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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.
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). 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 Full text of the Bill of Rights
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