United States Bill of Rights
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| Founding Documents of the United States |
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| Declaration of Independence (1776) |
| Articles of Confederation (1777) |
| Constitution (1787) |
| Bill of Rights (1789) |
The Bill of Rights is the name given to the first ten amendments of the United States Constitution. When the Constitution was submitted to the state legislatures for ratification, many of its opponents claimed that the reason the Constitution did not include a bill of rights was 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. The original copy of the Bill of Rights can be seen by the public today at the National Archives in Washington, DC.
The Bill of Rights includes rights such as freedom of speech, freedom of the press, freedom of religion, and freedom of assembly. It also mandates that the Bill of Rights and other rights enumerated in the Constitution must be interpreted not as a comprehensive list of all rights, but rather an incomplete list of rights.
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Controversy
After the Constitution was ratified, the first 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.
The idea of adding a bill of rights to the Constitution was originally controversial. The argument was that the Constitution, as written, did not explicitly enumerate or guarantee the rights of the people, and as such needed an addition to ensure such protection. However, many Americans at the time were opposed to the idea of a bill of rights: If such a bill were created, they feared that it would eventually come to be interpreted as a list of the only rights Americans had. In other words, the list of rights would be the only rights one had, and if interpreted narrowly, the existence of such a bill of rights could effectively be used to constrain the liberty of the American 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 a bill of rights argued that such a list of rights should not and would not be interpreted as being exhaustive; In other words, the rights to be enumerated would be some of the most important rights that people had, but many other rights existed as well. People in this school of thought were confident that the judiciary would interpret these rights in an expansive fashion.
Drafting
The task of drafting the Bill of Rights fell to James Madison, who based his work on George Mason's earlier work, the Virginia Declaration of Rights. It had been decided earlier that the Bill of Rights would be added to the Constitution in the form of amendments (the list of rights was not inserted into the text of the Constitution because it was feared that modifying the document's text would necessitate the rather painful process of re-ratifying the Constitution). On June 8, 1789, Madison submitted his proposal to Congress, which was passed on September 25, 1789.
The bill contains the following preamble:
- Congress of the United States
- begun and held at the City of New-York, on
- Wednesday the fourth of March, one thousand seven hundred and eighty nine.
- THE Conventions of a number of the States having, at the time of 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 extending 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.
Ten, Eleven or Twelve Amendments?
Twelve amendments were originally proposed in 1789, but two failed to be ratified by the states 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 public officials, including James Madison and 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.
Ratification
On November 20, 1789, New Jersey became the first state in the newly formed Union to ratify these amendments. Other states followed, and the last ten of the original twelve amendments—now designated as the First through Tenth Amendments—became law on December 15, 1791, when they were ratified by the Virginia legislature. These ten amendments quickly became known as the Bill of Rights.
The second proposed amendment ("Article the second" as presented to the states) was finally ratified in 1992 as the Twenty-seventh Amendment to the Constitution; it restricts the power of Congress to raise their own pay. The first proposed amendment ("Article the first" as presented to the states) is theoretically still pending before the states, but unlikely to ever be fully ratified. That amendment would regulate the method of determining the size of the House of Representatives. Perhaps unaware—given the primitive 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, lawmakers in Kentucky ratified the entire set of twelve in June of 1792 during that commonwealth's initial month of statehood.
The Amendments
The ten amendments making up the Bill of Rights are:
- First Amendment – Freedom of speech, press, religion, peaceable assembly, and to petition the government.
- 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.
- Second Amendment – Right to keep and bear arms.
- 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.
- Third Amendment – Protection from quartering of troops.
- 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.
- Fourth Amendment – Protection from unreasonable search and seizure.
- 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.
- Fifth Amendment – Due process, double jeopardy, self-incrimination, private property.
- 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.
- Sixth Amendment – Trial by jury and other rights of the accused.
- 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.
- Seventh Amendment – Civil trial by jury.
- 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.
- Eighth Amendment – Prohibition of excessive bail, as well as cruel or unusual punishment.
- Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
- Ninth Amendment – Protection of rights not specifically enumerated in the Bill of Rights.
- The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
- Tenth Amendment – Powers of states and people
- The powers not delegated to the United States by the Constituiton, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
Incorporation
- Main article: Incorporation (Bill of Rights)
Originally, the Bill of Rights applied only to the federal government and not to the several state governments. Thus, states had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist propaganda. 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 1925 with 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 of the provisions of the Bill of Rights applicable to the states.
Bill of Rights Day
December 15 is Bill of Rights Day a national holiday in the United States. It was established in 1941, by President Franklin Delano Roosevelt, to the 150th anniversary of the ratification of the Bill of Rights.
Reference
- Spaeth, Harold J.; and Smith, Edward C. (1991) HarperCollins College Outline: The Constitution of the United States (13th ed.), New York: HarperCollins. ISBN 0064671054
See also
General Discussion
Statutory Bills of Rights
Compare to other countries' bills of rights
- England: The Bill of Rights of 1689, on which the U.S. Bill of Rights was partly based.
- France: The Declaration of the Rights of Man and of the Citizen (1789).
- Scotland: The Claim of Right, similiar in chronology and origin as the English Bill.
- United Nations: Universal Declaration of Human Rights (1948)
- Europe: European Convention on Human Rights (1950), Charter of Fundamental Rights of the European Union (2000)
- Canada: Canadian Charter of Rights and Freedoms (1982).
- International human rights instruments
External links
- National Archives: The full text of the United States constitutional amendments
- OurDocuments.gov
- Library of Congress: Bill of Rights and related resources
- Teaching the Bill of Rights
- Alexander Hamilton, Federalist, no. 84, 575--81 The Federalist Papers, on opposition to the Bill of Rights
- Thirty-Thousand.org Site advocating an increase in the size of the House of Representatives
- Krusch, Barry (2003). Would The Real First Amendment Please Stand Up? Online book arguing that the Supreme Court's interpretation of the First Amendment has created a “virtual First Amendment" that is radically different from the true amendment
- The Second Amendment and Commas Arguing that differences in punctuation have been used to misconstrue the Second Amendment
- Examining the American Bill of Rights Using the Ethic of Justice
