The Bill of Rightsthe first ten amendments to the Constitution of the United Statesranks alongside the Constitution and the Declaration of Independence as one of the nation's most treasured documents. Since its adoption in 1791, the Bill of Rights has served as the cornerstone of basic American freedoms. Its laws specify the fundamental rights and most cherished liberties of the American people and protect them from the whims of popular majority opinions and abusive government officials.
The Bill of Rights became part of the Constitution of the United States on December 15, 1791. On the 150th anniversary of this event in 1941, President Franklin Roosevelt proclaimed December 15 as Bill of Rights Day. He wanted to make Americans aware of their rights and to remind them of their duties as citizens of the United States. On this day in 1991, Americans recognized the 200th anniversary of these important amendments that have proved so essential to the American political tradition.
At the Constitutional Convention of 1787, delegates rejected a motion made by George Mason, author of the Virginia Declaration of Rights (1776), to preface the Constitution of the United States with a bill of rights. The failure to mention basic rights soon became a major issue in the subsequent debates over whether or not the proposed Constitution would be ratified, or approved.
When the Constitutional Convention ended, delegates went back to their respective states to hold their own ratifying conventions. Each state would decide for itself whether or not to approve the new framework for the American government.
The debate over the need for a bill of rights was sparked by a proposal made by a dissenting minority in the Pennsylvania ratifying convention. Some delegates believed that guarantees of certain basic rights and liberties were missing from the proposed Constitution. They called for a number of amendments that would secure a wide range of liberties, such as the free exercise of religion, freedom of speech and press, and protection against unreasonable searches and seizures. Majorities in the ratifying conventions of New Hampshire, Massachusetts, New York, Maryland, Virginia, North Carolina and South Carolina also called for numerous amendments to the proposed Constitution. Although the substance of these recommended amendments differed from state to state, most contained provisions that would limit the powers of the new federal (national) government and protect the people from inconsistent and oppressive rule.
The Anti-Federalists (those who were opposed to ratifying the Constitution) argued that the broad powers of the new federal government would threaten the powers of the individual states and the liberties of the people. However, the Federalists (those who supported ratification) argued that a bill of rights was unnecessary. Alexander Hamilton, for example, maintained that because the proposed federal government would possess only specifically assigned and limited powers, it could not endanger the fundamental liberties of the people. "Why," he asked, "declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"
Nevertheless, the Federalists had to pledge their support for the addition of a bill of rights to the Constitution once the new government began operations. Otherwise they would risk endangering the Constitution's ratification in certain key states and face the possibility of another constitutional convention.
James Madison, the "Father of the Constitution," may also be considered the "Father of the Bill of Rights." In his campaign for a seat in the House of Representatives under the new Constitution, he promised his voters that he would energetically push for the adoption of a bill of rights. True to his word, he took the lead in the First Congress in pressing for the desired amendments.
On June 8, 1789, drawing from proposals made by the various state ratifying conventions, Madison proposed to the Congress nine amendments to the Constitution, containing nineteen specific provisions (many of which are now contained in the Bill of Rights). Madison and members of a House committee then went through the complex process of drafting a bill that would secure the necessary two-thirds approval of both houses of Congress. The House and the Senate modified some of Madison's proposals, eliminated others entirely, and added some new ones as well.
As it finally emerged from Congress, the proposed Bill of Rights consisted of twelve amendments and was offered to the states for ratification. The first two proposed amendments were never ratified by the states. (One was related to the size of the House of Representatives and the other to laws regarding the compensation, or payment, for senators and representatives.) On December 15, 1791, Virginia ratified the remaining ten amendments, and the Bill of Rights officially became part of the Constitution.
The first eight amendments of the Bill of Rights set forth specific guarantees and liberties. The Ninth Amendment acknowledges that the American people have rights that are not even specified in the Constitution or the Bill of Rights. (The Federalists argued for this particular amendment, stating that it would be impossible to list all of the rights and liberties that should be protected.)
The Tenth Amendment emphasizes the national character of the United States constitutional system. It declares that the states or people retain those "powers not delegated to the United States by the Constitution."
Most people, however, believe that their most important rights are those guaranteed by the First Amendment. Commonly called "First Amendment freedoms," these are the fundamental freedoms of religion, speech, and press, as well as the right of the people to assemble and to petition a government.
Other vital provisions contained in the first eight amendments also deal with the rights of individuals. They are designed to protect people against inconsistent or abusive government, particularly in criminal proceedings.
For example, the Fourth Amendment protects individuals from unreasonable searches and seizures (either of themselves or of their property and possessions) by law enforcement officials.
The Fifth Amendment prohibits double jeopardy, which means that someone cannot be tried twice for the same crime. The Fifth Amendment also states that people cannot be compelled to testify against themselves (self-incrimination), and it guarantees "due process," which means people accused of a crime must be properly notified of the charges and given a fair hearing.
The Sixth Amendment establishes the right of an accused person to a public trial by jury. The accused also has the right to have a lawyer, to confront hostile witnesses, and to obtain witnesses in his or her defense.
Finally, the Eighth Amendment prohibits the infliction of "cruel and unusual punishments" (either mental or physical) on those convicted of a crime.
The remaining amendments (the Second, Third, and Seventh) do not cover individual rights in criminal proceedings but address other specific concerns. The Second Amendment is the most noteworthy and controversial of these remaining amendments. After noting the need for a "well regulated militia" (a body of citizen soldiers called to serve during times of emergency or war), this amendment declares that the people's right "…to keep and bear Arms, shall not be infringed."
The Third Amendment prevents the government from making citizens shelter soldiers in their homes. This amendment was drafted in response to abuses by British forces during the Revolutionary War.
The Seventh Amendment was included to meet the demands of many Anti-Federalists who wanted to insure trial by jury in civil suits.
The Virginia Bill of Rights (proclaimed in 1776, only days before the Declaration of Independence) was the first of ten such declarations by the states during the Revolutionary War period (1775-83). All of these declarations contained provisions that eventually found their way into the national Bill of Rights. Major portions of the First, Fourth, Fifth, Sixth, and Eighth amendments, for example, can be traced directly to the Virginia Bill of Rights.
The origins of many of the other rights and liberties contained in the Bill of Rights can be found in the English tradition, dating as far back as Magna Carta (1215), a document that marked the first step toward constitutional law in England. For example, the clause in the Fifth Amendment, which declares that individuals cannot be deprived of their "life, liberty, or property, without due process of law" is rooted in Chapter 39 of Magna Carta.
England's Petition of Right (1628) and Bill of Rights (1689) further expanded individual liberties and placed increased limitations on the ruler's powers and authority. English liberties and rights, such as trial by jury and protection against self-incrimination and unreasonable search and seizure, were, in fact, included in the charters establishing the American colonies. They were considered to be the "rights of Englishmen."
The courts, both state and national, are responsible for enforcing the Bill of Rights, when instances of abuse are brought to their attention through proper legal channels. The Supreme Court of the United States, however, has the final word in determining whether or not the principles contained in the Bill of Rights have been violated.
Making such a determination is seldom an easy matter. The Court, for example, must answer such questions as, What constitutes "unreasonable" search and seizure? What limits can be placed on the free exercise of religion for reasons of public morality, safety, or health? Under what circumstances may speech be legally curtailed to prevent violence or property damage?
Originally, the Bill of Rights applied only to the laws and activities of the national government. It was not until after the Civil War that the Bill of Rights' provisions were applied to the states. The 14th Amendment (1868) was the first to declare that no state "shall…deprive any person of life, liberty, or property without due process of law."
Today, for all intents and purposes, the fundamental rights and liberties guaranteed by the Bill of Rights apply with equal force to both the national and the state governments.
All of the fifty state constitutions contain a bill of rights. The Illinois Bill of Rights borrows from the Declaration of Independence in stating, "All men are by nature free and independent and have certain inherent and unalienable rights among which are life, liberty, and the pursuit of happiness." Some states' declaration of rights are even far more detailed than the national Bill of Rights. The California Declaration of Rights, for example, says, "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin."
The Canadian Charter of Rights and Freedoms, officially proclaimed by the Canada Act on April 17, 1982, applies to both the national and provincial governments. Sections of the charter deal with distinctly Canadian concerns, such as declaring the French and English languages to have equal status in official government proceedings.
The charter details major rights and liberties under the headings of Fundamental Freedoms and Legal Rights. The fundamental freedoms correspond to those found in the First Amendment in the American Bill of Rights, but they are more extensive. In addition to freedom for the press and media, peaceful assembly, and freedom of speech and religion, they include freedom of association, conscience, thought, belief, and opinion.
The legal rights of the charter are similar to those found in the Fourth, Fifth, Sixth, and Eighth amendments in the American Bill of Rights. These include, among others, protection against self-incrimination, double jeopardy, unreasonable search and seizure, and cruel and unusual punishment.
Author, The Federalist: Design for a Constitutional Republic