Another Perspective

The first ten amendments to the U.S. Constitution are called the Bill of Rights because they provide basic legal protection for individual rights. The term is also applied to the English Bill of Rights of 1689 and the Canadian Bill of Rights of 1960, and to similar guarantees in the constitutions of the American states.

The first American use of the term was in 1774 when the First Continental Congress adopted the Declaration and Resolves, which was popularly termed the Bill of Rights because it was an American equivalent of the English Bill of Rights. Two years later came the Virginia Declaration of Rights, which contained the first guarantees for individual rights in a legally enforceable constitution. The distinctive feature of the provisions in American bills of rights is that they are enforced by the courts; statutes and other governmental acts that conflict with them may be ruled void if their constitutionality is appropriately challenged.

Adoption of the U.S. Bill of Rights

From the time they first settled in Virginia and Massachusetts, the American colonists relied upon the rights enjoyed by Englishmen. The struggle for independence, however, demonstrated to them that rights not specified and codified in constitutional documents were insecure. The result was a movement, as soon as independence was declared, to adopt binding constitutions that limited governmental powers and protected individual rights. Seven of the thirteen states adopted constitutions that included specific bills of rights; the other states included specific guarantees of individual rights in various provisions contained throughout their constitutional texts. The first state bill of rights was the Virginia Declaration of Rights, adopted as part of the state's first constitution on June 12, 1776. Virginia's declaration, drafted mainly by George Mason, served as the model both for similar state documents and for the U.S. Bill of Rights. It provided guarantees for most of the rights secured in the latter document.

The U.S. Constitution contains protection for some individual rights in the body of its text, notably the rights to Habeus Corpus and jury trial and against bills of Attainder and ex post facto laws. As originally drafted in 1787 by the Philadelphia Convention, however, no federal bill of rights was included. A motion by George Mason to add such a bill was overwhelmingly defeated.

The failure of the Constitution to include a bill of rights gave rise to widespread popular dissatisfaction. The people refused to accept the Federalist claim that a bill of rights was not necessary, since the powers delegated to the new government did not include authority over individual rights. As Chief Justice Earl Warren later wrote, "Our people wanted explicit assurances. The Bill of Rights was the result."

The popular demand for a bill of rights found practical expression in the state conventions that ratified the Constitution. The ratifying conventions of six states submitted, along with their instruments of ratification, proposed amendments protecting individual rights. These recommended amendments covered virtually all the rights that were later protected in the U.S. Bill of Rights. The action of the ratifying conventions made the movement for a federal bill of rights irresistible. Ratification would probably not have been secured had not the Federalists agreed to the amendments and promised to secure their adoption.

In the 1st Congress under the new Constitution, James Madison led the movement to make good these promises. He drafted the amendments that became the U.S. Bill of Rights and was the floor leader in the House debate on their adoption. The Madison amendments were put together from the various proposals emanating from the state conventions. In introducing the amendments in the House of Representatives on June 8, 1789, Madison urged the need for a bill of rights to "provide those securities for liberty . . . and expressly declare the great rights of mankind." The purpose was to limit and qualify power, guard against legislative and executive abuses, and protect the minority against the majority.

The Congressional debate on Madison's amendments produced stylistic and substantive changes. The most important of the former was adoption of the amendments as a series of separate articles to be added at the end of the Constitution, rather than as insertions into its body, as Madison had proposed. Four of Madison's amendments were eliminated during the Congressional debate; the most important of them was a prohibition against state violations of the rights of conscience, freedom of the press, and jury trial. Elimination of that amendment made the Bill of Rights as adopted applicable only to the federal government; its prohibitions did not impose limitations on the states.

Congress voted in September 1789 to submit 12 amendments for ratification by the states. The first two, dealing with congressional size and compensation, failed. The other ten (renumbered to reflect the nonratification of the first two) were ratified by the required ten state legislatures, with Virginia the last to ratify, on Dec. 15, 1791. September 25--the day on which Congressional approval was completed--is celebrated as the anniversary of the federal Bill of Rights.

Background 

The most important rights protected by the U.S. Bill of Rights are contained in the 1st Amendment. It provides that Congress shall make no law respecting an establishment of religion or prohibiting its free exercise, or abridging freedom of speech or press or the right to assemble and petition for redress of grievances. These rights are the core rights protected by the system of ordered liberty established by the Bill of Rights. Under the 1st Amendment, the domain of "liberty," withdrawn from federal encroachment, was enlarged to include liberty of mind and beliefs.

The 2d and 3d amendments reflect the colonists' hostility toward standing armies; they guarantee the people's right to bear arms and limit the quartering of soldiers in private homes.

The 4th Amendment is aimed at the abuses the colonists had suffered from writs of assistance and general warrants; it secures the people against unreasonable searches and seizures and requires warrants to be specific and issued only upon probable cause.

The 5th Amendment requires grand jury indictments in major criminal prosecutions and prohibits trying a person twice on the same charge or requiring that person to testify against himself or herself; it forbids taking of private property for public use without just compensation and forbids deprivation of life, liberty, and property without due process of law. The due process concept was a major step forward; since then, due process has served as the principal constitutional tool for the protection of rights not defined in the Bill of Rights.

The 6th Amendment protects criminal defendants; it guarantees the accused a speedy public trial by jury and the rights to be informed of the accusation, to be confronted with the witnesses against the accused, to use compulsory process to secure witnesses, and to have the assistance of counsel.

The 7th Amendment guarantees jury trials in civil cases; the 8th prohibits excessive bail or fines or cruel and unusual punishments; the 9th provides that the enumeration of rights in the Constitution does not deny others retained by the people; and the 10th states the doctrine of reserved powers--that all powers not delegated to the United States are reserved to the states or the people.

From the perspective of two centuries, it can be said that Madison chose well among the pyramid of proposals in the state-recommended amendments. He included all the great rights appropriate for constitutional protection (except equal protection, not even thought of as a basic right at the time). The U.S. Bill of Rights contains the classic inventory of individual rights, and it has served as the standard for all subsequent attempts to safeguard human rights.

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