“A number of the States having at the time of their adopting the Constitution, expressed a desire . . . that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”
In 1788, the newly established states in America took up the issue of ratification of the country’s constitution. Anti-Federalists argued that an additional statement, defining the rights and liberties to be afforded to individuals, needed to be added to the document in order to prevent giving full power to a centralized government. In order to appease the Anti-Federalist camp, James Madison of Virginia authored the document (although he originally believed that the Constitution effectively provided such protections). The Bill of Rights consists of ten amendments, outlining both individual rights and the rights state governments would have within the new national political system.
A few years after the American Revolution ended with the 1783 Treaty of Paris, US leaders looked to build a new, improved framework for the country’s government. The Articles of Confederation, which had been drawn up during the conflict to form a loose tie between the new states, had proven inadequate to deal with the country’s problems. Consequently, the US Constitution was crafted as a replacement, a blueprint for the establishment of America’s federal political institutions. During the Constitutional Convention of 1787, some of the delegates proposed that the Constitution should include a framework in which the rights of American citizens would be defined. One delegate, Charles Pinckney of South Carolina, offered a proposal to incorporate a set of guaranteed rights. Pinckney’s proposals, which included protection of the press and a ban on quartering soldiers in private homes, spoke to many of the British policies that provoked war between Great Britain and the American colonies only a few years earlier.
Pinckney’s amendments, which were proposed to the convention in August 1787, were not adopted, but they did open the door for further discussion of rights in the new United States. One month later, more delegates (many of whom were Anti-Federalists opposed to a central government authority and any legally sanctioned impingement on individual rights) proposed that the Constitution should have a bill of rights. These proposals were also rejected, although they influenced the framers to include in the document some language on an individual’s rights with regard to criminal prosecution under British laws. The Constitution’s framers believed that the system it established—namely one in which the powers were divided among the executive, legislative, and judicial branches—sufficiently protected citizens’ rights and liberties by preventing one singular government institution from assuming a dominant position.
After the Constitution was approved by the convention, the issue of a bill of rights persisted during the ratification process. Thomas Jefferson, who was then the American ambassador to France, wrote to fellow Virginian James Madison, who was one of the members of the Constitutional Convention, to persuade him and others to adopt an amendment in the form of a bill of rights. When the Constitution was brought to Virginia for ratification, Virginia delegate George Mason steadfastly refused ratification because of the lack of a bill of rights. Representatives from Massachusetts initially refused to ratify for the same reason. They agreed to sign only when a compromise was struck that allowed for ratification with the expectation that a bill of rights would be added later.
Although he initially believed that a bill of rights was not entirely necessary for the Constitution, in 1789, Madison was called upon by his fellow congressmen to draft the document. Two years later, Congress approved amending the Constitution by including the Bill of Rights. Madison had originally offered twelve amendments, but the final number was reduced to ten, all of which were made law in 1791.
James Madison was born on March 16, 1751, in Port Conway, Virginia. The eldest of the twelve children of James Madison Sr. and Nelly Conway Madison, he was raised and educated on his family’s plantation, Montpelier, before enrolling in the College of New Jersey (now known as Princeton University) at the age of eighteen. There, he studied a wide range of liberal arts subjects, including Latin, philosophy, and geography. He also became strongly influenced by such iconic seventeenth- and eighteenth-century thinkers as John Locke and Sir Isaac Newton. Madison helped found the American Whig Society, a debate club at the university, before graduating after two years.
Following his university education, Madison returned home to tend to personal health issues. Meanwhile, the American Revolution began to take hold in the colonies. Madison joined the cause by gaining election to the Virginia Convention in 1776, where he helped draft the state’s new constitution. Madison, a Christian, wrote into that document a provision allowing for religious freedom. He also served three terms (between 1776 and 1800) in the Virginia House of Delegates. Furthermore, in 1777, he moved to Williamsburg to serve on the Governor’s Council, through which he became good friends with Jefferson.
In 1780, Madison was elected to the Continental Congress in Philadelphia, where he developed his belief that Britain’s rule should be replaced with a centralized, federal government. In 1787, Madison attended the Constitutional Convention, where he contributed heavily to the writing of the new constitution. After the convention, he, Alexander Hamilton, and John Jay wrote the Federalist Papers (1787) to gain support for ratification of the Constitution.
In 1800, Madison helped to elect Jefferson president. Jefferson chose Madison as his secretary of state. In this capacity, he helped Jefferson negotiate the Louisiana Purchase. Meanwhile, France and England reignited their long rivalry, and at sea, this war caused great damages to American trading vessels. Madison supported an 1807 embargo on imports from the two nations, resulting in crippling economic issues for the United States but having little effect on the warring parties.
Despite the failure of the embargo, Madison won the presidency in 1808. His presidency was tumultuous, as he dealt with his own party’s infighting and resulting political impotency during his first term. During his second term, relations with the British collapsed, and the War of 1812 erupted. The war included such demoralizing events as the torching of the US Capitol and White House. Madison’s wife, Dolley, famously refused to leave Washington until all national treasures were secured and safe from the destruction. As American forces turned the tide, however, the country’s morale improved. A treaty was finally signed in 1814.
Following his presidency, Madison returned to Montpelier, although his successor, James Monroe, would later consult him on foreign policy matters. He also remained true to the cause of federal government, speaking out on disruptive issues that arose under the auspices of state rights. He died at Montpelier on June 28, 1836.
Madison begins the Bill of Rights by acknowledging that, during the Constitutional Convention, a number of state delegates had expressed their concerns that a strong, centralized federal government could be tempted to abuse its power and impose its political will on the states. In order to prevent such occurrences, the delegates requested a series of “declaratory and restrictive” amendments to the Constitution be affixed to the previously ratified document. Although he did not personally believe such amendments were necessary, Madison says that a bill of rights would help bolster the public’s confidence in its new federal government. In turn, he states, this confidence would ensure that the government could pursue the “beneficent” endeavors for which it was established.
The Bill of Rights would therefore be introduced to the state legislatures, in part for ratification and in part to demonstrate the benevolence of the new government toward a people that for decades had dealt with onerous and intrusive British government activity. Madison originally introduced twelve amendments, two of which were rejected by Congress. The first rejected amendment stipulated the size of the constituency for each congressional representative, and the second would have prevented Congress from changing its compensation (presumably, giving itself a pay raise) within a legislative term. (The latter was eventually ratified as the Twenty-Seventh Amendment in 1992.)
Many of the amendments contained in the Bill of Rights speak to the experiences of the colonists prior to Revolutionary War as they dealt with the increasingly oppressive laws and rules of the Crown. The First Amendment, for example, states that no law should establish a singular religious faith, nor shall Congress make any rule or law that prohibits the practice of any such tradition. This measure speaks to the colonists’ long-cherished ideal of freedom of religion, a concept that drove the persecuted Puritans to colonize New England in the seventeenth century. Following their departure from Britain, Parliament had passed the Toleration Act, allowing any peaceable religious practice to continue without disruption from government. While under British rule, the New England colonies in particular maintained a society dominated by the Puritan Church. Britain, where the Anglican Church was the dominant faith, largely stayed out of their affairs in this area.
Shortly before the war began, Britain passed what became known as the Intolerable Acts. A component of this set of acts changed the borders with Catholic-dominated Quebec. This action raised the ire of the colonists, as it represented an infringement upon the largely Protestant society, even as the church-dominated colonial governments that were common during the seventeenth century largely gave way to more secular colonial governance by the eighteenth century. In light of this fact and the historical pursuit of freedom of religion long in existence in America, Madison and his peers found it necessary to establish constitutional protection of peaceful religious practice (religious traditions that do not disrupt the society) when the new government was established.
The same case made for freedom of religion was made for other individual expressions. The First Amendment clearly states that Congress will make no laws that limit the people’s right to protest peaceably, nor will it deny the freedom of speech. This part of the amendment has also has its roots in the prerevolutionary colonies. The Intolerable Acts, for example, were measures applied after the colonies demonstrated increased indignation over such taxes as the Stamp Act of 1765 and the Townshend Acts, which began in 1767 and increased taxes on such items as tea, glass, and paper in the colonies, the revenues from which would be returned to Britain and not the colonies. The First Amendment also protects the press, which is expected to report the state of the country without fear of censorship by the government.
The Second Amendment speaks to the fact that until 1776, American colonists had not organized any military force to counter the increasing presence of British troops, even when this presence contributed to the violent confrontation known as the Boston Massacre of 1770. Therefore, the Second Amendment states that in order to ensure that the new nation remain secure, it requires that its citizens be encouraged to keep arms so that the nation’s military strength would never be compromised.
The Third Amendment addresses another military issue. After the French and Indian War (1754–63), Parliament deemed it necessary for British troops to remain in the colonies, despite the fact that hostilities had ended. In fact, the Quartering Act of 1774 allowed British troops to take up residence in private homes in the colonies without the consent of homeowners. The issue was a major contributor to the deterioration of relations between the colonies and the British government. Because this type of law remained fresh in the minds of people such as Madison, he and his colleagues deemed it necessary to define and protect this individual right in order to prevent any future recurrence of such intrusion.
In addition, the Bill of Rights works to ensure that the legal system does not allow for any criminal investigation that is not endorsed by a levelheaded judiciary. The Fourth Amendment states that all people should be free in their own homes and that their property also be protected with zeal. In other words, there will be no unreasonable searches and seizures from people’s homes and businesses. Additionally, any searches conducted on an individual, home, or property need to be done with probable cause, which means that officers of the law cannot enter and search people or their homes without the official sanction of a judge or similar officer of the court. Furthermore, any such warrant would need a detailed list of the property to be searched and the individual or items that seized under the warrant.
The Fifth Amendment also discusses the protections afforded criminal suspects. In addition to the warrants outlined in the Fourth Amendment, the Bill of Rights states that suspects in serious crimes cannot be held in custody until they are formally indicted by a grand jury. The only exception to this rule would be for enemy combatants captured during battle (or otherwise acting in a dangerous way during a conflict). The exception was made because, during combat, it was too difficult to investigate every enemy combatant captured in battle.
In addition to the grand jury requirement, the Fifth Amendment contains other protections for criminal suspects. One such component is the so-called double jeopardy provision, which states that people who have been tried and convicted (or acquitted) of crimes cannot be retried for the same crimes. Another such element of the Fifth Amendment is the protective measure that states that defendants cannot be made to testify against themselves; they may therefore decline to answer questions from prosecutors under this amendment. Furthermore, while criminal suspects are held in custody awaiting trial, the state may not seize their assets or property, nor may it liquidate their holdings without providing reasonable compensation.
The Sixth Amendment states that individuals held in custody awaiting trial should be given the right to have “speedy and public” trials. Trials are to be held in the state or district in which the crimes took place (the government having previously defined those legal geographic territories). The inclusion of that right reflected Americans’ response to two prerevolutionary abuses: a law passed by Parliament that allowed colonists accused of spying or otherwise treasonous activity to be extradited to Britain for a trial there and a law that protected British soldiers accused of murder in the colonies from being tried in the colonies. These soldiers were allegedly taken back to Britain for trial, although many colonists believed that such trials never took place.
Additionally, the Sixth Amendment grants to suspects the right to know the charges brought against them. It also made it possible for the accused to, during the trial, come face-to-face with witnesses and those who accused them of a crime, as well as acquire witnesses to rebut the claims of the prosecution’s witnesses and claims. Finally, the amendment gives suspects the right to qualified legal counsel if they cannot otherwise afford to hire such individuals to defend their cases.
The next amendment speaks to the use of a jury of peers in most judicial cases. The newly founded American leadership had just emerged from a period in which colonists accused of certain crimes could be detained by British authorities and tried not by a jury of fellow colonists, but by British authorities. The Seventh Amendment returned the jury to the central position of power in the court.
It has been argued that the Seventh Amendment was added to give people a sense of control over the application of the law. No government leader can overturn a not-guilty decision of a jury, and therefore these officials are ostensibly unable to influence a decision on the guilt or innocence of a criminal suspect. In fact, the amendment makes it possible for a jury to speak out on a given law; if a jury feels that a particular law is unjust, they can acquit a suspect with impunity.
The Eighth Amendment is presented in two parts. The first part concerns bail, a payment made by accused criminals to avoid incarceration while they await trial. Bail was (and remains) an expensive charge for most people. However, at the time of the drafting of the Bill of Rights, bail was not considered equitable: Wealthy citizens could post bail, while less affluent individuals could not afford to do so. Because incarcerated individuals are less able to develop legal cases than those who are free on bail, the Founding Fathers realized that this inequity should be corrected, at least nominally. Therefore, Madison and his peers added to the Eighth Amendment that excessive bail and fines are not to be imposed.
The Eighth Amendment also states that “cruel and unusual punishments” cannot be inflicted on those found guilty of a crime. However, no definition of “cruel and unusual” is provided. Madison and the other Founding Fathers were deliberately vague on this issue, proceeding from the notion that the types of punishment considered acceptable might change over time. For instance, common punishments issued during this time included public flogging, hangings, and mutilation.
Madison and the Founding Fathers drafted the Bill of Rights knowing that there could be no true account of all the basic rights and privileges to which the citizens of a nation were entitled. Indeed, one of the issues Federalists had with the arguments made by Anti-Federalists during the Constitutional Convention was the fact that the latter demanded a full list. Madison stated that delegates objected to the Anti-Federalists’ proposal on the grounds that listing all of the rights under and exceptions to the laws was inherently problematic; such an endeavor would elevate certain rights above others, particularly those that had not been identified.
With the pressure to create a bill of rights unmitigated by the Federalists’ arguments, Madison included the Ninth Amendment, which states that the “enumeration . . . of certain rights” in the Constitution would not serve to deny or discourage the identification of other rights in that document. Rather, Madison says, a great many rights are retained by the people, and he implies that they could be documented over time. The Bill of Rights, particularly in light of the Ninth Amendment, would therefore be seen as a fluid document, subject to alteration as society evolved.
As suggested earlier, one of the main obstacles facing Madison and other Founding Fathers in the drafting of the Constitution was the fact that Anti-Federalists were concerned that this document would establish a central government that would override or deny the authority of the states to govern their own residents. To mitigate the concern, Madison drafted the Tenth Amendment, which was designed to underscore the fact that outside the responsibilities assigned to the federal government under the Constitution, many other matters warranted government action but were not assigned to the federal government.
For example, the federal government is identified in the Constitution as the primary agent in the negotiation of international agreements. However, no agent is assigned to the enforcement of local laws. Under the language of the Tenth Amendment, therefore, the responsibility falls to the states, as this section clearly states that any powers not so delegated to the federal government by the Constitution (nor prohibited to state governments) would be assigned to the states.
The Tenth Amendment addresses a major Anti-Federalist concern; Federalists, Madison included, had similar concerns themselves. Among the Federalists was a fear that a central government might become too strong, reminiscent of the British approach to the colonies. Therefore, the Constitution separates these powers among the three branches. It also limited the powers the federal government could employ in the nation’s administration.
The Tenth Amendment also empowers the states by giving them considerable power to manage a wide range of government tasks not identified in the Constitution. In the eyes of the Founding Fathers, the Tenth Amendment struck a delicate balance between the needs for an effective but limited federal government and relative sovereignty of the states. Over time, the federal-state balance has been challenged frequently, particularly as more issues that demand government action (but not identified in the Constitution) have arisen. A persistent theme found in the Bill of Rights is deference to the fact that societal needs inevitably evolve. Therefore, in this regard, the Bill of Rights and the Constitution should be seen as a document capable of parallel evolution.
The Bill of Rights was solicited after the ratification of the Constitution when it became clear to the Constitution’s proponents that the interests of the Anti-Federalists needed to be addressed. The group believed that a strong centralized government ran the risk of replacing one oppressive leader with another. They preferred to form a government that clearly defined the rights due to American citizens. They also sought to give greater power to the states.
Madison was among the Federalists who believed that the fear of an oppressive federal government was unfounded and that the Constitution contained enough language that both outlined the basic rights of men and protected states’ rights. Nevertheless, he crafted a list of additional constitutional articles that further clarified the basic rights of men and protocols that would protect these rights.
A large number of these rights were reactions to the onerous policies of the British government shortly before the Revolution. For example, the protection of criminal suspects from intrusive and overzealous prosecution, as well as the requirement that accused criminals be tried by a jury of their peers, were legal concepts that were largely disregarded by Parliament before the war began, causing further friction between the colonies and the Crown.
Other elements of the Bill of Rights specifically address the Anti-Federalists’ list of concerns. The freedom of religion and the freedom to assemble peaceably, for example, are clearly defined in the Bill of Rights, a set of basic rights not specifically mentioned in the Constitution but highlighted in Madison’s document. Additionally, the Tenth Amendment states that there were many issues that were not identified in the Constitution, many of which would need to be assigned to the states for administration.
The Bill of Rights left open the possibility for future updates and interpretations. For example, the Eighth Amendment does not clarify what “cruel and unusual punishments” entail but implies that the principle would hold true based on the norms of present and future societies. Likewise, the Ninth Amendment acknowledged the fact that the rights afforded to citizens could not be fully listed, implying that both the Bill of Rights and the Constitution are fluid, amenable documents subject to additions as future society would dictate.
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