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cannot violate. The states ratified the Bill of Rights in 1791, three years after the Constitution
was ratified. Originally the Bill of Rights applied only to the federal government, but in a series
of 20th-century cases, the Supreme Court decided that most of its provisions apply to the
states. Many countries have used the Bill of Rights as a model for defining civil liberties in their
constitutions.
II RIGHTS PROTECTED
The Bill of Rights includes a wide range of protections with a common theme and purpose —to
define the scope of individual freedom in the United States and to make the political system
more democratic. They are not the only rights contained in the Constitution. For example,
Sections 9 and 10 of Article I of the Constitution prohibit the states and the federal
government from passing an ex post facto law—a law that subjects a person to punishment for
an act that was not unlawful when committed. But as a group the rights provided in the first
A First Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people
Comment: The First Amendment guarantees freedom of speech, freedom of the press, and
freedom of association and assembly. It also protects the rights of citizens to worship as they
please and the right not to be forced to support someone else’s religion. The First Amendment
B Second Amendment
A well regulated Militia, being necessary to the security of a free State, the right of the people
Comment: Legal scholars disagree about what right is protected by the Second Amendment.
Some scholars have concluded that this amendment affirms a broad individual right to gun
ownership. Others interpret the amendment as protecting only a narrow right to possess
firearms as members of a militia. Supreme Court decisions have not resolved the debate.
However, the courts have held that the Second Amendment does not preclude certain
felons.
C Third Amendment
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner,
Comment: The Third Amendment forbids the government from quartering soldiers in private
residences during peacetime without the resident’s permission, and during wartime only
according to law. Under British rule, American colonists were forced to feed and house British
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soldiers deployed to help enforce colonial tax laws. The colonists resented this practice, and so
banned it with this amendment. This amendment has been basically irrelevant since the end of
and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and
particularly describing the place to be searched, and the persons or things to be seized.
Comment: The Fourth Amendment prohibits the police and other government officials from
searching people’s homes or offices or seizing their property without reasonable grounds to
believe that a crime has been committed. In most cases, police can conduct a search of a
person’s home or office only after they get a written search warrant from a judge, detailing
cases arising in the land or naval forces, or in the Militia, when in actual service in time of War
or public danger; nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall
Comment: The Fifth Amendment provides five important protections against arbitrary
government actions. First, no one may be prosecuted for a federal crime without first being
indicted (formally accused) by a grand jury. Second, a criminal suspect may be prosecuted
only once for each crime. If a jury acquits the accused person, there can be no retrial. Third, a
person cannot be forced to testify against himself or herself in any criminal case. This is the
right against self-incrimination. Fourth, the due process clause bars the government from
arbitrarily depriving anyone of life, liberty, or property. Fifth, the government may not take
anyone ’s private property unless it is necessary for a public purpose and unless the
F Sixth Amendment In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to
Comment: The Sixth Amendment guarantees people accused of crimes the right to a speedy
and public trial. Defendants in federal cases are entitled to be tried in the area in which the
crime was committed, and both state and federal defendants have the right to have an
impartial jury decide their guilt or innocence. The Sixth Amendment prohibits the government
from prosecuting an accused person without first informing him or her of the nature of the
charges against him or her. The accused has the right to “confront”—that is, to cross-examine
witnesses who testify against him or her at trial. Those accused also have a right to subpoena
(compel) supporting witnesses to testify in court and to have a lawyer assist in their legal
defense.
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G Seventh Amendment In Suits at common law, where the value in
controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than
Comment: The Seventh Amendment, which does not apply to the states, guarantees the right
Comment: The courts must allow most criminal defendants out of jail before their trial if the
defendants put up a reasonable bail—a financial guarantee that they will come to the trial. If a
person is convicted of a crime, the government cannot impose unreasonable fines or inflict
inhumane punishments. What is “cruel and unusual” has no fixed meaning, and so decisions
interpreting the clause are sometimes controversial. The Supreme Court has generally held
that a punishment that is wildly disproportionate to the crime committed is cruel and unusual.
The Court has also upheld the death penalty against claims that putting someone to death,
Comment: The Ninth Amendment declares that just because certain rights are not mentioned
in the Constitution does not mean that they do not exist. Courts may not infer from the silence
of the Constitution that an unlisted right is unavailable to protect individuals from the
government.
J Tenth Amendment The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to
the people.
power was not assigned to the federal government by the Constitution itself, then the states
may exercise the power, unless the Constitution also prohibits the states from exercising it.
The Tenth Amendment also states that people are free to act, without permission of the federal
K Summary The first ten amendments to the Constitution have been crucial to
the political and legal development of the United States. They accomplished three important
purposes. First, they declare an important ideal—that the people have rights with which no
government may interfere. Placing ideals into the Constitution makes it harder for tyrants to
restrict human rights. Second, they provide the basis for actually securing the rights. In 1789
statesman Thomas Jefferson wrote James Madison that a bill of rights “puts into the hands of
the judiciary” a “legal check” against tyranny by the legislature or the executive. Third, the Bill
of Rights, especially the First Amendment, helps protect democratic government by barring
criminal prosecutions against those who criticize the government and those who hold
unpopular beliefs, and by providing a safe haven for minorities who are oppressed in many
other countries.
assumed that they would have the same protections against governmental abuses of power
that they had in England. The most important of these were the right to trial by jury and the
right of habeas corpus, which prevented the government from jailing people arbitrarily. Other
personal liberties brought from England to America included the right of accused persons to
have legal assistance at trials, and a ban on excessive fines and bail. These rights came from
several centuries of English legal tradition, recorded in documents such as the Magna Carta of
1215, the Petition of Right of 1628, and the English Bill of Rights of 1689, from which the
American Bill of Rights took its name. The assumption of basic legal rights of citizens also came
out of the English common law, a body of English court-made law that evolved from the 12th
century.
English settlers in America included many of these protections in colonial laws. The English
Americans decided to codify (write into law) some parts of the common law and to make
additions suited to the colonial society. The 1632 charter for the Maryland colony, for example,
declared that all people who were born or who moved there were entitled to "all Privileges,
Franchises and Liberties" of a native Englishman. By 1639 the Maryland General Assembly had
Residents of the Massachusetts Bay Colony created the Body of Liberties in 1641, an important
forerunner of the American Bill of Rights. The Body of Liberties granted limited religious
freedom, assured landowners of the equal protection of the laws, the right to petition the
government for change, and the use of the writ of habeas corpus. It also banned punishments
considered "inhumane, Barbarous or cruel" and recognized the right of an accused person to
have legal assistance under some circumstances. The Body of Liberties also required the
presence of several witnesses to a crime before a person could be sentenced to death. It also
granted citizens the right to travel and settle abroad, an important freedom often denied in
England.
Some colonies created religious protections stronger than those in Massachusetts, even though
religious freedom was not part of the English legal tradition. Religious intolerance in the
Massachusetts Bay Colony spurred some people, including clergyman Roger Williams, to flee to
other areas. Williams went to Rhode Island in 1636, where he started a new colony based on
religious freedom and political equality. Eventually these freedoms were incorporated into the
Rhode Island Charter of 1663. This charter banned government repression of religious groups
and guaranteed individuals the right to their own beliefs. The strong religious protections in
basic rights of citizens as part of their birthright. British authorities shattered this assumption
during the Seven Years’ War (1756-1763), during which European powers fought for control of
North America. During the war British soldiers searched many colonists’ homes in an effort to
find smuggled goods. By the end of the war, many colonists resented royal authority. The
Stamp Act of 1765, which imposed a tax on a wide range of items, further increased tensions.
The Stamp Act Congress of 1765 issued a Declaration of Rights that condemned the tax as
unjust and also advocated trial by jury, the right to petition the government for change, and
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"all the inherent rights and liberties" of people native to England. The rebellion against English
rule had started and eventually led to the American Revolution (1775-1783).
England repealed the Stamp Act in 1766, but the crisis continued. In 1774 the Continental
Congress issued a Declaration of Rights that claimed the civil liberties provided under English
law, but that also expanded beyond them to include claims based on a so-called natural law.
This idea of rights based on natural law emerged from several English writers of the period,
especially John Locke and William Blackstone. Locke argued that government rested on the
consent of the governed, and that no government could violate basic natural principles of
justice. Blackstone put English common law into writing, and also asserted that God had
created “certain immutable laws.” Although the Declaration of Rights asserted new principles of
freedom, it had little impact beyond popularizing the cause of the American rebels.
The English government resisted American claims for freedom, and fighting broke out in 1775.
Many of the colonies called conventions to create new state governments free of English
control. In June 1776 Virginia’s state constitutional convention adopted the Virginia Declaration
of Rights. The declaration created basic civil liberties, including safeguards for accused
persons: the right to call witnesses, the right against self-incrimination, a ban on excessive
bails and fines, and due process of law. The declaration also banned widespread government
searches, discouraged the creation of standing armies, and called for freedom of the press.
James Madison, a delegate to the convention, successfully argued for the inclusion of a
Many colonies followed Virginia’s lead when they established new state governments. Traces of
the Virginia bill soon appeared in the Pennsylvania, Maryland, and Delaware declarations. By
1781 Massachusetts, North Carolina, New Hampshire, and the provisional government of
Vermont had all prefaced their constitutions with some type of bill of rights. Most other states,
including New York, New Jersey, South Carolina, and Georgia, protected civil liberties through
a bill of rights in their new constitutions or through new supplementary laws. Only Rhode
Island and Connecticut continued to rely on common law and existing legal provisions to
The idea of a bill of rights as a basic protection of civil liberties thus dates to the American
Revolution. From 1776 to 1781, the eight bills of rights adopted by the states contained a total
of 90 different provisions. Some were heavily tailored to local circumstances. Most shared
provisions for jury trial, freedom of speech, freedom of the press, the right to bear arms
(weapons), the right to petition the government for change, and a range of other freedoms
rooted in the Magna Carta and the English common law. Through their assertions of broad
rights to freedom of speech and religion, however, these documents broke with English
tradition. In addition, the American bills of rights went far beyond the English precedents by
ordering restraints on the powers of government that had been unthinkable before 1776.
to the Constitutional Convention did not think it necessary to set down a list of rights. Most of
the framers believed that because the Constitution created a limited federal government,
authorities would not try to establish a national religion, censor a newspaper, or prosecute
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When the Constitution went before the states for ratification, members of the Federalist Party,
who favored ratification, soon found that failure to include a bill of rights had been a strategic
error. The Federalists argued that the people retained all powers not delegated by the
proposed Constitution, but the anti-Federalists did not trust this reasoning. Jefferson, then
serving as a minister to France, read the proposal and sided with the advocates of a bill of
rights. Human rights, he argued, were something "no just government should refuse, or rest
on inference."
The Federalists and anti -Federalists both tried to rally support for their position through widely
distributed pamphlets. The Federal Republican Society, for example, printed antiratification
pamphlets and spread them through the states. This group hoped that the states would reject
the Constitution, which would lead to a second federal convention. Some states ratified the
Constitution as early as 1787, but debates in these states often turned on the lack of a bill of
rights. As the pamphlet war dragged out into the spring of 1788, many Federalists concluded
The debate over ratification extended beyond party lines. Many religious groups, particularly
the Baptists, expressed alarm over the lack of explicit religious protections. Printers worried
about possible curbs on the press. Old fears from pre-Revolutionary days regarding sweeping
government searches, warrants, criminal-trial procedure, and other rights were stirred afresh
Dedicated Federalists such as Alexander Hamilton remained unconcerned by the calls for a bill
of rights, but Madison and others saw the need to compromise. The Constitution took effect
when New Hampshire became the ninth state to ratify it on June 21, 1788. Virginia’s ratifying
convention debated bitterly but finally approved the Constitution by a narrow margin five days
after New Hampshire’s vote. Discouraged by the Virginia vote, the New York anti-Federalists
accepted that the Constitution would be adopted, but also insisted that the First Congress
consider a bill of rights. Leaders in Rhode Island and North Carolina refused to ratify the
James Madison kept the idea of a bill of rights alive in Congress. He had lost a Senate seat and
barely won election to the House of Representatives, having finally made an unequivocal
campaign pledge to fight for a bill of rights. Madison soon found he was almost alone in his
concern for prompt action on this promise, but agreed to consider all reasonable suggestions
for the new bill of rights. He distilled the essence of English and American personal freedoms,
When Madison reminded fellow members of Congress of the promise to enact a bill of rights,
his insistence upon action met with some coolness. He kept fighting, however, and presented
his plan to the House in June 1789. Madison originally thought the bill of rights should be
incorporated into the original Constitution, rather than offered as separate amendments. After
weeks of delay, the House appointed a committee to prepare a bill of rights, with Madison and
Roger Sherman of Connecticut serving under Chairman John Vining of Delaware. Sherman
favored a separate bill of rights, and his suggestion was finally adopted over Madison's
inclusion plan. After much debate, the House passed 17 proposed amendments.
The Senate combined some amendments and eliminated others, reducing the number to 12.
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The Senate defeated one amendment that Madison said he prized above all others. It would
have prohibited the states from interfering with their citizens ’ freedom of speech, religion, and
conscience. But the Senate did not want to bind the states, and regarded the bill of rights as
limiting only the federal government. The House and Senate deadlocked over the different
versions of the bill of rights, and a joint committee convened to work out a final set of
amendments. From this joint conference 12 amendments emerged, which the Congress passed
Support from three-fourths of the states is needed to amend the Constitution. Vermont’s 1791
statehood brought the number of states to 14, so 11 states were required to add the Bill of
Rights to the Constitution. Virginia became the 11th to do so on December 15, 1791. Most
states did not ratify the first two articles of the Bill of Rights. The first dealt with the method of
assigning congressional seats to the states. This amendment was never ratified. The second
article, specifying congressional pay rates could not be changed before an intervening House of
Representatives election, lay dormant for more than 200 years. The states eventually ratified it
in 1992 as the 27th Amendment. The original third article of the Bill of Rights, when ratified in
V INTERPRETATION
Courts interpreted the federal Bill of Rights narrowly for most of American history, but during
the 20th century courts vastly expanded its protections. One of the most glaring violations of
the Bill of Rights came in 1798 when Congress passed the Alien and Sedition Acts, which gave
the government broad powers to squelch free speech. Opponents of the acts charged that they
violated the First Amendment, but a court test never came. In a later dispute, Chief Justice
John Marshall spoke for the Supreme Court in 1833 when he declared in Barron v. Baltimore
that the first ten amendments applied only to the federal government, not to the states.
The Bill of Rights finally received close judicial analysis during Reconstruction—the process of
rebuilding the South’s tattered political and economic system after the Civil War (1861-1865).
The Supreme Court ruled in the so-called Slaughterhouse Cases of 1873 that, although the
14th Amendment prohibited laws that infringed on “privileges and immunities of citizens," this
protection did not include the first eight amendments. This decision effectively blocked any
The Supreme Court applied Bill of Rights protections to the states in 1925 in Gitlow v. New
York. The Court said that freedom of speech and of the press were fundamental personal
liberties "protected by the Due Process Clause of the 14th Amendment from impairment by the
States." This application of the Bill of Rights through the 14th Amendment is sometimes called
the doctrine of “incorporation.” But in 1937 the Supreme Court decided in Palko v. Connecticut
that not all of the Bill of Rights was incorporated by the Due Process Clause, limiting such
sections to those dealing with rights "implicit in the concept of ordered liberty." By the end of
the 1960s, however, the Court had decided to apply nearly all of the Bill of Rights to the state
liberties in the world today. Many other nations observe most of the same rights, but not
necessarily in the same way or to the same degree. The Canadian Charter of Rights and
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Freedoms, for example, guarantees most of the liberties protected by the Bill of Rights, but
some of its provisions may be overridden in certain circumstances by both the Canadian
federal government and provincial legislatures. In the United States, neither Congress nor the
state legislatures may pass a law that conflicts with the Bill of Rights. Citizens of Britain enjoy
civil liberties, but the Church of England remains the official church and the freedoms of speech
and of the press are weaker than in the United States. Moreover, Parliament is supreme and
may pass laws that violate civil liberties if it chooses. France and most other non-English-
speaking countries of Western Europe and South America have a different type of criminal law
system, and many protections afforded to the accused in the United States do not exist in
these countries. Constitutions of the former Communist countries such as the Soviet Union and
much of Eastern Europe established civil liberties on paper but created no enforcement
mechanisms. One of the first legal steps taken in the newly emerging democracies in Russia
and Eastern Europe in the 1990s was to add enforceable civil liberties to their rewritten
constitutions.
Contributed By:
Jethro K. Lieberman
[1]
[1] "Bill
of Rights."Microsoft® Encarta® Encyclopedia 2001. © 1993-2000 Microsoft Corporation. All rights
reserved.