American Civil Liberties Union Briefing Paper Number 9 +-------------------------------+ A
American Civil Liberties Union Briefing Paper Number 9
+-------------------------------+
A HISTORY OF THE BILL OF RIGHTS
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| "[A] bill of rights is 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." |
| Thomas Jefferson |
| December 20, 1787 |
+-----------------------------------------------------+
============
INTRODUCTION
============
In the summer of 1787, delegates from the 13 colonies convened in
Philadelphia to discuss how best to govern themselves. Out of the
gathering came the Constitution of the United States, that
remarkable blueprint of a new nation whose people had fought hard
and valiantly to win their independence from England.
The first draft of the Constitution set up a system of checks and
balances that included a strong executive, a representative
legislature, and a federal judiciary, as well as a division of
federal and state powers. But contrary to the urging of some
delegates, the framers did not include a specific declaration of
rights. In other words, the Constitution specified what the
government _could_ do but did not say what the government _could
not_ do.
The Constitution was signed in September 1787 and sent to the
Congress. Eleven days later, it was submitted to the states for
ratification. But as the people began to examine the document,
they came to share the sentiments of those who advocated that the
Constitution include a set of specific guarantees -- among them,
the right to free speech, freedom of religion, due process of law
and freedom from governmental search and seizure. The people
ratified the Constitution only after its framers pledged to add to
it such protections. Congress added those protections in 1789, and
in 1791 two-thirds of the states ratified the first ten amendments
to the Constitution, which became known as the Bill of Rights.
But ratification marked only the beginning of the quest for
individual freedom in the United States. The Bill of Rights did
not end the enslavement of Africans and their descendents, and it
slighted or ignored the rights of Native Americans, women,
children, gay people, prisoners, the mentally and physically
disabled, and others.
In the early 1900s, the American Civil Liberties Union and the
National Association for the Advancement of Colored People were
founded to strengthen and advance efforts to remedy the inequities
that prevented millions of Americans from enjoying full freedom.
These and other organizations gradually developed the resources to
challenge constitutional violations on behalf of people who never
could have protected their freedom by themselves.
The fight to preserve American freedoms, which has never been easy,
continues to this day. Slavery ended in 1863, but the persistence
of racism in various forms has compelled African Americans to fight
for equality of opportunity for more than a century since. Women
fought for and won the right to vote in 1920, but 45 years later,
they are still struggling to secure their right to privacy and
reproductive freedom. Religious minorities must still fight to
freely practice their faiths, and those who espouse unpopular
political viewpoints must still defend their right to speak and
publish. Threats to the separation of church and state still arise
periodically, as do challenges to freedom of the press. Civil
liberties battles never stay won.
For 200 years, the struggle to fully realize the principles
established in the Bill of Rights has been a major theme of life in
the United States. We celebrate that ongoing struggle in this
Bicentennial year of the Bill of Rights, believing that much
remains to be achieved and protected.
======================
THE ORIGINS OF LIBERTY
======================
The framers of our Constitution drew their concept of civil liberty
from various historical experiences. From the ancient Greek
philosophers, whose society of city-states enshrined the principle
of the rule of law, came the idea of "natural law" and its
derivative, the concept of equality. From the Romans, who advanced
the Greek idea of natural law, came a governmental structure based
on separation of powers.
The framers were also deeply influenced by England's centuries-long
struggle to create political institutions founded on the principle
of equality before the law, and the equalization of political
power. That struggle culminated in the formulation of the Magna
Carta in 1215, which Winston Churchill said, centuries later,
established that "there is a law above the king." The Magna Carta
was the first written document to set forth rules that the monarch
was bound to obey, including such basic civil liberties as the
security of person and private property, the right to seek redress
of grievances from the sovereign, and the right to due process of
law.
England's Petition of Right, issued in 1628, asserted the right of
citizens to be free from unrepresentative taxation and arbitrary
imprisonment. The English Bill of Rights of 1689 declared that
parliamentary elections should be free and binding, and it
condemned excessive bail, as well as cruel and unusual punishments.
Americans were also influenced by 17th and 18th century English
political philosophers, particularly John Locke. Locke maintained
that: government originates as a compact freely entered into by the
citizens of a society; government gains legitimacy only through the
consent of the governed, not from brute force; and a free society
is the highest purpose of organized government. According to
Locke, "[T]he end of law is not to abolish or restrain but to
preserve and enlarge freedom."
Out of these influences evolved a common law understanding in the
United States of the basic civil liberties that all Americans enjoy
as their birthright, and that government should be bound to
respect.
=============================
THE CONSTITUTIONAL CONVENTION
=============================
The 55 delegates who attended the First Constitutional Convention
in 1787 did not initially intend to draft a Federal Constitution.
They had come to Philadelphia to amend the Articles of
Confederation, a loosely defined set of rules formulated to resolve
the numerous boundary and interstate commerce disputes that arose
among the former colonies at the end of the Revolutionary War.
After four months of debate, a majority of the delegates signed a
petition to draw up a new Constitution. The result was a document
that defined the functions of a new government's legislative,
executive and judicial branches. It also included several specific
provisions for protecting individual rights, such as the right to
trial by jury in criminal cases, and the prohibition of bills of
attainder. Yet about such other basic civil liberties as freedom
of speech, religion and the press, the Constitution said nothing.
Throughout the debate, a minority of delegates, led by George Mason
of Virginia, raised an objection: The American people would be
uncomfortable, he argued, with a federal Constitution that lacked
a specific list of protected rights. Mason proposed that the
Convention appoint a committee to prepare a Bill of Rights for
inclusion in the Constitution.
The Convention unanimously rejected Mason's motion, for a variety
of reasons. Some delegates believed that a Bill of Rights was
unnecessary because government respect for civil liberties would
follow automatically as a by-product of the limited system they had
created, with its division of functions, separation of powers, and
checks and balances. Alexander Hamilton argued that since Congress
had no authority to act beyond the scope of its enumerated powers,
"Why declare that things shall not be done which there is no power
to do?"
Other delegates believed that individual rights should be protected
in state, not the federal, constitutions. Already, 11 of the 13
states had adopted such provisions.
Still other delegates opposed Mason's motion out of fear that if
the federal government enumerated certain rights, and not others,
only those rights would be protected. This danger would be
avoided, they contended, if the Constitution simply left the rights
of Americans unspecified.
A few historians offer a different reason for the rejection of
Mason's proposal: The Convention delegates had been working hard on
the Constitution throughout a long, hot summer. They were tired
and wanted to go home.
================================
RATIFICATION OF THE CONSTITUTION
================================
The Constitution was sent to the states, and less than four months
later five of the nine states required for ratification --
Connecticut, Delaware, Georgia, New Jersey and Pennsylvania -- had
ratified. The Constitution, it appeared, would soon be the law of
the land. However, three of the largest states, in which the Anti-
Federalist movement wielded great influence -- Massachusetts, New
York and Virginia -- strongly opposed ratification.
The Anti-Federalists, who aimed to prevent the creation of a strong
central government, felt that the Constitution authorized too much
federal power at the expense of states' rights. They did not want
to cede to a federal government the direct authority to raise
taxes, exercise judicial power over the states or regulate
interstate commerce. But they found that the more politically
popular argument to use against ratification was the Constitution's
lack of a Bill of Rights. So they advanced that argument, although
it was a smokescreen for their real concerns, to fuel criticism of
the Constitution. By dramatically objecting to the absence of a
Bill of Rights, the Anti-Federalists hoped to compell revision of
the proposed Constitution so as to greatly reduce the powers of the
national government or, alternatively, to sponsor a second
constitutional convention.
Their strategy worked. Just as George Mason had predicted, the
public became increasingly suspicious of the Constitution, and the
absence of a federal Bill of Rights became the dominant criticism
of the document at the state conventions. As the debate
intensified, critics suggested that the Constitution would make it
possible for the federal government to impose taxes on the press or
on religious institutions. They voiced concern about giving
Congress the authority to define crimes and set penalties for
lawbreakers. Patrick Henry complained that the Constitution
empowered the government to torture citizens.
Despite a vigorous Federalist campaign for swift passage of the
Constitution, led by Alexander Hamilton, John Jay and James
Madison, the Anti-Federalists succeeded in blocking ratification.
The Federalists then had to regroup.
At this point, the correspondence that was transpiring between
Thomas Jefferson, then Ambassador to France, and James Madison,
played a noteworthy role in the ratification debates. In a letter
dated December 20, 1787, Jefferson wrote what was to become one of
the preeminent statements for a federal Bill of Rights: "[A] bill
of rights is 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."
Not only did Jefferson persuade Madison, but his widely distributed
letters influenced others. Madison, whose political influence had
diminished in Virginia because of his opposition to a Bill of
Rights, switched positions and led the Federalists in a drive to
promote a Bill of Rights -- the very cause that the Anti-
Federalists had created as an instrument for defeating the
Constitution. To promote ratification, and to fulfill the promise
he had made in his heated campaign against James Monroe for
election to the House of Representatives, Madison pledged to attach
civil liberties amendments to the Constitution as soon as the new
government was in operation. With this pledge, the party that had
first opposed a Bill of Rights became its foremost advocate.
The Constitution was ratified on July 2, 1788. However, several
states ratified solely on the basis of Madison's pledge that the
first Congress would amend the Constitution to include a Bill of
Rights. In Massachusetts, New York and Virginia, in particular,
the Federalist promise was instrumental in securing votes for
ratification. Still, North Carolina refused to ratify until the
document was actually amended.
In all, the states proposed a total of 210 amendments (100 of which
were substantially different) for inclusion in a comprehensive Bill
of Rights. The addition of a Bill of Rights to the Constitution
was to be the first order of business for the new Congress.
==================
THE FIRST CONGRESS
==================
Despite the public demand for a Bill of Rights, the first Congress
quickly became preoccupied with other issues. The Federalists, for
example, became absorbed with the passage of tonnage duties. The
Anti-Federalists were now reluctant to promote the attachment of a
Bill of Rights to the Constitution they had opposed on other
grounds.
James Madison, now a staunch Bill of Rights advocate, insisted that
Congress fulfill its pledge to the people. On June 8, 1789,
Madison submitted 17 amendments to the House, culled mostly from
state constitutions and recommendations made during the
ratification debates. He argued that the Constitution should guard
"the great rights of mankind," and that government power should be
limited to prevent abuses by "the body of people operating by the
majority against the minority." Madison answered those who feared
the consequences of omitting some rights with what became the Ninth
Amendment -- "The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained
by the people."
The House was persuaded by Madison's arguments but rejected his
proposal to incorporate each of the proposed rights amendments into
the text of the Constitution because that would alter a document
the states had already ratified. Instead, the House agreed to
group the amendments together at the end of the document (which
also spared Congress the laborious task of having to debate the
precise placement of each amendment).
On August 24, 1789, the House approved the 17 amendments and passed
them on to the Senate for its consideration. The Senators combined
freedom of religion, press, speech, assembly and petition into one
amendment. They killed the proposed restrictions on the states.
They also eliminated the exemption of conscientious objectors from
compulsory military service and some other provisions, reducing the
list of 17 amendments to 12. A conference committee, comprised of
members from both houses, met to review the declaration and
reported back to Congress. The House accepted the committee's
favorable report on September 24, 1789, and the Senate approved it
the next day. After the President gave his approval, the 12
amendments were sent to the states.
==================================
RATIFICATION OF THE BILL OF RIGHTS
==================================
The states rejected only two of the proposed amendments: one
concerning the ratio between population and House representation;
the other regulating congressional pay.
Nine states ratified the remaining ten amendments within six
months. Connecticut and Georgia refused to ratify on the ground
that the document was unnecessary. (These two states did ratify
the Bill of Rights, as did Massachusetts, at the sesquicentennial
of the Constitution in 1939. Although the Massachusetts
legislature had adopted most of the amendments in 1790, it failed
to send official notice of its action to the national government.)
With the admission of Vermont into the Union in 1791, an 11-state
majority was required for ratification. Vermont ratified in
November 1791.
Virginia's approval, though not technically required, was viewed as
indispensable to ensuring a cohesive union. The Anti-Federalists
who controlled the legislature in Virginia had sought to undermine
the Bill of Rights there. And they had struggled for two years to
delete from the Constitution the provision that empowered Congress
to impose direct taxes. Having failed in that effort, they finally
acquiesced to the Bill of Rights. On December 15, 1791, Virginia
ratified, making the Bill of Rights a part of the Constitution.
===================================
RIGHTS DECLARED, BUT JUSTICE DENIED
===================================
For 130 years after ratification, the most notable thing about the
Bill of Rights was its almost total lack of implementation. For
example, the right to a free press was frequently breached. In
1798, passage of the Alien and Sedition Act forbade, among other
things, publication of any "false, scandalous or malicious
writing." In 1859, booksellers in southern states faced arrest for
selling Hinton Helper's banned _Impending Crisis of the South_.
And in 1863, the mailing of four New York City newspapers was
prohibited because of alleged sedition.
The Bill of Rights was never intended to apply to Native Americans
or to the Africans imported to labor as slaves in the South.
Moreover, Congress and the Supreme Court often sanctioned our
society's pervasive inequalities. In 1830, Congress approved the
Indian Removal Act, which authorized the relocation of Native
Americans west of the Mississippi River. And the federal Civil
Rights Act of 1866, passed at the end of the Civil War, excluded
Native Americans even as it ostensibly extended citizenship and
"full and equal benefit of all laws and proceedings" to all people.
The Bill of Rights did not apply to the slaves, who were totally
excluded from citizenship and all rights attending it. When the
slaves were emancipated and granted citizenship after the Civil
War, the Fourteenth Amendment was incorporated into the Bill of
Rights to prohibit states from denying the vote, due process or
equal protection of the laws on the basis of race. But following
the Reconstruction period, which provided a brief respite for
African Americans from systematic persecution, enactment of the
"Black Codes" and "Jim Crow" laws, as well as unrestrained
terrorism by the Ku Klux Klan, returned blacks to a status of mere
nominal freedom.
Women, too, were largely excluded from the protections afforded by
the Bill of Rights. Although the first American Women's Rights
Convention, meeting in Seneca Falls, New York in 1848, demanded
women's suffrage, 70 more years would pass before that demand would
be met. Indeed, in 1873 the Supreme Court ruled that the "law of
the creator" required women to be wives and mothers -- not
professionals -- because of their "natural and proper timidity and
delicacy." In 1879, the Court reaffirmed state suffrage laws that
disfranchised women.
Lesbians and gay men, the physically disabled, aliens, soldiers,
students, children, prisoners, the poor -- the list of those who
were, in effect, excluded from protection by the Bill of Rights was
a long one.
=================
THE FOURTH BRANCH
=================
In the early years of the 20th century, civil liberties were in a
sorry state. Racial segregation was legal and pervaded all aspects
of American society, with lynchings and other racist violence
against African Americans occurring frequently. Sex discrimination
was firmly institutionalized, denying women the right to vote and
prompting their arrest for discussing birth control in public.
Employers fired workers for advocating labor unions. The police
conducted warrantless searches of criminal suspects and their homes
with impunity. The government routinely deported aliens because of
their political views.
This climate of repression became especially harsh during the years
of World War I, when more than 1,900 legal actions were brought
against Americans for their public speeches, newspaper articles,
pamphlets or books. American citizens languished in jail for
holding anti-war views, including a minister sentenced to 15 years
for saying that the war was "un-Christian." United States Attorney
General A. Mitchell Palmer instigated nationwide raids to arrest
anarchists, communists and labor organizers. Four thousand people
were detained, and 1,000 were deported.
As yet, remedies for these assaults on liberty did not exist, but
efforts to create them were underway. In 1920, a small group of
visionaries came together in New York to discuss how to make civil
liberties a reality. Led by Roger Baldwin, an anti-war activist
and labor union advocate, the group formed the ACLU and dedicated
itself to holding government to the promise of freedom set forth in
the Bill of Rights. The founding of the ACLU, and the National
Association for the Advancement of Colored People 11 years earlier,
to help Americans challenge violations of their rights in court,
marked the beginning of what is known today as public interest law.
Baldwin and his colleagues knew that the nation's founders had
entrusted the protection of the American people's rights to the
judiciary. But the courts could only respond to civil liberties
violations if lawsuits were brought to challenge them once they had
occurred. While Congress and the President could initiate action,
the courts were and are powerless to fulfill their function unless
an aggrieved person files a lawsuit.
Unfortunately, the people most often denied their rights were
precisely those least aware of their rights, and least able to hire
a lawyer or afford the other costs involved in protracted
litigation. Thus, for many years the most common violations of
individual rights went unchallenged largely due to widespread lack
of access to the judicial process. Not until the first part of the
20th century -- 130 years after the Bill of Rights was ratified --
was the Supreme Court asked to hear a case involving the
infringement of free speech.
The ACLU, NAACP and labor unions seeking to defend their members'
First Amendment rights to picket, demonstrate, leaflet and
organize, began to directly challenge constitutional violations in
the courts in the 1920s. The earliest of such lawsuits to reach
the Supreme Court were lost. But powerful dissents in two cases,
authored by Justices Louis D. Brandeis and Oliver Wendell Holmes,
set forth the "clear and present danger" test for suppressing
speech and laid the groundwork for future judicial protection of
First Amendment rights. In 1925, the ACLU challenged a New York
Criminal Anarchy law, under which a communist had been convicted
for advocating revolution. The Supreme Court affirmed the
conviction but held, for the first time, that First Amendment
rights are protected from abridgment by state and local, as well as
by the federal, government under the due process clause of the
Fourteenth Amendment.
Also in 1925, after Tennessee passed a law making it a crime to
teach evolution, the ACLU ran advertisements in local newspapers
offering legal assistance to any teacher who wished to test the new
law by exercising his or her academic freedom rights. A high
school biology teacher, John Scopes, responded to the ad. Roger
Baldwin, the ACLU's founder and executive director, persuaded
Clarence Darrow, the most eminent criminal defense lawyer of that
era, to represent Scopes for the ACLU. On his own, Scopes would
not have been able to afford a lawyer, much less a lawyer willing
to represent such an unpopular client. Nor would he likely have
risked violating the law without the promise of legal assistance
from the ACLU. Although Scopes lost, his case underscored the
value of academic freedom and alerted the nation to the dangers of
its suppression.
By the 1940s and early '50s, the numbers and resources of public
interest organizations had grown. As a result, the national stage
was crowded with successful court challenges to violations of
constitutional rights. These actions established the important
legal precedents that made possible the expansion of civil
liberties during the late 1950s and 1960s, a time when Chief
Justice Earl Warren presided over a Supreme Court more responsive
to civil libertarian concerns than at any time in American history.
During that era, the Supreme Court: declared segregated public
schools unconstitutional (_Brown v. Board of Education_); expanded
the right to counsel and due process for the accused in three
landmark cases (_Gideon_, _Escobedo_ and _Miranda_); struck down
racially discriminatory voting laws in the South; affirmed the free
speech rights of anti-Vietnam War protesters, and ruled that states
could not criminalize abortion.
In recent years, the Supreme Court has shown less willingness to
bolster individual rights and has even cut back the scope of
several previous decisions. Fourth Amendment protections against
government searches have been badly eroded, and civil rights laws
have been newly interpreted to reduce their strength.
Nevertheless, the Court retains the responsibility to ensure that
individual rights are protected.
Public interest organizations, which provided the missing
ingredient that made our constitutional system and the Bill of
Rights finally work, exist to remind the Supreme Court of its
historic role. In a very real sense, these organizations have
operated alongside government as a kind of fourth, and wholly
independent, branch, providing the "eternal vigilance" so necessary
to ensuring preservation of the freedoms that are the foundation of
our democratic way of life.
A C L U
American Civil Liberties Union, 132 West 43rd Street, New York, NY 10036
=============================================================
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