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The Bill of Rights has become a bulwark of American liberty.
Although the U.S. government was supposed to have only
those powers specifically delegated to it by the Constitution, it
has gained enormous arbitrary powers never dreamed of by our
Framers, and protecting fundamental liberties has increasingly
involved appeals to the Bill of Rights, as the first ten
amendments are known.
“The federal Bill of Rights,” wrote constitutional historian
Bernard Schwartz, “is the culmination of the of the idea of law
as a check upon governmental power.
If Americans live under a constitutional polity, it is only
because we enjoy the fruits of a successful struggle to bridle
public authority by constitutional guarantee.
Our liberties today are based upon the words originally
written into Colonial Charters and enactments, and, even earlier
into the great Charters of English history.
From a historical point of view, the federal Bill of Rights
is…a virtual magic mirror, wherein we see reflected not only our
own lives, but the whole pageant of Anglo-American constitutional
development and all that it has meant in the history of
freedom.”
The story of the Bill of Rights abounds with irony.
The idea was opposed by most of those who worked for almost
four months in Philadelphia, secretly drafting the Constitution.
Defenders of the Constitution, known as Federalists,
claimed that a bill of rights wasn’t necessary.
Connecticut’s Roger Sherman thought a federal bill of
rights was irrelevant since the Constitution didn’t repeal the
state bills of rights.
Nonetheless, at the Constitutional Convention Massachusetts’
Elbridge Gerry made a motion calling for a committee to draft a
bill of rights, and the motion was seconded by George Mason.
But a proposed clause aimed at protecting freedom of the
press was defeated, and the Convention adjourned.
The campaign got underway to have the Constitution ratified
by the legislatures in three-quarters of the states.
This didn’t end the debate about a bill of rights, however.
There had never been a central government before in
America, and many people were worried about how it could gain
unprecedented power over people’s lives.
One David Redick wrote William Irvine in September 1787:
“I may venture to Say that in my opinion the day on which we
adopt the present proposed plan of government, from that moment we
may Justly date the loss of American liberty…My dear sir why is
not the liberty of the press provided for?
Why will the Congress have power to alter the plan or mode
of chusing Representatives? Why
will they have the power to lay direct Taxes?”
Centralized power was the principal concern of Individuals known
as Anti-Federalists who opposed ratification of the Constitution.
Most, like the Virginian Patrick Henry, feared the central
government would undermine the power of the states.
The federal government’s power to tax people directly –
which made possible the later development of the Internal Revenue
Service -- seemed a good bet to be abused.
Yet it appeared that Federalists would succeed in getting the
Constijtution ratified without a bill of rights.
Biographer Ralph Ketcham observed that “the figure of
General Washington looming in the background was to many the basic
argument for ratification…The powers of the new government, and
especially the office of the President, had been framed in part
according to what would suit Washington, and the people judged the
Constitution with the same thought in mind.
His presence and universally admired patriotism gave the
plans and debates of 1787 and 1788 a specific, personal quality
that had an immense influence on the results.
Though some leaders raised the disquieting question of what
would happen after Washington passed from the scene, by and large
the federalists managed to keep attention on what powers of
government could safely be entrusted to the hero of the
revolution.”
The most important Anti-Federalist battle cry was for a bill of
rights. As
Virginia’s George Mason wrote in his Objections to This
Constitution, October 1787, “There is no declaration of
rights, and the laws of the general government being paramount to
the laws and constitutions of the several States, the declarations
of rights in the separate States are no security.
Nor are the people secured even in the enjoyment of the
benefits of the common law, which stands here upon no other
foundation than its having been adopted by the respective acts
forming the constitutions of the several States…There is no
declaration of any kind, for preserving the liberty of the press,
or the trial by jury in civil cases; nor against the danger of
standing armies in time of peace”
Mason insisted that the Constitution shouldn’t be
ratified unless it was going to include a bill of rights.
Alexander Hamilton, writing in The Federalist No. 84,
claimed that the government was the same as the people and
therefore the people didn’t need a bill of rights:
He noted that bills of rights had developed in England to
protect people from the king, but “they have no application to
constitutions, professedly founded upon the power of the people,
and executed by their immediate representatives and servants.
Here, in strictness, the people surrender nothing; and as
they retain every thing they have no need of particular
reservations [bill of rights]…
“I go further,” Hamilton continued, “and affirm that bills
of rights, in the sense and to 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 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? 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?
I will not content that such a provision would confer a
regulating power; but it is evident that it would furnish, to men
disposed to usurp, a plausible pretence for claiming that
power.”
Anti-Federalists pointed out that the Constitution already
protected several rights in Article 1, Section 9.
It banned bills of attainder.
A bill of attainder was a legislative act declaring the
guilt of an individual and imposing criminal penalties, even
thought he individual hadn’t had a jury trial.
Similarly, ex post facto laws were banned.
An ex post facto law made an individual guilty and
liable for criminal penalties although the action in question was
legal at the time it was taken.
The right of habeas corpus was also protected.
This ancient right, which developed in English law,
required that an individual who was imprisoned must be formally
charged with the crime, so that he or she would have an
opportunity to prove their innocence in a jury trial.
Moreover, Article 3, Section 1 protected the right of trial
by jury in criminal cases. Since
the Constitution already protected these rights, why shouldn’t
it protect other fundamental rights?
Federalists countered that states already had bills of rights.
But not every state did.
New York, for example.
Nor did every state with a bill of rights protect what many
would consider to be the most important rights.
The Virginia Bill of Rights, which George Mason had
drafted, didn’t protect freedom of speech, freedom of assembly,
the right to be represented by a lawyer, separation of church and
state or freedom from ex post facto laws.
Anti-Federalists picked on the Constitution’s clause, in Article
1, Section 8, that “No title of nobility shall be granted by the
United States; And no person holding office of profit or trust
under them, shall, without the consent of Congress, accept any of
present, emolument, office, or title, of any kind whatsoever, from
any king, prince, or foreign state.”
If it wasn’t necessary to have prohibitions against
things which the government wasn’t empowered to do, then why did
the Federalists include this prohibition against creating titles
of nobility?
Vigorous debate was carried on in newspapers, often via unsigned
pieces. The best
known series was The Federalist, with contributions by
Hamilton, Madison and John Jay, but Anti-Federalist articles
filled the newspapers, too. For
example, “Letters from the ‘Federal Farmer’ to ‘The
Republican,’” November 8, 1787, asserted: “There are certain
unalienable and fundamental rights, which in forming the social
compact, ought to be explicitly ascertained and fixed – a free
and enlightened people, in forming this compact, will not resign
all their rights to those who govern, and they will fix limits to
their legislators and rulers, which will soon be plainly seen by
those who are governed, as well as by those who govern; and the
latter will know they cannot be passed unperceived by the former,
and without giving a general alarm – These rights should be made
the basis of every constitution; and if a people be so situated,
or have such different opinions that they cannot agree in
ascertaining and fixing them, it is a very strong argument against
their attempting to form one entire society, to live under one
system of laws only…”
The Federalists blundered in opposing a bill of rights, and
popular support grew for it.
Historian Leonard W. Levy observed that “Their
single-minded purpose of creating an effective national government
had exhausted their energies and good sense, and when they found
themselves on the defensive, accused of threatening the liberties
of the people, their frayed nerves led them into indefensible
positions.”
From Paris where Thomas Jefferson served as American
representative, on December 20, 1787, he wrote his friend James
Madison who had taken the lead in making the Constitution.
After mentioning aspects of the Constitution which he
liked, Jefferson talked about “what I do not like.
First the omission of a bill of rights providing clearly
& without the aid of sophisms for freedom of religion, freedom
of the press, protection against standing armies, restriction
against monopolies, the eternal & unremitting force of the
habeas corpus laws, and trials by jury in all matters of fact
triable by the laws of the land & not by the law of
nations…Let me add that a bill of rights is what the people are
entitled to against every government on earth, general or
particular, & what no just government should refuse, or rest
on inferences.”
Jefferson discussed a bill of rights with many of his
correspondents. He
wrote Alexander Donald on February 7, 1788: “By a declaration of
rights I mean one which shall stipulate freedom of religion,
freedom of the press, freedom of commerce against monopolies,
trial by jury in all cases, no suspensions of habeas corpus, no
standing armies. These
are fetters against doing evil which no honest government should
decline.”
As late as October 17, 1788, when Madison wrote Jefferson, he was
still resisting the idea of a bill of rights.
“I have never thought the omission [of a bill of rights
from the Constitution] a serious defect,” Madison told his
friend, “nor have been anxious to supply it even by subsequent
amendment, for any reason other than that it is anxiously desired
by others. I have
favored it because I supposed it might be of use, and if properly
executed could not be of disservice.
I have not viewed it in an important light.”
Jefferson (still in Paris) replied in a March 15, 1789 letter,
with a clinching point: “the legal check which it [a bill of
rights] puts in the hands of the judiciary.
This is a body, which if rendered independent & kept
strictly to their own department, merits great confidence for
their learning & integrity.”
A bill of rights gives judges the closest thing to an
absolute standard for determining whether a law is permitted by
the Constitution. With
an amendment prohibiting restrictions on free speech, for example,
a bill might have been passed by a majority in Congress and signed
into law by a president, fulfilling the procedural requirements of
the Constitution, but if it suppressed free speech, judges could
strike it down for violating this amendment.
While Jefferson was urging Madison to embrace a bill of rights,
the Anti-Federalists were stirring up considerable opposition to
the Constitution, and Madison was worried.
The Pennsylvania legislature voted to ratify the
Constitution, but a vocal minority protested that it didn’t have
a bill of rights like their own state constitution.
Although Massachusetts ratified the Constitution, it
recommended amendments.
Without a bill of rights, Madison became convinced,
Virginia would vote against ratification.
Four states, including New York and Virginia, called for a
second constitutional convention, and Madison was concerned that
if there were a second constitutional convention, it might
undermine the taxing power of the federal government.
Madison announced that he supported amending the constitution with
a bill of rights. He
pledged that if the constitution were ratified, he would lead the
effort to get the amendments through the new Congress.
Opposition to the Constitution fell away.
Anti-Federalist Richard Henry Lee of Virginia was among
those who supported ratification of the Constitution after being
promised it would be amended to include a bill of rights.
So the success of the tactic, demanding that a bill of
rights be added, increased the likelihood that the Constitution
would be ratified, which wasn’t what the Anti-Federalists
wanted.
James Madison was true to his word.
On June 8, 1789, he rose on the floor of the House of
Representatives and spoke about the need for a bill of rights.
He urged the House “not to let the first session pass
over without proposing to the state legislatures some things to be
incorporated into the constitution, as will render it acceptable
to the whole people of the United States, as it has been found
acceptable to a majority of them.
I wish, among other reasons why something should be done,
that those who have been friendly to the adoption of this
constitution, may have the opportunity of proving to those who
were opposed to it, that they were as sincerely devoted to liberty
and a republican government, as those who charged them with
wishing the adoption of this constitution in order to lay the
foundation of an aristocracy or despotism.
It will be a desirable thing to extinguish from the bosom
of every member of the community any apprehensions, that there are
those among his countrymen who wish to deprive them of the liberty
for which they valiantly fought and honorably bled.”
Madison embraced Jefferson’s point, that with a bill of rights,
“independent tribunals of justice will consider themselves in a
peculiar manner the guardians of those rights; they will be an
impenetrable bulwark against every assumption of power in the
legislative or executive; they will be naturally led to resist
every encroachment upon rights expressly stipulated for in the
constitution…”
“Madison’s speech stirred no immediate support in Congress,”
noted historian Levy. “Indeed,
every speaker who followed him, regardless of party affiliation,
either opposed a bill of rights or believed that the House should
attend to far more important duties.
Six weeks later Madison ‘begged’ for consideration of
his amendments, but the House assigned them to a special committee
instead of debating them. That
committee, which included Madison, reported in a week.
It added freedom of speech to the rights protected against
state abridgment, deleted Madison’s reference to no
‘unreasonable searches and seizures,’ made some stylistic
revisions, but otherwise recommended the amendments substantially
as he had proposed them. The
committee’s report was tabled, impelling Madison on August 3 to
implore its consideration.”
Why the resistance to Madison’s proposals?
Federalists still weren’t interested in a bill of rights.
Massachusetts Congressman Theodore Sedgwick suggested this
was like declaring “that a man should have a right to wear his
hat if he pleased; that he might get up when he pleased, and go to
bed when he thought proper.” Federalists focused on other issues
including a judiciary bill. Many Anti-Federalist members of
Congress realized that if a bill of rights were enacted, many
critics of the Constitution would be satisfied and drop their
demands for a second convention, and consequently there wouldn’t
be any hope of challenging the taxing power of the new government.
New Englanders, who had government-supported churches,
didn’t like the proposed first amendment about the separation of
church and state.
Each of Madison’s proposed amendments went through the tedius
process of being discussed and redrafted in the House, discussed
and redrafted in the Senate and finally voted on by both houses
before they went to state legislatures for ratification.
Some of Madison’s proposals weren’t accepted, starting
with his first two amendments: one would have prevented Congress
from reducing the number of representatives and the other would
have banned Congressional pay raises between elections.
Madison proposed saying “no state shall violate the equal
rights of conscience, or the freedom of the press, or the trial by
jury in criminal cases.” Madison
urged that “No state shall violate the equal rights of
conscience, or the freedom of the press, or the trial by jury in
criminal cases,” but this was rejected apparently because
Congressmen wanted a bill of rights applying only to the central
government, not the states. The
Bill of Rights didn’t apply to the states until the Fourteenth
Amendment, after the Civil War.
Madison recommended that the Constitution be amended by
inserting changes into the text, mostly in Article 1, Section 8.
What happened, of course, is that amendments were added at
the end of the Constitution.
Here’s how the First Amendment evolved.
Madison’s proposal for the free speech and free press
clauses, on June 8th: “The people shall not be deprived or
abridged of their right to speak, to write or to publish their
sentiments; and the freedom of the press, as one of the great
bulwarks of liberty, shall be inviolable.”
On July 28th, the House Committee of Eleven changed
this to read: “The freedom of speech, and of the press, and the
right of the people peaceably to assemble and consult for their
common good, and to apply to the government for redress of
grievances, shall not be infringed.”
This became a House Resolution on August 24th: “The
Freedom of Speech, and of the Press, and the right of the People
peaceably to assemble, and consult for their common good, and to
apply to the Government for a redress of grievances, shall not be
infringed.”
By September 4th, the Senate had changed the wording as
follows: “That Congress shall make no law, abridging the freedom
of speech, or of the press, or the right of the People peaceably
to assemble and consult for their common good, and to petition the
Government for a redress of grievances.”
The Senate Resolution was voted on September 9th:
“Congress shall make no law establishing articles of faith, or a
mode of worship, or prohibiting the free exercise of religion, or
abridging the freedom of speech, or of the press, or the right of
the people peaceably to assemble, and to petition to the
government for a redress of grievances.”
Then came “Further House Consideration” and “Further Senate
Consideration” (September 21st) and the Conference
Committee Report (September 24th).
The Conference Committee Report endorsed the following:
“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.” With
a few minor changes (dropping capitalization for “Religion,”
“Speech” and “Press”) this became the version presented to
the states for ratification.
Alternative versions were considered at state conventions
in Maryland, Massachusetts, New York, North Carolina,
Pennsylvania, Rhode Island and Virginia, but they were voted down.
For what became the Second Amendment, Madison proposed: “The
right of the people to keep and bear arms shall not be infringed;
a well armed, and well regulated militia being the best security
of a free country: but no person religiously scrupulous of bearing
arms, shall be compelled to render military service in person.”
Congress rejected Madison’s effort to protect
conscientious objection to military conscription, and the Second
Amendment became: “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.”
English and European governments had sometimes saved money by
forcing private individuals to provide room and board for
soldiers, and so Madison proposed this for what became the Third
Amendment: “No soldier shall in time of peace be quartered in
any house, without consent of the owner; nor at any time, but in a
manner warranted by law.” Congress
weakened this by changing the last clause to read, “not in time
of war, but in a manner to be prescribed by law.”
The Fourth Amendment began with this proposal from Madison: “The
rights of the people to be secured in their persons, their houses,
their papers, and their other property from all unreasonable
searches and seizures, shall not be violated by warrant issued
without probable cause, supported by oath or affirmation, or not
particularly describing the places to be searched, or the persons
or things to be seized.” Congress
actually strengthened this a bit by adding the “no warrants
shall issue” phrase: “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 and
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.”
Here’s the grand jury clause which Madison proposed, and it
became the first part of the Fifth Amendment: “The trial of all
crimes (except in cases of impeachments, and cases arising in the
land or naval forces, or the militia when on actual service in
time of war or public danger) shall be by an impartial jury of
freeholders of the vincinage, with the requisite of unanimity for
conviction, of the right of challenge, and other accustomed
requisites; and in all crimes punishable with a loss of life or
member, presentment or indictment by a grand jury, shall be an
essential preliminary, provided that in cases of crimes committed
within any county which may be in possession of an enemy, or in
which a general insurrection may prevail, the trial may by law be
authorized in some other county of the same state, as near as may
be to the seat of the offence.
In cases of crimes committed not within any country, the
trial may by law be in such country as the laws shall have
prescribed. In suits
at common law, between man and man, the trial by jury, as one of
the best securities to the rights of the people, ought to remain
inviolate.” Congress
condensed Madison’s wording.
Next, Madison’s proposal for what became the Fifth Amendment
clause about double jeopardy, self-incrimination, due process and
takings: “No person shall be subject, except in cases of
impeachment, to more than one punishment, or one trial for the
same offence; nor shall be compelled to be a witness against
himself; nor be deprived of life, liberty, or property without due
process of law; nor be obliged to relinquish his property, where
it may be necessary for public use, without a just
compensation.”
The final version of the Fifth Amendment: “No person shall be
held to answer for a 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 offense 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 pubic use, without just compensation.”
For what became the Sixth Amendment, Madison proposed: “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, to be informed of the cause and nature of
the accusation, to be confronted with his accusers, and the
witnesses against him; to have a compulsory process for obtaining
witnesses in his favor; and to have the assistance of counsel for
his defense.” Since
the right to trial by jury was considered such an important
bulwark of liberty, Congress made this an explicit element of its
final draft: “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 wherein 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 favor, and
to have the assistance of counsel for his defense.”
As for civil cases, Madison suggested adding to the end of the
second clause in article 3, section 2: “nor shall any fact
triable by jury, according to the course of common law, be
otherwise reexaminable than may consist with the principles of
common law.” Congress
expanded this somewhat for the Seventh Amendment: “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 reexamined in any court
of the United States, than according to the rules of the common
law.”
Madison’s proposal for what became the Eighth Amendment:
“Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.”
Congress accepted this exactly as it was.
To those who expressed concern that protecting certain rights
might undermine the protection of other rights not enumerated,
Madison proposed: “The exceptions here or elsewhere in the
constitution, made in favor of particular rights, shall not be so
construed as to diminish the just importance of other rights
retained by the people; or as to enlarge the powers delegated by
the constitution; but either as actual limitations of such powers,
or as inserted merely for greater caution.”
By the time this made its way through the House and Senate,
it became the Ninth Amendment: “The enumeration in this
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people.”
Madison’s proposal for what became the Tenth Amendment: “The
powers delegated by this constitution, are appropriated to the
departments to which they are respectively distributed: so that
the legislative department shall never exercise the powers vested
in the executive or judicial; nor the executive exercise the
powers vested in the legislative or judicial; nor the judicial
exercise the powers vested in the legislative or executive
departments. The
powers not delegated by this constitution, nor prohibited by it to
the states, are reserved to the States respectively.”
Congress didn’t think the affirmation of a separation of
powers was necessary and opted to rework Madison’s last
sentence, adding the important phrase “to the 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.”
Altogether, Congress modified and voted for 12 of Madison’s
amendments, and on September 25, 1789, these were presented to the
state legislatures for ratification.
Nine voted for amendments three through 12, rejecting the
first two amendments which established a minimum number of
Congressmen and prohibited Congressional pay increases between
elections, respectively. Connecticut,
a Federalist stronghold, refused to ratify the bill of rights
since it might be interpreted to mean that the original
Constitution was flawed. Georgia
wouldn’t ratify, claiming that a bill of rights was unnecessary.
The lower house of the Massachusetts legislature rejected
amendments one (number of Congressmen), two (no Congressional pay
raises between elections) and twelve (powers not delegated to the
U.S. reserved to the states or the people), while the upper house
rejected amendments one, two and ten (prohibited excessive bail,
cruel & unusual punishments) amendments.
The two houses couldn’t agree on what to do, and
Massachusetts didn’t ratify the Bill of Rights until 1939, its
150th anniversary.
Because Vermont entered the Union (February 18, 1791), 11
states were needed for ratification.
Vermont became one of them in November 1789.
Virginia was the last state to vote on the amendments, and
Anti-Federalists were strong there.
They controlled the state senate, while Federalists
controlled the lower house. Richard
Henry Lee was among those who opposed passage of the amendments
since this would satisfy a lot of people who would otherwise
demand a second constitutional convention, intended to “secure
against the annihilation of the state governments.”
Patrick Henry tried to delay discussion of the amendments.
Initially, George Mason belittled the amendments as “Milk
and Water Propositions,” but
he came around and declared that the amendments gave him “much
satisfaction.” Aiming
to undermine Anti-Federalist support for a second constitutional
convention, the Federalist lower house voted for the amendments.
The state senate rejected amendments three (freedom of
religion, speech, press, assembly and petition), eight (right to a
jury trial in criminal cases), 11 (enumeration of certain rights
not to deny others) and 12 (powers not delegated to the U.S.
reserved to the states or the people).
Madison, who championed religious liberty and the
separation of church and state, tangled with senators who
supported government-financed churches.
Jefferson made his influence felt, too.
In an unrecorded vote on December 15, 1791, the Virginia
senate approved the amendments, making Virginia the 11th
state to ratify amendments three through 12, and they became the
first 10 amendments to the Constitution.
“But for Madison’s persistence,” observed Leonard W. Levy,
“the amendments would have died in Congress.
Our precious Bill of Rights, at least in its immediate
background, resulted from the reluctant necessity of certain
Federalists to capitalize on a cause that had been originated, in
vain, by the Anti-Federalists for ulterior purposes [defeating the
Constitution]. The
party that had first opposed the Bill of Rights inadvertently
wound up with the responsibility for its framing and ratification,
whereas the people who had at first professedly wanted it
discovered too late that it not only was embarrassing but
disastrous for their ulterior purposes.”
True, there has been much debate about the meaning of certain
terms in the Bill of Rights, like “due process of law.
Historian Irving Brant remarked, “freedom of speech and
press cannot be abridged, except – and what a mammoth
exception this is – except by punishing such speech and writings
as were punishable under the common law of England.
For, say they, the framers had read the assertion
of Blackstone that freedom of the press meant only freedom
from prior restraint, and that if any man offended the law
by what he said or wrote, he was to be punished for his
temerity.” And
of course, the Supreme Court has periodically disregarded various
provisions in the Bill of Rights.
From the New Deal until recent years, for instance, the
Supreme Court has largely ignored provisions protecting property
rights, such as the takings clause.
Nonetheless, the Bill of Rights was a momentous breakthrough in
the history of liberty. It
went well beyond English precedents from the 17th
century. Those had
limited the power of a king but granted unlimited power to
Parliament; England still doesn’t have a Supreme Court which
could strike down an act of Parliament for violating protected
individual rights. England’s
Petition of Right (1628) protected the right of trial by jury.
The Habeas Corpus Act (1679) assured that individuals could
not be imprisoned without being formally charged and given the
opportunity to prove their innocence in court.
The Toleration Act (1689) left standing laws which
penalized religious dissidents, while exempting most from
penalties. The
government continued to finance the Church of England.
The Bill of Rights (1689) was the agreement accepted by
William of Orange as the condition for being crowned king of
England. This Bill of
Rights established the supremacy of Parliament, and it said that
the government “ought not” to impose excessive bail or cruel
and unusual punishments; the English Bill of Rights lacked the
clear-cut prohibitions in the American Bill of Rights.
Freedom of speech was protected for members of Parliament.
Protestants had the right to bear arms.
The U.S. Bill of Rights, by contrast with English precedents,
became a fundamental law of the land.
It protected more liberties than were protected in England.
It applied to every branch of the federal government, not
just the executive. Judges
could strike down an act of Congress, signed into law by the
President, if it violated the Bill of Rights.
Checks and balances built into the structure of the
Constitution have failed to prevent the dramatic expansion of
federal government power during the 20th century, but
thanks to the Bill of Rights it is still possible to challenge the
government in court and sometimes win.
See:
Bernard
Bailyn ed., The Debate on the Constitution, Federalist and
Antifederalist Speeches, Articles, and Letters During the Struggle
over Ratification (New York: Library of America, 1993), 2
vols.
Irving
Brant, The Bill of Rights, Its Origins and Meaning
(Indianapolis: Bobbs-Merrill, 1965).
Neil
H. Cogan ed., The Complete Bill of Rights, The Drafts,
Debates, Sources, & Origins (New York: Oxford University
Press, 1997).
Bruce
Frohnen ed., The Anti-Federalists, Selected Writings and
Speeches (Washington, D.C.: Regnery, 1999).
Leonard
W. Levy, Constitutional Opinions (New York: Oxford
University Press, 1986).
Leonard
W. Levy, Origins of the Bill of Rights (New Haven: Yale
University Press, 1999).
Information
for purchasing “A Written Constitution,” in Jim Powell, The
Triumph of Liberty (New York: Free Press, 2000).
Bernard
Schwartz, The Bill of Rights, A Documentary History (New
York: Chelsea House, 1971),
Herbert
J. Storing, The Complete Anti-Federalist (Chicago:
University of Chicago Press, 1981), 7 vols.
Herbert
J. Storing, What the Anti-Federalists Were For (Chicago:
University of Chicago Press, 1981).
Madison's
speech introducing the
Bill of Rights in Congress
Full
text of the Bill of Rights
|
