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By the end of the eighteenth century, the majority of Americans had come to believe that government was created by citizens who consent to live under its laws in order to protect their rights of "life, liberty and the pursuit of happiness. " They also felt that a written constitution was necessary for such a government. In 1787 a United States Constitution was drafted with a system of checks and balances by the creation of the executive, legislative and federal judicial branches of government. Within the blueprint of the Constitution the division of federal and state powers were defined. It also included explicit provisions for protecting individual rights such as trial by jury in criminal cases, suspension of the writ of habeas corpus, prohibition of bills of attainder's and ex post facto laws and the Contract Clause. (Stephens and Scheb 334 - 337) The United States Constitution was unique but contained only a few apparent individual rights.
During this period the Constitution was not applicable to everyone. It applied only to white men who were property owners. (Stephens and Scheb 351) The Framers of the Constitution did not consider it necessary to include a specific declaration of rights, a bill of rights. The United States Constitution's ratification had an obstacle, the absence of a bill of rights. Once the Constitution was submitted to the States for ratification, the people began to examine the document and many felt the Constitution should include a list of specific guarantees of individual rights such as the right to free speech, freedom of religion, due process of law, and freedom from governmental search and seizure. There were concerns for and against a bill of rights.
For several years intense debates between the Federalist and Anti-Federalist occurred. The Federalist, lead by Alexander Hamilton, opposed including a bill of rights on the grounds it was not necessary. They felt there was no need to list specific rights since the national government could execute only the limited powers authorized to it in the Constitution. (Stephen and Scheb 337) The limitation of federal government powers ensured individuals from federal interference, since it was unable impede where it was prohibited to act. The Federalist's concern was argued by Alexander Hamilton in The Federalist, No. 84 where he stated, .".. For why declare that things shall not be done which there is no power to do?" This was also James Madison's view that it was unwise and not necessary to enumerate individual rights. (Stephens and Scheb 338) The Federalists contention that the government was limited by enumerated powers concerned the Anti-Federalist's who felt there was a need to prevent the creation of a strong central government which had not guaranteed protection of individual's rights. In rebuttal to the Federalist's view of the Constitution providing limited government through enumerated powers, the Anti-Federalist argued the Necessary and Proper Clause, Article 1, Section 8 could be used to justify expansive government that might threaten individual liberties (Stephens and Scheb 337).
The Anti-Federalist felt the Constitution emphasized what is needed to make good government with the protection of individual rights a secondary concern. They demanded a more concise, explicit Constitution, one that documented the guaranteed rights of the people and the limitations of the power of government. Even Thomas Jefferson, who was generally in favor of the new government, wrote a letter to James Madison that a bill of rights was .".. what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference. " (Rutland 129) Thomas Jefferson's opinion gradually prevailed. The First Congress contemplated the submission of a bill of rights to be drafted by Madison (Stephens and Scheb 338).
James Madison, convinced the bill of rights was necessary to ensure acceptance of the Constitution, started to draft the original bill of rights. Of significance, Madison called for restrictions on the states as restricted on the federal government, but this proposal was defeated by states' rights advocates. In September 1789, two of the twelve amendments were rejected and in November 1791 the other ten amendments were ratified affixing the Bill of Rights to the Constitution. (Stephens and Scheb 338) The ratification of these ten amendments became known as the Bill of Rights. William Blackstone's Commentaries on the Laws of England was the blueprint which significantly influenced the first ten amendments to this historic document. Among the provisions of the ten amendments, the First Amendment guaranteed freedom of worship, speech and press, the right to peaceful assembly and the right to petition the government to correct wrongs. Blackstone addressed the petition to redress in his statement, ."..
to the right of petitioning the King and parliament for redress of grievances... " Blackstone also influenced the Second Amendment which guarantees the right of citizens to bear arms for he wrote in his commentaries .".. the right of having and using arms for self preservation and defense... " The Third Amendment provides that troops may not be quartered in private homes without the owner's consent. The Fourth Amendment guards against unreasonable arrests, searches and seizures of property. Blackstone's Rights of Personal Liberties in his commentaries addressed this amendment. The next four amendments deal with the system of justice. The Fifth Amendment forbids trial for a major crime except after indictment by a grand jury.
It forbids Double Jeopardy, the repeating of a trial for a same offense. The Fifth also forbids punishment without due process of law and provides that an accused person may not be compelled to testify against himself. The Sixth Amendment guarantees a speedy trial for criminal offenses. It requires a trial with an unbiased jury guarantees the right to legal counsel for the accused and provides that witnesses shall be compelled to attend the trial and testify in the presence of the accused. The Seventh Amendment assures a trial by jury in civil cases involving anything valued at more than $ 20. 00. The Eighth Amendment forbids excessive bail or fines, which Blackstone's Commentaries addressed in his explanation of the Habeas Corpus Act.
The Eighth also forbids cruel and unusual punishment. The last two of the ten amendments contain broad statements of constitutional authority. The Ninth Amendment declares the listing of individual rights is not meant to be absolute, that the people have other rights not specifically mentioned in the Constitution. The Tenth Amendment provides that powers not delegated by the Constitution to the federal government nor prohibited by it to the states are reserved to the states or the people.
These ten amendments of the Bill of Rights, influenced by Blackstone's Commentaries, were created to protect rights that the citizens believed were naturally theirs. But from the beginning the emergence of real cases arose that raised the question about how, and even if, the Bill of Rights would apply. It was as if the Bill of Rights was like a car which had no driver. Before the Bill of Rights could become actual rights, someone had to interpret what the language of the Bill of Rights meant in specific situations. The question arose as to who would be the arbitrator of how the Constitution and the Bill of Rights should be applied.
At first the answer was unclear. Should the federal judiciary have this power? The Constitution did not make this clear. The issue was resolved in 1803 where, for the first time, the United States Supreme Court struck down an act of Congress as unconstitutional in Marbury v.
Madison, 5 U. S. 137, 2 L. Ed 60 (1803). The Supreme Court having the power to invalidate acts of Congress in violation of the Constitution turned out to be the key to who would interpret the Constitution and the Bill of Rights. The Supreme Court was to be the interpreter, but was it to be applicable only to the federal government?
The limitations of the Bill of Rights were initially determined in Barron v. Baltimore, 32 U. S. 243, 8 L. Ed. 672 (1833). The Supreme Court held the guarantees enumerated in the Bill of Rights were limited only to the federal government. This resulted in a lack of constitutional protection of the individuals against the acts of state governments, other than the few individual rights guaranteed within the Constitution.
Three post Civil War enactments changed this situation. The Thirteenth, Fourteenth, and Fifteenth Amendments were enacted to enjoin discrimination by states against individuals, especially the newly freed slaves. The Thirteenth Amendment abolished slavery and the Fifteenth Amendment prohibited racial discrimination for black men to vote, but the most important amendment to the Constitution other than the Bill or Rights was the Fourteenth Amendment. This amendment guaranteed authorized rights and privileges of citizenship, equality and personal liberty. Although the Fourteenth Amendment's main purpose was to protect the rights of African Americans, it has been the protector against states infringement on individual rights and liberties through its Due Process Clause. To Hamilton, Bill of Rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.
They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. Bibliography: Rutland, Robert Allen. The Birth of the Bill of Rights. Boston: Northeastern University Press, 1983. Stephens, Jr. , Otis H. and Scheb II, John M.
American's Constitutional Law. 2 nd ed. Belmont: West/Wadsworth Publishing Company, 1999. The Founders' Constitution Volume 1, Chapter 14, Document 38 web The University of Chicago Press Hamilton, Alexander; Madison, James; and Jay, John. The Federalist. Edited by Jacob E. Cooke.
Wesleyan University Press, 1961. Enter, Edward J. "James Madison and the Framing of the Bill of Rights: Reality and Rhetoric in the New Constitutionalism. Political Communication 9 (1992)
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Research essay sample on United States Constitution Bill Of Rights
