United States Bill of Rights
United States Bill of Rights
The Bill of Rights is the name given to the first ten amendments to the United States Constitution. When the Constitution was submitted to the state legislatures for ratification, many of its opponents claimed that the Constitution did not include a bill of rights because the document was an aristocratic scheme to remove the rights of Americans. Supporters, known as Federalists, assured Americans that a Bill of Rights would be added by the First Congress.
After the Constitution was ratified, the first Congress met in Federal Hall in New York City. Most of the delegates agreed that a Bill of Rights was needed and most of them believed that the same rights should be enumerated.
The idea of adding a bill of rights to the constitution was originally controversial. The idea was that the constitution, as written, did not specifically enumerate or protect the rights of the people, and as such needed an addition to ensure such protection. However, many Americans at the time opposed the bill of rights: If such a bill was created, many people feared that this would later be interpreted as a list of the only rights that people had. In other words, a list of rights would be the only rights one had, and if they were interpreted narrowly, the existence of such a bill of rights could effectively constrain the liberty of the people instead of ensuring it. For example, Alexander Hamilton opposed any such bill of rights, writing:
It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John....It is evident, therefore, that according to their primitive signification, 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. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government....
I go further, and affirm that bills of rights, in the sense and in 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 which are not granted; and on this very account, would afford a colourable 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 contend 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.
(Alexander Hamilton, Federalist, no. 84, 575-581, 28 May 1788)
Supporters of the bill of rights argued that a list of rights would and should not be interpreted as exhaustive; i.e. that these rights were examples of important rights that people had, but that people had other rights as well. People in this school of thought were confident that the judiciary would interpret these rights in an expansive fashion.
Drafting the Bill of Rights
The task of drafting the Bill of Rights fell to James Madison, who based his work on George Mason's earlier work, Virginia Declaration of Rights. It had been decided earlier that the Bill of Rights would be added to the Constitution as amendments (the list of rights was not included in the text of the Constitution because it was feared that changing the document's text would necessitate the rather painful process of re-ratifying the Constitution).
The Bill of Rights includes rights such as freedom of speech, of press, of religion, and of assembly. It also includes a clause assuring the American people that the Bill of Rights should not be interpreted as a comprehensive list of all rights belonging to Americans, but rather a list of the most important rights.
Twelve amendments were originally proposed in 1789, but two failed to pass at the same time as the remaining ten. These two amendments, originally numbered first and second, were drafted and submitted as:
Article the first ... After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
Article the second ... No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
Several important public officials, including James Madison and United States Supreme Court Justice Joseph Story, retained the confusing practice of referring to each of the ten amendments in the Bill of Rights by the enumeration found in the first draft.
Passing the Bill of Rights
The Bill of Rights passed the House easily in 1789. When it was sent to the Senate, an amendment was removed that forbade states from interfering with the rights of the people. Since records of the meetings of the Senate are not available to the public, no one can say for sure why this amendment was removed (later, in 1868, the Fourteenth Amendment would be passed establishing the principle that states may not interfere with the rights granted to citizens by the federal government).
On November 20 that year, New Jersey became the first state in the newly-formed Union to ratify these amendments. Other states followed, and the ten amendments were made law on December 15, 1791 with ratification by Virginia legislators. Soon, they became widely known as the Bill of Rights. The eleventh (or "Article the second" as quoted above) was belatedly ratified more than 200 years afterward in 1992 as the Twenty-seventh Amendment to the Constitution; it restricts the ability of Congress to raise its own pay. The twelfth (or "Article the first" as quoted above) is theoretically still pending, but unlikely to ever pass. It deals, as quoted above, with setting the size of the United States House of Representatives. Perhaps unaware that Virginia's approval six months earlier--given the primitive nature of communications in the 1700s--had made ten of the package of twelve already part of the Constitution, lawmakers in Kentucky ratified the entire set of twelve in June of 1792 during that commonwealth's initial month of statehood.
In the first decades of the Republic the Bill of Rights was considered to apply to the federal government, not the state governments. Thus, states has established churches up until the 1820's, and Southern states, beginning in the 1830's, could ban abolitionist propaganda. In Barron v. Baltimore, the Supreme Court specifically declared that the Bill of Rights provided "security against the apprehended encroachments of the general government - not against those of local governments." This changed in 1868 following the Civil War with the Reconstruction ratification of the Fourteenth Amendment. The Fourteenth Amendment makes most of the rights and guarantees of the Bill of Rights apply to the states; it remains this way to this day.
It is controversial whether the Twenty-seventh Amendment should be considered a part of the Bill of Rights; it is listed below only for convenience.
The original copy of the Bill of Rights, which contains the text of all twelve proposed amendments, can be seen by the public today at the National Archives in Washington, DC.
The amendments making up the Bill of Rights are:
The following text is a transcription of the first 10 amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights." Also included is the Twenty-seventh amendment, which was ratified on May 5, 1992.
CONGRESS OF THE UNITED STATES
Begun and held at the City of New York, on Wednesday, the Fourth of March, One Thousand Seven Hundred Eighty-nine.
The Conventions of a number of the States having, at the Time of their Adopting the Constitution, expressed a Desire, in Order to prevent Misconstruction or Abuse of its Powers, that further declaratory and restrictive Clauses should be added: And as exceeding the Ground of public Confidence in the Government will best insure the beneficent Ends of its Institution,
RESOLVED, by the Senate, and House of Representatives, of the United States of America, in Congress assembled, Two Thirds of both Houses concurring, That the following Articles be proposed to the Legislatures of the several States, as Amendments to the Constitution of the United States: All, or any of, which Articles, when ratified by Three-Fourths of the said Legislatures, to be valid to all Intents and Purposes, as part of the said Constitution, viz.
Articles in Addition to, and Amendment of, the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the Fifth Article of the original Constitution.
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.
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.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.......
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 or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
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 offence 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 public use, without just compensation.
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 defence.
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.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by 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.
No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
Note: Amendment XXVII is actually before Amendment I in the original document, but was not ratified until 1992.
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