In the summer of 1787, delegates from the 13 colonies convened in Philadelphia to discuss how best to govern themselves. Out of the gathering came the Constitution of the United States, that remarkable blueprint of a new nation whose people had fought hard and valiantly to win their independence from England.
The first draft of the Constitution set up a system of checks and balances that included a strong executive, a representative legislature and a federal judiciary, as well as a division of federal and state powers. But contrary to the urging of some delegates, the framers did not include a specific declaration of rights. In other words, the Constitution specified what the government could do but did not say what the government could not do.
The Constitution was signed in September 1787 and sent to the Congress. Eleven days later, it was submitted to the states for ratification. But as the people began to examine the document, they came to share the sentiments of those who advocated that the Constitution include a set of specific guarantees - among them, the right to free speech, freedom of religion, due process of law and freedom from governmental search and seizure. The people ratified the Constitution only after its framers pledged to add to it such protections. Congress added those protections in 1789, and in 1791 two-thirds of the states ratified the first ten amendments to the Constitution, which became known as the Bill of Rights.
The framers of our Constitution drew their concept of civil liberty from various historical experiences. From the ancient Greek philosophers, whose society of city- states enshrined the principle of the rule of law, came the idea of "natural law" and its derivative, the concept of equality. From the Romans, who advanced the Greek idea of natural law, came a governmental structure based on separation of powers.
The framers were also deeply influenced by England's centuries-long struggle to create political institutions founded on the principle of equality before the law, and the equalization of political power. That struggle culminated in the formulation of the Magna Carta in 1215, which Winston Churchill said, centuries later, established that "there is a law above the king." The Magna Carta was the first written document to set forth rules that the monarch was bound to obey, including such basic civil liberties as the security of person and private property, the right to seek redress of grievances from the sovereign, and the right to due process of law.
England's Petition of Right, issued in 1628, asserted the right of citizens to be free from unrepresentative taxation and arbitrary imprisonment. The English Bill of Rights of 1689 declared that parliamentary elections should be free and binding, and it condemned excessive bail, as well as cruel and unusual punishments.
Americans were also influenced by 17th and 18th century English political philosophers, particularly John Locke. Locke maintained that: government originates as a compact freely entered into by the citizens of a society; government gains legitimacy only through the consent of the governed, not from brute force; and a free society is the highest purpose of organized government. According to Locke, "[T]he end of law is not to abolish or restrain but to preserve and enlarge freedom."
Out of these influences evolved a common law understanding in the United
States of the basic civil liberties that all Americans enjoy as their birthright,
and that government should be bound to respect.
The Constitutional Convention
The 55 delegates who attended the First Constitutional Convention in
1787 did not initially intend to draft a federal Constitution. They had
come to Philadelphia to amend the Articles of Confederation, a loosely
defined set of rules formulated to resolve the numerous boundary and interstate
commerce disputes that arose among the former colonies at the end of the
Revolutionary War.
After four months of debate, a majority of the delegates signed a petition to draw up a new Constitution. The result was a document that defined the functions of a new government's legislative, executive and judicial branches. It also included several specific provisions for protecting individual rights, such as the right to trial by jury in criminal cases, and the prohibition of bills of attainder. Yet about such other basic civil liberties as freedom of speech, religion and the press, the Constitution said nothing.
Throughout the debate, a minority of delegates, led by George Mason of Virginia, raised an objection: The American people would be uncomfortable, he argued, with a federal Constitution that lacked a specific list of protected rights. Mason proposed that the Convention appoint a committee to prepare a Bill of Rights for inclusion in the Constitution.
The Convention unanimously rejected Mason's motion, for a variety of reasons. Some delegates believed that a Bill of Rights was unnecessary because government respect for civil liberties would follow automatically as a by-product of the limited system they had created, with its division of functions, separation of powers, and checks and balances. Alexander Hamilton argued that since Congress had no authority to act beyond the scope of its enumerated powers, "Why declare that things shall not be done which there is no power to do?"
Other delegates believed that individual rights should be protected in state constitutions, not the federal. Already, 11 of the 13 states had adopted such provisions.
Still other delegates opposed Mason's motion out of fear that if the federal government enumerated certain rights, and not others, only the specified rights would be protected. This danger would be avoided, they contended, if the Constitution simply left the rights of Americans unspecified.
A few historians offer a different reason for the rejection of Mason's proposal: The Convention delegates had been working hard on the Constitution throughout a long, hot summer. They were tired and wanted to go home.
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Ratification Of The Constitution
The Constitution was sent to the states, and less than four months later
five of the nine states required for ratification - Connecticut, Delaware,
Georgia, New Jersey and Pennsylvania - had ratified. The Constitution,
it appeared, would soon be the law of the land. However, three of the largest
states, in which the Anti-Federalist movement wielded great influence -
Massachusetts, New York and Virginia - strongly opposed ratification.
The Anti-Federalists, who aimed to prevent the creation of a strong
central government, felt that the Constitution authorized too much federal
power at the expense of states' rights. They did not want to cede to a
federal government the direct authority to raise taxes, exercise judicial
power over the states or regulate interstate commerce. But they found that
the more politically popular argument to use against ratification was the
Constitution's lack of a Bill of Rights. So they advanced that argument,
although it was a smokescreen for their real concerns, to fuel criticism
of the Constitution. By dramatically objecting to the absence of a Bill
of Rights, the Anti-Federalists hoped to compel revision of the proposed
Constitution so as to greatly reduce the powers of the national government
or, alternatively, to sponsor a second constitutional convention.
Their strategy worked. Just as George Mason had predicted, the public became increasingly suspicious of the Constitution, and the absence of a federal Bill of Rights became the dominant criticism of the document at the state conventions. As the debate intensified, critics suggested that the Constitution would make it possible for the federal government to impose taxes on the press or on religious institutions. They voiced concern about giving Congress the authority to define crimes and set penalties for lawbreakers. Patrick Henry complained that the Constitution empowered the government to torture citizens.
Despite a vigorous Federalist campaign for swift passage of the Constitution, led by Alexander Hamilton, John Jay and James Madison, the Anti-Federalists succeeded in blocking ratification. The Federalists then had to regroup. At this point, the correspondence that was transpiring between Thomas Jefferson, then Ambassador to France, and James Madison played a noteworthy role in the ratification debates. In a letter dated December 20, 1787, Jefferson wrote what was to become one of the preeminent statements for a federal Bill of Rights: "[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."
Not only did Jefferson persuade Madison, but his widely distributed
letters influenced others. Madison, whose political influence had diminished
in Virginia because of his opposition to a Bill of Rights, switched positions
and led the Federalists in a drive to promote a Bill of Rights - the very
cause that the Anti-Federalists had created as an instrument for defeating
the Constitution. To promote ratification, and to fulfill the promise he
had made in his heated campaign against James Monroe for election to the
House of Representatives, Madison pledged to attach civil liberties amendments
to the Constitution as soon as the new government was in operation. With
this pledge, the party that had first opposed a Bill of Rights became its
foremost advocate.
The Constitution was ratified on July 2, 1788. However, several states ratified solely on the basis of Madison's pledge that the first Congress would amend the Constitution to include a Bill of Rights. In Massachusetts, New York and Virginia, in particular, the Federalist promise was instrumental in securing votes for ratification. Still, North Carolina refused to ratify until the document was actually amended.
In all, the states proposed a total of 210 amendments (100 of which were substantially different) for inclusion in a comprehensive Bill of Rights. The addition of a Bill of Rights to the Constitution was to be the first order of business for the new Congress.
Despite the public demand for a Bill of Rights, the first Congress quickly became preoccupied with other issues. The Federalists, for example, became absorbed with the passage of tonnage duties. The Anti-Federalists were now reluctant to promote the attachment of a Bill of Rights to the Constitution they had opposed on other grounds.
James Madison, now a staunch Bill of Rights advocate, insisted that
Congress fulfill its pledge to the people. On June 8, 1789, Madison submitted
17 amendments to the House, culled mostly from state constitutions and
recommendations made during the ratification debates. He argued that the
Constitution should guard "the great rights of mankind," and
that government power should be limited to prevent abuses by "the
body of people operating by the majority against the minority." Madison
answered those who feared the consequences of omitting some rights with
what became the Ninth Amendment - "The enumeration in the Constitution,
of certain rights, shall not be construed to deny or disparage others retained
by the people."
The House was persuaded by Madison's arguments but rejected his proposal to incorporate each of the proposed rights amendments into the text of the Constitution because that would have altered a document the states had already ratified. Instead, the House agreed to group the amendments together at the end of the document (which also spared Congress the laborious task of having to debate the precise placement of each amendment).
On August 24, 1789, the House approved the 17 amendments and passed them on to the Senate for its consideration. The Senators combined freedom of religion, press, speech, assembly and petition into one amendment. They killed the proposed restrictions on the states. They also eliminated the exemption of conscientious objectors from compulsory military service and some other provisions, reducing the list of 17 amendments to 12. A conference committee, comprised of members from both houses, met to review the declaration and reported back to Congress. The House accepted the committee's favorable report on September 24, 1789, and the Senate approved it the next day. After the President gave his approval, the 12 amendments were sent to the states.
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Ratification Of The Bill Of Rights
The states rejected only two of the proposed amendments: one concerning the ratio between population and House representation; the other regulating congressional Nine states ratified the remaining ten amendments within six months. Connecticut and Georgia refused to ratify on the ground that the document was unnecessary. (These two states did ratify the Bill of Rights, as did Massachusetts, at the sesquicentennial of the Constitution in 1939. Although the Massachusetts legislature had adopted most of the amendmentsin 1790, it failed to send official notice of its action to the national government.)
With the admission of Vermont into the Union in 1791, an 11-state majority was required for ratification. Vermont ratified in November 1791.Virginia's approval, though not technically required, was viewed as indispensable to ensuring a cohesive union. The Anti-Federalists who controlled the legislature in Virginia had sought to undermine the Bill of Rights there. And they had struggled for two years to delete from the Constitution the provision that empowered Congress to impose direct taxes. Having failed in that effort, they finally acquiesced to the Bill of Rights. On December 15, 1791, Virginia ratified, making the Bill of Rights a part of the Constitution.
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Published by the Department of Public EducationAmerican Civil Liberties Union, 132 West 43rd Street. New York, NY 10036 Excerpts from Briefing Paper Number 9 A History of the Bill of Rights
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