Reflecting on the Bill of Rights from the Founders to the Present Day
By Ray Smock
This year marks the 225th anniversary of the ratification of the Bill of Rights, the first ten amendments to the U. S. Constitution. Congress Week pays special attention to this significant anniversary and offers a reflection on how the Bill of Rights has come to be an essential document that guarantees certain rights and liberties to citizens of the United States. The full history of the Bill of Rights over more than two centuries is a fascinating story with many twists and turns, some of which have long been forgotten.
The Constitution, adopted on September 17, 1787 and sent to the states for ratification, did not have a bill of rights. Many of the delegates at the Federal Convention expressed the view that such a listing of rights was not necessary given that the rights of citizens resided in their respective states, some of which had their own lists of rights, such as Virginia’s Declaration of Rights, adopted in 1776, written by George Mason, which would form the basis for much of the language in Thomas Jefferson’s Declaration of Independence.
We often fail to note that the delegates to the Federal Convention in Philadelphia were there representing states. In creating a new federal government they had no intention of overturning or unduly limiting state constitutions or various state provisions regarding the rights of citizens. Alexander Hamilton was one of the delegates that did not see the need for a bill of rights. He saw in the Constitution a list of limits on the powers of the federal government that he felt was sufficient to protect the states and the citizens from excessive federal power.
Hamilton listed the parts of the Constitution that could be considered to protect the citizens from the federal government in Federalist 84, perhaps the clearest statement of the position that no bill of rights was necessary in the Constitution. Hamilton wrote: “The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” George Mason disagreed and said a specific bill of rights was needed to calm the people and make them more likely to ratify the Constitution. Mason refused to sign the Constitution because it lacked a bill of rights.
James Madison, reluctant at first to take up the issue, became convinced that a bill of rights should be added as a device to help guarantee the successful launch of the new government, and true to his campaign promise in his run for a seat in the First Congress, he went to work on creating the bill of rights in the opening months the First House of Representatives, where he was a representative from Virginia. The promise to add a bill of rights helped immensely in the ratification of the Constitution, especially in New York and Virginia, where the vote was close.
Madison was ready to keep his promise just 9 weeks into the first session of the First Congress on June 8, 1789. While Madison was ready, others objected. The government was not yet fully formed, they argued, and Madison was too eager to amend it.
James Jackson, of Georgia, rose on June 8, 1789, to say that any discussion of a bill of rights should come only after the new government had some experience with the Constitution. It was too new to amend. He compared the new nation to a newly-built ship that Madison wanted to modify before it even set sail. Following the ship analogy, Jackson argued that Congress should see how well the new craft would sail before any modifications were made to improve it.
Several months later, due in large part to Madison’s diligence the House and Senate began the serious deliberations that led to the adoption of 12 Amendments to the Constitution, of which ten were ratified by the states in less than two years. These first ten amendments, now universally known as the Bill of Rights, at first an afterthought of the Federal Convention of 1787 were now part of the Constitution. The Bill of Rights was, however, not something that had immediate impact in terms of law or the rights of citizens to be protected from the federal government. In some ways Congressman Jackson, who was not so keen on the passage of the Bill of Rights so soon, was prophetic. The ship of state had to sail on for many years of change and court challenges before a body of law and precedent grew up around cases brought to court using the Bill of Rights. Many of these did not occur until the twentieth century.
But there is no question that in the present day, the Bill of Rights has become what Supreme Court Justice William Brennan said almost two centuries after its ratification, “The American Bill of Rights, guaranteeing freedom of speech, religion, assembly, and the press, along with other important protections against arbitrary or oppressive government action, provides a noble expression and shield of human dignity. Together with the Civil War Amendments, outlawing slavery and involuntary servitude and ensuring all citizens equal protection of the laws and due process of law, the Bill of Rights stands as a constant guardian of individual liberty.”
One can easily say 225 years after its ratification that the creation of the Bill of Rights in the First Federal Congress of the United States was one of the nation’s finest hours and a landmark achievement in the annals of Congress and human liberty.
Ray Smock is director of the Robert C. Byrd Center for Congressional History and Education at Shepherd University and was the Historian of the U. S. House of Representatives from 1983-95.