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Bill of Rights

Steel engraving, American, 19th century, after a painting by Michael Angelo Wageman

George Washington at the Constitutional Convention in Philadelphia, 1787    

The Bill of Rights are the first ten amendments to the Constitution of the United States. Considered the cornerstone of basic American freedoms, it ranks alongside the Constitution and the Declaration of Independence as one of the nation's most treasured documents. Its laws specify the fundamental rights and most cherished liberties of the American people. It protects them from the whims of popular majority opinions and abusive government officials.

The Bill of Rights became part of the Constitution of the United States on December 15, 1791. On the 150th anniversary of this event in 1941, President Franklin Roosevelt proclaimed December 15 as Bill of Rights Day. He wanted to make Americans aware of their rights and to remind them of their duties as citizens of the United States. On this day in 1991, Americans recognized the 200th anniversary of these important amendments that have proved so essential to the American political tradition.

Why the Bill of Rights Was Added to the Constitution

At the Constitutional Convention of 1787, George Mason, author of the Virginia Declaration of Rights (1776), suggested prefacing the Constitution with a bill of rights. The delegates rejected the idea. However, the failure to mention basic rights soon became a major issue in the debates that followed over whether or not the proposed Constitution would be ratified, or approved.

The debate over the need for a bill of rights was sparked at the ratifying convention in Pennsylvania. Some delegates believed that guarantees of certain basic rights and liberties were missing from the proposed Constitution. They called for a number of amendments that would secure a wide range of liberties. These included the free exercise of religion, freedom of speech and press, and protection against unreasonable searches and seizures. Majorities in the ratifying conventions of New Hampshire, Massachusetts, New York, Maryland, Virginia, North Carolina, and South Carolina also called for numerous amendments. The recommendations differed from state to state. But most contained provisions that would limit the powers of the new federal (national) government. This was intended to protect the people from inconsistent and oppressive rule.

Some Federalists (those who supported ratification) argued that a bill of rights was unnecessary. Alexander Hamilton maintained that the proposed government would have specific and limited powers. Therefore, it could not endanger the fundamental liberties of the people. "Why," he asked, "declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?"

Nevertheless, the Federalists had to support the addition of a bill of rights. Without one, several key states would reject the constitution entirely. And no one wanted to face the possibility of another constitutional convention.

Drafting the Bill of Rights

James Madison is known as the Father of the Constitution. But he may also be considered the Father of the Bill of Rights. While campaigning for a seat in the House of Representatives, he promised to fight for the adoption of a bill of rights. True to his word, he took the lead in the First Congress and pressed for the desired amendments.

On June 8, 1789, drawing from proposals made by the various state ratifying conventions, Madison proposed nine amendments to the Constitution. They contained nineteen specific provisions. Many of these are now contained in the Bill of Rights. A House committee then drafted a bill, hoping to win the necessary two-thirds approval of both houses of Congress. Some proposals were modified, some new ones were added, and several others were eliminated.

The proposed Bill of Rights that finally emerged consisted of twelve amendments. The first two were never ratified. (They concerned the size of the House of Representatives and compensation for senators and representatives.) On December 15, 1791, Virginia ratified the remaining ten amendments. The Bill of Rights then officially became part of the Constitution.

What the Bill of Rights Says

The first eight amendments of the Bill of Rights set forth specific guarantees and liberties. Most people believe the most important rights are the ones guaranteed by the First Amendment. They include the fundamental freedoms of religion, speech, and press and the right of the people to assemble and to petition a government. These are commonly known as the First Amendment Freedoms.

Other vital provisions in the first eight amendments also deal with the rights of individuals. They are designed to protect people against inconsistent or abusive government, particularly in criminal proceedings. For example, the Fourth Amendment protects individuals from unreasonable searches and seizures (either of themselves or of their property and possessions) by law enforcement officials. The Fifth Amendment prohibits double jeopardy. This means that someone cannot be tried twice for the same crime. The Fifth Amendment also states that people cannot be compelled to testify against themselves (self-incrimination). It also guarantees "due process," meaning anyone accused of a crime must be properly notified of the charges and given a fair hearing. The Sixth Amendment establishes the right of an accused person to a public trial by jury. The accused also has the right to have a lawyer. to confront hostile witnesses, and to obtain witnesses in his or her defense. Finally, the Eighth Amendment prohibits inflicting "cruel and unusual punishments" (either mental or physical) on anyone convicted of a crime.

The remaining amendments (the Second, Third, and Seventh) address other specific concerns. Of these, the Second Amendment is the most controversial. It notes the need for a "well regulated militia" (a body of citizen soldiers called to serve during times of emergency or war). It also proclaims that the people's right "…to keep and bear Arms, shall not be infringed." The Third Amendment prevents the government from forcing citizens to shelter soldiers in their homes. (This was included in response to abuses by British forces during the Revolutionary War.) The Seventh Amendment, included to satisfy the demands of many Anti-Federalists, insures trial by jury in civil suits.

The Federalists argued that it would be impossible to list all of the rights and liberties that should be protected. Therefore, the Ninth Amendment acknowledges that the American people have rights that are not specified. And the Tenth Amendment declares that the states or people retain those "powers not delegated to the United States by the Constitution."

The Origins of the Bill of Rights

In 1776, Virginia became the first of ten states to issue a bill of rights. Each one contained elements that were later included in the federal Bill of Rights. Major portions of the First, Fourth, Fifth, Sixth, and Eighth amendments, for example, can be traced directly to the Virginia Bill of Rights.

Many of the other rights and liberties contained in the Bill of Rights originated in England. Some date as far back as Magna Carta (1215). This document marked the first step toward constitutional law in England. Part of the Fifth Amendment, for example, is rooted in Chapter 39 of Magna Carta. It specifies that individuals cannot be deprived of their "life, liberty, or property, without due process of law."

England's Petition of Right (1628) and Bill of Rights (1689) further expanded individual liberties. They also limited the ruler's powers and authority. Some of these rights and liberties were considered "rights of Englishmen" and were included in the charters that established the American colonies. They included trial by jury, protection against self-incrimination, and unreasonable search and seizure.

Enforcing the Bill of Rights

All state and federal courts are responsible for enforcing the Bill of Rights. The United States Supreme Court makes the final determination whether or not constitutional principles have been violated. But making such determinations is never easy. The Court must answer such difficult questions as, What constitutes "unreasonable" search and seizure? To what extent can you limit individual freedoms for reasons of public morality, safety, or health? Under what circumstances may freedom of speech be legally restricted?

Originally the Bill of Rights applied only to the laws and activities of the federal government. But after the Civil War (1861–65), its provisions were also applied to the states. The 14th Amendment, ratified in 1868, was the first to specify a state's obligations. It says that no state "shall…deprive any person of life, liberty, or property without due process of law." Today it is understood that the fundamental rights and liberties guaranteed by the Bill of Rights apply equally to both the federal and the state governments.

Each of the fifty states' constitutions contains a bill of rights. Some are even more detailed than the federal Bill of Rights. For example, the California Declaration of Rights is very specific. It declares, "A person may not be disqualified from entering or pursuing a business, profession, vocation, or employment because of sex, race, creed, color, or national or ethnic origin."

The Canadian Bill of Rights

Canada's Bill of Rights is called the Canadian Charter of Rights and Freedoms. It was officially proclaimed by the Canada Act on April 17, 1982. It applies to both the national and provincial governments. Sections of the charter deal with distinctly Canadian concerns. For example, one section says that the French and English languages have equal status in official government proceedings.

The charter contains numerous Fundamental Freedoms and Legal Rights. These correspond to the First Amendment in the American Bill of Rights but are more extensive. For example, in addition to freedom for the press and media, peaceful assembly, and freedom of speech and religion, they include freedom of association, conscience, thought, belief, and opinion.

The legal rights of the charter are similar to those found in the Fourth, Fifth, Sixth, and Eighth amendments in the American Bill of Rights. They include protection against self-incrimination, double jeopardy, unreasonable search and seizure, and cruel and unusual punishment.

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