BILL OF RIGHTS

I

INTRODUCTION

Bill of Rights, first ten amendments to the Constitution of the United States. The Bill of Rights establishes basic American civil liberties that the government cannot violate. The states ratified the Bill of Rights in 1791, three years after the Constitution was ratified. Originally the Bill of Rights applied only to the federal government, but in a series of 20th-century cases, the Supreme Court decided that most of its provisions apply to the states. Many countries have used the Bill of Rights as a model for defining civil liberties in their constitutions.

II

RIGHTS PROTECTED

The Bill of Rights includes a wide range of protections with a common theme and purpose—to define the scope of individual freedom in the United States and to make the political system more democratic. They are not the only rights contained in the Constitution. For example, Sections 9 and 10 of Article I of the Constitution prohibit the states and the federal government from passing an ex post facto law—a law that subjects a person to punishment for an act that was not unlawful when committed. But as a group the rights provided in the first ten amendments are the cornerstones of democracy in the United States.

A

First Amendment

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.

Comment: The First Amendment guarantees freedom of speech, freedom of the press, and freedom of association and assembly. It also protects the rights of citizens to worship as they please and the right not to be forced to support someone else’s religion. The First Amendment also provides for the right to demand a change in government policies.

B

Second Amendment

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.

Comment: Legal scholars disagree about what right is protected by the Second Amendment. Some scholars have concluded that this amendment affirms a broad individual right to gun ownership. Others interpret the amendment as protecting only a narrow right to possess firearms as members of a militia. Supreme Court decisions have not resolved the debate. However, the courts have held that the Second Amendment does not preclude certain government regulations on gun ownership, such as laws prohibiting ownership of firearms by felons.

C

Third Amendment

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.

Comment: The Third Amendment forbids the government from quartering soldiers in private residences during peacetime without the resident’s permission, and during wartime only according to law. Under British rule, American colonists were forced to feed and house British soldiers deployed to help enforce colonial tax laws. The colonists resented this practice, and so banned it with this amendment. This amendment has been basically irrelevant since the end of the American Revolution (1775-1783).

D

Fourth Amendment

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.

Comment: The Fourth Amendment prohibits the police and other government officials from searching people’s homes or offices or seizing their property without reasonable grounds to believe that a crime has been committed. In most cases, police can conduct a search of a person’s home or office only after they get a written search warrant from a judge, detailing where they will search and what they expect to find.

E

Fifth Amendment

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 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.

Comment: The Fifth Amendment provides five important protections against arbitrary government actions. First, no one may be prosecuted for a federal crime without first being indicted (formally accused) by a grand jury. Second, a criminal suspect may be prosecuted only once for each crime. If a jury acquits the accused person, there can be no retrial. Third, a person cannot be forced to testify against himself or herself in any criminal case. This is the right against self-incrimination. Fourth, the due process clause bars the government from arbitrarily depriving anyone of life, liberty, or property. Fifth, the government may not take anyone’s private property unless it is necessary for a public purpose and unless the government pays a fair price for it.

F

Sixth Amendment

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 defence.

Comment: The Sixth Amendment guarantees people accused of crimes the right to a speedy and public trial. Defendants in federal cases are entitled to be tried in the area in which the crime was committed, and both state and federal defendants have the right to have an impartial jury decide their guilt or innocence. The Sixth Amendment prohibits the government from prosecuting an accused person without first informing him or her of the nature of the charges against him or her. The accused has the right to “confront”—that is, to cross-examine witnesses who testify against him or her at trial. Those accused also have a right to subpoena (compel) supporting witnesses to testify in court and to have a lawyer assist in their legal defense.

G

Seventh Amendment

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.

Comment: The Seventh Amendment, which does not apply to the states, guarantees the right to a jury in some types of federal civil (noncriminal) trials.

H

Eighth Amendment

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

Comment: The courts must allow most criminal defendants out of jail before their trial if the defendants put up a reasonable bail—a financial guarantee that they will come to the trial. If a person is convicted of a crime, the government cannot impose unreasonable fines or inflict inhumane punishments. What is “cruel and unusual” has no fixed meaning, and so decisions interpreting the clause are sometimes controversial. The Supreme Court has generally held that a punishment that is wildly disproportionate to the crime committed is cruel and unusual. The Court has also upheld the death penalty against claims that putting someone to death, regardless of what that person did, is cruel and unusual.

I

Ninth Amendment

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

Comment: The Ninth Amendment declares that just because certain rights are not mentioned in the Constitution does not mean that they do not exist. Courts may not infer from the silence of the Constitution that an unlisted right is unavailable to protect individuals from the government.

J

Tenth Amendment

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.

Comment: The Tenth Amendment restates a fundamental constitutional rule: If a particular power was not assigned to the federal government by the Constitution itself, then the states may exercise the power, unless the Constitution also prohibits the states from exercising it. The Tenth Amendment also states that people are free to act, without permission of the federal government, in areas outside the scope of the federal government's powers.

K

Summary

The first ten amendments to the Constitution have been crucial to the political and legal development of the United States. They accomplished three important purposes. First, they declare an important ideal—that the people have rights with which no government may interfere. Placing ideals into the Constitution makes it harder for tyrants to restrict human rights. Second, they provide the basis for actually securing the rights. In 1789 statesman Thomas Jefferson wrote James Madison that a bill of rights “puts into the hands of the judiciary” a “legal check” against tyranny by the legislature or the executive. Third, the Bill of Rights, especially the First Amendment, helps protect democratic government by barring criminal prosecutions against those who criticize the government and those who hold unpopular beliefs, and by providing a safe haven for minorities who are oppressed in many other countries.

III

ORIGINS OF THE BILL OF RIGHTS

A

The English Legal Tradition in America

When English immigrants came to the American colonies in the 17th and 18th centuries, most assumed that they would have the same protections against governmental abuses of power that they had in England. The most important of these were the right to trial by jury and the right of habeas corpus, which prevented the government from jailing people arbitrarily. Other personal liberties brought from England to America included the right of accused persons to have legal assistance at trials, and a ban on excessive fines and bail. These rights came from several centuries of English legal tradition, recorded in documents such as the Magna Carta of 1215, the Petition of Right of 1628, and the English Bill of Rights of 1689, from which the American Bill of Rights took its name. The assumption of basic legal rights of citizens also came out of the English common law, a body of English court-made law that evolved from the 12th century.

English settlers in America included many of these protections in colonial laws. The English Americans decided to codify (write into law) some parts of the common law and to make additions suited to the colonial society. The 1632 charter for the Maryland colony, for example, declared that all people who were born or who moved there were entitled to 'all Privileges, Franchises and Liberties' of a native Englishman. By 1639 the Maryland General Assembly had passed an act for 'the liberties of the people.'

Residents of the Massachusetts Bay Colony created the Body of Liberties in 1641, an important forerunner of the American Bill of Rights. The Body of Liberties granted limited religious freedom, assured landowners of the equal protection of the laws, the right to petition the government for change, and the use of the writ of habeas corpus. It also banned punishments considered 'inhumane, Barbarous or cruel' and recognized the right of an accused person to have legal assistance under some circumstances. The Body of Liberties also required the presence of several witnesses to a crime before a person could be sentenced to death. It also granted citizens the right to travel and settle abroad, an important freedom often denied in England.

Some colonies created religious protections stronger than those in Massachusetts, even though religious freedom was not part of the English legal tradition. Religious intolerance in the Massachusetts Bay Colony spurred some people, including clergyman Roger Williams, to flee to other areas. Williams went to Rhode Island in 1636, where he started a new colony based on religious freedom and political equality. Eventually these freedoms were incorporated into the Rhode Island Charter of 1663. This charter banned government repression of religious groups and guaranteed individuals the right to their own beliefs. The strong religious protections in Rhode Island marked out a significant new limit on government power.

B

Rebellion and Agitation for New Rights

By the 18th century, several generations of English Americans in the colonies accepted the basic rights of citizens as part of their birthright. British authorities shattered this assumption during the Seven Years’ War (1756-1763), during which European powers fought for control of North America. During the war British soldiers searched many colonists’ homes in an effort to find smuggled goods. By the end of the war, many colonists resented royal authority. The Stamp Act of 1765, which imposed a tax on a wide range of items, further increased tensions. The Stamp Act Congress of 1765 issued a Declaration of Rights that condemned the tax as unjust and also advocated trial by jury, the right to petition the government for change, and 'all the inherent rights and liberties' of people native to England. The rebellion against English rule had started and eventually led to the American Revolution (1775-1783).

England repealed the Stamp Act in 1766, but the crisis continued. In 1774 the Continental Congress issued a Declaration of Rights that claimed the civil liberties provided under English law, but that also expanded beyond them to include claims based on a so-called natural law. This idea of rights based on natural law emerged from several English writers of the period, especially John Locke and William Blackstone. Locke argued that government rested on the consent of the governed, and that no government could violate basic natural principles of justice. Blackstone put English common law into writing, and also asserted that God had created “certain immutable laws.” Although the Declaration of Rights asserted new principles of freedom, it had little impact beyond popularizing the cause of the American rebels.

The English government resisted American claims for freedom, and fighting broke out in 1775. Many of the colonies called conventions to create new state governments free of English control. In June 1776 Virginia’s state constitutional convention adopted the Virginia Declaration of Rights. The declaration created basic civil liberties, including safeguards for accused persons: the right to call witnesses, the right against self-incrimination, a ban on excessive bails and fines, and due process of law. The declaration also banned widespread government searches, discouraged the creation of standing armies, and called for freedom of the press. James Madison, a delegate to the convention, successfully argued for the inclusion of a guarantee of freedom of religion.

Many colonies followed Virginia’s lead when they established new state governments. Traces of the Virginia bill soon appeared in the Pennsylvania, Maryland, and Delaware declarations. By 1781 Massachusetts, North Carolina, New Hampshire, and the provisional government of Vermont had all prefaced their constitutions with some type of bill of rights. Most other states, including New York, New Jersey, South Carolina, and Georgia, protected civil liberties through a bill of rights in their new constitutions or through new supplementary laws. Only Rhode Island and Connecticut continued to rely on common law and existing legal provisions to guarantee personal rights.

The idea of a bill of rights as a basic protection of civil liberties thus dates to the American Revolution. From 1776 to 1781, the eight bills of rights adopted by the states contained a total of 90 different provisions. Some were heavily tailored to local circumstances. Most shared provisions for jury trial, freedom of speech, freedom of the press, the right to bear arms (weapons), the right to petition the government for change, and a range of other freedoms rooted in the Magna Carta and the English common law. Through their assertions of broad rights to freedom of speech and religion, however, these documents broke with English tradition. In addition, the American bills of rights went far beyond the English precedents by ordering restraints on the powers of government that had been unthinkable before 1776.

IV

DEBATE OVER THE CONSTITUTION

The original Constitution drafted in 1787 did not include a bill of rights because the delegates to the Constitutional Convention did not think it necessary to set down a list of rights. Most of the framers believed that because the Constitution created a limited federal government, authorities would not try to establish a national religion, censor a newspaper, or prosecute someone at a secret trial.

When the Constitution went before the states for ratification, members of the Federalist Party, who favored ratification, soon found that failure to include a bill of rights had been a strategic error. The Federalists argued that the people retained all powers not delegated by the proposed Constitution, but the anti-Federalists did not trust this reasoning. Jefferson, then serving as a minister to France, read the proposal and sided with the advocates of a bill of rights. Human rights, he argued, were something 'no just government should refuse, or rest on inference.'

The Federalists and anti-Federalists both tried to rally support for their position through widely distributed pamphlets. The Federal Republican Society, for example, printed antiratification pamphlets and spread them through the states. This group hoped that the states would reject the Constitution, which would lead to a second federal convention. Some states ratified the Constitution as early as 1787, but debates in these states often turned on the lack of a bill of rights. As the pamphlet war dragged out into the spring of 1788, many Federalists concluded that some concessions on the bill of rights issue were vital.

The debate over ratification extended beyond party lines. Many religious groups, particularly the Baptists, expressed alarm over the lack of explicit religious protections. Printers worried about possible curbs on the press. Old fears from pre-Revolutionary days regarding sweeping government searches, warrants, criminal-trial procedure, and other rights were stirred afresh during the debates.

Dedicated Federalists such as Alexander Hamilton remained unconcerned by the calls for a bill of rights, but Madison and others saw the need to compromise. The Constitution took effect when New Hampshire became the ninth state to ratify it on June 21, 1788. Virginia’s ratifying convention debated bitterly but finally approved the Constitution by a narrow margin five days after New Hampshire’s vote. Discouraged by the Virginia vote, the New York anti-Federalists accepted that the Constitution would be adopted, but also insisted that the First Congress consider a bill of rights. Leaders in Rhode Island and North Carolina refused to ratify the Constitution because of the lack of a bill of rights.

James Madison kept the idea of a bill of rights alive in Congress. He had lost a Senate seat and barely won election to the House of Representatives, having finally made an unequivocal campaign pledge to fight for a bill of rights. Madison soon found he was almost alone in his concern for prompt action on this promise, but agreed to consider all reasonable suggestions for the new bill of rights. He distilled the essence of English and American personal freedoms, relying heavily on George Mason’s Virginia Bill of Rights.

When Madison reminded fellow members of Congress of the promise to enact a bill of rights, his insistence upon action met with some coolness. He kept fighting, however, and presented his plan to the House in June 1789. Madison originally thought the bill of rights should be incorporated into the original Constitution, rather than offered as separate amendments. After weeks of delay, the House appointed a committee to prepare a bill of rights, with Madison and Roger Sherman of Connecticut serving under Chairman John Vining of Delaware. Sherman favored a separate bill of rights, and his suggestion was finally adopted over Madison's inclusion plan. After much debate, the House passed 17 proposed amendments.

The Senate combined some amendments and eliminated others, reducing the number to 12. The Senate defeated one amendment that Madison said he prized above all others. It would have prohibited the states from interfering with their citizens’ freedom of speech, religion, and conscience. But the Senate did not want to bind the states, and regarded the bill of rights as limiting only the federal government. The House and Senate deadlocked over the different versions of the bill of rights, and a joint committee convened to work out a final set of amendments. From this joint conference 12 amendments emerged, which the Congress passed on September 25, 1789.

Support from three-fourths of the states is needed to amend the Constitution. Vermont’s 1791 statehood brought the number of states to 14, so 11 states were required to add the Bill of Rights to the Constitution. Virginia became the 11th to do so on December 15, 1791. Most states did not ratify the first two articles of the Bill of Rights. The first dealt with the method of assigning congressional seats to the states. This amendment was never ratified. The second article, specifying congressional pay rates could not be changed before an intervening House of Representatives election, lay dormant for more than 200 years. The states eventually ratified it in 1992 as the 27th Amendment. The original third article of the Bill of Rights, when ratified in 1791, thus became the First Amendment.

V

INTERPRETATION

Courts interpreted the federal Bill of Rights narrowly for most of American history, but during the 20th century courts vastly expanded its protections. One of the most glaring violations of the Bill of Rights came in 1798 when Congress passed the Alien and Sedition Acts, which gave the government broad powers to squelch free speech. Opponents of the acts charged that they violated the First Amendment, but a court test never came. In a later dispute, Chief Justice John Marshall spoke for the Supreme Court in 1833 when he declared in Barron v. Baltimore that the first ten amendments applied only to the federal government, not to the states.

The Bill of Rights finally received close judicial analysis during Reconstruction—the process of rebuilding the South’s tattered political and economic system after the Civil War (1861-1865). The Supreme Court ruled in the so-called Slaughterhouse Cases of 1873 that, although the 14th Amendment prohibited laws that infringed on “privileges and immunities of citizens,' this protection did not include the first eight amendments. This decision effectively blocked any attempt to make the Bill of Rights binding on the states.

The Supreme Court applied Bill of Rights protections to the states in 1925 in Gitlow v. New York. The Court said that freedom of speech and of the press were fundamental personal liberties 'protected by the Due Process Clause of the 14th Amendment from impairment by the States.' This application of the Bill of Rights through the 14th Amendment is sometimes called the doctrine of “incorporation.” But in 1937 the Supreme Court decided in Palko v. Connecticut that not all of the Bill of Rights was incorporated by the Due Process Clause, limiting such sections to those dealing with rights 'implicit in the concept of ordered liberty.' By the end of the 1960s, however, the Court had decided to apply nearly all of the Bill of Rights to the state level. See Supreme Court of the United States.

VI

COMPARISON WITH LAWS IN OTHER COUNTRIES

As interpreted by the Supreme Court, the Bill of Rights is the most extensive charter of liberties in the world today. Many other nations observe most of the same rights, but not necessarily in the same way or to the same degree. The Canadian Charter of Rights and Freedoms, for example, guarantees most of the liberties protected by the Bill of Rights, but some of its provisions may be overridden in certain circumstances by both the Canadian federal government and provincial legislatures. In the United States, neither Congress nor the state legislatures may pass a law that conflicts with the Bill of Rights. Citizens of Britain enjoy civil liberties, but the Church of England remains the official church and the freedoms of speech and of the press are weaker than in the United States. Moreover, Parliament is supreme and may pass laws that violate civil liberties if it chooses. France and most other non-English-speaking countries of Western Europe and South America have a different type of criminal law system, and many protections afforded to the accused in the United States do not exist in these countries. Constitutions of the former Communist countries such as the Soviet Union and much of Eastern Europe established civil liberties on paper but created no enforcement mechanisms. One of the first legal steps taken in the newly emerging democracies in Russia and Eastern Europe in the 1990s was to add enforceable civil liberties to their rewritten constitutions.