The Origins and History of
The American Bill of Rights

I. Defining Rights of Man in England

a. The Magna Carta, (Runnymede 1215); first time in English history a written document laid down binding rules of law that even the sovereign himself may not violate.

• A bargain between the King and the nation
• Specified the basic liberties of Englishmen of the day
• 2 key provisions;
  • Chapter 12; "Scutage or aid shall be levied in our kingdom only by the common counsel of our kingdom"
  • Chapter 39; "No freeman shall be captured or imprisoned or diseased or outlawed or exiled or in any way destroyed . . . except by the lawful judgment of his peers and by the law of the land."
• The mere existence of this document, extorted from the king, remained a standing condemnation of government absolutism.

b. The Petition of Right, (1628); Declared fundamental rights of Englishmen as positive law

• Sent from Parliament to Charles I
• That no man be asked to make loan, gift, benevolence, tax without counsel of Parliament
• Did not provide machinery for enforcement or …
• Alter the balance between crown and parliament
• Constantly violated by King Charles I

c. Council of Officers of the Army to the House of Commons (1649)

• "A Petition . . . concerning of an agreement of the people, by them framed and prepared . . .."
• Not recognized at the time, listed fundamental rights
• Religion, military conscription, speech, sanctity of the public debt, no punishment where there was no law before, equality before the law

• Culmination of the Glorious Revolution of 1688
• Royal efforts to dominate Parliament must cease
• Free election of members of Parliament
• Freedom of speech and debate in Parliament ought not to be questioned
• Parliament ought to be held frequently…
  • Triennial Act (1694); Prohibited the intermission of Parliament for more than 3 years
• Specifically condemned the abuses of power by James II
• Rudimentary statement of the right to keep and bear arms
• Complaint of quartering of soldiers in private homes
• Excessive bail, fines, cruel or unusual punishment inflicted
  • Ancestor of our Eight Amendment

• Rights of free speech, press, and petition
• Unreasonable searches and seizure
• Double jeopardy and excessive fines

II. The Colonies; Settled by Englishmen – When Englishmen migrated, they took with them, all the first great privileges of Englishmen on their backs. Richard West, Counsel to the Board of Trade 1720; "Let an Englishman go where he will he carries as much of law and liberty with him, as the nature of things will bear."

• Established the precedent that the American colonists were entitled to all the rights of Englishmen
• Only first in a series

• First detailed charter of liberties and a model for future colonial enactments
• To replace the oligarchy established by the company with a representative system
  • Liberties of women, children, servants, aliens and dumb animals
  • Outlawed slavery
  • Rights of individual liberty rested upon the courts
  • Protection against taking property without compensation
  • Freedom of speech
  • Right of counsel, trial by jury, double jeopardy
• First American attempt to give effect that people’s basic rights should be written in a document

• Colonies in large settled in response to religious intolerance back home
  • Those who came over, got in power, often practiced the same religious intolerance, i.e. the Puritans in Massachusetts
• Maryland Act Concerning Religion 1649 (Toleration Act)
  • First colony to recognize a measure of freedom of conscience
  • 1654, Puritans retained control, act was repealed
  • 1692, Maryland became a royal province
    • Church of England est. 1702

III. The Colonial Pattern of declaring personal rights

• Starts by asserting the right to life, liberty and property
• Claims to all the rights, liberties and immunities of Englishmen
• The right to trial by jury of "vicinage" (Sixth Amendment)
• Right not to have soldiers quartered
• Right to peaceably assemble, consider grievances, and petition the king
• Direct precursor to the declaration of rights contained in the revolutionary state constitutions
• The right to personal liberty vindicated by the Great Writ of Habeas Corpus
• Freedom of the Press

• First true Bill of Rights in the modern American sense
• Written by George Mason, planter, no formal legal training
• 16 Articles, 9 state general principles of a free republic
  • Article 5; separation of powers as a rule of positive law
  • Article 8; right to a speedy trial by a grand jury of peers
    • To be informed of the charges of the accusation
    • Confronted with the accuser and witnesses
    • Not to have to testify against oneself
  • Did omit freedom of speech, assembly, right to counsel, protection against double jeopardy

• First time guarantees of freedom of speech as well as freedom of religion
• Major step in development of an American Bill of Rights

• There was no umpire or judge under the British Constitution to determine when government exceeds its authority
  • Courts were not given that power
• The idea that a judge could strike down a law created by the people did not occur to the framers during the creation of the Constitution or the Bill of Rights – but developed over time in response to events

a. Opposing Opinions – Federalists and anti-Federalists

• Delaware, New Jersey, Georgia ratified the Constitution unanimously
• New Hampshire ratified in June 1788 – the 9^th state
• NY and Va had divided conventions
  • Ratified with the assumption that a Bill of Rights would be added
• North Carolina’s convention adjourned – to wait to see what happened to the Amendments
• Rhode Island did not even consider ratification

• First Congress – essentially a continuation of the Constitutional Convention
  • Principle responsibility; filling in the gaps in the Constitution
  • Drafting a Bill of Rights
• James Madison came to see the need for a Bill of Rights
  • It would legitimize the new government in the eyes of its opponents

The American Bill of Rights

V. The Un-ratified Duo

• The importance
  • Structural in form as a modification of Article I, Section 2
  • Our 10^th, their 12^th are both structural
  • Keeps us from viewing the 12^th (really the 10^th) as an add-on
  • Responded to the single most important concern of the anti-Federalists
  • Classical political theory suggested that republics could thrive only in geographically and demographically small societies – citizens would be shaped by common climate and culture, hold homogeneous world views, know each other and could meet face to face to deliberate on public issues
  • Federalists felt a large and heterogeneous society could actually produce a more stable society
• Why if failed…
  • Intricate mathematical formula made little sense
  • What it promised in the short-term, increased congressional size, it took back in the long run because it established a maximum, not a minimum.

• The Second Amendment – not ratified
  • Would become the Twenty-seventh Amendment

• Dealt with government structure rather than individual rights
• Both Amendments were attempts to strengthen majoritarianism rather than to check it
  • Both sought to tighten the link between representatives and their constituents
    • 1^st by democratizing representation
    • 2^nd by stressing elections

VI. The 10 Amendments that make up The Bill of Rights

• The first not because of importance, but by accident because the original first and second failed ratification

• Prohibited the national legislature from interfering with, or trying to disestablish, churches established by state and local governments
  • Church and state were hardly separate
  • 1789; at least six states had government sponsored churches
  • At least four, in their constitutions, barred non-Christians from holding public office
  • Eleven of thirteen had religious qualifications for office holding
• ACLU;

• Sounds in structure and focuses (at least in part) on the representational link between Congress and its constituents
  • Reaffirms structural role of free speech and free press in a working democracy
  • The body being restrained is not a hostile majority, but rather Congress
• From the ACLU Briefing Paper #9; The Bill of Rights: A Brief History "This country’s original citizens believed that as human beings, they were entitled to free speech, and they invented (emphasis mine) the First Amendment in order to protect it."
• ACLU; "Even unpopular expression is protected from government suppression or censorship."
• Sedition Acts: 1798, outlawed criticism of the government, expired in 1801
• Espionage Act of 1917; prohibited any interference with the draft, as well as "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States."
  • Schenck v. United States; held that the espionage act did not violate the First Amendment

2.   The Second Amendment: The Right to Keep and Bear Arms

• Question; Does the Second Amendment protect only the rights of the states to have militias, or does it give individuals a right to bear arms for self-defense as well as national defense?

• How is this clause interpreted…

• Complaints of gun safety unfounded
• Centers for Disease Control defines children as anyone under the age of nineteen for deaths of children with firearms
• Most gun related deaths for 14 – 19 year olds results from inner-city violence due to drugs and gang activity
• The remaining number is 121 deaths in 1998 (1,003 died in accidental drowning in unattended swimming pools, 661 from accidental suffocation, and 608 from accidental burns)

3.   The Third Amendment: Quartering of Troops

• More states included this provision in proposing amendments to the Constitution than freedom of speech
• Colonists opposed the Quartering Act as a tax forcing them to pay for a permanent or standing army they did not want
• The Supreme Court has never specifically ruled on its meaning but has cited it as support for a constitutional right of privacy

4.   The Fourth Amendment: Unreasonable Searches and Seizures

• Common English practice – general warrants, allowed crown agents to search anywhere they wanted and seize anything they pleased
• Writ of Assistance; British customs officials used this general warrant to search colonial homes and businesses for smuggled goods
• After the Revolutionary War, eight states prohibited general warrants in their new constitutions

5.   The Fifth Amendment: Due Process of Law

• Guarantees Five rights of a diverse nature
  • The right against self-incrimination in criminal cases
  • The right to have serious criminal charges screened by a grand jury
  • The right to avoid being tried twice for the same offense
  • The right to due process of law
  • The right to receive just compensation when private property is taken for public use
• Grand jury originated in England in the twelfth century to limit the government’s power to charge defendants with a crime, unless justified by the evidence
• Grand jury took on added importance as a protection against the crown’s arbitrary use of power
• In England, the right against self-incrimination grew out of the abuse of a system of inquisition – or questioning accused persons under oath to determine their guilt

6.  The Sixth Amendment: The Right to a Fair Trial

• Colonial Americans faced the disadvantages faced by those accused of crimes under English law
• Massachusetts Body of Liberties in 1641, first to protect the right to a speedy trial, by a jury, and with counsel
• Repeats Article III’s guarantee of a trial by jury in criminal cases, but adds…
  • The right to subpoena witnesses and have a lawyer
• Attempts to balance the enormous power of state (which pays for both police and prosecutors to prove guilt) against the power of the individual to prove innocence
• Declaration of Independence cited these jury issues
• Colonists were outraged when Parliament allowed colonists to be tried in courts without juries for violations of the Stamp Act of 1765
• Colonists could be transported back to England for trial

7.   The Seventh Amendment: Trial by Jury in Civil Cases

• Third time in the Constitution trial by jury is guaranteed
• Also limits a judge’s power to overturn factual decision by a jury, which could otherwise render a jury’s power meaningless
• The English used trial by jury to resolve disputes
• Some legal scholars have proposed that like the English, America abolish jury trial in civil cases – juries may not be the best dispensers of justice because of the complex of the facts involved
• Others believe jury trial is essential to democratic self-government

8.   The Eighth Amendment: Cruel and Unusual Punishment

• Comes almost word for word from the English Bill of Rights of 1689
• Massachusetts Body of Liberties in 1689 also provided for bail and forbade cruel and unusual punishment

9.   The Ninth Amendment: Unenumerated Rights

• With such a list of rights, one might assume that this was all there was
• James Madison included unenumerated rights – rights retained by the people but not written down in the Constitution
• Advocates of judicial restraint argue that such interpretations of the Ninth Amendment gives judges too much discretion
• Among the unenumerated rights are the right to travel, the right to vote, the right to privacy, the right to have an abortion, to have children, to marry, sexual privacy outside of marriage
• Could the vague language of this Amendment give unelected judges an unlimited license to create constitutional rights and overturn the decision of democratic majorities

10.   The Tenth Amendment: States Rights

• Protects powers, not rights – of the states, not individuals
• This is the only of the Bill of Rights that was recommended by all the state conventions that submitted proposed amendments
• Seeds of the Civil War – Does the conflict over slavery go back to this amendment and the right of the states to decide for themselves?
  • The slave states had slaves and secession didn’t begin until Lincoln was elected president – no attempt to stop slavery had begun at that point, merely the election of a Republican president

Amar, Akhil Reed. The Bill of Rights. New Haven: Yale University Press, 1998

Liddy, G. Gordon. When I Was a Kid, This Was a Free Country. Washington DC: Regenery Publishing, Inc., 2002

Monk, Linda R. The Words We Live By: Your Annotated Guide to the Constitution, New York: Hyperion, 2003

Patrick, John J. The Bill of Rights: A History in Documents, New York: Oxford University Press , 2003

Schwartz, Bernard. The Great Rights of Mankind: A History of the American Bill of Rights, New York: Oxford University Press, 1977

"The Bill of Rights: A Brief History" <http://archive.aclu.org/library/pbp9.html>. [accessed 3 March 2004].

National Archives & Records Administration - <http://www.archives.gov>