(From Grolier Multimedia Encyclopedia)

Bill of Rights


The first ten amendments to the Constitution of the United States 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, to similar guarantees in the constitutions of the American states, and to the Canadian Charter of Rights and Freedoms.

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.

U.S. Bill of Rights

Adoption
From the time they first settled in Virginia and Massachusetts, the American colonists relied upon the rights enjoyed by English citizens. 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 13 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 habeas corpus and jury trial and against bills of attainder and ex post facto laws. As originally drafted in 1787 by the Constitutional 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 first 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 on Sept. 25, 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, beginning with New Jersey on Nov. 20, 1789; Virginia was 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.

Summary
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 of the 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 2nd Amendment and 3rd Amendment 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 Amendment prohibits excessive bail or fines or cruel and unusual punishments; the 9th Amendment provides that the enumeration of rights in the Constitution does not deny others retained by the people; and the 10th Amendment 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.

English Bill of Rights
The English Bill of Rights of 1689 bore the technical title "Act declaring the rights and liberties of the subject and settling the succession of the crown." It was the culmination of the so-called Glorious Revolution of 1688, which forced James II to vacate the throne. From James's flight until February 1689, when William III and Mary II accepted the crown, England had no legal government. Not only was there no king but no Parliament, since Parliament had been dissolved in July 1688. Without a king it was impossible to assemble a lawfully constituted Parliament, and without Parliament a legal solution of the problem posed by James's flight also seemed impossible.

The dilemma was resolved by extralegal methods. William called an assembly of the peers, members of the Commons, and the magistrates of London, using as precedent an assembly called under Charles II. The assembly called by William advised him to summon a convention Parliament. It met on Jan. 22, 1689, and soon thereafter passed a resolution announcing that James II had abdicated and that the throne was thereby vacant. After the crown was settled on William and Mary, the convention passed an act declaring itself to be a Parliament.

The throne was offered to William and Mary, subject to the conditions laid down in an instrument known as the Declaration of Right, drawn up by a committee of the convention. After that body had declared itself a Parliament, it turned its declaration into a regular act of the legislature, enacted as a statute in 1689. Hence, the name Bill of Rights results from the introduction of the original declaration as a bill—the first step in enactment of a statute—in the new Parliament.

The 1689 Bill of Rights served notice on the king that royal efforts to dominate Parliament must henceforth cease. It declared that the election of members of Parliament ought to be free; that freedom of speech and debates in Parliament ought not be questioned in any court or other place; and that Parliament ought to be held frequently (a provision made more specific by the 1694 Triennial Act, which required parliamentary elections every three years).

In addition, the Bill of Rights specifically condemned the abuses of the parliamentary prerogative by James II. It declared "that the pretended power of suspending of laws or the execution of laws by regal authority without consent of the Parliament is illegal." A similar provision outlawed the dispensing power "as it hath been assumed and exercised of late." Another royal abuse was corrected in a provision prohibiting the raising or keeping of an army in time of peace "unless it be with consent of Parliament." A statement of the right of the people to bear arms was included, as well as a complaint against the quartering of soldiers.

Those sections of the Bill of Rights which deal with perversions of justice are of particular interest, for they served as the models for similar provisions in the U.S. Bill of Rights. These sections provide that "excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted" (the direct ancestor of the 8th Amendment to the U.S. Constitution); that jurors should be duly impaneled; and that grants and promises of fines and forfeitures by particular persons before conviction are illegal. (See also Bill of Rights, English [document].)

French Declaration of the Rights of Man
The French Declaration of the Rights of Man and the Citizen was adopted by the Constituent Assembly in August 1789. It was intended as a statement of the basic philosophical principles that inspired the French Revolution. Among the important principles declared by its 17 articles were freedom and equality; popular sovereignty and the general will; representative government; punishment only for legally defined offenses; free communication of thought and opinion; taxation only by popular consent; separation of powers; and the right to private property and just compensation.

Although the French declaration was the contemporary counterpart of the U.S. Bill of Rights, crucial differences exist between the two documents that illustrate the basic dissimilarity between American and French constitutional thinking. The French declaration does not lay down practical rules, only general principles deemed fundamental to humankind and hence universally applicable. Madison had also included some general principles in his proposed amendments, but they were eliminated during the congressional debates. What was left in the ten amendments ratified in the United States was specific protection for the basic rights of free expression and association, the rights to privacy and due process, and freedom from arbitrary restraint and trial and cruel and unusual punishments. The provisions protecting them were set forth as legal rules, enforceable as such by the courts. Nothing like this is contained in the French declaration, which was drafted only in terms of the general rights people should have. The French document does not contain mandatory inhibitions that must be respected by the government, nor does it descend to the level of practical enforcement through specific provision for the basic rights of defendants and others dealing with law-enforcement officials. (See also Declaration of the Rights of Man and the Citizen [document].)

Canadian Bill of Rights
In 1960 the Canadian Parliament adopted an Act for the Recognition and Protection of Human Rights and Fundamental Freedoms. Whereas this document served successfully as a bill of rights, it did not have a constitutional guarantee beyond the power of the legislature itself. Enacted as a statute, it was subject to alteration or repeal by act of Parliament alone, without any need for constitutional amendment.

After years of debate the Canadian government agreed to extend a constitutional guarantee to a bill of rights when, in 1982, a Charter of Rights and Freedoms was entrenched in the Constitution. The Charter of Rights and Freedoms recognizes the supremacy of God and the rule of law. It recognizes the right of the individual not to be deprived of life, liberty, security of the person, and property except by due process of law; freedom of religion, of speech, and of the press and other media of communication; and freedom of peaceful assembly and association. Equality before and under the law is guaranteed without discrimination based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability. The charter prohibits arbitrary detention and imprisonment, cruel and unusual punishment, denial of habeas corpus, denial of counsel or self-incrimination, denial of innocence until proved guilty, and denial of bail. French and English are specified as official languages.

While the charter has a constitutional guarantee, Parliament and the provincial legislatures have limited power to pass laws that might conflict with certain charter rights. The body passing the law must include a clause that specifically states it is doing so "notwithstanding" the charter. The clause, unless reenacted, expires after five years.

Bernard Schwartz

Bibliography:

Alderman, Ellen, and Kennedy, Caroline, In Our Defense: The Bill of Rights in Action (1991).
Amar, Akhil Reed, The Bill of Rights (1998).
Dumbauld, Edward, The Bill of Rights and What It Means Today (1957; repr. 1979).
Glasser, Ira, Visions of Liberty: The Bill of Rights for All Americans (1991).
Hickok, Eugene W., ed., The Bill of Rights: Original Meaning and Current Understanding (1991).
Hoffman, Ronald, and Albert, Peter J., eds., The Bill of Rights: Government Proscribed (1998).
Kukla, Jon, ed., The Bill of Rights: A Lively Heritage (1987).
Levy, Leonard W., Origins of the Bill of Rights (1999).
Rutland, Robert A., The Birth of the Bill of Rights (1983; repr. 1991).
Schwartz, Bernard, The Great Rights of Mankind: A History of the American Bill of Rights, rev. ed. (1991).