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Most Americans take the Bill of Rights for granted. Speaking our minds, going to church, trials by jury and guns for sale at Walmart are so commonplace most of us never bother to notice, or even consider the fact that the world is very different in other places and at other times. But how did this come to pass? How did approving new rules for government end up producing one of the world’s most impressive guarantees of basic liberties?
We are certainly all lucky that history turned out the way it did, but why do we have a Bill of Rights?
RATIFYING THE CONSTITUTION
A framework for a new and stronger national government had been crafted at the Constitutional Convention in Philadelphia, but how could the proposed system be made into law? Could the framers convince the public that the weak central government of the Articles of Confederation needed to be discarded in favor of an entirely new system? The Articles required that any changes in constitutional law be presented to the state legislatures, and that any successful alteration required unanimous approval. Since the new proposal increased the power of the national government at the expense of state sovereignty, it was a certainty that one, and probably several more, state legislatures would oppose the changes. Rhode Island had already refused to send a delegate to the Philadelphia Convention because it opposed any stronger revisions in the Articles, much less the sweeping proposal that ended up being produced there.
Aware of the major challenge before them, the framers of the new plan crafted a new approach through a ratifying procedure that went directly to the people. By this method, the Constitution would become law if nine of the thirteen states approved it after holding special conventions to consider the issue. Building on a model adopted by Massachusetts in passing its state constitution of 1780, the framers suggested that constitutional law was of such sweeping significance that it would be inappropriate to have it approved though ordinary political channels.
Instead, special conventions should be held for the people to evaluate such important changes. Politicians in Congress were well aware of the weaknesses of the current central government and shared the framers’ sense that the state legislatures were very likely to oppose the new plan, so Congress approved the new terms of this unusual, and arguably illegal, ratification route. Surprisingly, so too did state legislatures that began arranging for the election of special delegates to the state ratification conventions.
A great debate about the future of the nation was about to begin.
The supporters of the proposed Constitution called themselves Federalists. Their adopted name implied a commitment to a loose, decentralized system of government. In many respects federalism, which implies a weak central government, was the opposite of the proposed plan that they supported. A more accurate name for the supporters of the Constitution would have been Nationalists.
The nationalist label, however, would have been a political liability in the 1780s. Traditional political belief of the Revolutionary Era held that strong centralized authority would inevitably lead to an abuse of power, but the Federalists knew that that the problems of the country in the 1780s stemmed from the weaknesses of the central government created by the Articles of Confederation so it was time to strike a more even balance.
For Federalists, the Constitution was required in order to safeguard the liberty and independence that the American Revolution had created. While the Federalists definitely had developed a new political philosophy, they saw their most import role as defending the social gains of the Revolution. As James Madison, one of the great Federalist leaders later explained, the Constitution was designed to be a “republican remedy for the diseases most incident to republican government.”
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Charles Shirreff’s miniature of Alexander Hamilton as he appeared in 1790.
The Federalists had more than an innovative political plan and a well-chosen name to aid their cause. Many of the most talented leaders of the era who had the most experience in national-level work were Federalists. For example, only two national-level celebrities of the period, Benjamin Franklin and George Washington, favored the Constitution. In addition to these revered figures, the Federalists were well organized, well-funded, and made especially careful use of the printed word. Most newspapers supported the Federalists’ political plan and published articles and pamphlets to explain why the people should approve the Constitution.
In spite of this range of major advantages, the Federalists still had a hard fight in front of them. Their new solutions were a significant alteration of political beliefs. Most significantly, the Federalists believed that the greatest threat to the future of the United States did not lie in the abuse of central power, but instead could be found in what they saw as the excesses of democracy as demonstrated all too clearly in popular disturbances like Shays’ Rebellion.
How could the Federalists convince the undecided portion of the American people that for the nation to thrive, democracy needed to be constrained in favor of a stronger central government?
The Anti-Federalists were a diverse coalition of people who opposed ratification of the Constitution. Although less well organized than the Federalists, they also had an impressive group of leaders who were especially prominent in state politics.
Ranging from political elites like James Winthrop in Massachusetts to Melancton Smith of New York and Patrick Henry and George Mason of Virginia, the Anti-Federalists were joined by a large number of ordinary Americans, particularly yeomen farmers who predominated in rural America. The one overriding social characteristic of the Anti-Federalists as a group was their strength in newer settled western regions of the country.
In spite of the diversity that characterized the Anti-Federalist opposition, they did share a core view of American politics. They believed that the greatest threat to the future of the United States lay in the government’s potential to become corrupt and seize more and more power until its tyrannical rule completely dominated the people. Having just succeeded in rejecting what they saw as the tyranny of British power, such threats were a part of the nation’s collective recent memory.
To Anti-Federalists the proposed Constitution threatened to lead the United States down an all-too-familiar road of political corruption. All three branches of the new central government threatened Anti-Federalists’ traditional belief in the importance of restraining government power.
The President’s vast new powers, especially a veto that could overturn decisions of the people’s representatives in the legislature, were disturbing. The court system of the national government appeared likely to encroach on local courts. Meanwhile, the proposed lower house of the legislature would have so few members that only elites were likely to be elected. Furthermore, they would represent people from such a large area that they would hardly know their own constituents. The fifty-five members of the proposed national House of Representatives was smaller than most state legislatures in the period. Since the new legislature was to have increased fiscal authority, especially the right to raise taxes, the Anti-Federalists feared that before long Congress would pass oppressive taxes that they would enforce by creating a standing national army.
This range of objections boiled down to a central opposition to the sweeping new powers of the proposed central government. George Mason, a delegate to the Philadelphia Convention who refused to support the Constitution, explained, the plan was “totally subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally the state governments.” The rise of national power at the expense of state power was a common feature of Anti-Federalist opposition.
The most powerful objection raised by the Anti-Federalists, however, hinged on the lack of protection for individual liberties in the Constitution. Most of the state constitutions of the era had built on the Virginia model that included an explicit protection of individual rights that could not be intruded upon by the state. This was seen as a central safeguard of people’s rights and was considered a major Revolutionary improvement over the unwritten protections of the British constitution.
Why, then, had the delegates to the Philadelphia Convention not included a bill of rights in their proposed Constitution? Most Anti-Federalists thought that such protections were not granted because the Federalists represented a sinister movement to roll back the gains made for ordinary people during the Revolution.
RATIFICATION STATE BY STATE
The ratification process started when the Congress turned the Constitution over to the state legislatures for consideration through specially elected state conventions of the people. Five state conventions voted to approve the Constitution almost immediately in December 1787 and January 1788, and in all of them the vote was unanimous (Delaware, New Jersey, Georgia) or nearly unanimous (Pennsylvania, Connecticut). Clearly, the well-organized Federalists began the contest in strong shape as they rapidly secured five of the nine states needed to make the Constitution law. The Constitution appeared to have broad popular support.
Primary Source: License Plate
Delaware is still proud of their status as the first state to ratify the Constitution.
However, a closer look at who ratified the Constitution in these early states and how it was done indicates that the contest was much closer than might appear at first glance. Four of the five states to first ratify were small states that stood to benefit from a strong national government that could restrain abuses by their larger neighbors.
The process in Pennsylvania, the one large early ratifier, was nothing less than corrupt. The Pennsylvania State Assembly was about to have its term come to an end, and had begun to consider calling a special convention on the Constitution, even before Congress had forwarded it to the states. Anti-Federalists in the state assembly tried to block this move by refusing to attend the last two days of the session, since without them there would not be enough members present for the state legislature to make a binding legal decision. As a result extraordinarily coercive measures were taken to force Anti-Federalists to attend. Anti-Federalists were found at their boarding house and then dragged through the streets of Philadelphia and deposited in the Pennsylvania State House with the doors locked behind them. The presence of these Anti-Federalists against their will, created the required number of members to allow a special convention to be called in the state, which eventually voted 46 to 23 to accept the Constitution.
The first real test of the Constitution in an influential state with both sides prepared for the contest came in Massachusetts in January 1788. Here influential older Patriots like Governor John Hancock and Sam Adams led the Anti-Federalists. Further, the rural western part of the state, where Shays’ Rebellion had occurred the previous year, was an Anti-Federalist stronghold. A bitterly divided month-long debate ensued that ended with a close vote (187-168) in favor of the Constitution. Crucial to this narrow victory was the strong support of artisans who favored the new commercial powers of the proposed central government that might raise tariffs on cheap British imports that threatened their livelihood. The Federalists’ narrow victory in Massachusetts rested on a cross-class alliance between elite nationalists and urban workingmen.
The Massachusetts vote also included an innovation with broad significance. John Hancock who shifted his initial opposition to the Constitution led the move toward ratification. Satisfied that certain amendments protecting individual rights were going to be considered by the first new Congress that would meet should the Constitution become law. This compromise helped carry the narrow victory in Massachusetts and was adopted by every subsequent state convention, with the sole exception of Maryland.
By the spring, conventions in the required nine states had ratified, and the Constitution became law. However, with powerful, populous and highly divided Virginia and New York yet to vote, the legitimacy of the new national system had not yet been fully resolved.
VIRGINIA, NEW YORK, AND THE FEDERALIST PAPERS
The convention in Virginia began its debate before nine states had approved the Constitution, but the contest was so close and bitterly fought that it lasted past the point when the technical number needed to ratify had been reached. Nevertheless, Virginia’s decision was crucial to the nation. No one could imagine the early history of the United States without Virginia in the union. What if leaders like George Washington, Thomas Jefferson, and James Madison were not citizens of the United States? In the end, Virginia approved the Constitution, with recommended amendments, in an especially close vote (89-79).
Perhaps no state was as deeply divided as New York. The nationalist-urban artisan alliance could strongly carry New York City and the surrounding region, while more rural upstate areas were strongly Anti-Federalist. The opponents of the Constitution had a strong majority when the convention began and set a tough challenge for Alexander Hamilton, the leading New York Federalist. Hamilton managed a brilliant campaign that narrowly won the issue (30-27) by combining threat and accommodation. On the one hand, he warned that commercial areas around New York City might separate from upstate, rural New York if it did not ratify. On the other hand, he accepted the conciliatory path suggested by Massachusetts; amendments would be acceptable after ratification.
The debate in New York produced perhaps the most famous exploration of American political philosophy, now called The Federalist Papers. Originally, they were a series of 85 anonymous letters to newspapers, which were co-written by Alexander Hamilton, James Madison, and John Jay. Together they tried to assure the public of the two key points of the Federalist agenda. First, they explained that a strong government was needed for a variety of reasons, but especially if the United States was to be able to act effectively in foreign affairs. Second, it tried to convince readers that because of the separation of powers in the central government, there was little chance of the national government evolving into a tyrannical power. Instead of growing ever stronger, the separate branches would provide a check and balance against each other so that none could rise to complete dominance.
Primary Source: Book
The cover of the first collection of the Federalists Papers, the essays written under the pseudonym Publius in favor of ratification of the Constitution. They were actually written by Alexander Hamilton, John Jay and James Madison.
The influence of these newspaper letters in the New York debate is not entirely known, but their status as a classic of American political thought is beyond doubt. Although Hamilton wrote the majority of the letters, James Madison authored the ones that are most celebrated today, especially Federalist, Number 10.
Here Madison argued that a larger republic would not lead to greater abuse of power, as had traditionally been thought, but actually could work to make a large national republic a defense against tyranny. Madison explained that the large scope of the national republic would prevent local interests from rising to dominance and therefore the larger scale itself limited the potential for abuse of power. By including a diversity of interests, he identified agriculture, manufacturing, merchants, and creditors, the different groups in a larger republic would cancel each other out and prevent one corrupt interest from controlling all the others.
Madison was one of the first political theorists to offer a profoundly modern vision of self-interest as an aspect of human nature that could be employed to make government better, rather than more corrupt. In this, he represents a key figure in the transition from a traditional republican vision of America, to a modern liberal one where self-interest has a necessary role to play in public life.
THE BILL OF RIGHTS
With the narrow approval of the Constitution in Virginia and New York, in June and July 1788, respectively, the Federalists seemed to have won an all-out victory. The relatively small states of North Carolina and Rhode Island would hold out longer, but with 11 states ratifying and all the populous ones among them, the Federalists had waged a remarkable political campaign of enormous significance and sweeping change.
The ratification process included ugly political manipulation as well as brilliant developments in political thought. For the first time, the people of a nation freely considered and approved their form of government. It was also the first time that people in the United States acted on a truly national issue. Although still deciding the issue state-by-state, everyone was aware that ratification was part of a larger process where the whole nation decided upon the same issue. In this way, the ratification process itself helped to create a national political community built upon and infusing loyalty to distinct states. The development of an American national identity was spurred on and closely linked to the Constitution.
The Federalists’ efforts and goals were built upon expanding this national commitment and awareness. But the Anti-Federalists even in defeat contributed enormously to the type of national government created through ratification. Their key objection challenged the purpose of a central government that didn’t include specific provisions protecting individual rights and liberties. Since the new national government was even more powerful and even more distant from the people, why didn’t it offer the kinds of individual protections in law that most state constitutions had come to include by 1776?
To the Anti-Federalists, the separation of powers was far too mild a curb against the threat of government tyranny. As a result, as states began ratifying the Constitution, they called for further protections to be taken up by the new Congress as soon as it met. This loomed on the unresolved political agenda of the national Congress and the adoption of the Bill of Rights, the first ten amendments to the Constitution, is a legacy of the victory-in-defeat of Anti-Federalists. Their continued participation in the political process even when they seemed to have lost on the more general issue had immense importance.
Together, the Bill of Rights protects some of Americans’ most treasured liberties. With some, there is a clear connection to the grievances delineated in the Declaration of Independence. Americans did not want their new government to have the power to do to them what the British had done in the 1770s.
The First Amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.
In Everson v. Board of Education in 1947, the Supreme Court drew on Thomas Jefferson’s correspondence to call for “a wall of separation between church and State”, though the precise boundary of this separation remains in dispute. Speech rights were expanded significantly in a series of court decisions that protected various forms of political speech, anonymous speech, campaign financing, pornography, and school speech.
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American artist Norman Rockwell’s work celebrating freedom of religion, one of the five freedoms guaranteed by the First Amendment.
The Supreme Court has interpreted the Second Amendment to mean that individual citizens have the right to keep and bear arms. Clearly, the Founders had not forgotten the value of the colonial militias who fired the opening volleys of the Revolution at Lexington and Concord 16 years before. The Second Amendment embodies the belief that without weapons, citizens are at the mercy of an oppressive government. Long a controversial issue in American political, legal, and social discourse, the Second Amendment has been at the heart of several recent Supreme Court decisions.
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In recent decades the National Rifle Association has organized protests and brought cases to court against laws the restrict gun ownership and use. They point to the Second Amendment as the foundation of their position.
The Third Amendment restricts the quartering of soldiers in private homes, in response to Quartering Acts passed by the British parliament during the Revolutionary War. The amendment is one of the least controversial of the Constitution, and, as of 2018, has never been the primary basis of a Supreme Court decision.
The Fourth Amendment guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the British abuses during the American Revolution. The amendment is the basis for the exclusionary rule, which mandates that evidence obtained illegally cannot be introduced into a criminal trial.
The Fifth Amendment protects the rights of those accuse of crimes. It prevents a person from being tried twice for the same crime, legally known as double jeopardy, and being forced to testify against oneself. A person who “pleads the Fifth” in court is exercising this right. The amendment guarantees the right to due process, grand jury screening of criminal indictments, and compensation for the seizure of private property under eminent domain. The amendment was the basis for the court’s decision in Miranda v. Arizona in 1966 which established that defendants must be informed of their rights to an attorney and against self-incrimination prior to interrogation by police.
The Sixth Amendment establishes a number of rights of the defendant in a criminal trial including the right to know the charges, the right to a public, speedy trial by jury, the right to confront witnesses and compel witnesses to appear in court. The amendments guarantees the right to have representation in court by an attorney, and in 1963, the Supreme Court ruled in Gideon v. Wainwright that the amendment guaranteed the right to legal representation in all felony prosecutions in both state and federal courts, thus setting up the current system of public defenders for those who cannot afford their own attorney.
The Seventh Amendment guarantees jury trials in federal civil cases that deal with claims of more than twenty dollars.
The Eighth Amendment forbids the imposition of excessive bails or fines, though it leaves the term “excessive” open to interpretation. The most frequently litigated clause of the amendment is the last, which forbids cruel and unusual punishment. This clause was only occasionally applied by the Supreme Court prior to the 1970s, generally in cases dealing with means of capital punishment. In Furman v. Georgia in 1972, some members of the Court found capital punishment itself in violation of the amendment, arguing that the clause could reflect “evolving standards of decency” as public opinion changed. Others found certain practices in capital trials to be unacceptably arbitrary, resulting in a majority decision that effectively halted executions in the United States for several years.
The Ninth Amendment declares that the rights enumerated in the Constitution are not an explicit and exhaustive list of individual rights. It was rarely mentioned in Supreme Court decisions before the second half of the 20th century, when it was cited by several of the justices in Griswold v. Connecticut in 1965 when the Court voided a statute prohibiting use of contraceptives as an infringement of the right of marital privacy. This right was, in turn, the foundation upon which the Supreme Court built decisions in several landmark cases, including, Roe v. Wade in 1973 that legalized abortion.
The Tenth Amendment reinforces the principles of separation of powers and federalism by providing that powers not granted to the federal government by the Constitution, nor prohibited to the states, are reserved to the states or the people. The amendment provides no new powers or rights to the states, but rather preserves their authority in all matters not specifically granted to the federal government.
Americans do and should be grateful for the set of circumstances that produced the Bill of Rights. The Founding Fathers and the people who demanded it in the 1780s gave us a tremendous gift. Perhaps a few might have considered the longevity of the document, but no doubt, it was a product more of its own time, than one written with generations 200-plus years in the future in mind.
We might not be able to image a world without it, but the Bill of Rights did not always exist. It is time to stop and consider that the world as we know it was not inevitable. Why do we have a Bill of Rights?
BIG IDEA: The debate about ratification of the new Constitution divided the nation’s leaders but led to the creation of the Bill of Rights.
The Constitution could not take effect until 9 of the 13 states ratified it. This led to an important period during which the public debated the merits of the new form of government. Central to this debate was the balance of power between the states and the federal government. Also important was the idea of individual freedom and the power of government over people.
Federalists liked the new more powerful federal government. Alexander Hamilton and James Madison were Federalists. With John Jay they wrote the Federalists Papers to explain the virtues of the new Constitution. Their work remains an important explanation of the ideas that underlie our system of government.
Anti-Federalists saw the new Constitution as dangerous. They believed that states should hold more power than the federal government. Thomas Jefferson led this faction. Their most important objection was that the Constitution had no protections for individuals. The Federalists argued that separating power between three branches would prevent the government from becoming too powerful and taking away people’s rights. However, the Anti-Federalists won the argument.
In the end, the Constitution was adopted as the Federalists wanted, and a Bill of Rights was added as the Anti-Federalists wanted. The Bill of Rights protects many of the basic freedoms that the British had violated before the Revolution. These include the right to free speech, press, religion, petition, and assembly. It guarantees the right to a trial by jury, protection from warrantless search and seizure and the right to own a gun.
PEOPLE AND GROUPS
Federalists: One of the first two political parties. They supported the Constitution, strong central government, Hamilton’s financial plans, and favored Britain over France. Washington and Adams were the only president’s from this party.
Anti-Federalists: People opposed to the ratification of the Constitution. They feared tyrannical central government and successfully argued for the inclusion of the Bill of Rights. They later formed the Democratic-
Federalism: A belief in strong central government with some powers being reserved to the states.
The Federalist Papers: A group of essays published under the penname Publius in New York arguing in favor of ratification of the Constitution. Written by Alexander Hamilton, James Madison and John Jay, they serve as a record of the ideas of the Founding Fathers.
Federalist, Number 10: One of the most famous of the Federalist Papers. Madison argued that a larger republic would not lead to greater abuse of power, as had traditionally been thought, but actually could work to make a large national republic a defense against tyranny.
First State: Delaware, which ratified the Constitution in December of 1787.
LAWS & RESOLUTIONS
Bill of Rights: The first ten amendments to the Constitution. Ratified in 1791, they outline essential freedoms of all citizens.
First Amendment: Amendment to the Constitution that guarantees freedom of religion, speech, press, assembly and petition.
Second Amendment: Amendment to the Constitution that guarantees the right to bear arms.
Third Amendment: Amendment to the Constitution that forbids the government from requiring citizens to house soldiers in private homes. It is a reaction to the Quartering Act.
Fourth Amendment: Amendment to the Constitution that prevents unreasonable searches and seizures and requires the police to obtain a warrant.
Fifth Amendment: Amendment to the Constitution that guarantees certain rights to those accused of a crime, including protection against double jeopardy, and against testifying against oneself.
Sixth Amendment: Amendment to the Constitution that guarantees those accused of a crime the right a fair, speedy, public trial, the right to an attorney and the right to confront accusers.
Seventh Amendment: Amendment to the Constitution that guarantees a jury trial for civil cases.
Eighth Amendment: Amendment to the Constitution that prohibits cruel and unusual punishment.
Ninth Amendment: Amendment to the Constitution that state that citizens have rights although they may not be listed in the Constitution.
Tenth Amendment: Amendment to the Constitution that gives states all powers not explicitly given to the federal government in the Constitution.