Prepared by Eric Schnurer, Esq.
The Bill of Rights is the first ten Amendments to the Constitution of the United States. It is historically a result of fierce battles and compromise, and it was 200 years old in 1991.
The Bill of Rights was an outgrowth of the battle for ratification of the Constitution itself. Several states - particularly such populous and politically powerful states as Virginia, Massachusetts and New York - made adoption of a Bill of Rights the implicit or explicit "trade off" for their votes to ratify the new federal Constitution.
Bills of rights were not a new idea. The various colonies had framed
such declarations of human rights early in the struggle against oppression
by the government of George III. They did this while adopting their original
state charters. Many of the provisions of the federal Bill of Rights were
modeled on those prior state bills of rights.
James Madison, a member of the First Congress and later the fourth president, is generally known as the "Father of the Constitution" because of his instrumental role in its creation. Madison was at first opposed to adding a bill of rights to the federal charter. He felt that the new federal government should be a "limited government" of only those powers expressly delegated to it by the states in the written Constitution. Therefore, he thought setting out specific limits on the central government's powers to be unnecessary. He feared that an enumeration might later be used by the federal government to justify overstepping in any area not specifically listed.
Madison eventually recognized that a bill of rights would be necessary to overcome opposition to the Constitution by those who feared that it gave too much power to this new, central government. His good friend, Thomas Jefferson, also helped convince Madison that a bill of rights could in fact be structured to serve as a proper limitation on government power.
The approach of Madison and Jefferson resulted in the Ninth and Tenth Amendments. These amendments reaffirm that - despite anything said in the previous amendments - the people retain "unenumerated rights" against the government. The states retain any powers not expressly given to the federal government.
After ratification of the Constitution, Madison began collecting all the state bills of rights and various proposals from the state ratifying conventions. He worked them into a set of proposed amendments. It is Madison's work which emerged from the First Congress and became the Bill of Rights sent to the states for ratification.
The proposals sent to the states originally consisted of twelve suggested amendments. The first two never were approved the requisite number of states. On December 15, 1791, Secretary of State Thomas Jefferson formally declared that the other ten proposals had received the required approval. They became the first amendments to the Constitution.
The First Amendment guarantees various freedoms of conscience - including
freedoms of religion, speech, press, assembly, and the right to petition
the government. The Second Amendment protects the ability of states to
raise militias and prohibits the federal government from limiting the "right
to bear arms" The Third Amendment prevents the quartering of troops
in private homes except in wartime - and this has rarely been invoked.
The Fourth, Fifth, and Sixth Amendments cover various rights which arise
largely in a criminal context. They include limitations on government searches,
arrests, and interrogations, as well as guaranteeing the rights we associate
with fair trials. The Seventh Amendment preserved the common law right
to a jury trial in civil lawsuits. The Eighth Amendment bars excessive
bail or fines, or "cruel and unusual punishment".
In the 1833 landmark case of Barron v. Baltimore, the Supreme Court ruled that the Bill of Rights only applied to the federal government. If this had remained the law, most of the rights we now take for granted - such as freedom of speech, the right to know why you are being arrested, the right to a jury or freedom of religion - would not be enforceable at the state and local government level - where it arises most often today.
Following the Civil War, the nation adopted the Fourteenth Amendment. It contains a "due process" clause prohibiting states from denying any person "life, liberty or property" without due process of law. The Supreme Court first rejected the argument in the criminal context - that this notion of "due process" made the Bill of Rights applicable to the states.
In 1897, however, the Court ruled that "due process" must incorporate the idea of just compensation for the public appropriation of private property. This concept is embodied in the Fifth Amendment. With this, the Court began making individual provisions of the Bill of Rights binding on the states also. This process has become known as the "incorporation" of the Bill of Rights into the Fourteenth Amendment.
Today, most - but not all - of the guarantees of the Bill of rights
are applicable to state and local governments and the federal government.
This process took many years. For instance, it wasn't until 1948 that the
Court ruled that state governments could not impose religious establishments
on their people, or that the states had to provide trials in public. Most
of the "incorporation" of the Bill of Rights took place in the
1960's. It was not until 1979 that the Supreme Court held that defendants
in state courts were entitled to a unanimous verdict of a jury of at least
six people. The Court has refused to require a jury of twelve jurors, as
is required by the Constitution in federal trials.
The Bill of Rights has continued to grow and adapt to our ever changing
world.
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