A History of the Bill of Rights
ACLU Briefing Paper Number 9

Published by the Department of Public Education
American Civil Liberties Union

"[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."

Thomas Jefferson, December 20, 1787

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.

But ratification marked only the beginning of the quest for individual freedom in the United States. The Bill of Rights did not end the enslavement of Africans and their descendents, and it slighted or ignored the rights of Native Americans, women, children, gay people, prisoners, the mentally and physically disabled, and others.

In the early 1900s, the American Civil Liberties Union and the National Association for the Advancement of Colored People were founded to strengthen and advance efforts to remedy the inequities that prevented millions of Americans from enjoying full freedom. These and other organizations gradually developed the resources to challenge constitutional violations on behalf of people who never could have protected their freedom by themselves.

The fight to preserve American freedoms, which has never been easy, continues to this day. Slavery ended in 1863, but the persistence of racism in various forms has compelled African Americans to fight for equality of opportunity for more than a century since. Women fought for and won the right to vote in 1920, but 45 years later, they are still struggling to secure their right to privacy and reproductive freedom. Religious minorities must still fight to freely practice their faiths, and those who espouse unpopular political viewpoints must still defend their right to speak and publish. Threats to the separation of church and state still arise periodically, as do challenges to freedom of the press. Civil liberties battles never stay won.

For 200 years, the struggle to fully realize the principles established in the Bill of Rights has been a major theme of life in the United States. We celebrate that ongoing struggle in this Bicentennial year of the Bill of Rights, believing that much remains to be achieved and protected.

The Origins Of Liberty

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.

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.

The First 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.

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 amendments in 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.

Rights Declared, But Justice Denied

For 130 years after ratification, the most notable thing about the Bill of Rights was its almost total lack of implementation. For example, the right to a free press was frequently breached. In 1798, passage of the Alien and Sedition Act forbade, among other things, publication of any "false, scandalous or malicious writing." In 1859, booksellers in Southern states faced arrest for selling Hinton Helper's banned Impending Crisis of the South. And in 1863, the mailing of four New York City newspapers was prohibited because of alleged sedition.

The Bill of Rights was never intended to apply to Native Americans, or to the Africans imported to labor as slaves in the South. Moreover, Congress and the Supreme Court often sanctioned our society's pervasive inequalities. In 1830, Congress approved the Indian Removal Act, which authorized the relocation of Native Americans west of the Mississippi River. And the federal Civil Rights Act of 1866, passed at the end of the Civil War, excluded Native Americans even as it ostensibly extended citizenship and "full and equal benefit of all laws and proceedings" to all people.

The Bill of Rights did not apply to the slaves who were totally excluded from citizenship and all rights attending it. When the slaves were emancipated and granted citizenship after the Civil War, the Fourteenth Amendment was incorporated into the Bill of Rights to prohibit states from denying the vote, due process or equal protection of the laws on the basis of race. But following the Reconstruction period, which provided a brief respite for African Americans from systematic persecution, enactment of the "Black Codes" and "Jim Crow" laws, as well as unrestrained terrorism by the Ku Klux Klan, returned blacks to a status of mere nominal freedom.

Although the first American Women's Rights Convention, meeting in Seneca Falls, New York in 1848, demanded women's suffrage, 70 more years would pass before that demand would be met. Indeed, in 1873 the Supreme Court ruled that the "law of the creator" required women to be wives and mothers - not professionals - because of their "natural and proper timidity and delicacy." In 1879, the Court reaffirmed state suffrage laws that disfranchised women.

Gay men and lesbians, the physically disabled, aliens, soldiers, students, children, prisoners, the poor - the list of those who were, in effect, excluded from protection by the Bill of Rights was a long one.

The Fourth Branch

In the early years of the 20th century, civil liberties were in a sorry state. Racial segregation was legal and pervaded all aspects of American society, with lynchings and other racist violence against African Americans occurring frequently. Sex discrimination was firmly institutionalized, denying women the right to vote and prompting their arrest for discussing birth control in public. Employers fired workers for advocating labor unions. The police conducted warrantless searches of criminal suspects and their homes with impunity. The government routinely deported aliens because of their political views.

This climate of repression became especially harsh during the years of World War I, when more than 1,900 legal actions were brought against Americans for their public speeches, newspaper articles, pamphlets or books. American citizens languished in jail for holding anti-war views, including a minister sentenced to 15 years for saying that the war was "un-Christian." United States Attorney General A. Mitchell Palmer instigated nationwide raids to arrest anarchists, communists and labor organizers. Four thousand people were detained, and 1,000 were deported.

As yet, remedies for these assaults on liberty did not exist, but efforts to create them were underway. In 1920, a small group of visionaries came together in New York to discuss how to make civil liberties a reality. Led by Roger Baldwin, an anti-war activist and labor union advocate, the group formed the ACLU and dedicated itself to holding government to the promise of freedom set forth in the Bill of Rights. The founding of the ACLU and the National Association for the Advancement of Colored People 11 years earlier, to help Americans challenge violations of their rights in court, marked the beginning of what is known today as public interest law.

Baldwin and his colleagues knew that the nation's founders had entrusted the protection of the American people's rights to the judiciary. But the courts could only respond to civil liberties violations if lawsuits were brought to challenge them once they had occurred. While Congress and the President could initiate action, the courts were and are powerless to fulfill their function unless an aggrieved person files a lawsuit.

Unfortunately, the people most often denied their rights were precisely those least aware of their rights and least able to hire a lawyer, or afford the other costs involved in protracted litigation. Thus, for many years the most common violations of individual rights went unchallenged largely due to widespread lack of access to the judicial process. Not until the first part of the 20th century - 130 years after the Bill of Rights was ratified - was the Supreme Court asked to hear a case involving the infringement of free speech.

The ACLU, NAACP and labor unions seeking to defend their members' First Amendment rights to picket, demonstrate, leaflet and organize, began to directly challenge constitutional violations in the courts in the 1920s. The earliest of such lawsuits to reach the Supreme Court were lost. But powerful dissents in two cases, authored by Justices Louis D. Brandeis and Oliver Wendell Holmes, set forth the "clear and present danger" test for suppressing speech and laid the groundwork for future judicial protection of First Amendment rights. In 1925, the ACLU challenged a New York Criminal Anarchy law, under which a communist had been convicted for advocating revolution. The Supreme Court affirmed the conviction but held, for the first time, that First Amendment rights are protected from abridgment by state and local, as well as by the federal, government under the due process clause of the Fourteenth Amendment.

Also in 1925, after Tennessee passed a law making it a crime to teach evolution, the ACLU ran advertisements in local newspapers offering legal assistance to any teacher who wished to test the new law by exercising his or her academic freedom rights. A high school biology teacher, John Scopes, responded to the ad. Roger Baldwin, the ACLU's principal organizer and first executive director, persuaded Clarence Darrow, the most eminent criminal defense lawyer of that era, to represent Scopes for the ACLU. On his own, Scopes would not have been able to afford a lawyer, much less a lawyer willing to represent such an unpopular client. Nor would he likely have risked violating the law without the promise of legal assistance from the ACLU. Although Scopes lost, his case underscored the value of academic freedom and alerted the nation to the dangers of its suppression.

By the 1940s and early '50s, the numbers and resources of public interest organizations had grown. As a result, the national stage was crowded with successful court challenges to violations of constitutional rights. These actions established the important legal precedents that made possible the expansion of civil liberties during the late 1950s and 1960s, a time when Chief Justice Earl Warren presided over a Supreme Court more responsive to civil libertarian concerns than at any time in American history. During that era, the Supreme Court: declared segregated public schools unconstitutional (Brown v. Board of Education); expanded the right to counsel and due process for the accused in three landmark cases (Gideon, Escobedo and Miranda); struck down racially discriminatory voting laws in the South; affirmed the free speech rights of anti-Vietnam War protesters, and ruled that states could not criminalize abortion.

In recent years, the Supreme Court has shown less willingness to bolster individual rights and has even cut back the scope of several previous decisions. Fourth Amendment protections against government searches have been badly eroded, and civil rights laws have been newly interpreted to reduce their strength. Nevertheless, the Court retains the responsibility to ensure that individual rights are protected.

Public interest organizations, which provided the missing ingredient that made our constitutional system and the Bill of Rights finally work, exist to remind the Supreme Court of its historic role. In a very real sense, these organizations have operated alongside government as a kind of fourth, and wholly independent, branch, providing the "eternal vigilance" so necessary to ensuring preservation of the freedoms that are the foundation of our democratic way of life.

The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036

(retrieved from: http://www.eff.org/pub/Legislation/Constitution/bill_rights_aclu.history)