The Origins and Purpose of the Bill of Rights
Published February 15, 2006 by Allen Butler
Did you know?There were originally 12 ammendments in the Bill of Rights, two were rejected by the states.
Takeaways The Bill of Rights was drafted by James Madison during the First Federal Congress.The Bill of Rights came from calls from the states to ensure basic rights and freedoms.The Bill of Rights became law in 1789.Prelude to the Bill of Rights
During the numerous debates that took place in the Constitutional Convention of 1787, the idea of a Bill of Rights was one of the most controversial. A document that would detail the most basic rights of citizens, rights that could not be infringed upon by the federal government, was seen as a necessity by some and a dangerous idea by others. In the process of creating the Constitution a Bill of Rights was in the end all but ignored.With a finished draft of the Constitution, ratification was required to enact this new document as the law of the land. 3/4 of the legislatures of the states were needed in order to make the Constitution law. As debates began, a Bill of Rights was brought to the forefront of Constitutional conversation. Under the Articles of Confederation, which had been in place since the Revolution, the central government was a loose and weak organization, with the majority of power remaining in the separate state governments. The Constitution created a much more powerful national government, one that frightened many people of the day. Was not a strong central government what they had not just fought so hard against during the Revolution? What was to stop the United States government from becoming a new tyrant in the likeness of King George and the British Parliament? Many of the legislatures recommended a Bill of Rights, some ratified with the clear expectation that such a Bill of Rights would be added in the first Congress. This expectation bore fruit. The task of drafting this Bill of Rights fell to John Madison, who had played such a crucial role in the original crafting of the Constitution. The Purpose of the Bill of Rights In drafting the Bill of Rights, Madison had two goals in mind: to limit the power of the federal government, providing another check on the balance of power, and to make explicit the rights of citizens. Many opponents of the Bill of Rights felt that these rights were implicit in the existing Constitution, and would be properly read into the Constitution by the judiciary. Madison and others did not want to leave this power in the hands of the judiciary: a Bill of Rights would make it known to all exactly where the rights of man began and the powers of government ended. Madison took these amendments to the First Federal Congress, which opened session in 1789. In the House of Representatives 17 of the amendments made it through, this list was whittled down to 12 by the Senate. 12 amendments to the Constitution that would be the Bill of Rights so long sought. When brought to the state legislatures the first 2 of these 12 amendments would be removed. The first included regulations of how many representatives could be selected based on population. The second kept Congress from being able to pass their own pay raises, requiring an election to take place in between the writing of the raise and the passing of it. This actually did enter the Constitution in 1992, becoming the 27th amendment, after over 200 years of waiting for ratification. The remaining 10 are the ones that we all know so well, protecting such things as freedom of religion, freedom of speech, right to bear arms, the right not to incriminate oneself, etc. By taking out the first two amendments, which dealt with the running of Congress, it created a true Bill of Rights for the citizens of the United States of America that the federal government could not infringe upon. America now had a Bill of Rights. Opponents, who had felt the Bill of Rights unneccessary in protecting the people and dangerous in limiting the powers of government had been defeated. Now and forevermore these basic rights would be defended by the highest law of the land, the United States Constitution. Development of the Bill of Rights It is important to note that the Bill of Rights in the beginning only limited the powers of the federal government. States were in fact allowed to act against the Bill of Rights. For example, in the early decades of the new Republic a number of states had established state religions which were enforced by law. The Supreme court in the 1833 case Barron v. Baltimore explicitly stated that the rights protected by the Bill of Rights applied only to the general government, and could not be enforced against local governments. This would not change for over 130 years. In the 1925 case Gitlow v. New York, the Supreme Court ruled that the 14th amendment, adopted shortly after the Civil War, in fact made the Bill of Rights applicable to state and local governments. The 14th amendment was created to ensure that basic rights of blacks were not taken away in the South, and in the process it made all rights of the Constitution guaranteed in the United States no matter what state you were living in. Today this is how we see the Bill of Rights: universal rights that apply to every American citizen. Still there are debates on exactly how the Bill of Rights ought to be used, and what constitutes the basic freedoms that it defines. Part of the debate arises from the rapid growth of technology in the last 50 years, an interconnected world moving at the speed of light that could not even be imagined by our Founding Fathers. Combine that with the ever greater threat's to the nation's security and there is true cause for concern. In the end, though, no matter what the times, no matter the technology, no matter the danger, the freedoms inscribed in the Bill of Rights are our basic freedoms that cannot be taken away by the federal government for any reason. Had the Founding Fathers wanted these freedoms to be conditional they would not have drafted the Bill of Rights. Some, such as Hamilton, opposed the Bill of Rights for just that reason: rights would be protected by default, he argued, but there were times when it would be too tying of the government's hands. This sort of thinking was defeated, and today we all base our rights upon the first 10 amendments to the Constitution, written so long ago but still so relevant today.
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