WikiPortallus: United States Bill of Rights.html

Two additional articles were proposed to the States; only the final ten articles were ratified quickly and correspond to the First through Tenth Amendments to the Constitution. The first Article, dealing with the number and apportionment of U.S. Representatives, never became part of the Constitution. The second Article, limiting the ability of Congress to increase the salaries of its members, was ratified two centuries later as the 27th Amendment. Though they are incorporated into the document known as the "Bill of Rights", neither article establishes a right as that term is used today. For that reason, and also because the term had been applied to the first ten amendments long before the 27th Amendment was ratified, the term "Bill of Rights" in modern U.S. usage means only the ten amendments ratified in 1791.

The Bill of Rights plays a central role in American law and government, and remains a fundamental symbol of the freedoms and culture of the nation. One of the original fourteen copies of the Bill of Rights is on public display at the National Archives in Washington, D.C.

Background

Arguments against the Bill of Rights

The idea of adding a bill of rights to the Constitution was originally controversial. Alexander Hamilton, in Federalist No. 84, argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and therefore that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations." Critics pointed out that earlier political documents had protected specific rights, but Hamilton argued that the Constitution was inherently different:

Finally, Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:

Essentially, Hamilton and other Federalists believed in the British system of common law which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.

The Anti-Federalists

Following the Philadelphia Convention, some famous revolutionary figures and statesmen, such as Patrick Henry, publicly argued against the Constitution.^[6] Many were concerned that the strong national government proposed by the Federalists was a threat to individual rights and that the President would become a king, and objected to the federal court system in the proposed Constitution.

Thomas Jefferson, at the time serving as Ambassador to France, wrote to Madison advocating a Bill of Rights: "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."^[7] George Mason refused to sign the proposed Constitution, in part to protest its lack of a Bill of Rights.^[8]

Ratification and the Massachusetts Compromise

Individualism was the strongest element of opposition; the necessity, or at least the desirability, of a bill of rights was almost universally felt, and the Anti-Federalists were able to play on these feelings in the ratification convention in Massachusetts. By this stage, five of the states had ratified the Constitution with relative ease; however, the Massachusetts convention was bitter and contentious:

Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. They all sent recommendations for amendments with their ratification documents to the new Congress. Since many of these recommendations pertained to safeguarding personal rights, this pressured Congress to add a Bill of Rights after Constitutional ratification. Additionally, North Carolina refused to ratify the Constitution until progress was made on the issue of the Bill of Rights. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not totally in vain.

After the Constitution was ratified in 1789, the 1st United States 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 agreed on the rights they believed should be enumerated.

Madison, at the head of the Virginia delegation of the 1st Congress, had opposed a Bill of Rights but hoped to pre-empt a second Constitutional Convention that might have undone the difficult compromises of 1787: a second convention would open the entire Constitution to reconsideration and could undermine the work he and so many others had done in establishing the structure of the United States Government. Writing to Jefferson, he stated, "The friends of the Constitution...wish the revisal to be carried no farther than to supply additional guards for liberty...and are fixed in opposition to the risk of another Convention....It is equally certain that there are others who urge a second Convention with the insidious hope of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself."^[12]

Madison based much of the Bill of Rights on George Mason's Virginia Declaration of Rights (1776),^[13] which itself had been written with Madison's input. He carefully considered the state amendment recommendations as well. He looked for recommendations shared by many states to avoid controversy and reduce opposition to the ratification of the future amendments.^[14] Additionally, Madison's work on the Bill of Rights reflected centuries of English law and philosophy, further modified by the principles of the American Revolution.

Antecedents

Locke

To some degree, the Bill of Rights (and the American Revolution) incorporated the ideas of John Locke, who argued in his 1689 work Two Treatises of Government that civil society was created for the protection of property (Latin proprius, or that which is one's own, meaning "life, liberty, and estate"). Locke also advanced the notion that each individual is free and equal in the state of nature. Locke expounded on the idea of natural rights that are inherent to all individuals, a concept Madison mentioned in his speech presenting the Bill of Rights to the 1st Congress. Locke's argument for protecting economic rights against government may have been most salient to the framers of the Amendments; quartering and cruel punishments were not the current abuses of 1791.^[15]

Virginia Declaration of Rights

The Virginia Declaration of Rights, well-known to Madison, had already been a strong influence on the American Revolution ("all power is vested in, and consequently derived from, the people …";^[16] also "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish [the government]"). It had shaped the drafting of the United States Declaration of Independence a decade before the drafting of the Constitution, proclaiming that "all men are by nature equally free and independent, and have certain inherent rights of which … [they cannot divest;] namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety."^[17] On a practical level, its recommendations of a government with a separation of powers (Articles 5–6) and "frequent, certain, and regular"^[18] elections of executives and legislators were incorporated into the United States Constitution — but the bulk of this work addresses the rights of the people and restrictions on the powers of government, and is recognizable in the modern Bill of Rights:

The government should not have the power of suspending or executing laws, "without consent of the representatives of the people,".^[19] A legal defendant has the right to be "confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage," and may not be "compelled to give evidence against himself."^[20] Individuals should be protected against "cruel and unusual punishments",^[21] baseless search and seizure,^[22] and be guaranteed a trial by jury.^[23] The government should not abridge freedom of the press,^[24] or freedom of religion ("all men are equally entitled to the free exercise of religion").^[25] The government should be enjoined against maintaining a standing army rather than a "well regulated militia".^[26]

English Bill of Rights

The English Bill of Rights (1689), one of the fundamental documents of English constitutional law, differed substantially in form and intent from the American Bill of Rights, because it was intended to address the rights of citizens as represented by Parliament against the Crown. However, some of its basic tenets are adopted and extended to the general public by the U.S. Bill of Rights, including

Madison's preemptive proposal

On June 8, 1789, Madison submitted his proposal to Congress. In his speech to Congress on that day, Madison said:

Prior to listing his proposals for a number of constitutional amendments, Madison acknowledged a major reason for some of the discontent with the Constitution as written:

Ratification process

On November 20, 1789, New Jersey became the first state to ratify these amendments. On December 15, 1791, 10 of these proposals became the First through Tenth Amendments — and United States law — when they were ratified by the Virginia legislature.

Articles III to XII were ratified by 11/14 states (> 75%). Article I, rejected by Delaware, was ratified only by 10/14 States (< 75%), and despite later ratification by Kentucky (11/15 states < 75%), the article has never since received the approval of enough states for it to become part of the Constitution. Article II was ratified by 6/14, later 7/15 states, but did not receive the 3/4 majority of States needed for ratification until 1992 when it became the 27th Amendment.

Ratification dates

Later consideration

Lawmakers in Kentucky, which became the 15th state to join the Union in June 1792, ratified the entire set of twelve proposals during that commonwealth's initial month of statehood, perhaps unaware — given the nature of long-distance communications in the 1700s — that Virginia's approval six months earlier had already made ten of the package of twelve part of the Constitution.

Although ratification made the Bill of Rights effective in 1791, three of the original thirteen states — Connecticut, Georgia, and Massachusetts — did not "ratify" the first ten amendments until 1939, when they were urged to do so in a celebration of the 150th anniversary of their passage by Congress.^[29]

Copies of the Bill of Rights

Fourteen copies of the Bill of Rights were made, one for the federal government and one for each of the original thirteen states:

The copies for Georgia, Maryland, New York, and Pennsylvania are missing. The New York copy is thought to have been destroyed in a fire^[35] while the Pennsylvania copy reportedly disappeared in the later 18th century^{citation needed}. Two unidentified copies of the missing four (thought to be the Georgia and Maryland copies) survive; one is in the Library of Congress^[1] and the other is in the New York Public Library.^[36]

North Carolina's copy was stolen by a union soldier in April 1865 and returned to North Carolina in 2005, 140 years later.^[36]^[37]

Incorporation extends to States

Originally, the Bill of Rights applied only to the federal government and not to the several state governments. Parts of the amendments initially proposed by Madison that would have limited state governments ("No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.") were not approved by Congress, and therefore the Bill of Rights did not appear to apply to the powers of state governments.^[39]

Thus, states had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. In the 1833 case Barron v. Baltimore, the Supreme Court specifically ruled that the Bill of Rights provided "security against the apprehended encroachments of the general government—not against those of local governments." However, in the 1925 judgment on Gitlow v. New York, the Supreme Court ruled that the Fourteenth Amendment, which had been adopted in 1868, made certain applications of the Bill of Rights applicable to the states. The Supreme Court then cited the Gitlow case as precedent for a series of decisions that made most, but not all, of the provisions of the Bill of Rights applicable to the states under the doctrine of selective incorporation.

Display and honoring of the Bill of Rights

In 1941, President Franklin D. Roosevelt declared December 15 to be Bill of Rights Day, commemorating the 150th anniversary of the ratification of the Bill of Rights.

The Rotunda itself was constructed in the 1950s and dedicated in 1952 by President Harry S Truman, who said, "Only as these documents are reflected in the thoughts and acts of Americans, can they remain symbols of power that can move the world. That power is our faith in human liberty …."^[41]

After fifty years, signs of deterioration in the casing were noted, while the documents themselves appeared to be well-preserved: "But if the ink of 1787 was holding its own, the encasements of 1951 were not … minute crystals and microdroplets of liquid were found on surfaces of the two glass sheets over each document.... The CMS scans confirmed evidence of progressive glass deterioration, which was a major impetus in deciding to re-encase the Charters of Freedom."^[42]

Accordingly, the casing was updated and the Rotunda rededicated on September 17, 2003. In his dedicatory remarks, two hundred and sixteen years after the close of the Constitutional Convention, President George W. Bush stated, "The true [American] revolution was not to defy one earthly power, but to declare principles that stand above every earthly power—the equality of each person before God, and the responsibility of government to secure the rights of all."^[43]

In 1991, the Bill of Rights toured the country in honor of its bicentennial, visiting the capitals of all fifty states.

Text of the Bill of Rights

Preamble

Amendments

Proposed amendments not passed with Bill of Rights

United States Bill of Rights.html

Contents