Bills of rights were not new at the time of the
Founding. The 1215 Magna Carta forced King John to respect specified
rights, the English Bill of Rights of 1689 guaranteed rights, and
many states had previously enacted declarations of rights into their state
constitutions.
The call for a Bill of Rights was an
anti-Federalists political weapon against ratification. For many
antifederalists, the real objection was that the Constitution defined a
national government far too strong for their taste. This argument floundered,
while a demand for a bill of rights gained enormous traction with people.
Influential Founders made vocal and repeated demands for a Bill of Rights.
Thomas Jefferson called the omission a major mistake, writing, “A bill of
rights is what the people are entitled to against every government on earth.”
Richard Henry Lee objected to the lack of protection for, “those essential
rights of mankind without which liberty cannot exist.”
At first, the
Federalists argued that the Constitution’s checks and balances constrained the
government so it couldn’t abridge individual rights. But in the Virginia
convention, Patrick Henry denounced the Constitution’s checks and balances,
calling them, “specious, imaginary balances,” and “ridiculous ideal checks and
contrivances.”
Rights
in the Constitution Prior to the Bill of Rights
The base document included a few rights
interspersed throughout the text. Writ of habeus corpus could not be
suspended—except when the country was under attack; no bill of attainer or ex
post facto law could be passed at the national or state level; Americans were
guaranteed a jury trial for criminal cases; there could be no religious test
for federal office, no state law could impair the obligation of contracts, and
the citizens of each state were entitled to the privileges and immunities of
the citizens of every other state.
Most people have forgotten that there
is a preamble to the Bill of Rights, which among other things reads, “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.” Here are some of the declaratory
and restrictive clauses used in the first eight amendments.
Congress shall make no law
shall not be infringed
without the consent
shall not be violated
nor shall be compelled
the accused shall enjoy
nor be deprived
no fact tried by a jury, shall be otherwise re-examined
shall not be required
Despite a modern perception that the
Constitution bestows and protects rights, it is clear that the Bill of Rights
is really a list of government prohibitions. The Founders did not believe in
government benevolence, and would never have accepted the government—including
the Supreme Court—as the arbiter of rights.
Little
Known facts
The Bill of Rights has lived almost
as long as our Constitution. It has an extensive history with real people
behind its creation, ratification, and legal challenges. Here are a few lesser
known facts about the Bill of Rights.
Madison’s proposal did not call for
a list of rights as amendments, but rather for insertions, deletions and
revisions to be added right into the text of the Constitution. Congress decided
to add them as a list at the end.
Washington had thirteen copies made
and sent the original and copies to the fourteen states. Where are the original
copies of the Bill of Rights? Three are preserved at the
National Archives. Eight states still have their
copies, and another copy is in a New York library. Two copies are missing.
Massachusetts, Connecticut and
Georgia did not ratify the Bill of Rights until 1939 on the 150th anniversary
of ratification by eleven of the fourteen states.
Two of twelve proposed amendments
were not ratified by the states. One of the rejected amendments put
restrictions on Congress setting its own salary. More than 200 years later,
this amendment was ratified and became the 27th Amendment.
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