Bill of Rights

The Bill of Rights was not the spontaneous act of a few individuals at a specific time. Its origins stretched far back for centuries to the ancient city-states of Greece; the three-hundred-year history of the Roman Republic; the Renaissance, the Reformation, and the Enlightenment; the social-contract philosophy-the English common law and the Whig libertarian tradition with its great documents such as the Magna Carta (1215), the Petition of Right (1628), and the English Bill of Rights (1689); and the unfolding of colonial American history. From the very beginning of English settlement, Americans wrote down their rights in a peremptory effort to tell government officials where they ought not to tread. When threatened with the potential of despotism from the new British imperial policy implemented in 1763 after the end of the French and Indian War, Americans felt compelled to declare their independence, abandoning the bedrock of “the rights of Englishmen” and embracing “the Laws of Nature and of Nature's God.” They drafted new state and federal constitutions-many of the former having either attached bills of rights or rights embodied in the constitution itself. When faced with the necessity of revising the Articles of Confederation, the country's first federal constitution, they drafted a much stronger national constitution, but, inexplicably, they did not include a bill of rights. Only after an intense, yearlong public debate was a bill of rights promised and then obtained (three years later), thus satisfying the majority of freemen who had serious qualms about the dangers inherent in a strong government without a bill of rights limiting it.

BACKGROUND

American colonists always traced their heritage of rights from English antecedents. English rights were rooted in a compact-at first between king and peers, and then between king and Parliament. Each side promised something to the other. The combination of duties and rights was ensconced in the common law and tradition from time immemorial. When the peers found the king wanting, Magna Carta was first and foremost in listing the violation of rights and demanding future protection for them.

When future kings-particularly the Stuart kings of the seventeenth century-violated the rights of freemen, Parliament listed these violations and exacted promises from the king to never again violate these rights, upon pain of losing parliamentary financial support. Charles I and later his son James II went so far in violating rights that civil wars erupted, resulting in the the execution of Charles in 1649, the establishment of the Commonwealth (1649-1660), the deposing and replacement of James in 1687, and finally the enactment of the English Bill of Rights.

Of the 13 English North American colonies, 12 were settled during the reign of the Stuart kings. They all received charters guaranteeing colonists the rights of Englishmen. These charters evolved into constitutions as the colonies matured with little imperial interference. During the seventeenth century, the same Whig suspicions about government prevailed in the colonies as in the mother country. Without a trained cadre of lawyers with access to the common law, however, Americans felt even more vulnerable to governmental oppression. Consequently, colonial Americans wrote down their rights in over two hundred documents. Just like the English fundamental documents, these colonial lists of rights created no new rights; rather, they were again merely the manifestation of some of the rights Englishmen possessed. They thus served as a peremptory pronouncement warning their magistrates that these rights should not be violated. At the same time, these public announcements served as magnets to attract new settlers to immigrate to the colonies, where they would enjoy not only land in abundance but also a multitude of political and civil rights. Sometimes these rights were thrust upon settlers by benevolent proprietors, as was the case in Pennsylvania, New Jersey, Maryland, and the Carolinas. In New England, the people demanded these rights themselves. In other cases, for instance in New York, colonists had to wrest their rights from oppressive proprietors such as the Duke of York, who became James II.

The American Revolution was fought over rights. The new imperial policy implemented after the end of the French and Indian War (1763) and enunciated in Sir William Blackstone's Commentaries on the Law (1765) provoked a decade-long debate that culminated in the War for Independence. The Second Continental Congress asked the American people on May 15, 1776, to create new governments amenable to them. Eleven of the colonies wrote new state constitutions, while Rhode Island and Connecticut adjusted their colonial charters into constitutions for free states. Following Virginia's example, these state constitutions were often prefaced with bills of rights. Other states incorporated rights into the body of their constitutions, while some state assemblies (such as Connecticut's) regularly reaffirmed a bill of rights adopted during their early colonial years. Other states protected individual rights in specific laws. New York, meanwhile, amplified the rights embodied in its 1777 constitution by adopting an expanded bill of rights legislatively in January 1787.

Congress declared independence from Britain on July 2, 1776, and two days later adopted a manifesto explaining its actions. After proclaiming the American philosophy of government based on “the Laws of Nature and of Nature's God,” the Declaration of Independence (following the old English tradition) listed the violations of American rights by the king and by the king in consort with his ministers and Parliament. This bill of indictment, in essence, amounted to a violated bill of rights.

THE CONFEDERATION PERIOD

While fighting the War for Independence, Congress debated a confederation form of government for the states. In November 1777, Congress sent the Articles of Confederation to the states for their unanimous approval. After three and a half years, the last state ratified. The Articles did not contain a bill of rights because the unicameral Congress had no authority over individuals. Congress could only address states, and even in that capacity, it had no coercive authority. Article II provided that the states preserved their freedom, independence, and sovereignty, and that Congress had only those powers expressly delegated to it by the Articles of Confederation. The rights of Americans were not to be endangered by a new imperial government located in Philadelphia or New York City.

Within a year of the end of the war, Congress proposed various amendments to the Articles to strengthen its power. One proposal would have given Congress the power to levy a 5 percent tariff to pay the war debt. All of the states adopted the impost of 1783, but New York's ratification contained too many restrictions for Congress to accept. The impost thus died. But all of the states had passed limitations on Congress's power if the impost had gone into effect. Every state provided that the anticipated federal customs service could not be used in the anticipated federal judiciary to violate the constitutional rights of its citizens. Thus, about 140 years before Gitlow v. New York, 268 U.S. 652 (1925), first “incorporated” the federal Bill of Rights onto the states, the states in the Confederation had “incorporated” their bills of rights into the Confederation government.

The end of the war saw the beginnings of a severe economic depression. As the depression widened, discontent deepened. Soon many debtor farmers began losing their farms through foreclosures because they could not pay their debts and taxes. State assemblies-almost all-powerful under the new state constitutions-responded to the cries of desperate debtors with relief measures that often violated the rights of creditors. When legislatures did not provide relief for debtors, violence occurred throughout the country. The economic depression, the violence, and the violation of property rights convinced many that the Articles of Confederation needed to be strengthened to address the exigencies of the time.

CONSTITUTIONAL CONVENTION

Between May 25 and September 17, 1787, delegates from 12 of the 13 states met in Philadelphia to amend the Articles of Confederation. Instead of providing amendments, though, the convention, holding its sessions in secret, immediately began considering an entirely different form of government. A powerful central government with separate and equal legislative, executive, and judicial branches was to be created. The new federal government would have power directly over the states as well as over individual citizens. Throughout the first three months, the convention considered and accepted a variety of rights and protections-the prohibition of ex post facto laws, bills of attainder, and granting of titles of nobility; the guarantee of jury trials in criminal cases; the protection of the writ of habeas corpus; and the definition and limited punishment for treason. Toward the end of the convention, a proposal was made to consider a series of rights. George Mason of Virginia suggested that he could draft a bill of rights in a few hours. Not wanting to reopen their debate, the delegates, voting by state delegations, unanimously rejected a proposal to appoint a committee to draft a bill of rights. In the only recorded statement justifying this vote, Roger Sherman of Connecticut said that he “was for securing the rights of the people where requisite. The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” (Farrand, II: 588) The convention had not been called to defend rights; it had been called to preserve the Union, strengthen the powers of Congress, reduce the powers of the states, restore the economy, and reestablish the image of America in the eyes of Europe. As one newspaper writer asserted, America “was wallowing in the superfluity of liberty.” (Albany Gazette, June 21, 1787) Too many liberties, coupled with too much unrestrained power in the hands of state legislatures, had helped create the problems now faced by America, in which the property rights of the wealthy were being violated and the political rights of former Loyalists were not being restored.

DEBATE OVER RATIFYING THE CONSTITUTION

The battle over ratifying the newly proposed Constitution seriously divided the country. Federalists, who supported the Constitution, and Antifederalists, who opposed it, contested virtually every clause of the Constitution, but Federalists found they were most vulnerable in the Constitution's lack of a bill of rights. Federalists argued that, although necessary in a monarchy, a bill of rights was unnecessary in a republic where the people ruled themselves. The new Constitution, it was said, would create a government of strictly delegated powers and therefore would have no authority in areas where a bill of rights was traditionally important. James Wilson, a prominent Philadelphia attorney who had played a major role in the Constitutional Convention, provided the “official” Federalist position that, unlike state constitutions, which granted all powers except those that were specifically reserved, the new Constitution gave the federal government only those powers specified, while all other powers were reserved to the states or to the people. Because the federal government had no authority over religion and the press, it was unnecessary to provide protection for religious liberty or the freedom of the press in the Constitution or in a bill of rights. Furthermore, if a bill of rights had been provided, all those rights not listed would presumably have been given up to the federal government. In fact, the listing of certain rights, such as freedom of the press, implied that the federal government had some authority over the press, which could be dangerous.

Federalists, such as James Madison in The Federalist 51, argued that bills of rights provided only parchment barriers that governments had commonly violated during times of stress. It was “auxiliary pre-cautions”-that is, the structure of the Constitution, with its division of power between the states and the federal government and the separation of powers among Congress, the president, and the judiciary, with an elaborate system of checks and balances-that protected rights. The amendment process provided in Article V allowed either the deletion of any dangerous provisions or the addition of any protection for rights that experience revealed as necessary. Finally, Alexander Hamilton, in the penultimate number of The Federalist, argued that the entire Constitution was in essence a bill of rights.

Antifederalists argued that a bill of rights was essential, especially with a Constitution with so many ambiguities and ill-defined powers. “Brutus,” the great New York Antifederalist essayist, wrote that the necessary and proper clause and the general welfare clause opened the door for abuse, and that the supremacy clause in Article VI provided that an obviously biased federal judiciary would decide all contests over power between the states and the federal government. Drafted in secrecy, the Constitution, “Cato” (perhaps New York governor George Clinton) argued, should be publicly debated and amended before it was ratified. Who, Patrick Henry of Virginia asked, would be so foolish as to enter into a defective contract before removing the defects? Antifederalists denigrated the Federalist argument that listing some rights would jeopardize those not listed, because if such an argument had any validity, all rights were endangered except the half dozen or so actually stipulated in the body of the Constitution. By not having a bill of rights, George Mason of Virginia asserted, all such rights that Americans had traditionally enjoyed would be given up by implication, just as assuredly as if they had been definitively surrendered. And once rights were given up, it would be impossible to recover them.

In the first five state conventions that considered the Constitution, Federalists rejected all suggestions for amendments, arguing that the Constitution must be accepted or rejected en masse. Federalists, however, found that the Massachusetts convention, the sixth to meet, would not ratify the Constitution without recommendatory amendments that the state's future federal senators and representatives should introduce during the first federal Congress. Opposition to the lack of a bill of rights helped Antifederalists in Rhode Island and North Carolina to reject ratification. Eventually, however, six of the final seven states followed Massachusetts's example. The conventions in Virginia, New York, and North Carolina expanded and divided their proposed amendments into two separate categories of at least 20 amendments each-one list proposing structural changes to the Constitution and the other a bill of rights.

FIRST FEDERAL ELECTIONS

During the first federal elections, Federalists, for the most part, denounced the amendment mongers they saw as endangering the viability of the new Constitution. Except for Virginia's two Antifederalist senators-Richard Henry Lee and William Grayson-very few Antifederalists were elected to the first Congress. But in Virginia, James Madison, facing strong opposition in his election for the U.S. House of Representatives, promised that he would support a bill of rights in Congress if he were elected. Madison had also been advised by Thomas Jefferson, serving as U.S. minister to France, to support a bill of rights.

CONGRESSIONAL PROPOSAL

On April 30, 1789, George Washington was sworn in as the first president under the Constitution. In his inaugural address, written for him by Madison, he suggested only one specific for Congress's consideration-a bill of rights should be proposed to ease the anxieties of Antifederalists.

On June 8, 1789, Madison fulfilled his promise and introduced a series of amendments protecting rights. Instead of being compiled in a list to be appended at the end of the Constitution as a separate bill, Madison proposed that his amendments be inserted where they naturally belonged in the body of the Constitution. Federalists opposed any consideration of amendments, arguing that they were premature and would disrupt the necessary work of establishing the new government. The few Antifederalists in Congress, such as Elbridge Gerry, denounced Madison's failure to include important structural changes in the Constitution, such as the creation of a privy council and the elimination of the Senate's power to confirm appointments and ratify treaties. After a stiff battle, the House accepted Madison's amendments and others in the form of a separate listing to appear at the end of the Constitution's original text. The amendments were sent to the Senate, which made some modifications, the most substantial of which eliminated the prohibition on the states from violating the freedom of the press, freedom of conscience, the freedom of speech, and the trial by jury in criminal cases. A conference committee ironed out the discrepancies, and Congress, on September 25, 1789, approved 12 amendments to be sent to the state legislatures for their approval.

ADOPTION OF THE BILL OF RIGHTS

President George Washington transmitted Congress's 12 amendments to the states on October 2, 1789. Because only 11 states had ratified the Constitution, and because it took three-quarters of the states to adopt amendments, 9 states would be needed for ratification. When North Carolina joined the Union, it still took 9 of the 12 states to ratify. Rhode Island became the 9th state to ratify the amendments shortly after its convention adopted the Constitution on May 29, 1790. But now, with 13 states in the Union, 10 state legislatures were needed to satisfy the three-quarter requirement. Vermont then entered the Union and became the 10th state to ratify the amendments, but now 11 states were needed. The three-quarters vote was finally achieved when Virginia ratified on December 15, 1791.

Georgia was the only state to reject the amendments, when a joint committee of the legislature reported on December 1, 1789, that it was premature to consider amendments before “experience” would “point out” their necessity. The legislatures of Massachusetts and Connecticut both split-one house adopted 11 amendments; the other house approved 10. Neither legislature reconciled the disagreement. Georgia, Massachusetts, and Connecticut all ceremonially adopted the Bill of Rights during the sesquicentennial year of 1939.

Only the last 10 of the 12 proposed amendments were adopted. Ten states adopted the first amendment that provided for an enlarged U.S. House of Representatives. The small state of Delaware, which would not benefit from the increased representation, rejected only this amendment, thus blocking its adoption. At this time, only six states ratified the second proposed amendment, which prohibited any alteration in the compensation paid to U.S. senators and representatives before an intervening election took place. This amendment was adopted in 1992 and became Amendment XXVII to the Constitution.

IMPLEMENTATION

The Bill of Rights had the desired effect in the eighteenth century. The two nonratifying states of North Carolina and Rhode Island soon adopted the Constitution, and virtually all opposition to the Constitution ceased when Congress proposed the amendments. The controversy then shifted to interpreting the Constitution. The Bill of Rights played a significant role in that interpretative process. For instance, Thomas Jefferson and James Madison believed that the Sedition Law (1798) violated Amendment I, while others, such as Chief Justice Oliver Ellsworth, believed that the law fell within the bounds of the Blackstonian view of freedom of the press, which simply prohibited prior restraints in publishing. Later, President Jefferson stated the belief that Amendment I created a wall of separation between church and state, while others believed that government should support religion. Chief Justice John Marshall gave the Court's opinion in 1833 that the Bill of Rights only applied to the federal government. With the adoption of Amendment XIV in 1868, the federal courts (beginning with Gitlow v. New York, 268 U.S. 652 [1925]) began the slow process of restricting the powers of state and local governments by “incorporating” most of the Bill of Rights onto them. In the twentieth and twenty-first centuries, to speak of the Constitution is, to most people, to speak of the Bill of Rights.

John P. Kaminski

Kaminski, John P. "Bill of Rights." Encyclopedia of U.S. Political History, edited by Michael A. Morrison, vol. 2: The Early Republic, 1784 to 1840, CQ Press, 2010, pp. 63-69. Gale eBooks, link.gale.com/apps/doc/CX1365100024/GVRL?u=lincclin_sjrcc&sid=bookmark-GVRL&xid=c73f505c. Accessed 9 Nov. 2021.