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United States Bill of Rights

2007 Schools Wikipedia Selection. Related subjects: Law

   Image of the United States Bill of Rights from the U.S. National
   Archives and Records Administration.
   Enlarge
   Image of the United States Bill of Rights from the U.S. National
   Archives and Records Administration.

   The Bill of Rights is the term used to describe the first ten
   amendments to the United States Constitution. These amendments limit
   the powers of the federal government, 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, the
   freedom to petition, and the right to keep and 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. In addition, the Bill of Rights
   states that "the enumeration in the Constitution, of certain rights,
   shall not be construed to deny or disparage others retained by the
   people," and reserves all powers not granted to the Federal government
   to the citizenry or States. These amendments came into effect on
   December 15, 1791, when ratified by three-fourths of the 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 was influenced by
   George Mason's 1776 Virginia Declaration of Rights, the 1689 English
   Bill of Rights, works of the Age of Enlightenment pertaining to natural
   rights, and earlier English political documents such as the Magna Carta
   (1215). The Bill was largely a response to the Constitution's
   influential opponents, including prominent Founding Fathers, who argued
   that it failed to protect the basic principles of human liberty.

   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. One of the original fourteen copies of the Bill of Rights is on
   public display at the National Archives in Washington, DC.

   The original documents actually contain 12 amendments; however, the
   first two were not initially ratified, though the second one was
   ratified two centuries later as the 27th Amendment. Since the first two
   amendments dealt with Congress itself rather than the rights of the
   people, the term "Bill of Rights" has traditionally meant only the
   amendments numbered "third" through "twelfth" in the documents, which
   were ratified as the first ten amendments; that traditional usage has
   continued even since the ratification of the 27th Amendment.

Background

                                                Founding Documents
                                                      of the United States
                                        Declaration of Independence (1776)
                                          Articles of Confederation (1777)
                                                       Constitution (1787)
                                                     Bill of Rights (1789)

   The Philadelphia Convention, 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, a product of the Connecticut
   Compromise between the New Jersey Plan and the Virginia Plan, included
   a strong executive branch, a stronger legislative branch and an
   independent judiciary. However, ardent 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 George III of England.

Arguments against

   A portrait of Alexander Hamilton by John Trumbull, 1792
   Enlarge
   A portrait of Alexander Hamilton by John Trumbull, 1792

   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 Federalist No. 84,
   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 favour 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?"(op.cit)

The Anti-Federalists

   On June 5, 1788, Patrick Henry spoke before Virginia's ratification
   convention in opposition to the Constitution: "Is it necessary for your
   liberty that you should abandon those great rights by the adoption of
   this system? Is the relinquishment of the trial by jury and the liberty
   of the press necessary for your liberty? Will the abandonment of your
   most sacred rights tend to the security of your liberty? Liberty, the
   greatest of all earthly blessings—give us that precious jewel, and you
   may take every thing else!"
   Enlarge
   On June 5, 1788, Patrick Henry spoke before Virginia's ratification
   convention in opposition to the Constitution: "Is it necessary for your
   liberty that you should abandon those great rights by the adoption of
   this system? Is the relinquishment of the trial by jury and the liberty
   of the press necessary for your liberty? Will the abandonment of your
   most sacred rights tend to the security of your liberty? Liberty, the
   greatest of all earthly blessings—give us that precious jewel, and you
   may take every thing else!"

   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, in allusion to 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,
   probably by Robert Yates. 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."

   Yates 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

   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

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

   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. The English legal tradition
   included such revolutionary documents as the Magna Carta (1215),
   protecting the rights of noblemen against the King of England, and the
   English Bill of Rights (1689), establishing the rights of legislators
   in Parliament against the power of the sovereign. Concurrently, John
   Locke had 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.

Antecedents

   Madison's "Notes for speech on Constitutional amendments, June 8, 1789,
   in which he underlined the concept of "natural rights retained."
   Enlarge
   Madison's "Notes for speech on Constitutional amendments, June 8, 1789,
   in which he underlined the concept of " natural rights retained."

   To some degree, the Bill of Rights (and the American Revolution)
   incorporated the ideas of English philosopher John Locke, who argued in
   his 1689 work, Two Treatises of Government, that civil society was
   created for the protection of property (Latin proprius, or that which
   is one's own, meaning "life, liberty, and estate.") Locke also advanced
   the notion that each individual is free and equal in the state of
   nature. Locke expounded on the idea of natural rights that are inherent
   to all individuals, a concept Madison mentioned in his speech
   presenting the Bill of Rights to the 1st Congress.

   The Virginia Declaration of Rights, well-known to Madison, had already
   been a strong influence on the American Revolution ("all power is
   vested in, and consequently derived from, the people ..."; also "a
   majority of the community hath an indubitable, unalienable, and
   indefeasible right to reform, alter or abolish [the government]"). It
   had shaped the drafting of the United States Declaration of
   Independence a decade before the drafting of the Constitution,
   proclaiming that "all men are by nature equally free and independent,
   and have certain inherent rights of which ... [they cannot divest;]
   namely, the enjoyment of life and liberty, with the means of acquiring
   and possessing property, and pursuing and obtaining happiness and
   safety." On a practical level, its recommendations of a government with
   a separation of powers (Articles 5–6) and "frequent, certain, and
   regular" elections of executives and legislators were incorporated into
   the United States Constitution — but the bulk of this work addresses
   the rights of the people and restrictions on the powers of government,
   and is recognizable in the modern Bill of Rights:

   The government should not have the power of suspending or executing
   laws, "without consent of the representatives of the people,". A legal
   defendant has the right to be "confronted with the accusers and
   witnesses, to call for evidence in his favour, and to a speedy trial by
   an impartial jury of his vicinage," and may not be "compelled to give
   evidence against himself." Individuals should be protected against
   "cruel and unusual punishments", baseless search and seizure,, and be
   guaranteed a trial by jury. The government should not abridge freedom
   of the press, or freedom of religion ("all men are equally entitled to
   the free exercise of religion"). The government should be enjoined
   against maintaining a standing army rather than a "well regulated
   militia."

   The English Bill of Rights (1689), one of the fundamental documents of
   English law, differed substantially in form and intent from the
   American Bill of Rights, because it was intended to address only the
   rights of Parliamentarians sitting in Parliament against the Crown.
   However, some of its basic tenets are adopted and extended to the
   general public by the U.S. Bill of Rights, including
     * an independent judiciary (the Sovereign was forbidden to establish
       his own courts or to act as a judge himself),
     * freedom from taxation by royal (executive) prerogative, without
       agreement by Parliament (legislators),
     * freedom from a peace-time standing army,
     * freedom [for Protestants] to bear arms for self-defence,
     * freedom to elect members of Parliament without interference from
       the Sovereign,
     * freedom of speech in Parliament,
     * freedom from cruel and unusual punishments and excessive bail, and
     * freedom from fines and forfeitures without trial.

Madison's preemptive proposal

   On June 8, 1789, Madison submitted his proposal to Congress. In his
   speech to Congress on that day, Madison said,

          "For while we feel all these inducements to go into a revisal of
          the constitution, we must feel for the constitution itself, and
          make that revisal a moderate one. I should be unwilling to see a
          door opened for a re-consideration of the whole structure of the
          government, for a re-consideration of the principles and the
          substance of the powers given; because I doubt, if such a door
          was opened, if we should be very likely to stop at that point
          which would be safe to the government itself: But I do wish to
          see a door opened to consider, so far as to incorporate those
          provisions for the security of rights, against which I believe
          no serious objection has been made by any class of our
          constituents."

   Prior to listing his proposals for a number of constitutional
   amendments, Madison acknowledged a major reason for some of the
   discontent with the Constitution as written:

          "I believe that the great mass of the people who opposed [the
          Constitution], disliked it because it did not contain effectual
          provision against encroachments on particular rights, and those
          safeguards which they have been long accustomed to have
          interposed between them and the magistrate who exercised the
          sovereign power: nor ought we to consider them safe, while a
          great number of our fellow citizens think these securities
          necessary."

Ratification process

   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 only by 10/14 States (< 75%), and
   despite later ratification by Kentucky (11/15 States < 75%), the
   article has never since recieved the approval of enough states for it
   to join the Constitution. Article II was ratified by 6/14, later 7/15
   States, but did not recieve the 3/4 majority of States needed for
   ratification until 1992 when it tardily became the 27th Amendment to
   the Constitution.

Ratification dates

     * 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

   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

   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. 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 the 1925 judgment on 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.

Display and honoring of the Bill of Rights

   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 and Records
   Administration, 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."

   In 1991, the Bill of Rights toured the country in honour of its
   bicentennial, visiting the capitals of all 50 states.

Text of the Bill of Rights

Preamble

   The Preamble to the Bill of Rights

     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."

Amendments

   The Bill of Rights
   First ten amendments to the

   United States Constitution
   First Amendment
   Second Amendment
   Third Amendment
   Fourth Amendment
   Fifth Amendment
   Sixth Amendment
   Seventh Amendment
   Eighth Amendment
   Ninth Amendment
   Tenth Amendment
     * 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 for the people to keep and bear arms, as
       well as to maintain a militia.

          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 a piece 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 any 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 where in 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 favour, and to have the
          Assistance of Counsel for his defense.

     * Seventh Amendment – Civil trial by jury.

          In suits at common law, where the value in controversy shall
          exceed twenty dollars.

     * Eighth Amendment – Prohibition of excessive bail, as well as cruel
       and 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
          Constitution, nor prohibited by it to the states, are reserved
          to the states respectively, or to the people.

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