CONSTITUTION: BILL OF RIGHTS

The first ten amendments to the U.S. Constitution, known at the Bill of Rights, list more than twenty-five rights. Initially significant as a symbol of the nation's aspirations than for their substance, these provisions have become increasingly important as the modern Supreme Court has applied them not only to the national government but also to the states to define the meaning of individual liberty, legal and civil rights, and the extent of government authority.

origins in state constitutions

When the Second Continental Congress declared independence in July 1776, it encouraged states to adopt constitutions and most of them did so. Almost all incorporated declarations, or bills, of rights, like Virginia's Declaration of Rights, written by George Mason in 1776. The idea that governments should recognize such rights goes at least as far back in English history as the Magna Charta (1215), through which English noblemen had embodied written concessions from the English king at Runneymede, through the English Bill of Rights (1689), and the Act of Settlement (1701).

The first government to succeed that of Britain in the colonies was formed under the Articles of Confederation (1781–1788). It was premised on the idea of continuing individual state sovereignty and therefore invested little power in the Congress. Since few powers had been delegated to the national government, few rights needed to be reserved. On the state level, declarations of rights did not always succeed in keeping state assemblies from trampling on individual liberties in the absence of checks and balances.

the united states constitution

When the delegates met in Philadelphia in the summer of 1787 to write a new Constitution, they were primarily concerned with strengthening the national government, but they were aware that with strength would come danger. Thus, although they invested such significant new powers in Congress as the power to regulate inter-state and foreign commerce and the power to act directly on individual citizens, the framers of the constitution were also concerned to corral these new powers. Accordingly they divided Congress into two houses, and created an independent executive and judiciary. James Madison, a key architect of the new document, argued that the new government would be less likely to result in individual injustice than would state governments.

In a sense, the entire Constitution was intended to be a bill of rights. The founders chiefly relied on institution protections for such rights, but they also built specific limitations into the Constitution. Thus, Article I, Section 9, prohibits Congress from interfering with the states' rights to import slaves for twenty years, from laying direct taxes other than according to the census, from taxing exports, and from granting titles of nobility. This article also protects individual rights by prohibiting Congress from suspending the writ of habeas corpus (requiring the government to specify charges against individuals who were imprisoned) except in limited circumstance or from adopting bills of attainder (legislative punishments without benefit of a trial) or ex post facto (retroactive criminal) laws. Similarly, Article I, Section 10 also prohibited states from enacting bills of attainder, ex post facto laws, or impairing the obligation of contracts. In like manner, Article VI prohibited any "religious Test" as a condition for federal office.

Perhaps because they still envisioned a relatively limited government, the framers of the Constitution did not give much consideration to a bill of rights. George Mason waited until near the end of the Convention to propose the addition of a bill of rights, and the states present unanimously defeated his motion.

ratification debates

The delegates bypassed the amending mechanism under the Articles of Confederation and provided that the new Constitution would go into effect when conventions in nine or more states ratified it. Although some states ratified relatively quickly, it was soon clear that ratification would not be easy. Those who supported the Constitution, the Federalists, quickly faced strong Anti-federalist opposition, especially in key states like Virginia, New York, and Massachusetts. Anti-federalists expressed a variety of fears, many centering on the unknown consequences of adopting such a radically new form of government. Charging that the new government would become overly aristocratic, or monarchical, and that it would swallow the states, Anti-federalists raised fears that the new government would destroy the individual liberties for which the Revolutionary War had been fought. The French philosopher the Baron de Montesquieu, had argued that republican government was impossible over a large land area, and Madison's arguments that an extended republic would in fact make injustice more unlikely did not offer the same security as specifically delineated rights.

Initially, Federalists argued that a bill of rights was unnecessary and could even prove dangerous-giving the government the authority to say that any right not specifically identified could be taken away. Some Federalist friends, however, argued that a bill of rights might help and could do no harm. Thomas Jefferson was among those who wrote to James Madison arguing that rights specifically incorporated into a bill of rights might serve not only to enlighten the public as to their rights but also as a mechanism through which wise judges might strike down unconstitutional provisions.

Although they rejected the idea that states could conditionally ratify the Constitution, key Federalists expressed a willingness to consider a bill of rights once the Constitution was ratified. Fortunately, Madison served in the first House of Representatives, where he combined and condensed various rights that states had proposed when debating the Constitution with provisions in existing state declarations of rights. Two-thirds majorities of both houses of Congress eventually proposed twelve amendments, ten of which the requisite three-fourths of the states adopted in December 1791 as the bill of rights.

the content of the bill of rights

The First Amendment prohibits Congress from making laws respecting the establishment of religion or prohibiting its free exercise and guarantees rights of freedom of speech, press, peaceable assembly, and petition. The Second Amendment allows for a right to bear arms, and the Third Amendment prohibits an abuse that the colonies observed during the Revolutionary War by prohibiting the quartering of troops in private homes without the owners' consent. The Fourth prohibited unreasonable searches and seizures (another colonial grievance that led to the Revolutionary War). The Fifth, Sixth, and Seventh Amendments primarily protect the rights of individuals accused of crimes, or on trial. The Eighth Amendment includes protection against cruel and unusual punishments, and the Ninth and Tenth Amendments recognize the existence of unnamed rights reserved to the states and to the people.

enforcement of the bill of rights

The Bill of Rights would signal little more than national aspirations if U.S. courts did not exercise the power, known as judicial review (established by Chief Justice John Marshall in Marbury v. Madison, 1803), to void legislation that is unconstitutional. Even then, courts are not always sympathetic to the protection of rights. No court invalidated the notorious Sedition Act of 1798 (prohibiting criticism of the president at a time of rising tension with France) during its short existence, and courts have been better at proclaiming the existence of rights after wars were over than enforcing them while wars were being waged. It was not until Ex Parte Milligan (1866) that the Court invalidated military trials of civilians during the Civil War. Similarly, while sidestepping the issue of their incarceration in detention camps, in Korematu v. United States (1944) the Court upheld the exclusion by executive order of Japanese Americans from their homes and businesses on the West Coast.

the expanded application of the bill of rights

The most important development in the history of the Bill of Rights has been its application to the states, rather than just to the federal government. In Barron v. Baltimore (1833), Chief Justice John Marshall decided that the bill of rights had been designed as a limitation on the national government rather than on the states. His argument was supported by the fact that the First Amendment began with the words "Congress [an instrumentality of the national government] shall make no law." After the turn of the twentieth century, the Bill of Rights was applied to the states.

The scope of the Bill of Rights was broadened when the Fourteenth Amendment guaranteed key rights for all Americans. Historians still debate whether those who authored and ratified this amendment intended to apply the bill of rights directly to the states, but it seemed clear that, as the embodiment of key values, violations of constitutional rights would constitute a denial of due process of law or of the privileges and immunities of U.S. citizenship. Chiefly beginning with the case of Gitlow v. New York (1925), the Supreme Court has proceeded, through the doctrine of "selective incorporation," to apply the most essential provisions in the bill of rights to the states. Over time, the court has decided that almost all of these provisions can be considered essential to liberty. Indeed, many justices have ruled that there are penumbral rights (such as the right to privacy) that apply to both state and national governments, even though they are not directly stated within the Constitution.

summary

The Bill of Rights was in part a product of English tradition, colonial resistance to English rule, and the experience of making constitutions and government during the Revolutionary War. Fear of tyrannical government and the desire to define and protect rights guided the creation of the Constitution and later the Bill of Rights. The idea of state declarations of rights grew into the national bill of rights. This bill of rights was, in turn, expanded and nationalized through judicial interpretations of the Fourteenth Amendment. Courts have increasingly enforced rights once largely considered to be constitutional aspirations. Thus the struggle to end segregation and debate over the kind and extent of individual rights, such as the right of privacy or choice, and the controversy over the limits of government power in time of war, trace their origins to the American Revolution.

bibliography

Abraham, Henry J., and Perry, Barbara A. Freedom & the Court: Civil Rights & Liberties in the United States, 8th ed. Lawrence: University Press of Kansas, 2003.

Cogan, Neil. ed. The Complete Bill of Rights: The Drafts, Debates, Sources and Origins. New York: Oxford University Press, 1997.

Conley, Patrick T., and Kaminski, John P., eds. The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties. Madison, WI: Madison House, 1992.

Kurland, Philip B., and Lerner, Ralph. Amendments I-XII. In The Founders' Constitution, Vol. 5. Chicago: The University of Chicago Press, 1987.

Veit, Helen E.; Bowling, Kenneth R.; and Bickford, Charlene Bangs, eds. Creating the Bill of Rights: The Documentary Record from the First Federal Congress. Baltimore, MD: The Johns Hopkins University Press, 1991.

Vile, John R. Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2002. Santa Barbara, CA: ABC-CLIO, 2003.

John R. Vile

See also:Anti-Federalists; Articles of Confederation; Commonwealth Men; Declaration of Independence; Federalist Papers.