United States Bill of Rights
2008/9 Schools Wikipedia Selection. Related subjects: Law
| United States Bill of Rights | |
 United States Bill of Rights
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| Created | 1791 |
| Location | National Archives |
| Authors | James Madison |
| Purpose | A bill of rights for the United States |
In the United States, the Bill of Rights is the name by which the first ten amendments to the United States Constitution are known. They were introduced by James Madison to the First United States Congress in 1789 as a series of constitutional amendments, and came into effect on December 15, 1791, when they had been ratified by three-fourths of the States. The Bill of Rights limits the powers of the Federal government of the United States, protecting the rights of all citizens, residents and visitors on United States territory.
The Bill of Rights protects the freedoms of speech, press, and religion; the right to keep and bear arms; the freedom of assembly; the freedom to petition; and prohibits unreasonable search and seizure; cruel and unusual punishment; and compelled self-incrimination. The Bill of Rights also prohibits Congress from making any law respecting establishment of religion and prohibits the Federal Government from depriving any person of life, liberty, or property, without due process of law. In Federal, criminal cases, it requires indictment by grand jury for any capital or "infamous crime," guarantees a speedy public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy. In addition, the Bill of Rights states that "the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people," and reserves all powers not granted to the federal government to the citizenry or States. Most of these restrictions were later applied to the states by a series of decisions applying the due process clause of the Fourteenth Amendment, which was ratified in 1868, after the American Civil War.
Madison proposed the Bill of Rights while ideological conflict between Federalists and anti-Federalists, dating from the 1787 Philadelphia Convention, threatened the overall ratification of the new national Constitution. It largely responded to the Constitution's influential opponents, including prominent Founding Fathers, who argued that the Constitution should not be ratified because it failed to protect the basic principles of human liberty. The Bill was influenced by George Mason's 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as Magna Carta (1215).
Two additional articles were proposed to the States; only the final ten articles were ratified quickly and correspond to the First through Tenth Amendments to the Constitution. The first Article, dealing with the number and apportionment of U.S. Representatives, never became part of the Constitution. The second Article, limiting the ability of Congress to increase the salaries of its members, was ratified two centuries later as the 27th Amendment. Though they are incorporated into the document known as the "Bill of Rights", neither article establishes a right as that term is used today. For that reason, and also because the term had been applied to the first ten amendments long before the 27th Amendment was ratified, the term "Bill of Rights" in modern U.S. usage means only the ten amendments ratified in 1791.
The Bill of Rights plays a central role in American law and government, and remains a fundamental symbol of the freedoms and culture of the nation. One of the original fourteen copies of the Bill of Rights is on public display at the National Archives in Washington, D.C.
Background
The Philadelphia Convention set out to correct weaknesses inherent in the Articles of Confederation that had been apparent even before the American Revolutionary War had been successfully concluded. The newly constituted Federal government included a strong executive branch, a stronger legislative branch and an independent judiciary.
Arguments against the Bill of Rights
The idea of adding a bill of rights to the Constitution was originally controversial. Alexander Hamilton, in Federalist No. 84, argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and therefore that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations." Critics pointed out that earlier political documents had protected specific rights, but Hamilton argued that the Constitution was inherently different:
Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favour of privilege, reservations of rights not surrendered to the prince. Such was "Magna Charta", obtained by the Barons, swords in hand, from King John.
Finally, Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:
I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?
Essentially, Hamilton and other Federalists believed in the British system of common law which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.
The Anti-Federalists
Following the Philadelphia Convention, some famous revolutionary figures and statesmen, such as Patrick Henry, publicly argued against the Constitution. Many were concerned that the strong national government proposed by the Federalists was a threat to individual rights and that the President would become a king, and objected to the federal court system in the proposed Constitution.
Thomas Jefferson, at the time serving as Ambassador to France, wrote to Madison advocating a Bill of Rights: "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can." George Mason refused to sign the proposed Constitution, in part to protest its lack of a Bill of Rights.
In a paper later collected into the Anti-Federalist papers, the pseudonymous " Brutus" (probably Robert Yates) wrote,
We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion — that no bill of attainder, or ex post facto law, shall be passed — that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.
Brutus continued with an implication directed against the Framers:
Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.
Ratification and the Massachusetts Compromise
Individualism was the strongest element of opposition; the necessity, or at least the desirability, of a bill of rights was almost universally felt, and the Anti-Federalists were able to play on these feelings in the ratification convention in Massachusetts. By this stage, five of the states had ratified the Constitution with relative ease; however, the Massachusetts convention was bitter and contentious:
In Massachusetts, the Constitution ran into serious, organized opposition. Only after two leading Anti-federalists, Adams and Hancock, negotiated a far-reaching compromise did the convention vote for ratification on February 6, 1788 (187–168). Anti-federalists had demanded that the Constitution be amended before they would consider it or that amendments be a condition of ratification; Federalists had retorted that it had to be accepted or rejected as it was. Under the Massachusetts compromise, the delegates recommended amendments to be considered by the new Congress, should the Constitution go into effect. The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended.
Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. They all sent recommendations for amendments with their ratification documents to the new Congress. Since many of these recommendations pertained to safeguarding personal rights, this pressured Congress to add a Bill of Rights after Constitutional ratification. Additionally, North Carolina refused to ratify the Constitution until progress was made on the issue of the Bill of Rights. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not totally in vain.
After the Constitution was ratified in 1789, the 1st United States Congress met in Federal Hall in New York City. Most of the delegates agreed that a "bill of rights" was needed and most of them agreed on the rights they believed should be enumerated.
Madison, at the head of the Virginia delegation of the 1st Congress, had opposed a Bill of Rights but hoped to pre-empt a second Constitutional Convention that might have undone the difficult compromises of 1787: a second convention would open the entire Constitution to reconsideration and could undermine the work he and so many others had done in establishing the structure of the United States Government. Writing to Jefferson, he stated, "The friends of the Constitution...wish the revisal to be carried no farther than to supply additional guards for liberty...and are fixed in opposition to the risk of another Convention....It is equally certain that there are others who urge a second Convention with the insidious hope of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself."
Madison based much of the Bill of Rights on George Mason's Virginia Declaration of Rights (1776), which itself had been written with Madison's input. He carefully considered the state amendment recommendations as well. He looked for recommendations shared by many states to avoid controversy and reduce opposition to the ratification of the future amendments. Additionally, Madison's work on the Bill of Rights reflected centuries of English law and philosophy, further modified by the principles of the American Revolution.
Antecedents
Locke
To some degree, the Bill of Rights (and the American Revolution) incorporated the ideas of John Locke, who argued in his 1689 work Two Treatises of Government that civil society was created for the protection of property (Latin proprius, or that which is one's own, meaning "life, liberty, and estate"). Locke also advanced the notion that each individual is free and equal in the state of nature. Locke expounded on the idea of natural rights that are inherent to all individuals, a concept Madison mentioned in his speech presenting the Bill of Rights to the 1st Congress. Locke's argument for protecting economic rights against government may have been most salient to the framers of the Amendments; quartering and cruel punishments were not the current abuses of 1791.
Virginia Declaration of Rights
The Virginia Declaration of Rights, well-known to Madison, had already been a strong influence on the American Revolution ("all power is vested in, and consequently derived from, the people …"; also "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish [the government]"). It had shaped the drafting of the United States Declaration of Independence a decade before the drafting of the Constitution, proclaiming that "all men are by nature equally free and independent, and have certain inherent rights of which … [they cannot divest;] namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." On a practical level, its recommendations of a government with a separation of powers (Articles 5–6) and "frequent, certain, and regular" elections of executives and legislators were incorporated into the United States Constitution — but the bulk of this work addresses the rights of the people and restrictions on the powers of government, and is recognizable in the modern Bill of Rights:
The government should not have the power of suspending or executing laws, "without consent of the representatives of the people,". A legal defendant has the right to be "confronted with the accusers and witnesses, to call for evidence in his favour, and to a speedy trial by an impartial jury of his vicinage," and may not be "compelled to give evidence against himself." Individuals should be protected against " cruel and unusual punishments", baseless search and seizure, and be guaranteed a trial by jury. The government should not abridge freedom of the press, or freedom of religion ("all men are equally entitled to the free exercise of religion"). The government should be enjoined against maintaining a standing army rather than a "well regulated militia".
English Bill of Rights
The English Bill of Rights (1689), one of the fundamental documents of English constitutional law, differed substantially in form and intent from the American Bill of Rights, because it was intended to address the rights of citizens as represented by Parliament against the Crown. However, some of its basic tenets are adopted and extended to the general public by the U.S. Bill of Rights, including
- the right of petition
- an independent judiciary (the Sovereign was forbidden to establish his own courts or to act as a judge himself),
- freedom from taxation by royal (executive) prerogative, without agreement by Parliament (legislators),
- freedom from a peace-time standing army,
- freedom [for Protestants] to bear arms for their defence, as allowed by law,
- freedom to elect members of Parliament without interference from the Sovereign,
- freedom of speech in Parliament,
- freedom from cruel and unusual punishments and excessive bail, and
- freedom from fines and forfeitures without trial.
Madison's preemptive proposal
On June 8, 1789, Madison submitted his proposal to Congress. In his speech to Congress on that day, Madison said:
For while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents.
Prior to listing his proposals for a number of constitutional amendments, Madison acknowledged a major reason for some of the discontent with the Constitution as written:
I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.
Ratification process
On November 20, 1789, New Jersey became the first state to ratify these amendments. On December 15, 1791, 10 of these proposals became the First through Tenth Amendments — and United States law — when they were ratified by the Virginia legislature.
Articles III to XII were ratified by 11/14 states (> 75%). Article I, rejected by Delaware, was ratified only by 10/14 States (< 75%), and despite later ratification by Kentucky (11/15 states < 75%), the article has never since received the approval of enough states for it to become part of the Constitution. Article II was ratified by 6/14, later 7/15 states, but did not receive the 3/4 majority of States needed for ratification until 1992 when it became the 27th Amendment.
Ratification dates
- New Jersey, November 20, 1789; rejected article II
- Maryland, December 19, 1789; approved all
- North Carolina, December 22, 1789; approved all
- South Carolina, January 19, 1790; approved all
- New Hampshire, January 25, 1790; rejected article II
- Delaware, January 28, 1790; rejected article I
- New York, February 27, 1790; rejected article II
- Pennsylvania, March 10, 1790; rejected article II
- Rhode Island, June 7, 1790; rejected article II
- Vermont, November 3, 1791; approved all
- Virginia, December 15, 1791; approved all
Later consideration
Lawmakers in Kentucky, which became the 15th state to join the Union in June 1792, ratified the entire set of twelve proposals during that commonwealth's initial month of statehood, perhaps unaware — given the nature of long-distance communications in the 1700s — that Virginia's approval six months earlier had already made ten of the package of twelve part of the Constitution.
Although ratification made the Bill of Rights effective in 1791, three of the original thirteen states — Connecticut, Georgia, and Massachusetts — did not "ratify" the first ten amendments until 1939, when they were urged to do so in a celebration of the 150th anniversary of their passage by Congress.
Copies of the Bill of Rights
Fourteen copies of the Bill of Rights were made, one for the federal government and one for each of the original thirteen states:
- Connecticut
- Delaware
- Georgia
- Maryland
- Massachusetts
- New Hampshire
- New Jersey
- New York
- North Carolina
- Pennsylvania
- Rhode Island
- South Carolina
- Virginia
The copies for Georgia, Maryland, New York, and Pennsylvania are missing. The New York copy is thought to have been destroyed in a fire while the Pennsylvania copy reportedly disappeared in the later 18th century. Two unidentified copies of the missing four (thought to be the Georgia and Maryland copies) survive; one is in the Library of Congress and the other is in the New York Public Library.
North Carolina's copy was stolen by a union solider in April 1865 and returned to North Carolina in 2005, 140 years later.
Incorporation extends to States
Originally, the Bill of Rights applied only to the federal government and not to the several state governments. Parts of the amendments initially proposed by Madison that would have limited state governments ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.") were not approved by Congress, and therefore the Bill of Rights did not appear to apply to the powers of state governments.
Thus, states had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided "security against the apprehended encroachments of the general government—not against those of local governments." However, in the 1925 judgment on Gitlow v. New York, the Supreme Court ruled that the Fourteenth Amendment, which had been adopted in 1868, made certain applications of the Bill of Rights applicable to the states. The Supreme Court then cited the Gitlow case as precedent for a series of decisions that made most, but not all, of the provisions of the Bill of Rights applicable to the states under the doctrine of selective incorporation.
Display and honoring of the Bill of Rights
In 1941, President Franklin D. Roosevelt declared December 15 to be Bill of Rights Day, commemorating the 150th anniversary of the ratification of the Bill of Rights.
The Bill of Rights is on display at the National Archives and Records Administration, in the Rotunda for the Charters of Freedom.
The Rotunda itself was constructed in the 1950s and dedicated in 1952 by President Harry S Truman, who said, "Only as these documents are reflected in the thoughts and acts of Americans, can they remain symbols of power that can move the world. That power is our faith in human liberty …."
After fifty years, signs of deterioration in the casing were noted, while the documents themselves appeared to be well-preserved: "But if the ink of 1787 was holding its own, the encasements of 1951 were not … minute crystals and microdroplets of liquid were found on surfaces of the two glass sheets over each document.... The CMS scans confirmed evidence of progressive glass deterioration, which was a major impetus in deciding to re-encase the Charters of Freedom."
Accordingly, the casing was updated and the Rotunda rededicated on September 17, 2003. In his dedicatory remarks, two hundred and sixteen years after the close of the Constitutional Convention, President George W. Bush stated, "The true [American] revolution was not to defy one earthly power, but to declare principles that stand above every earthly power—the equality of each person before God, and the responsibility of government to secure the rights of all."
In 1991, the Bill of Rights toured the country in honour of its bicentennial, visiting the capitals of all fifty states.
Text of the Bill of Rights
Preamble
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.
Amendments
- First Amendment – Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition
- 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.
- Second Amendment – Right to keep and bear arms.
- 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.
- Third Amendment – Protection from quartering of troops.
- 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.
- Fourth Amendment – Protection from unreasonable search and seizure.
- 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.
- Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.
- No person shall be held to answer for any 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.
- Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel
- 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 where in 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 favour, and to have the Assistance of Counsel for his defense.
- Seventh Amendment – Civil trial by jury.
- 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 re-examined in any court of the United States, than according to the rules of the common law.
- Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights.
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Tenth Amendment – Powers of states and 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.
Proposed amendments not passed with Bill of Rights
- Article I – Apportionment.
- After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.
- Article II (ratified in 1992 as Twenty-seventh Amendment) – Congressional pay raises.
- No law varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.