For one hundred and ninety-five years, the United States Supreme Court has been deciding cases based on the Constitution. During this time, the so-named Bill of Rights has been at the center of the most cherished and contentious rulings of that judicial body. Some of the liberties enshrined in the Bill have a clear resonance for us today, like the right to free speech, but some of them seem a little more obscure, like the right to keep and bear arms in order to support a well regulated militia, or the right to trial by jury only for suits exceeding $20.

Regardless of their modern-day utility, the seemingly immutable precepts enumerated in the first ten amendments of the constitution have dictated the course of public policy for nearly two centuries; they have the final say in all controversies regarding civil rights and civil liberties in the United States. All rulings on what government and other citizens can and cannot allow itself and its citizens to do are based on these amendments. Their importance can hardly be overestimated.

It's sometimes hard to remember that it was just fallible men who were charged with putting this document together, that it could have turned out differently. For one fleeting moment the rock that would form these amendments was still molten; there was a time when these, the most venerable and ancient of the United States' constitutional amendments, were not yet irrevocably cast in stone. The Bill of Rights wasn't handed to us from a sage on a mountaintop. It wasn't promulgated by divine inspiration. It was the product of politicians, who had the same motivations that politicians have today: appeasing their constituents and making a name for themselves. The senators and representatives of the first congress (from only 11 of the original 13 colonies -- precisely because there was no declaration of rights North Carolina and Rhode Island had not yet ratified themselves into the Union) prodded and pulled at each other until finally they came up with the principles that have guided the United States for more than 206¹ years. Judicial review of the Bill of Rights has lasted for nearly two centuries, but legislative review of the Bill lasted for only two and a half years. What were the forces that led up to these years?

During the state Constitution ratification debates, there arose a distinct call for constitutional protection of civil rights and civil liberties, led by moderate antifederalists (more extreme ones would have wanted nothing to help the fledgling union and thus would have supported no Bill, so that the people would rise up and stage a second revolution), from what was seen as the wanton tyranny of government (albeit a republican government). "No sooner had the Continental Congress laid the proposed Constitution before the people for ratification than a great cry went up: it contained no Bill of Rights."² The first protest against the unamended Constitution arose in Massachusetts, after five states had already ratified the Constitution without protest over an omitted declaration of rights. (Oddly, though the people apparently thought a bill of rights would be important, Massachusetts did not even bother to ratify the Bill of Rights until March 2, 1939,³ while the country was celebrating the Bill of Rights' sesquicentennial.⁴) Other states that clearly called for a Bill of Rights were Virginia and New York,⁵ the two most powerful states of the day.

So strong was the support for a bill of rights that New York, North Carolina, Rhode Island, Virginia, and minorities from Maryland, Massachusetts, and Pennsylvania sent to the fledgling federal government proposals for items to include in a future bill of rights.⁶ In addition, at this time the states or soon-to-be states of Delaware, Georgia, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, South Carolina, Vermont, and Virginia already had provisions in their constitutions that specifically safe-guarded the rights of citizens, or outright declarations of rights.⁷ Inserting a bill of rights into the constitution seemed like a prudent thing to do by the time the First Congress met in the spring of 1789. Rep. James Madison's (Va.) foreboding caveat to Congress when he first proposed a draft for the much-anticipated Bill on June 8, 1789, hints at a strong current of public opinion in favor of a bill of rights:⁸

I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something in the form I have proposed, to be incorporated in the system of government, as a declaration of the rights of the people.

But debate on the floor of the 51-member House of Representatives and the 22-member Senate reveal that there were still many delegates to the new federal government who felt that such declaration of rights that, regardless of whether it would soothe the seething masses, a declaration of rights would be superfluous. Rep. Roger Sherman (Conn.) was one of the most strident advocates of leaving the constitution undisturbed. In his view, any government prerogatives that were not specifically enumerated in the Constitution were left to the people, and so any specific enumeration of rights would be redundant.⁹ Rep. James Jackson (Ga.) also articulated the position in debate on the clause that eventually would become part of the First Amendment. "The gentleman [Madison] endeavors to secure the liberty of the press; pray how is this in danger? There is no power given to congress to regulate this subject as they can commerce, or peace, or war. Has any transactions [sic] taken place to make us suppose such an amendment necessary?"¹⁰ Jackson goes on to cite an example of how local papers had taken positions contrary to those of certain Representatives, and yet they had done nothing, and in fact could do nothing about. Madison, the great architect and champion of the Bill of Rights, articulates the position that since Congress can make all laws "necessary and proper" for executing the powers vested in the government, and since the legislature itself would judge what laws it makes,¹¹ a dangerous situation for the people could arise. Congress could issue warrants to all people by deeming it "necessary and proper" for the purposes of taxation;¹² this procedure would be banned by his proposed declaration of rights.

Though the states and the people were clamoring for them, debate in the Federal Congress about the amendments seemed to be pretty dispassionate and relaxed. The people evidently got more worked up about the Bill than the members of Congress. After all, the Representatives knew they wouldn't pass a law that violated "the rights retained by the people," but the people themselves couldn't be so sure. Another reason why the debate was less energetic than one might think was that the terms of debate were stacked in favor of those who wanted a bill. As Madison pointed out during his initial proposal,

I believe every gentleman will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of government in any one important feature, even in the eyes of its most sanguine admirers. ... [I]f we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.¹³

Passing the Bill of Rights, politically, was a win-win situation. Even for the likes of Sherman and Jackson, it was hard to argue against Madison's logic. Those against adding the Bill had a few weak tools at their disposal. The Bill, at worst, would be "unnecessary," "trivial," or "absurd,"¹⁴ but above all, it was politically expedient, even if it was unnecessary, and passing it could do no harm. By adding the Bill of Rights, the congressmen were not substantively changing the constitution, in the eyes of its opponents, but they were appeasing the great antifederalist masses who were keenly interested in this issue. It would be hard for a senator or congressman to go home to his constituents and say, "Sorry, I voted against a document that would have secured your rights from people like me. I voted against the Bill of Rights." But that doesn't mean that the opposition didn't at least try to stop it.

Jackson, for his part, argued that the Congress should not amend the Constitution hastily.

I shall like to stand on the sure ground of experience, and not be treading air. What experience have we had of the good or bad qualities of this constitution? . . . Our constitution, sir, is like a vessel just launched, and lying at the wharf, she is untried.¹⁵

His arguments were valid. Nobody knew how the future Bill of Rights would be put to use. Would it impinge upon the effective powers of a strong government? Surprisingly few in Congress seemed to feel this way. They preferred to think that no powers were being taken away from government by this declaration, but rather that powers the people already had were just being elucidated.¹⁶ Would it be forgotten? Not by the people, who in the states were eagerly awaiting such a bill. Would it be the first and longest lasting codification of the rights of citizens in the history of the human race? Yes.

Probably the most valid reason that could be used to argue against the Bill, was that in creating it, Congress would destabilize itself, and what people really wanted, even more than an enumeration of their rights, was stable government.¹⁷ It is probably for this reason that the states failed to ratify the first two articles of amendment, the two that dealt with Congress, even though Congress itself had just passed them. The states did not want to alter the system that had just so recently been put in place, so they left the method for apportionment of the Representatives intact, and they allowed pay raises to apply to the same Congress that passed them.

Another reason why some were against the a bill of rights was that by enumerating some, others not enumerated would implicitly be taken away from the people.¹⁸ It was in anticipation of this sentiment that Madison included the Unenumerated Rights Clause, and the Reservation of Powers Clause in his proposal. The Ninth and 10^th Amendments may seem silly or pointless to us now, but they were crucial to the success of the Bill of Rights a as a whole.

Once it was determined that such a document was needed to keep the country together, the construction of the Bill of Rights proceeded in five steps, in accordance with standard constitutional amendment procedure. First, under pressured from many in and out of Congress, Madison, working largely off of the Virginia Declaration of Rights, introduces a nine-point rough draft of the Bill on June 8, 1789, more than two months into Congress' first session.¹⁹ (See appendicies for Madison's proposal and the textual evolution of the Bill of Rights.) Second, the House debated and revised, in an ad hoc committee of eleven headed by Madison, Sherman, and Rep. John Vining (Del.), and as a whole, until it released its resolutions for 17 articles of amendment on August 24, 1789. The House overhauled Madison's wording to a great extent, dropping anything unnecessary. They made it sound less like a passionate appeal for liberty and more like law. It was during these debates that it was decided that Sherman successfully proposed that the Bill be placed as a series of amendments after the original constitution -- Madison had originally proposed that they be inserted directly into the original Constitution.²⁰

Third, the House sent their revised resolutions to the Senate, which meeting as a whole slightly revised the House version. Shortly thereafter, on September 9, 1789, the Senate put forth its further-revised and further-condensed bill of rights. The Senate simplified, combined, and eliminated material, trimming down the 17 amendments given to them by the House into 12 compact, powerful articles of amendment. Fourth, the differences between the House and Senate versions were resolved in a conference committee that came up with the finished Bill of Rights on September 25, 1789. The conference committee basically adopted the Senate version, except for the third article of amendment, which was changed to more closely resemble the House version. On September 28, 1789, Congress transmitted these 12 amendments to the states for debate and ratification.

The final stage, the longest and most arduous by far, was the ratification in the states. A month passed before the first state, New Jersey, ratified the Bill. Five more states ratified in December 1789 and January 1790. New York ratified on February 27, 1790 and then Pennsylvania on March 10, 1790. At that point, eight states had ratified, so only one more state was needed for the Bill to take effect. But then Rhode Island entered the Union on May 29, 1790, meaning that 10 states would be required to ratify the Bill for it to take effect. Rhode Island then ratified the Bill on June 7, 1790, and so one more state was still needed. But then Vermont became the 14th state to enter the union on March 4, 1791, and the margin of states that were needed to ratify the amendments again rose to two. Vermont ratified the Bill eight months later, but there were still four states left that had not done so. When the Virginia state legislature ratified on December 15, 1791, the struggle was over, and the Bill of Rights became the law of the land. The Bill was again trimmed down by the process of revision. Of the 12 articles of amendment proposed in Congress' final draft, only the final 10 were ratified by enough states. The first article, which really had nothing to do with fundamental rights, but rather would have redefined the apportionment of representatives, has never been ratified. The second article, governing congressional pay raises, became the 27th Amendment when it was finally ratified by three quarters of the states in 1992. Thus it could conceivably be argued that the Bill of Rights consists of Amendments 1 to 10 inclusive, and 27. Furthermore, had things turned out slightly differently, people today would be pleading "The Sixth" instead of "The Fifth," in order to keep from incriminating themselves. Except for the Eighth Amendement, the wording of the Bill of Rights differs from what Madison initially proposed, and in many cases the ordering of the clauses and their structure has been changed, but his basic conceptual framework is still present.²¹

What a great debt the citizens of the United States owe to the moderate antifederalists who pushed for the Bill of Rights. Without it their fears probably would have been come true: People would have no vehicle by which to assert their rights, and nothing would have been able to stop the tyranny of the majority over the minority. The countless Supreme Court rulings that have upheld what Americans see as their fundamental rights have been decided based on the literal text, and the spirit of the Bill of Rights; without it they would have had little justification for their rulings in favor of a free press and a free speech, and even concepts not specifically listed in the Bill, like abortion rights, or the right to privacy.

The Bill of Rights was produced in short order to appease and hold together the people of a small, isolated, backwater country. But now, it is the law of the land in a country of more than 260 million people that stretches clear to the Pacific Ocean. It applies to state governments as well as to the federal. It is a model for countries around the world, including England. Though it is over 200 years old, it is referred to on a daily basis. It is one of the most quoted and beloved documents the United States government has produced. If the members of the First Congress who worked on the Bill could come back and see the success they would have, they would undoubtedly be amazed beyond their wildest dreams.

¹They guided the country even before judicial review was announced in 1803, thus the figure.

²Brant, Irving, The Bill of Rights: Its Origin and Meaning (Indianapolis: Howard W. Wams & Co., Inc., Publishers. 1965.) 39.

³The World Almanac and Book of Facts, 1998 (Mahwah, NJ: K-III Reference Corp., 1997) 519.

⁴Veit, Helen E., Kenneth R. Bowling, Charlene Bangs Bickford, eds., Creating the Bill of Rights: The Documentary Records from the First Federal Congress (Baltimore: The Johns Hopkins U.P., 1991) xvi.

⁵Brant, 40.

⁶Cogan, Neil H., ed., The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins (New York: Oxford U.P., 1997) xiii.

⁷Cogan, xiv.

⁸Cogan, 56.

⁹Cogan, 59, 62.

¹⁰Cogan, 96.

¹¹The fact that judicial review was not yet extant was therefore one of the factors that led to the ratification. Madison anticipated judicial review in his introductory speech on the subject, but it was still more than a decade away. (Cogan, 56)

¹²Cogan, 55.

¹³Cogan, 57.

¹⁴Rutland, Robert Allen, The Birth of the Bill of Rights, 1776-1791 (Boston: Northeastern U.P., 1983) 208.

¹⁶Veit, et al., 70.

¹⁶President Washington, while taking no part in the New York City debates, offered one terse piece of advice to the delegates: "Make no radical changes which would weaken the poewrs of the government." (Rutland, 198, quoting Rutland, not Washington.)

¹⁷Rutland, 201.

¹⁸A member of the North Carolina legislature, James Iredell, summed up this position best: "[I]t would be not only useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one." (Cogan, 649, citing debate of July 29, 1788.)

¹⁹The first meeting of the House occured on April Fools' Day, 1789, the Senate, April 6.

²⁰In hindsight, what a bad precedent that would have set! If the First Congress can alter the Constitution by simply deleting, adding and rewording clauses in the body itself, later Congresses presumably could as well. We would be left with a constantly changing, and therefore meaningless, scrap of paper.

²¹What Madison's true motivations were for introducint the Bill would be an interesting subject for another paper. Suffice it to say, he was not a major proponent of enumerating rights of the people during the Philadelphia Convention of 1787. (Morgan, Robert J., James Madison on the Constitution and the Bill of Rights (Westport, Conn.: Greenwood Press, 1988) 131.) And one cryptic letter-writer, George Clymer, questions why Madison proposes his amendments. "[W]hether he means merely a tub to the whale [diversionary tactic], or declarations about the press liberty of conscience &c. or will suffer himself to be so far frightened with the antifederalism of his own state as to lop off essentials I do not know." (to Richard Peters, June 8, 1789, in Veit, et al., 245.) Why the antifecderalists of Virginia would want to lop off essential rights is unknown (unless to make the new constitution so unwieldy that it would not be supported and the Union would collapse), but what is important is that even by the day he proposed th amendments people were still wondering what he would do, and why.

Primary Sources:

Cogan, Neil H., ed. The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins. New York: Oxford U.P., 1997.

Lloyd, Thomas, ed. The Congressional Register, Vol. 1. New York, 1789. Reprinted by American Antiquarian Society in Early American Imprints, 1639-1800, plates 22203-04.

Veit, Helen E., Kenneth R. Bowling, Charlene Bangs Bickford, eds. Creating the Bill of Rights: The Documentary Record from the First Federal Congress. Baltimore: the Johns Hopkins U.P., 1991.

Secondary Sources:

Brant, Irving. The Bill of Rights: Its Origin and Meaning. Indianapolis: Howard W. Sams & Co., Inc., 1965.

Morgan, Robert J. James Madison on the Constitution and the Bill of Rights. Westport, Conn.: Greenwood Press, 1988.

O'Brien, David M. Constitutional Law and Politics, Volume 2: Civil Rights and Civil Liberties. 3rd Ed. New York: W. W. Norton & Co., 1997.

Rutland, Robert Allen. The Birth of the Bill of Rights, 1776-1791. boston: Northeastern U.P., 1983.

St. John, Jeffrey. Forge of Union, Anvil of Liberty. Ottawa, Ill." Jameson Books, Inc., 1992.

The World Almanac and books of Facts, 1998. Mahwah, N.J.: K-III Reference Corp., 1997.