We usually associate the Bill of Rights with the first ten amendments to the Constitution. And with the exception of the Tenth Amendment, these rights are again, usually, portrayed as individual rights. What holds the first nine and the Tenth together in a coherent fashion is that they are limits on the reach of the federal government. In this regard, it is important to state here at the beginning that we are not going to cover the subsequent amendments that emerged in the 19th and 20th centuries, nor how the Supreme Court, through the doctrine of incorporation, extended the original Bill of Rights to state and local governments in the 20th century.
Prior to declaring independence from Britain, the Second Continental Congress issued a “Resolve” to the 13 Colonial Assemblies: “adopt such a government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.” Between 1776 and 1780, elected representatives met in deliberative bodies and chose a republican form of government for the newly created states. Connecticut and Rhode Island decided to retain their colonial charters, but the other 11 explicitly reaffirmed the American covenanting tradition and created republican governments dedicated to securing both traditional common law rights and newly articulated natural rights.
Rights that were secure for generations under an empire of monarchy were now deemed to be secure only with the adoption of a republican form of government. The constitutions of the 11 states relied, for the most part, on bicameralism, separation of powers with legislative dominance, a weak executive, an independent judiciary, representatives elected by a democratic suffrage, for short duration, subject to recall and rotation, and limited to the exercise of delegated powers. And this concept of limited government was reinforced by the notion that individual rights were more secure by “writing rights down.”
Declarative statements were a vital part of Anglo-American legal history. The Magna Carta (1215) proclaimed the principle of no taxation without representation and incorporated the right to due process of law, trial by jury, and no cruel punishments as part of a 63-chaptered proclamation instigated by nobles to restrain monarchs to “reasonable conduct.” In 1628, Parliament petitioned Charles I to adhere to the “Rights of Englishmen” articulated in the Magna Carta as well as the right to petition for redress of grievances, the right to habeas corpus relief, and additional safeguards for private property. The 1689 English Bill of Rights, issued by Parliament, listed 12 indictments against King James II and reaffirmed the ancient rights of Englishmen including an expectation that the rule of law shall prevail in the creation and implementation of public policy and that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”
Seven of the eleven states attached a separate Declaration of Rights to their constitutions: Virginia, Delaware, Pennsylvania, Maryland, North Carolina, Massachusetts, and New Hampshire. We, today, are used to seeing a Bill of Rights attached at the end of the United States Constitution in the form of 10 amendments. But that is an accident of politics rather than a matter of principle. In each of the seven states, the constitutions were preceded by a bill of rights. Declarations were preambles to the state constitutions outlining the purposes of republican government. In Virginia and Delaware, the bill of rights was actually written chronologically as well as conceptually prior to the constitution.
There is a remarkable uniformity among the seven states with regard to the kinds of civil and criminal rights that were to be secured. The Virginia, Pennsylvania, and Massachusetts Declarations, however, capture both the similarity, and the subtle differences, in the coverage given to freedom of press, the right to petition, the right to bear arms, the quartering of troops, protection from unreasonable searches and seizures, the centrality of trial by jury, the right to confrontation of witnesses and the right to counsel, the importance of “due process of law,” and the protection against excessive fines and cruel and unusual punishment. Most of the civil rights and criminal procedures listed were an accepted part of the Americanization of the rights of Englishmen.
To be sure, each of the other four states can make a legitimate claim to being “unique,” in the sense of being the “first” to anticipate one or more of the civil or criminal rights found in the other states and in the 1791 Federal Bill of Rights: Delaware and the ex post facto clause, Maryland and the bill of attainder clause, North Carolina and the grand jury indictment clause, and New Hampshire and the double jeopardy clause. Nevertheless, they were each modeled on one or more of the “big three.” In fact, as John Adams correctly observed with respect to Pennsylvania, their bill of rights is “taken almost verbatim from that of Virginia.”
Englishmen did not have the right to choose their form of government nor to practice the free exercise of religion. But such rights were very much part of an American covenanting tradition that incorporated an appeal to both natural right and divine support. Accordingly, there was also little variation from state to state concerning the inclusion of these foundational rights. Interestingly, Americans were engaged in a conscious effort to synthesize the natural rights doctrine of Locke, the teachings of scripture, the skepticism of Hume, and the common law approach of Blackstone.
Englishmen also lacked the right to the non-establishment of religion. Not surprisingly, disparity among the states occurs when the issue turns to the establishment of religion. Again, Virginia, Pennsylvania, and Massachusetts capture the range of possibilities. An established religious education had an important part to play in securing what Section XV of the Virginia Declaration of Rights referred to as “a firm adherence to justice, moderation, temperance, frugality, and virtue,” without which free government cannot be preserved. This association between religious education and republican institutions was central to the following question: what support should government give to religion? Should a state name a particular sect as the officially established church?
Only Virginia followed this traditional English model until the Anglican Church was disestablished in 1779. Should a state name a specific religion Protestant Christianity as the officially established religion, but give “equal protection” to each sect? This model of “neutrality” toward each sect was adopted in Maryland, Massachusetts, South Carolina, and New Hampshire. Should the legislature approve a tax for the support of the established religion with the understanding that the individual taxpayer can designate the sect that shall receive the individual’s contribution? The 1780 Massachusetts Declaration of Rights duplicated the language of Virginia’s Section XV and provided for a general tax to support religious sects. Moreover, Maryland empowered the legislature, at its discretion, to “lay a general and equal tax, for the support of the Christian religion.”
On the other hand, neither Pennsylvania nor Delaware addressed directly the issue of religious establishment; both explicitly state, however, that to require an individual to support “any ministry contrary to or against his own free will and consent” is a violation of the “natural and unalienable right to worship” God in accordance with the dictates of one’s own conscience. And Delaware, following the example of Pennsylvania, not only excluded the possibility of a legislatively-approved discretionary tax to support religion, but also went further and omitted any reference to the beneficial association between the existence of religious sects and the future of republican institutions.
The Federalist downplays the extent to which the original 13 states adopted a bill of rights. In Federalist 24, Alexander Hamilton criticizes the Antifederalists for “a deliberate intention to deceive” the public: “New York has no bill of rights,” says Hamilton, and “no bills of rights appear annexed to the constitutions of the other States,” except “Pennsylvania, North Carolina, New Hampshire, Massachusetts, Delaware, and Maryland.” Thus “only” six states have a bill of rights “annexed” to their constitutions. By “annexed” Hamilton means what was common usage in 1787: as a preface to their Constitutions.
Hamilton, however, has exaggerated the minority status of a bill of rights in the newly formed states. Strictly speaking, Rhode Island and Connecticut should not be counted in the tabulation because they made no fundamental change to their colonial charters. So we are really talking about 6/11 rather than 6/13 in Hamilton’s formulation. This is actually a majority of the states! But Hamilton omitted Virginia from his list of states with a bill of rights! Yet it was widely known that the Virginia Declaration of Rights, drafted by Mason, was the model for the other states.
The more telling figure and term should be that only four states declined to “preface” a bill of rights to their constitutions: New Jersey, Georgia, New York, and South Carolina. But each of these four states actually “incorporated” into the body of their constitutions essential features of the bill of rights found in those states that had a separately “annexed” or “prefatory” bill of rights. Civil rights and criminal procedure are addressed in four of the thirty-nine articles in the 1776 New Jersey Constitution. Twenty-one of the sixty-three articles of the 1777 Georgia Constitution directly concern individual rights. Four of the forty-five articles of the South Carolina Constitution address the issue of civil rights and criminal procedures and are grouped together in the main body of the document. Hamilton is correct: the 1777 New York Constitution excluded a prefatory bill of rights. Nevertheless, the entire Declaration of Independence is incorporated into the Preamble that precedes the constitution. Furthermore, seven of the forty-two articles of the New York Constitution deal specifically with civil rights and criminal procedures.
The Second Continental Congress also created the first continental wide system of governance. The Articles of Confederation guaranteed a preeminent position to the states and there is no mention of a bill of rights. But there was no need for one because the Articles did not create a government over individuals; instead it created a nation of states. One consequence is that the American discussion of individual rights becomes entangled with the question of states’ rights.
In Part Two, we are interested in the how, when, where, and why questions about the Bill of Rights. What are the twists and turns involved in this very American story as distinct from the sweeping story of a rights tradition that reaches back into remote antiquity? What was a bill of rights supposed to accomplish? Who were responsible for putting it there? And why did the Bill of Rights appear as amendments to the original Constitution rather than as a prefatory declaration of rights or be incorporated in the Constitution as a limitation on the powers of the new government?
A full nationwide conversation over a bill of rights began with the Constitutional Convention of 1787 which met to alter the Articles. The Virginia Plan removes the states from their pre-eminent position and proposes a government over individuals instead. The plan reflects Madison’s attempt to secure private rights by means of an extended political orbit and institutional checks and balances rather than by “parchment barriers.” Moreover the plan reflects his position that the greatest danger to private rights came from state legislatures whose independence from outside intervention was protected by the Articles of Confederation.
The final Constitution also points away from a mere confederation of states and in the direction of at least a partly national and partly federal arrangement. Among other things, if the arrangement were wholly federal, then the union could only exercise those powers expressly stated. The Articles, in effect, is a bill of rights, certainly for the states. If the final arrangement were wholly national, there would be no need to enumerate the powers of the new government. The following question should be, and indeed was, asked: given the partially national nature of the Constitution, then shouldn’t there be a bill of rights to restrain the new government just as 11 states have a list of rights to restrain the state governments? And this protection for rights must be over and above the separation of powers and checks and balances that Madison called for and managed to secure in the federal Constitution.
In fact, because of the very existence of Article I, Section 9, it is useful to read the Constitution as partially embracing a bill of rights to begin with rather than totally rejecting the idea of a very listing of rights. And the presence of this “partial embrace” of parchment rights provide the reasonable Antifederalists, and prudential Federalists like Madison, with their most effective argument on behalf of a fuller set of limitations in the form of a bill of rights.
The very enumeration of the powers of Congress in Article I, Section 8, means then that Congress is not granted total control over whatever it decides to do. But the language of that Article can be twisted and turned through time to include an immense array of objects under the supposed authority of the general welfare, common defense, and interstate commerce clauses, not to mention the necessary and proper clause. Furthermore, a Constitution with an enumeration of powers is probably going to be one where an enumeration of rights isn’t far behind. Article I, Section 9 places limits on Congress in the areas of habeas corpus, ex post facto laws, bills of attainder, and titles of nobility; it also outlines rights retained by the states. Similar restraints were placed on the states in Article I, Section 10 with an additional provision concerning obligation of contracts. So the most obvious theoretical and strategic plan would be to add to the list of rights in Sections 9 and 10.
During the final week of the Convention, Edmund Randolph clearly felt uneasy about the final draft of the Constitution that emerged from the Committee of Style Report. He called for a second convention and that became a persistent theme of the Antifederalists from Virginia and New York who wanted to return to the structure of the Articles of Confederation. On the other hand, George Mason, author of the Virginia Declaration of Rights, expressed his wish that “the plan had been prefaced with a Bill of Rights [It] would give great quiet to the people” and would be easy to prepare given the presence of state declarations. His motion, supported only by Elbridge Gerry, was deemed unnecessary.
Apparently, Mason left Philadelphia very upset with what had taken place. Writing to Jefferson on October 24, 1787, Madison notes: “Col. Mason left Phila. in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed towards the close of the business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.” Madison concludes: “His conduct has given great umbrage to the County of Fairfax, and particularly to the Town of Alexandria. He is already instructed to promote in the Assembly the calling of a Convention, and will probably be either not deputed to the Convention, or be tied up by his express instructions.”
Interestingly, even after the requisite nine states ratified the Constitution, Mason and Gerry became more and more interested in amendments that altered the structure and powers of the new government and less and less interested in limiting its reach by means of a bill of rights. Once the Constitution was ratified, Madison in the First Congress occupied the position formerly held by Mason and Gerry at the Philadelphia Convention.
During the summer of 1787, the Confederation Congress also passed the Northwest Ordinance. This document is a continent-wide expression of the rights of Americans: free exercise of religion, benefit of habeas corpus, trial by jury, access to the judicial system, no cruel and unusual punishments, due process of law, just compensation and the right to “proportionate representation” in the Assembly. And a firm stand was taken in abolishing slavery from the territory. Finally, the Ordinance repeats the ambiguity concerning the establishment of religion. Article III states that “[r]eligion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” But the Ordinance is silent on how this encouragement is to be achieved.
By the Summer of 1787, with the exception of the omission by the Constitutional Convention, there was an emerging “deliberate sense of the community” that a bill of rights either preface or be inserted within constitutional documents. And that Americans, as Jefferson remarked in the remarkable exchanges with Madison, had become used to a bill of rights and was something to be expected by all lovers of free government. And, however good the work of the Constitution, there was still the need to make the union more perfect.
Opponents of ratification of the Constitution argued that the absence of a bill of rights demonstrated that rights were insecure under the proposed Constitution. They considered the proponents’ arguments to be ingenious at best: how could the Constitution be a bill of rights (an argument proposed by James Wilson and Alexander Hamilton), yet include certain rights, (Hamilton pointed to Article I, Section 9) and then ignore such fundamental rights as freedom of religion, freedom of the press, and trial by jury? How could one grant Congress the power of governing (Article I, Section 8) and constitutional supremacy over state laws, (Article VI) and still argue that the Constitution is a document in which, according to Wilson, in his State House Speech, “everything which is not given, is reserved?” Thus argued the Antifederalist Brutus. And thus also argued the Pennsylvania Minority at the Pennsylvania Ratifying convention.
But lurking under this Antifederalist support for a traditional bill of rights to limit the reach of government were a more strident group of Antifederalists who favored amendment proposals that would alter the power and structure of the new federal government back in the direction of the Articles of Confederation. It is imperative to the unfolding of the political dimension of the Bill of Rights that the distinction between amendments to the Constitution and a bill of rights be kept distinct. The fact that, in the end, the U. S. Bill of Rights appears as 10 Amendments to the Constitution is the result of the politics of the First Congress and the shifting meaning and use of language that took place at the time of the American Founding. See, for example, the shift in the meaning of both republicanism and federalism.
The fate of the ratification of the Constitution turned on two compromises made in the 1) Massachusetts and New Hampshire ratifying conventions and 2) Virginia and New York ratifying conventions. The compromises involved two distinguishable kinds of recommendations which emerged during two distinct phases of ratification: 1) amendments that would alter the structure and powers of the general government and only incidentally include or mention the need for a bill of rights. This was the case in Massachusetts and to a lesser extent in New Hampshire; 2) a prefatory attachment, or actual inclusion, of a bill of rights separate from, distinguishable from, and prior to, proposed amendments to the Constitution. This second kind of compromise took place in Virginia and New York and was followed later by North Carolina and Rhode Island.
With the unconditional adoption of the Constitution, newly elected Representative James Madison urged the First Congress to reject amendments that would radically change the Constitution along the lines suggested by Massachusetts and New Hampshire and adopt a bill of rights as suggested by Virginia and New York. President George Washington had earlier set the tone in his First Inaugural Address: he urged a reverence be shown toward “the characteristic rights of freemen.” Madison declared that he had always been in favor of a bill of rights. He argued that enumerating rights was not dangerous if there were a stipulation that the list “shall not be construed to deny or disparage others retained by the people.” This is the reasoning undergirding what became the Ninth Amendment in the U.S. Bill of Rights. And for prudential reasons a bill of rights was necessary to conciliate “honorable and patriotic opponents.” Furthermore, a bill of rights, although impotent to stop a tyrannical majority, would be valuable in the event that elected officials overstepped their bounds, and a bill of rights could perform a civic educational function by reminding Americans of the purposes and limits of government. And he did this in front of an unenthusiastic Congress dominated by Federalists. Only 13/59 House members were Antifederalist (four from Virginia) and 2/13 (both from Virginia) in the Senate.
Crucial to Madison’s approach was the distinction between friendly alterations such as a bill of rights that would limit the reach of both the federal and, if Madison had his way, state governments on the one hand, AND unfriendly alterations such as amendments that would alter the structure and power of the new federal government. Moreover, he wanted the first session of the Congress to complete this project thus stifling any further attempt to call for a Second Convention.
Madison recommended that the representatives open up the Constitution and insert specific rights limiting the power of Congress in Article I, Section 9. Seven of these limitations became part of the 10 amendments adopted by the state legislatures in 1791. He also suggested the inclusion of the following in Article I, Section 10: “No State shall violate the equal right of conscience, freedom of the press, or trial by jury.” This would test the sincerity of the claim that “every government,” as Jefferson mentioned to Madison in the correspondence over the Bill of Rights, should be limited by a bill of rights.
Madison’s attempt to incorporate the Bill of Rights into the main body of the Constitution, and to insert the Declaration of Independence into the Preamble, was ultimately rejected by the House. The House voted instead to send 17 “supplements” to the Constitution on to the Senate for consideration, including the limitations on the state governments. Thus the Bill of Rights went forward as amendments to be attached to the end of the Constitution even though the contents of the Bill of Rights were considered as friendly alterations rather than as amendments as that term was then understood.
The Senate, in turn, reduced the number to 12, excluding in the process Madison’s three restrictions on state governments. A House-Senate Conference Committee reconciled the remaining differences and Congress finally submitted 12 amendments to the states for ratification on September 25, 1789. The first two were rejected and the last ten were approved. With the exception of the numerous changes made to the religion clauses during the three-month process from the June 8 speech of Madison to the Congressional signing of the Bill of Rights in September 1789, the deliberations indicated what Madison would later call “the deliberate sense of the community.”
The American story of the origin of the U.S. Bill of Rights involves a conceptual shift of immense consequences: what began in the 13th century as a protection of the few against the one, and then the many against the unreasonable conduct of the one or the few had, by 1791, become a protection of the one and the few against a tyrannical legislative majority! And with this conceptual shift, there is also an institutional shift away from the legislative branch as the enforcer of rights of the people to the courts as the primary guardians of individual rights. Oddly, this was one of Jefferson’s main contributions to the conversation with Madison. I say oddly, because Jefferson became a vociferous opponent of the role of the judiciary. His other shift was to concur with Madison that the Legislative and not the Executive branch was the most dangerous branch. Madison’s main shift was his recognition that a bill of rights could be more than a “mere parchment” barrier when elected officials overstepped their boundaries.