Bill of Rights—Trivia

“Let it be known that British liberties are not the grants of princes and parliaments.” John Adams

Bills of rights were not new at the time of the Founding.  The 1215 Magna Carta forced King John to respect specified rights, the English Bill of Rights of 1689 guaranteed rights, and many states had previously enacted declarations of rights into their state constitutions.

The call for a Bill of Rights was an anti-Federalists political weapon against ratification. For many anti-Federalists, the real objection was a national government far too strong for their taste, but this argument floundered, while a bill of rights gained enormous traction with people.  Influential Founders made vocal and repeated demands for a Bill of Rights.  Thomas Jefferson called the omission a major mistake, writing, “A bill of rights is what the people are entitled to against every government on earth.”  Richard Henry Lee objected to the lack of protection for, “those essential rights of mankind without which liberty cannot exist.”  At first, the Federalists argued that the Constitution’s checks and balances constrained the government so it couldn’t abridge individual rights.  But in the Virginia convention, Patrick Henry denounced the Constitution’s checks and balances, calling them, “specious, imaginary balances,” and “ridiculous ideal checks and contrivances.”

Rights in The Constitution Prior to The Bill of Rights

The base document included a few rights interspersed throughout the text.  Writ of habeus corpus could not be suspended—except when the country was under attack; no bill of attainer or ex post facto law could be passed at the national or state level; Americans were guaranteed a jury trial for criminal cases; there could be no religious test for federal office, no state law could impair the obligation of contracts, and the citizens of each state were entitled to the privileges and immunities of the citizens of every other state.

A Preamble?

Most people have forgotten that there is a preamble to the Bill of Rights, which among other things reads, “The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added.” Here are some of the declaratory and restrictive clauses used in the first eight amendments.

• Congress shall make no law
• shall not be infringed
• without the consent
• shall not be violated
• nor shall be compelled
• the accused shall enjoy
• nor be deprived
• no fact tried by a jury, shall be otherwise re-examined
• shall not be required

Despite a modern perception that the Constitution bestows and protects rights, it is clear that the Bill of Rights is really a list of government prohibitions.  The Founders did not believe in government benevolence, and would never have accepted the government—including the Supreme Court—as the arbiter of rights.

Little Known Facts

The Bill of Rights has lived almost as long as our Constitution. It has an extensive history with real people behind its creation, ratification, and legal challenges. Here are a few lesser known facts about the Bill of Rights.

• Madison’s proposal did not call for a list of rights as amendments, but rather for insertions, deletions and revisions to be added right into the text of the Constitution. Congress decided to add them as a list at the end.
• Washington had thirteen copies made and sent them to the fourteen states. Where are the original copies of the Bill of Rights? Three copies are preserved at the National Archives. Eight states still have their copies, and another copy is in a New York library. Two copies are missing.
• Massachusetts, Connecticut and Georgia did not ratify the Bill of Rights until 1939 on the 150th anniversary of ratification by eleven of the fourteen states.
• Two of twelve proposed amendments were not ratified by the states. One of the rejected amendments put restrictions on Congress setting its own salary. More than 200 years later, this amendment was ratified and became the 27th Amendment.

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention. Look for his forthcoming book, Principled Action, Lessons from the Origins of the American Republic.