Bill of Rights

Context

The immigrants who came from Europe to the New World in the late 1600s and 1700s fled political and religious persecution, hoping to build new lives. Many were outcasts from a Europe still steeped in monarchies and hierarchical societies. Thus, many wanted to make their fortunes, while others hoped to build a new political community. At that time, the revolutionary ideas of John Locke and others were beginning to gain support and challenge the orthodoxy of the age. A new “contract theory” of political union was emerging, and questions regarding the legitimacy of hereditary government were becoming more pronounced. During this era, dubbed the Enlightenment, the subservience of the old era was being replaced by the Age of Reason. The average person was becoming bolder and demanding more rights and privileges, challenging the old order. The time was one of revolutionary fervor and political upheaval.

Many of the men and women who came to the American colonies were well versed in and amenable to accepting these new, radical ideas. Democracy, the rule of law, constitutionalism, common rights, and other revolutionary ideas were being discussed and embraced in the Americas. These ideas met with harsh resistance from the rulers of Great Britain, however, who still held sway over the colonies. This resistance, of course, led to revolt. The American Revolution was fought for political independence, but it was also fought for ideas: democracy, republicanism, rights, and constitutionalism. Translating these ideas into a workable government proved a great challenge.

The revolutionary fervor of the colonial fighters was in large part based on the radical ideas presented in Thomas Paine's pamphlet Common Sense and Thomas Jefferson's Declaration of Independence. These powerful and influential broadsides against the monarchy and in favor of democratic rule animated opposition to England and inspired the Revolution. Those who fought the British did so to gain rights and liberties that were denied under the oppressive hand of British domination. The liberation of the colonies was intended to guarantee those rights and liberties so resolutely denied by the British Crown.

Following the success of the Revolution, the first governing document of the new nation, the Articles of Confederation, proved weak and ineffective. Opposition to the articles grew and became fairly widespread, leading to a call for revision of the document. After initial attempts to call a new constitutional convention failed, the nation was finally able to gather together the states for the purpose of emending the articles. When the Founding Fathers gathered in Philadelphia during the hot summer of 1787, however, they decided to scrap the Articles of Confederation and start afresh, writing a new constitution. This was a bold step, especially given that the deliberations were done in secret, and only when the new U.S. Constitution was finished did the Founders reveal its content to an anxious public.

For that Constitutional Convention, held in Philadelphia in 1787, seventy-four delegates were chosen by the states, although only fifty-five attended. The convention was held in the State House (now Independence Hall), in the room where just over a decade earlier many of the same men had met to sign the Declaration of Independence. Noticeable for their absence from the convention were some of the new nation's strongest advocates for democracy: Thomas Paine, Thomas Jefferson (who was in Paris), John Adams (who was in England), and Patrick Henry (who refused to go). Every state but Rhode Island sent delegates.

The delegates to the Constitutional Convention discussed the possibility of including a bill of rights in the original U.S. Constitution, but in the end they decided against one. This, of course, stirred fears in the Antifederalist camp and proved a significant impediment to ratification. “A bill of rights,” Thomas Jefferson argued, “is what the people are entitled to”—a sentiment widely shared by his fellow citizens (Bowers, p. 330). When the delegates, having finally finished their work, exited the hall in Philadelphia, a woman in the crowd shouted to Benjamin Franklin, “What is it Dr. Franklin, a monarchy or a democracy?” Franklin responded, “A republic, if you can keep it” (McHenry, p. 618).

Ratification of the Constitution was by no means a foregone conclusion. As copies of the document were circulated, two major objections emerged: first, that the new president might too closely resemble the king of England, against whom the Revolution had recently been fought, and second—and more important at the time—that the document included no guarantee of the rights for which the Revolution was fought. These two objections, when joined together, raised a chill in many. Would this new Constitution bring a new king who could likewise trample on the people's rights and liberties?

The new Constitution had to be ratified by nine of the thirteen states, and many of the state-ratifying conventions proved contentious and difficult affairs. Several states ratified quickly, including Delaware, the first to ratify the Constitution, on December 7, 1787. Several weeks later, Pennsylvania, New Jersey, Georgia, and Connecticut followed. In February 1788, Massachusetts, too, ratified the Constitution, but only after supporters of the document agreed to amend it to include a bill of rights. On June 21, 1788, New Hampshire became the vital ninth state to agree to the Constitution. The test of ratification was over—but in the two most important and powerful states, Virginia and New York, strong opposition remained. Even though the new governing document had been ratified by the needed nine states, the Constitution would not survive unless Virginia and New York embraced it.

Debates raged, and at times all seemed lost. What indeed emerged from the critics of the Constitution, who were labeled Antifederalists, was an objection to the lack of rights therein. For them, this lack was the major stumbling block in the way of ratification, the deal breaker. Both New York and Virginia recommended the addition of a bill of rights to the Constitution.

In the end, a compromise between the Federalists, who supported the Constitution, and the Antifederalists was reached. James Madison and several other prominent framers agreed that upon the new Constitution's ratification, they would propose in the First Congress the addition of a set of amendments to the Constitution indeed listing and guaranteeing the rights of the citizens of the United States. This saved the day; both Virginia and New York embraced the new Constitution.

True to his word, in 1789 Madison introduced a series of amendments to the Constitution, twelve of which were approved and sent to the states, ten of which were passed by the states—with Virginia, the last of the needed three-quarters of the states, effecting ratification on December 15, 1791. These amendments thus became the Bill of Rights. The two amendments that failed to gain the necessary votes from three-quarters of the states were intended to authorize the enlargement of the House of Representatives and to prevent members of the House of Representatives from raising their salaries.