The Bill of Rights in Context:
How innovative was the Bill of Rights in the US Constitution?
Answer that question using this series of documents that provide context for understanding the Bill of Rights, including the Bill of Rights itself (which you should read even if you think you know what it says: pay attention to language and how the rights are defined). The English Bill of Rights of 1689 is the most important historical precursor that directly shaped the American versions. The Virginia Declaration of Rights shows an American antecedent at the state level. The document on rejected amendments is a collection of proposed alterations to the Constitution that provide insight into the broader rights many Americans wanted protected on the federal level. Finally, there is a letter from James Madison to Thomas Jefferson in which the so-called “Father of the Bill of Rights” offers less than rousing support for the document.
1) The Bill of Rights (1791)
2) The English Bill of Rights of 1689
3) The Virginia Declaration of Rights (1776)
4) Rejected Amendments (1787-1788)
5) James Madison on the Bill of Rights
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1) The Bill of Rights (1791):
What follows are the first ten amendments to the federal constitution of 1787: the “Bill of Rights.”
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, namely:
Amendment I
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
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
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
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
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
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
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.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
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.
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2) The English Bill of Rights of 1689 (Excerpts):
The English bill of rights was the root of the American versions that follow in subsequent documents. This bill of rights was the product of the “Glorious Revolution” that brought William and Mary to the English throne. In uniting with Parliament against James II, a Catholic who had persecuted English Protestants, William and Mary agreed to have restrictions placed on royal authority. The result was this declaration that defined the “rights of Englishmen.” Note: when American revolutionaries spoke of England violating their rights and of wanted to enjoy the rights enjoyed by people in England, it was to this document that they referred.
An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown:
Whereas the Lords Spiritual and Temporal and Commons assembled at Westminster, lawfully, fully and freely representing all the estates of the people of this realm, did upon the thirteenth day of February in the year of our Lord one thousand six hundred eighty-eight present unto their Majesties, then called and known by the names and style of William and Mary, prince and princess of Orange, being present in their proper persons, a certain declaration in writing made by the said Lords and Commons in the words following, viz.:
Whereas the late King James the Second, by the assistance of divers evil counsellors, judges and ministers employed by him, did endeavour to subvert and extirpate the Protestant religion and the laws and liberties of this kingdom;
By assuming and exercising a power of dispensing with and suspending of laws and the execution of laws without consent of Parliament;
By committing and prosecuting divers worthy prelates for humbly petitioning to be excused from concurring to the said assumed power;
By issuing and causing to be executed a commission under the great seal for erecting a court called the Court of Commissioners for Ecclesiastical Causes;
By levying money for and to the use of the Crown by pretence of prerogative for other time and in other manner than the same was granted by Parliament;
By raising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;
By causing several good subjects being Protestants to be disarmed at the same time when papists were both armed and employed contrary to law;
By violating the freedom of election of members to serve in Parliament;
By prosecutions in the Court of King’s Bench for matters and causes cognizable only in Parliament, and by divers other arbitrary and illegal courses;
And whereas of late years partial corrupt and unqualified persons have been returned and served on juries in trials, and particularly divers jurors in trials for high treason which were not freeholders;
And excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of the subjects;
And excessive fines have been imposed;
And illegal and cruel punishments inflicted;
And several grants and promises made of fines and forfeitures before any conviction or judgment against the persons upon whom the same were to be levied;
All which are utterly and directly contrary to the known laws and statutes and freedom of this realm;
[SNIP]
And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare
That the pretended power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal;
That the pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal;
That the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious;
That levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal;
That it is the right of the subjects to petition the king, and all commitments and prosecutions for such petitioning are illegal;
That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;
That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law;
That election of members of Parliament ought to be free;
That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament;
That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;
That jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders;
That all grants and promises of fines and forfeitures of particular persons before conviction are illegal and void;
And that for redress of all grievances, and for the amending, strengthening and preserving of the laws, Parliaments ought to be held frequently.
[SNIP]
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3) The Virginia Declaration of Rights (1776):
When the colonies declared independence from Britain they set about making new state governments. As part of the process, the new states included various declarations of rights. The declaration from Virginia was drafted by George Mason and became a model for the other states. As you read this document, consider the ways the Virginia Declaration of Rights follows the English Bill of Rights and how it departs from its English predecessor.
I That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.
II That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.
III That government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.
IV That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services; which, not being descendible, neither ought the offices of magistrate, legislator, or judge be hereditary.
V That the legislative and executive powers of the state should be separate and distinct from the judicative; and, that the members of the two first may be restrained from oppression by feeling and participating the burthens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections in which all, or any part of the former members, to be again eligible, or ineligible, as the laws shall direct.
VI That elections of members to serve as representatives of the people in assembly ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community have the right of suffrage and cannot be taxed or deprived of their property for public uses without their own consent or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented, for the public good.
VII That all power of suspending laws, or the execution of laws, by any authority without consent of the representatives of the people is injurious to their rights and ought not to be exercised.
VIII That in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation 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, without whose unanimous consent he cannot be found guilty, nor can he be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.
IX That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.
X That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
XI That in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.
XII That the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.
XIII That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.
XIV That the people have a right to uniform government; and therefore, that no government separate from, or independent of, the government of Virginia, ought to be erected or established within the limits thereof.
XV That no free government, or the blessings of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue and by frequent recurrence to fundamental principles.
XVI That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.
Adopted unanimously June 12, 1776 Virginia Convention of Delegates drafted by Mr. George Mason
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4) Rejected Amendments (1787-1788):
The following list of proposed amendments to the federal Constitution that were made during the process of ratification. Nearly all the proposals that follow were made in the various state ratifying conventions during 1787-1788. Many were drafted by delegates at these conventions who voted in favor of ratification with the understanding that the constitution would immediately be amended to include a bill of rights. Others were drafted by delegates at these conventions who opposed ratification because, among other reasons, these delegates and their constituents wanted to change the nature of federal authority. Each of the bills of rights proposed by the delegates included some version of the ten amendments that eventually became the Bill of Rights. What follows are amendments that didn’t make it into the final version and alternative wording of a few of the provisions designed to clarify and strengthen the right (for example freedom of religion). As you read these proposed amendments, think about the right being proposed and why the founding elite decided to reject them.
On Monopolies and Corporations:
That Congress erect no Company of Merchants with exclusive advantages of commerce.
That the Congress do not grant Monopolies or erect any Company with exclusive Advantages of Commerce.
That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community.
On Standing Army:
That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.
That no standing army shall be kept up in time of peace, unless with the consent of two thirds of the members present of each branch of Congress.
That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent of the Owners.
On Federal Control Over State Militias:
That the Militia of any State shall not be compelled to serve without the limits of the State for a longer term than six weeks, without the Consent of the Legislature thereof.
That each state, respectively, shall have the power to provide for organizing, arming and disciplining its own militia whensoever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service in time of war, invasion or rebellion: And when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments as shall be directed or inflicted by the laws of its own state.
The power of putting the militia under the terrors of martial law in time of peace, or of marching them, perhaps, to destroy the freedom of an oppressed sister state, without any check or control from the state governments, stand also in absolute need of revision and amendments.
On Freedom of Religion:
That no person conscientiously scrupulous of bearing arms, in any case, shall be compelled personally to serve as a soldier.
That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.
That there be no national religion established by law; but that all persons be equally entitled to protection in their religious liberty.
That religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others.
On Federal Taxation:
When Congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such State, according to the census herein directed, which is proposed to be thereby raised: And if the legislature of any state shall pass a law, which shall be effectual for raismg such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected in such state.
That Congress may not be vested with the power of levying internal direct taxes upon the citizens of any state, unless when such state proves obstinately delinquent; nor even then to have the power of levying poll taxes as they are in their nature unequal and always oppressive, as they go to tax not only the poor individuals, but the poor and remote counties equal with the more wealthy and more valuable situations.
On Term Limits:
That no Person be eligible as a Senator for more than six years in any term of twelve years.
That no Person shall be eligible to the Office of President of the United States a third time.
That no person shall be capable of being president of the United States for more than eight years in any term of sixteen years.
On the Right of Protest and Revolution:
That Congress shall not declare any state to be in rebellion without the consent of at least two-thirds of all the members present of both houses.
That it be declared, that all persons intrusted with the legislative or executive powers of government are the trustees and servants of the public; and, as such, accountable for their conduct. Wherefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to, reform the old, or establish a new government. The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
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5) James Madison on the Bill of Rights:
James Madison is widely regarded as the “father of the bill of rights,” and yet he was not a firm believed in the need or wisdom of adding a bill of rights to the federal constitution. Madison went to far as to say that a federal bill of rights was “unnecessary.” In this letter to Thomas Jefferson, Madison explains his tepid and conditional support:
My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.
I have not viewed it in an important light —
1. because I conceive that in a certain degree … the rights in question are reserved by the manner in which the federal powers are granted.
2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.
3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.
4. because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of h rights violated in every instance where it has been opposed to a popular current. … Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to. … Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. … The difference so far as it relates to the point in question — the efficacy of a bill of rights in controuling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community.
What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following …
1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.
2. Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well times advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our Governments to danger on that side.
It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark as usually understood does not appear to me to be well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and … is … applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which defines these extremes should be so inaccurately defined by experience.
Supposing a bill of rights to be proper … I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. … The best security agst these evils is to remove the pretext for them.
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Terry Bouton 