Wikijunior:United States Charters of Freedom/Bill of Rights

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The United States Bill of Rights

The United States Bill of Rights is the document containing the first ten amendments to the Constitution. These amendments explicitly limit the Federal government's powers, protecting the rights of the people by preventing Congress from abridging freedom of speech, freedom of the press, freedom of assembly, freedom of religious worship, and the right to bear arms, preventing unreasonable search and seizure, cruel and unusual punishment, and self-incrimination, and guaranteeing due process of law and a speedy public trial with an impartial jury. These amendments came into effect on December 15, 1791, when ratified by three-fourths of the 13 states. Initially drafted by James Madison in 1789, the Bill of Rights was written at a time when ideological conflict between Federalists and anti-Federalists, dating from the Philadelphia Convention in 1787, threatened the Constitution's ratification. 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. The original handwritten copy is on display in the National Archives in Washington, D.C. It is the third of the three Charters of Freedom along with the Declaration of Independence and the Constitution.

James Madison, "Father of the Constitution and first author of the Bill of Rights.

Background[edit]

The Philadelphia Convention, convened in 1787, set out to correct weaknesses inherent in the Articles of Confederation that had been apparent even before the American Revolutionary War had been successfully concluded: it was widely conceded that the government needed broader power to generate revenue, as Congress lacked authority to levy taxes; the Liberum Veto and the requirement of a supermajority to enact major legislation enabled one or two states to defeat legislative proposals; no provisions were made for an executive branch to enforce the laws or for a national court system to interpret them; and individual states could refuse to be bound under treaties and agreements negotiated with foreign powers.

This need for a stronger legislature, a unified currency, and a central authority with a power to conduct affairs of state led to the stronger Federal government adopted by compromise at the Convention.

The newly constituted Federal government, included a strong executive branch, a stronger legislative branch and an independent judicial branch. However, debate between political factions known as the Federalists and anti-Federalists ensued over the balance between strengthening the nation's government and weakening the rights of the people who only ten years earlier had explicitly rebelled against the perceived tyranny of King George III of England.

Alexander Hamilton, the man who wrote most of the Federalist Papers

Arguments against the Bill of Rights[edit]

The idea of adding a Bill of Rights to the Constitution was originally controversial, and was strongly opposed by many notable American statesmen, including Alexander Hamilton. In one of the Federalist Papers, published during the Philadelphia Convention on May 28, 1788, Hamilton 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."As critics of the Constitution referred to earlier political documents that had protected specific rights, Hamilton argued that the Constitution was inherently different. Unlike previous political arrangements between sovereigns and subjects in the United States, there would be no agent empowered to abridge the people's rights: "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."

Finally, Hamilton expressed the fear that protecting specific rights might imperil rights that were not mentioned:

"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 colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?"

The Magna Carta, a British document which influenced Constitution and the Bill of Rights.

The Anti-Federalists[edit]

During the debate over the ratification of the Constitution, famous revolutionary figures such as Patrick Henry came out publicly against the Constitution. They argued that the strong national government proposed by the Federalists was a threat to the rights of individuals and that the President would become a king, and objected to the federal court system in the proposed Constitution. Thomas Jefferson, ambassador to France, described his concern over the lack of a Bill of Rights, among other criticisms. In answer to the argument that a list of rights might be interpreted as being exhaustive, Jefferson wrote to Madison, "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."

The best and most influential of the articles and speeches criticizing the Constitution were gathered by historians into a collection known as the Anti-Federalist Papers, an opposite of the Federalist Papers which had supported the creation of a stronger federal government. One of these, an essay "On the lack of a Bill of Rights," later called "Antifederalist Number 84," was written under the pseudonym Brutus. In response to the Federalist view that it was unnecessary to protect the people against powers that the government would not be granted, "Brutus" wrote:

"We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution."

"Brutus" continued with a dark implication directed against the Framers: "Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage."

Ratification and the Massachusetts Compromise[edit]

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:

"In Massachusetts, the Constitution ran into serious, organized opposition. Only after two leading Antifederalists, John Adams and John Hancock, negotiated a far-reaching compromise did the convention vote for ratification on February 6, 1788 (187-168). Antifederalists had demanded that the Constitution be amended before they would consider it or that amendments be a condition of ratification; Federalists had retorted that it had to be accepted or rejected as it was. Under the Massachusetts compromise, the delegates recommended amendments to be considered by the new Congress, should the Constitution go into effect. The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended."

Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not totally in vain.

Drafting[edit]

After the Constitution was ratified in 1789, 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.

James Madison, at the head of the Virginia delegation of the 1st Congress, had opposed a Bill of Rights but hoped to preempt the potential political disaster of 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.

Madison based his work on George Mason's Virginia Declaration of Rights (1776), which itself had been written with Madison's input. In addition to this direct influence, Madison's work on the Bill of Rights reflected centuries of English law and philosophy, further modified by the principles of the American Revolution. It has been argued that all men have inalienable natural rights and that the purpose of government was to protect property rights, ideas that became part of the American view of government. Madison, in the United States Bill of Rights, continued in the radical tradition of the American Revolution by further extending and codifying these rights.

Twelve amendments proposed[edit]

At first, on June 8, 1789, a motion was made to have the "Committee of the Whole House on the State of the Union," that is, the entire House of Representatives work on proposals for amendments until they were deemed fit to refer to the States for consideration. On July 17, 1789, a motion was passed referring this work to a select committee of eleven members, consisting of Congressmen from every State, including Madison, John M. Vining (Delaware), Abraham Baldwin (Georgia), Roger Sherman (Connecticut), Aedanus Burke (South Carolina), Nicholas Gilman (New Hampshire), George Clymer (Pennsylvania), Egbert Benson (New York), Benjamin Goodhue (Massachusetts), Elias Boudinot (New Jersey), and George Gale (Maryland). The committee drafted the precise language of the amendments, and referred their work back to the House. After revisions in the House, the Bill was passed to the United States Senate on August 24, 1789, and returned with revisions on September 21, 1789.

Finally, the joint proposal of twelve Amendments was approved on September 25, 1789 and submitted to the State Legislatures for approval, and while ten were ratified, two failed. The Congressional Apportionment Amendment, intended to determine the number of Congressional Representatives and assure representation for the common people [1], was ratified by only eleven of the state legislatures, one shy of the twelve required to achieve the three-fourths threshold. The Congressional Compensation Amendment fared even worse, passing only six states, but was revived in the 1980s and eventually ratified in 1992 as Amendment XXVII to the United States Constitution.

Ratification process[edit]

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

Articles III–XII were ratified by 11/14 States (> 75%). Article I, rejected by Delaware, was ratified by 10/14 States (< 75%), and later by Kentucky (11/15 States < 75%), and failed. Article II was ratified by 6/14, later 7/15 States, and failed.

Ratification dates[edit]

  • New Jersey, November 20, 1789; rejected article II
  • Maryland, December 19, 1789; approved all
  • North Carolina, December 22, 1789; approved all
  • South Carolina, January 19, 1790; approved all
  • New Hampshire, January 25, 1790; rejected article II
  • Delaware, January 28, 1790; rejected article I
  • New York, February 27, 1790; rejected article II
  • Pennsylvania, March 10, 1790; rejected article II
  • Rhode Island, June 7, 1790; rejected article II
  • Vermont, November 3, 1791; approved all
  • Virginia, December 15, 1791; approved all

Later consideration[edit]

Lawmakers in Kentucky, which joined 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.

Incorporation extends to States[edit]

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.

Thus, states had established state churches up until the 1820s, and Southern states, beginning in the 1830s, could ban abolitionist literature. However, in 1925, 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.

Display and honoring of the Bill of Rights[edit]

In 1941, President Franklin Delano Roosevelt declared December 15 to be "Bill of Rights Day", a national holiday commemorating the 150th anniversary of the ratification of the Bill of Rights.

The Bill of Rights is on display at the National Archives, in the "Rotunda for the Charters of Freedom."

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. . ."

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."

Accordingly, the casing was updated and the Rotunda rededicated on September 17, 2003. In his dedicatory remarks, 216 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."

Text of the Bill of Rights[edit]

The text of the Bill of Rights can be divided into fourteen sections: the preamble, the Congressional Apportionment Amendment, the Congressional Compensation Amendment, 10 ratified amendments, and the signatures. (Note that these headings are not part of the text of the document).

Preamble[edit]

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 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 extending the ground of public confidence in the Government, will best ensure 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."

Congressional Apportionment Amendment[edit]

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.

Congressional Compensation Amendment[edit]

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.

Amendment I[edit]

Article the third .... 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.

Amendment II[edit]

Article the fourth .... 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.

Amendment III[edit]

Article the fifth .... 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.

Amendment IV[edit]

Aricle the sixth .... 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.

Amendment V[edit]

Article the seventh .... 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.

Amendment VI[edit]

Aricle the eighth .... 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.

Amendment VII[edit]

Aricle the ninth .... 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 re-examined in any Court of the United States, than according to the rules of the common law.

Amendment VIII[edit]

Article the tenth .... Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX[edit]

Article the eleventh .... The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X[edit]

Article the twelfth .... 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.

Signatures[edit]

  • Frederick Augustus Conrad Muhlenburg
  • John Adams
  • John James Beckley
  • Samuel Allyne Otis

Analysis of the text[edit]

This section describes each section of the Bill of Rights.

Analysis of the Preamble[edit]

The preamble starts out by saying that the 13 states wished to create this document to prevent the federal government from abusing the powers it was granted by the Constitution. Also, it states that the listed amendments are being proposed as stated in Article V of the Constitution.

Analysis of the Congressional Apportionment Amendment[edit]

This failed amendment seeks to make certain that seats in the House of Representatives are reapportioned according to population every ten years, but given the current population of the United States, the algorithm that it sets forth would now place very few restrictions on the size of the House. Were this amendment to be ratified today, it would allow anywhere between 200 and nearly 6,000 Representatives.

Analysis of the Congressional Compensation Amendment[edit]

This amendment, which also failed, prevented any law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives intervened. This amendment was finally ratified as Amendment XXVII in 1992.

Analysis of Amendment I[edit]

This amendment, the most important and well-known to most Americans, prevented the U.S. Congress from infringing on six important human rights. It forbids federal laws that:

  • Establish a state religion or prefer certain religion;
  • Prohibit the free exercise of religion;
  • Infringe the freedom of speech;
  • Infringe the freedom of the press;
  • Limit the right to assemble peaceably;
  • Limit the right to petition the government for a redress of grievances.

Analysis of Amendment II[edit]

This amendment declares the need for "a well regulated militia", and prohibits infringement of "the right of the people to keep and bear arms".

Analysis of Amendment III[edit]

This amendment prohibits the quartering of soldiers (military personnel) in private homes without the owner's consent in peacetime. It makes quartering legally permissible in wartime only, but only in accordance with law.

Analysis of Amendment IV[edit]

This amendment guards against unreasonable searches and seizures. It was a response to the controversial writs of assistance (a type of general search warrant) which were a significant factor behind the American Revolution.

Analysis of Amendment V[edit]

This amendment is related to legal procedure. Its guarantees stem from English common law. For instance, grand juries and the phrase "due process" both trace their origin to common law.

Analysis of Amendment VI[edit]

This amendment codifies rights related to criminal prosecutions in federal courts. The Supreme Court has ruled that these rights are so fundamental and important that they are protected in state courts by Amendment XIV's Due Process Clause.

Analysis of Amendment VII[edit]

This amendment codifies the right to jury trial in certain civil trials. The Supreme Court has not extended the Amendment to the states under Amendment XIV, as it has for many other components of the Bill of Rights.

Analysis of Amendment VIII[edit]

This amendment prohibits excessive bail or fines, as well as cruel and unusual punishment.

Analysis of Amendment IX[edit]

This amendment protects at least some rights not specifically written in the Bill of Rights.

Analysis of Amendment X[edit]

This amendment makes explicit the idea that the federal government is limited only to the powers it is granted in the Constitution, is generally recognized to be hardly worth mentioning.

Analysis of the Signatures[edit]

The Bill of Rights is signed by four important cabinet members to ensure its validity. The signers are Frederick Augustus Conrad Muhlenburg, the Speaker of the House of Representatives, John Adams, the Vice President and President of the Senate, John James Beckley, the Clerk of the House of Representatives and Samuel Allyne Otis, the Secretary of the Senate.

References[edit]

  1. "Article The First"

Questions[edit]

Here are some questions to answer. If you are stumped, and need the answer, just click and drag your mouse over the space next to the question. The answer will show up. The answers to all the questions are located in this article.

  1. The Bill of Rights is a list of amendments for which document? The Constitution
  2. On what day did the Bill of Right's amendments come into effect? December 15, 1791
  3. Which document influenced the Bill of Rights? The Magna Carta
  4. How many amendments were proposed? 12
  5. Which was the first state to ratify the amendments? New Jersey
  6. How many of the amendments proposed on this document were ratified? 10
  7. What day is "Bill of Rights Day"? December 15
  8. When was the "Rotunda for the Charters of Freedom" constructed? The 1950s
  9. What year was 216 years after the close of the Constitutional Convention? 2003
  10. Which amendment is the most important and well-known to most Americans? Amendment I

Source[edit]

Basically a junior version of the Wikipedia article.