What is the Bill of Rights?
In the hot and buggy summer, the Constitutional Convention is meeting. Delegates from every state except Rhode Island are meeting to revise the Articles of Confederation – the governing document that bound the states together at the time. The Constitution hasn’t been written yet, let alone ratified. Some argued that the Articles of Confederation were inadequate and so the delegates were meeting to fix the problems, although a few of the delegates wished to start over from scratch.
Towards the very end of the Convention, George Mason motioned to have a bill of rights included, but was overruled. To many delegates, it wasn’t necessary: the states already protected individual rights and the constitution they were writing did not take away any rights. But this motion became a rallying cry for a group known as the Anti-Federalists; who opposed the new constitution.
Someone writing under the pseudonym Cincinnatus made the case for a bill of rights in a letter to his political opponent, James Wilson. He used the example of freedom of the press to drive his point home. Wilson had previously written on the matter using a similar argument to what I said previously: that the power to limit citizens’ freedoms was not granted to the federal government, so stating that certain rights were reserved for the citizens was unnecessary. Cincinnatus argued that the particulars of the powers that were granted to the federal government were important. He wrote:
For instance, the proposed Congress are empowered–to define and punish offences against the laws of nations–mark well, Sir, if you please–to define and punish. . . . can anyone even think that does not comprehend a power to define and declare all publications from the press against the conduct of government, in making treaties, or in any other foreign transactions, an offence against the law of nations?
Cincinnatus hypothesized thus: suppose a certain printer earned the wrath of a government official for criticizing treaties or the like. Without a bill of rights, it would be easy for the government to silence this printer and “the freedom of the press, the sacred palladium of public liberty, would be pulled down;–all useful knowledge on the conduct of government would be withheld from the people–the press would become subservient to the purposes of bad and arbitrary rules, and imposition, not information, would be its object.”
But here’s why the term “bill of rights” is perhaps not an entirely accurate name. The Constitution was not written to place extensive limits on individual freedom. Alexander Hamilton argued forcefully against them in the Federalist Papers, a series of essays he and two other delegates wrote in support of ratifying the Constitution. In Federalist Number 84 he says this:
I go further, 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 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 pretense for claiming that power.
Hamilton argued that the Constitution gave the Federal Government limited powers, which did not include curbing free speech or limiting a free press. This meant that no provision in the Constitution specifically delineating or articulating this right was necessary: “For why declare that things shall not be done which there is no power to do?” This would be like a parent telling their children they were not allowed to fly around in the backyard. Well, obviously, because people cannot fly independently. The Bill of Rights are rules against doing something the government didn’t have power to do in the first place. But, despite Hamilton’s fears, a bill of rights was added onto the Constitution in the form of the first 10 amendments.
James Madison originally drafted a number of amendments to the Constitution. He was influenced by existing state constitutions, the Magna Carta of 1215, and the English Bill of Rights of 1689. The House of Representatives approved 17 articles in August of 1789, and the Senate approved a slightly different list of 12 the next month. The House then agreed upon that list and 12 amendments were put before the states to ratify. They ratified 10 of the 12 on December 15, 1791. Another one became the 27th amendment in 1992. The remaining amendment has been ratified by some of the states, but not by enough to pass. Technically, should enough states choose to ratify that proposal, it would also become an amendment, although it would create thousands of additional representatives in the House, since it ties the number of representatives to 1 for every 50,000 citizens.
Well, that has brought us back to the present and concludes our overview of the history of the Bill of Rights. You are welcome to leave now if you really want, but I’m going to read the Bill of Rights in just a moment. Hope you stick around and enjoy!
You’re probably familiar with some of these amendments, but let’s review them so you can be sure.
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 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 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 defense.
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.
Keep in mind that every single one of these amendments has been litigated and interpreted in different ways, so while what you read here is the best place to start, your intuitive understanding may not line up with current legislation or court interpretation. But keep in mind that these amendments are an important limit on the scope and workings of the federal government.
Thanks for watching and happy studying!