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
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.
Why the Bill of Rights Was
Added to the Constitution
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.
Drafting the Bill of Rights
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.
What the Bill of Rights Says
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
The Seventh Amendment was included to meet the demands of many
Anti-Federalists who wanted to insure trial by jury in civil suits.
The Origins of the Bill of
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."
Enforcing the Bill of Rights
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.
State Bills of Rights
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 Bill of Rights
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
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
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