POLSC232: American Government

Introduction and History of the Bill of Rights

The original Constitution, as proposed in 1787 in Philadelphia and ratified by the states, contained few individual rights guarantees, as the framers were primarily focused on establishing the machinery for an effective federal government. A proposal by delegate Charles Pinckney to include several rights guarantees (including "liberty of the press" and a ban on quartering soldiers in private homes) was submitted to the Committee on Detail on August 20, 1787, but the Committee did not adopt any of Pinckney's recommendations. The matter came up before the Convention on Sept. 12, 1787, and, after a brief debate, proposals to include a Bill of Rights in the Constitution were rejected. As adopted, the Constitution included only a few specific rights guarantees: protection against states impairing the obligation of contracts (Art. I, Section 10), provisions that prohibit both the federal and state governments from enforcing ex post facto laws (laws that allow punishment for an action that was not criminal at the time it was undertaken) and provisions barring bills of attainder (legislative determinations of guilt and punishment) (Art. I, Sections 9 and 10). The framers, and notably James Madison, its principal architect, believed that the Constitution protected liberty primarily through its division of powers that made it difficult for oppressive majorities to form and capture power to be used against minorities. Delegates also probably feared that a debate over liberty guarantees might prolong or even threaten the fiercely-debated compromises that had been made over the long hot summer of 1787.

During the ratification debate, Anti-Federalists opposed to the Constitution complained that the new system threatened liberties. They suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that. With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session. The concession was undoubtedly necessary to secure the Constitution's hard-fought ratification. Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison, called the omission of a Bill of Rights a major mistake: "A bill of rights is what the people are entitled to against every government on earth."


James Madison was skeptical of the value of a listing of rights, calling it a "parchment barrier." (Madison's preference at the Convention to safeguard liberties was by giving Congress an unlimited veto over state laws and creating a joint executive-judicial council of revision that could veto federal laws.) Despite his skepticism, by the fall of 1788, Madison believed that a declaration of rights should be added to the Constitution. Its value, in Madison's view, was in part educational, in part as a vehicle that might be used to rally people against a future oppressive government, and finally – in an argument borrowed from Thomas Jefferson – Madison argued that a declaration of rights would help install the judiciary as "guardians" of individual rights against the other branches. When the First Congress met in 1789, James Madison, a congressman from Virginia, took upon himself the task of drafting a proposed Bill of Rights. He considered his efforts "a nauseous project." His original set of proposed amendments included some that were either rejected or substantially modified by Congress and one (dealing with apportionment of the House) that was not ratified by the required three-fourths of the state legislatures. Some of the rejections were very significant, such as the decision not to adopt Madison's proposal to extend free speech protections to the states, and others were somewhat less important (such as the dropping of Madison's language that required unanimous jury verdicts for convictions in all federal cases).

Some members of Congress argued that listing the rights of the people was a silly exercise in that all the listed rights inherently belonged to citizens, and nothing in the Constitution gave Congress the power to take them away. It was even suggested that the Bill of Rights might reduce liberty by giving force to the argument that all rights not specifically listed could be infringed upon. In part to counter this concern, the Ninth Amendment was included providing that "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage other rights retained by the people." Decades later, some judges would point to the Ninth Amendment, such as Justice Goldberg in his opinion in Griswold v Connecticut (a case recognizing a right of privacy that included a right to use contraceptives), as a justification for giving a broad and liberty-protective reading to the specifically enumerated rights. Others, such as rejected Supreme Court nominee Robert Bork, would dismiss the Ninth Amendment as analogous to "an inkblot on the Constitution," a provision so unclear in its significance that judges should essentially read it out of the Constitution.

Most of the protections of the Bill of Rights would eventually be extended to state infringements as well as federal infringements through the "doctrine of incorporation" beginning in the early to mid-1900s. The doctrine rests on interpreting the Due Process Clause of the 14th Amendment as prohibiting states from infringing on the most fundamental liberties of citizens. 

In the end, we owe opponents of the Constitution a debt of gratitude. Without their complaints, there would be no Bill of Rights. Thomas Jefferson wrote, "There has just been opposition enough" to force the adoption of a Bill of Rights, but not to drain the federal government of its essential "energy." George Washington agreed: "They have given the rights of man a full and fair discussion and explained them in so clear and forcible manner as cannot fail to make a lasting impression."

The Rejected Rights Guarantees Included

in James Madison's Original Bill of Rights:
1. "No person religiously scrupulous of bearing arms shall be compelled to render military service in person."
2. "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." [Madison called this guarantee, extending protections of the First Amendment and the jury trial right of the Sixth Amendment to the states, "the most valuable amendment in the whole lot." It passed the House but was rejected by the Senate].

The Bill of Rights

The First Ten Amendments to the Constitution as Ratified by the States (The Bill of Rights)**

Amendment I

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 II

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 III

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 IV

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 V

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 VI

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 VII

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 VIII

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

Amendment IX

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

Amendment X

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.

 

**Because the Ninth and Tenth Amendments are not specific guarantees of individual liberties, in some usages, "The Bill of Rights" refers only to the first eight amendments.

 

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Source: Doug Linder, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html
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