Bill of Rights

Although England first enacted a Bill of Rights in 1688, those rights belonged to Parliament, not to the people; their rights and their constitution itself were at the mercy of Parliament—the House of Lords, the House of Commons, and the monarch. Another more meaningful Bill of Rights, the first ten amendments to the U.S. Constitution, was ratified in 1791, two years after the Constitution became the nation’s supreme law. Together with the Declaration of the Rights of Man and of the Citizen (1789), which grew out of the 1789 French Revolution, the Bill of Rights has inspired the inclusion of guarantees of individual rights and freedoms in many national constitutions as well as in international and regional human rights documents, such as the United Nations’ Universal Declaration of Human Rights (1948) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950). Their protections for such fundamental human aspirations as the rights to speak freely and publish opinions, meet in the public arena, hold personal beliefs, and be secure in one’s own home and property have become a model for the rest of the world. (British citizens finally got a bill of rights when the European Convention was incorporated into British law in 2000.)

Yet, in essay 84 of The Federalist (1787–88) (see Federalist Papers), written to support ratification of the Constitution, Alexander Hamilton concluded that bills of rights “have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives.” He also pointed out that the Constitution as drafted in 1787 contained a number of guaranteed rights, including a prohibition against ex post facto laws, safeguards for those faced with treason charges, and the right to a jury trial in criminal cases. Nevertheless, certain opponents of the new Constitution—Anti-Federalists who argued against a stronger central government than the one created by the Articles of Confederation—used the lack of a bill of rights as a persuasive argument that the Constitution should not be ratified.

George Mason, the author of the Virginia Declaration of Rights (1776), commented during the last days of the Constitutional Convention of 1787 that a bill of rights prefacing the Constitution would allay public fears, while James Madison suggested making changes to the Constitution’s text rather than writing an addendum. Thomas Jefferson, in an attempt to change Madison’s position against the inclusion of a bill of rights, argued simply that it could do no harm. Later, when the delegates to state conventions began debating ratification of the Constitution, some states recommended a bill of rights, and proponents of the Constitution, including Madison, pledged to add a bill of rights to ensure ratification especially in battleground states such as New York, North Carolina, and Virginia, in which opposition to the Constitution was particularly strong. Madison, [Page 63] his mind changed by Jefferson and the ratification struggle, himself introduced a draft of amendments in the House of Representatives on June 8, 1789. Freedom of speech was added to the final list of rights, which in the end was written as separate amendments to the Constitution.

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