1688." As he understood things, the Bill of Rights must be antecedent to the Constitution, because it must include an explanation of the ground on which the Constitution rested and guarantees of the basic rights intended to be protected by the Constitution. Thus, Virginia's Declaration of Rights opened with a Lockean assertion that all men were created free and equal. Section 1 continued by saying that when men entered into a state of society, they could not divest themselves of certain of their natural rights. The Virginia Declaration included references to, among others, the freedoms of speech, assembly, press, and—in a formula that later would be replicated in the federal Bill of Rights—the "free exercise of religion."
Reflecting the struggles over liberty and executive power that led to the Glorious Revolution, the Virginia Revolutionaries first adopted their Declaration of Rights and only then adopted their constitution. As James Madison, one of the men responsible, later put it, "In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty." What did the Declaration of Rights mean to Virginians? To the dismay of Thomas Jefferson, it was what lawyers call "hortatory language." That is, while it set a standard for the commonwealth to try to meet, it seemingly did not have legal effect, as the General Assembly repeatedly ignored it in responding to the exigencies of the day. James Madison considered the Virginia Bill of Rights to be a "parchment barrier" that had little power to prevent governmental abuse. This is why, for this reason and others, Jefferson called from 1776 to the end of his life a half-century later for a revised Virginia constitution including enforceable guarantees of individual rights and other limitations on legislative power. Other Virginians, however, did not slight the Declaration of Rights in the same way. While it may not have had the legal effect Jefferson wanted it to have, their Declaration had a significant political effect, within Virginia and without.
While Mason's was the first bill of rights of the Revolutionary epoch, several colonies had adopted statements regarding rights before the Revolution. Probably the most famous was William Penn's Pennsylvania Charter of Liberties of 1682. Like the English Bill of Rights, which was written seven years later, Penn's included extensive attention to questions of the structure of government, not merely to individual liberties. More pertinent to this discussion, perhaps, was the Massachusetts Body of Liberties of 1641, which guaranteed twenty-five of the twenty-eight rights mentioned in the federal bill of rights.
constitutional convention and ratification
By the time the Philadelphia Convention that drafted the federal Constitution convened on 25 May 1787, bills of rights—many patterned on Virginia's—had been adopted in several states. The issue of including a bill of rights in the draft federal constitution was raised at Philadelphia by Elbridge Gerry, a delegate from Massachusetts, and by Virginia's Mason. Connecticut's Roger Sherman responded that a federal bill of rights was not needed, and other delegates considered the idea to be contrary to their general goal of strengthening the central government. By ten states to none, the motion was defeated. For Mason, it seems to have been a particularly sore point, although he also had other significant reservations about the Constitution. In the end, Gerry, Mason, and Virginia governor Edmund Randolph were the only delegates to stay to the end of the Convention and then refuse to sign the Constitution. In explaining his reservations to the Virginia General Assembly, Mason began by noting, "There is no Declaration of Rights." In Virginia and elsewhere, that soon came to be a capital objection.
When the Constitution was sent to the states for their ratification, a number of them ratified right away. Soon enough, however, significant contests had developed in New York, Massachusetts, and Virginia, among other states.
One of the common themes of the Constitution's opponents in the several states was the absence of a bill of rights. The Massachusetts convention, which convened on 9 January 1788, featured a sizable number—perhaps initially a majority—of anti-Federalists, and the popular governor, John Hancock, refused to commit himself. Finally, desperate Federalists lit upon a strategy, which they proposed to Hancock. Governor Hancock was told that if the Constitution was ratified, the Federalists would help enjoin Massachusetts's members of the First Congress to propose a series of amendments. If Hancock sponsored those amendments, Federalists would not oppose his coming bid for reelection, would support him for vice president, and—in case Virginia should not ratify—would point to him as the logical alternative to George Washington for president.
The Massachusetts Plan of unconditional ratification joined to recommended amendments and injunction of congressmen to press those amendments to immediate adoption became a popular gambit for Federalists in other states as well. Ultimately, this same strategy was adopted in the battleground states of New York (where a largely anti-Federalist convention had been elected) and Virginia (over strenuous opposition).
Alexander Hamilton of New York famously addressed calls for a bill of rights in The Federalist No. 84. First, Hamilton noted that some state constitutions lacked bills of rights, and he asked why no hue and cry was heard over those omissions. Then, harkening back to the Glorious Revolution and to the contents of the English Bill of Rights of 1689, Hamilton said that the unamended Constitution already was a bill of rights. It included numerous guarantees, such as the right to the writ of habeas corpus; a ban on ex post facto laws; a ban on granting titles of nobility; and a general plan for the proceedings of government, which was the main point of the English Bill of Rights. If some other traditional rights were not explicitly protected by the Constitution's language, Hamilton said, that was because the Constitution did not empower anyone to violate rights such as the freedom of the press, the right of petition, and freedom of religion.
In Virginia, the most populous and prestigious state in the Union, ratification was achieved only narrowly. The Constitution's chief advocate there, James Madison, subsequently saw his candidacy for the First Senate defeated through the efforts of anti-Federalist leader Patrick Henry in the General Assembly. Madison only narrowly won election to the First House, and that only after pledging to Baptists in his native Piedmont region that he would work to ensure that their religious liberty was protected via a constitutional amendment.
In the First Congress, however, virtually no one sympathized with Madison's proposal for a bill of rights. Madison's fellow House members believed that the other business they had to attend to, such as the creation of executive departments and the establishment of a judicial branch, should take precedence. Many, in fact, mocked Madison's single-minded advocacy of a bill of rights, seeing it as a crassly political matter of home-state fence-mending. In a sense, the cynics were right. Madison had been among those who were skeptical of the utility of a bill of rights. Madison believed that as in Virginia and, notoriously at that time, in Pennsylvania, so in the new Union, a majority might as easily circumvent the plain language of a bill of rights.
Jefferson, away in France, responded to his friend's misgivings by saying that "a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no government should refuse, or rest on inference." While a legislature might ignore a bill of rights, Jefferson noted that it would empower the judiciary to protect the people against abuses. Madison went along, largely in hopes of cementing the support of people such as Jefferson and Mason who had supported federal power in the past but who were concerned about the question of a bill of rights for the new government.
Only Virginia elected opponents of the Constitution to the First Senate. Those senators, William Grayson and Richard Henry Lee, were disappointed by the twelve amendments Congress ultimately sent to the states for ratification in October 1789. As they reported to Henry, there was nothing in the twelve to reduce the jurisdiction of the federal courts, to define the powers of Congress more clearly, to limit the congressional taxing power, or to weaken the new federal government—that is, to reinforce the position of the states in the federal system—as the Constitution's opponents had desired.
In short, leading anti-Federalists understood the Bill of Rights as essentially useless. Madison also expected the Bill of Rights to be essentially without value. (He had tried to use the amendment process to empower the federal courts to supervise state legislatures in some respects, but his colleagues in Congress rejected the idea.)
President Washington in 1791 asked his cabinet for opinions on the constitutionality of a congressional bill chartering a bank, which had been adopted by Congress at the request of Secretary of the Treasury Hamilton. Washington knew that Madison had called it unconstitutional in Congress. In response to Washington's request, Secretary of State Jefferson wrote that since there was no explicit grant to Congress of power to charter any kind of corporation, much less a bank, and since the Tenth Amendment said, "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," the bank bill was unconstitutional.
Hamilton, in response, denied that the Tenth Amendment had such force. He argued that a wide variety of powers was implicitly granted to Congress by the Constitution and that the power to charter a bank was among them. Washington, accepting Hamilton's argument, signed the bill.
The Jeffersonian Republicans responded to the Alien and Sedition Acts of 1798 by insisting on their unconstitutionality in the Kentucky Resolutions of 1798 and 1799, the Virginia Resolutions of 1798, and the Virginia Report of 1800. In his Kentucky Resolutions of 1798, Jefferson wrote that the Sedition Act was unconstitutional. He argued that it violated the First, but far more prominently, the Tenth Amendment. He also claimed that the Tenth Amendment reflected the ongoing primacy of the states in the federal system; in Jefferson's draft, that primacy allowed the states to nullify laws they considered unconstitutional and dangerous.
With the election of 1800, Jeffersonians assumed control of the elected branches of the federal government. They would maintain that dominance for a quarter-century, and Jefferson attributed his party's success in the Revolution of 1800 to popular acceptance of the Principles of '98.
The Republicans' state-centered view of the Constitution and their emphasis on the Tenth Amendment repeatedly affected their stewardship of the federal government. Thus, for example, President James Madison in 1817 vetoed the Bonus Bill, legislation intended by House Speaker Henry Clay and John C. Calhoun, chairman of the House Committee on Foreign Relations, to give effect to Madison's and Jefferson's repeated calls for a large-scale public works program. Madison's explanation of his veto was that the Tenth Amendment required that the Constitution's grants of power to Congress be read strictly, and that such a reading disclosed no power in Congress to appropriate money for the building of infrastructure. Before Congress could adopt such a law, the Constitution must be amended. This position prevented broad federal support for public works through the early Republican era.
In the case of Barron v. Baltimore (1833), the Federalist (and nationalist) chief justice John Marshall wrote, for a unanimous Supreme Court, that the Bill of Rights only applied to the federal government. Everyone had understood it that way at the time of its adoption, Marshall wrote, which explained why the First Amendment began by saying "Congress shall make no law" without any reference to the states. If the plaintiff wanted relief from a local ordinance that took his property without just compensation, in violation of the principle reflected by the Fifth Amendment's takings clause, he should look to his state or local government.
Because of this understanding of the Bill of Rights, no federal or state law was ruled unconstitutional on the basis of any provision of the Bill of Rights until after the Civil War.
Finkleman, Paul. "James Madison and the Bill of Rights: A Reluctant Paternity." In Supreme Court Review 1990. Edited by Gerhard Casper, Dennis J. Hutchinson, and David A. Strauss, pp. 301–347. Chicago: University of Chicago Law School, 1990.
Gutzman, Kevin R. C. "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country.'" Journal of Southern History 66 (2000): 473–496.
Hamilton, Alexander, James Madison, and John Jay. The Federalist. Edited by Jacob E. Cooke. Middletown, Conn.: Wesleyan University Press, 1961.
Jensen, Merrill, ed. The Documentary History of the Ratification of the Constitution. 19 vols. Madison: State Historical Society of Wisconsin, 1976–.
Ketcham, Ralph. James Madison. Charlottesville: University Press of Virginia, 1990.
Rutland, Robert Allen. The Ordeal of the Constitution: The Anti-federalists and the Ratification Struggle of 1787–1788. Boston: Northeastern University Press, 1983.
Kevin R. C. Gutzman
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).
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.
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).
Bill of Rights
Bill of Rights
The First Ten Amendments to the U.S. Constitution
By: U.S. Congress
Date: December 15, 1791
Source: National Archives and Records Administration
About the Author: Congress is the legislative branch of the U.S. federal government and is responsible for writing the nation's laws. It consists of two branches, the Senate and the House of Representatives. The first Congress under the U.S. Constitution met in New York City in 1789. Drafting what became the Bill of Rights was one of its first priorities.
In 1776, Americans feared excessive power in the hands of rulers, but ten years later they feared excessive power in the hands of the subjects, when Shays' Rebellion illuminated the government's ability under the Articles of Confederation to handle civil disorder.
The Constitutional Convention, led by James Madison, Benjamin Franklin, and others, met at Philadelphia in May 1787 to address concerns about weaknesses in the Articles of Confederation and to write a new constitution. The Federalists favored the creation of a strong national government, while the Anti-Federalists wanted a specific statement of individual rights and freedoms to protect the people from a tyrannical national government.
The Constitution, the basic framework of government in the United States, was ratified by two-thirds of the states (nine of thirteen) on June 21, 1788, and has been amended twenty-seven times since its creation. Congress met on March 4, 1789, to consider 103 amendments from the states, forty-two from groups within the states, and two complete bills of rights offered by New York and Virginia. Congress submitted twelve of these to the states on September 25, 1789. Ten were ratified by December 15, 1791, and these became known as the Bill of Rights. Written primarily by Madison, George Mason, and Thomas Jefferson, they were designed to clarify the basic rights and freedoms of the people, which many Americans argued were insufficiently protected by the language of the Constitution. Initially the Bill of Rights applied only to the federal government, and was superseded by individual state's bills of rights. This allowed southern states, for example, to censor abolitionist literature. In a series of decisions, however, the Supreme Court gradually subverted state laws to the Bill of Rights.
The Preamble to The Bill of Rights
Congress of the United States
begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
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.
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.
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.
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.
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 offense 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.
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 defense.
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.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
Although the amendments in the Bill of Rights were not part of the original Constitution, they contain many of the rights and freedoms considered fundamental to the American system of government. The Framers believed that the right to free expression without fear of government retribution is the foundation of effective citizen participation in and control of government. Accordingly, the First Amendment protects freedom of speech. The Fifth Amendment, which derives from English law, insures that the government does not use abusive means to secure criminal convictions. The Eighth Amendment, the least debated of all the amendments in the Bill of Rights, uses terms borrowed from England's Bill of Rights of 1689 and inserted into Virginia's Declaration of Rights in 1776. It protects the people from government's power to punish.
Originally drafted as protections against an overreaching federal government, most of the rights embodied in the Bill of Rights have been extended by the U.S. Supreme Court to apply to the state governments as well. Through a principle known as the incorporation doctrine, the court has found in a series of decisions that the due process clause of the Fourteenth Amendment prohibits the states from infringing on virtually all of the major protections of the Bill of Rights.
Palmer, Kris E. Constitutional Amendments: 1789 to the Present. Detroit: Gale Group, 2000.
Bill of Rights
Bill of Rights
The Constitution of the United States of America is the document that created the federal government. The first ten amendments, or changes, to the Constitution are known as the Bill of Rights. The Bill of Rights was inspired by suggestions from members of the state legislatures that approved the Constitution in 1788.
Concerns about the Constitution
The Constitution was written by the Constitutional Convention in Philadelphia, Pennsylvania , in 1787. The Convention contained delegates from twelve of the original thirteen colonies , later states. The delegates gathered at the Convention to improve the national government that existed under an agreement called the Articles of Confederation , which had been adopted in 1781.
After writing the Constitution through the summer of 1787, the Convention delegates sent it to the thirteen states for ratification, or approval. The Constitution stated that it would become effective upon ratification by at least nine states. The Constitution had strong support from influential politicians who wanted the United States to have a powerful central government. These people were known as Federalists; they were members of the Federalist Party .
Many Americans had great concerns about creating a strong federal government. Called Anti-Federalists , these people preferred that state governments have more power than the national government. While the Anti-Federalists objected to several parts of the Constitution, they focused their opposition on the absence of a bill of rights. In doing so, they hoped to gather enough popular opposition to prevent the Constitution from being ratified by the states.
A bill of rights is a document that specifies the rights of citizens that cannot be violated by a government. A bill of rights was not a new idea in 1787. Several states had a bill of rights in their state constitutions, including the Virginia Declaration of Rights and the Massachusetts Bill of Rights. There were older examples from English history: the Magna Carta (1215), the Petition of Right (1628), and the Bill of Rights (1689). Supporters of the idea found inspiration in the writings of philosophers John Locke (1632–1704), John Milton (1608–1674), and Thomas Paine (1737–1809).
Most Federalists either did not believe or were not too concerned that basic rights could be violated by the government set forth in the Constitution. They pursued the ratification of the Constitution as written by the Constitutional Convention, without a bill of rights. As the state conventions met to discuss ratification after the summer of 1787, however, it became apparent that the Anti-Federalists had mustered support for the notion of a bill of rights.
To convince the Anti-Federalist delegates to vote for ratification, the Federalists agreed to seek a federal bill of rights. As the state conventions began to approve the Constitution, they proposed more than one hundred amendments for the protection of individual liberties. By the time the Constitution was ratified by the required nine states in 1788, it was obvious that a bill of rights would have to be adopted.
Writing a bill of rights
The first U.S. House of Representatives assembled early in April 1789 with the Federalists in control of the government. (See Legislative Branch .) James Madison (1751–1836), a Federalist and the primary author of the Constitution, assumed leadership for creating a bill of rights. His personal plan was to write a bill of rights that would appease the Anti-Federalists without detracting from the powers of the federal government.
On June 8, 1789, Madison proposed that the House begin consideration of eight resolutions on amendments to the Constitution. The amendments were sent to a committee of ten members, including Madison, on July 21. Eventually the committee recommended a total of fourteen amendments to be considered by the full House of Representatives. After lengthy debate, the House voted that the amendments should not be written into the existing Constitution but should be added as a supplement. On August 24, the House proposed seventeen amendments to be sent to the Senate for its consideration.
The Senate began its debate the following week. Senate concerns prevented the passage of the amendments, so a committee of three U.S. senators and three U.S. congressmen gathered in September. They worked out a compromise agreement consisting of twelve amendments. Both the Senate and the House of Representatives passed the amendments and forwarded them to President George Washington (1732–1799; served 1789–97) to be sent to the states for ratification.
The original Constitution provides that amendments do not become effective unless ratified by at least three-fourths of the states. Two of the twelve amendments proposed by Congress in 1789 failed to be ratified, but the required number of states approved the other ten amendments by December 15, 1791.
The Bill of Rights
The Bill of Rights contains rights and freedoms that the government of the United States is not supposed to violate. The freedoms of religion, speech, the press, and assembly (the right to gather in a group) are set forth in the First Amendment . The Second Amendment protects the right to bear arms. The Third Amendment prevents the government from forcing a homeowner to house a soldier during peacetime against the owner's consent. The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures of people and their property. The protection of life, liberty, and property also appears in the Fifth Amendment .
The right to fair treatment in legal cases against a citizen appears in the Fifth Amendment , Sixth Amendment , Seventh Amendment , and Eighth Amendment . The Ninth Amendment says the provision of specific rights in the Constitution does not imply the denial of other rights. Finally, the Tenth Amendment says governmental power not given to the federal government by the Constitution is retained by the states and the people.
The Bill of Rights is a popular and controversial part of the Constitution. Many citizens celebrate it as the bedrock of freedom in America. Other citizens believe federal power has grown stronger than the rights and freedoms that the Bill of Rights is supposed to protect. Important Supreme Court decisions often depend on the interpretation of the Bill of Rights. More than two centuries after its adoption, the Bill of Rights retains an important role in drawing the line between fair and unfair government actions and between the rights of citizens as individuals and as collective members of a society.
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."
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).
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
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.
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.
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.
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.
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.
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.
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.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
Bill of Rights
David Denis Aldridge