The Blessings of Liberty and Bills of Rights

With the final words of the Preamble, “We the People . . . ordain and establish this Constitution” to “secure the Blessings of Liberty to ourselves and our Posterity.” Today, Americans might point to the Bill of Rights, the first ten amendments of the U.S. Constitution, as an important example of those liberties. Two hundred and fifty years ago, Americans also referred to the Bill of Rights, but they meant a 1689 English document. Over two centuries, the bill of rights transformed. This history underscores the continuity of a culture of rights and liberties as bulwarks against power. But it also reveals the conceptual challenges that arose as rights developed under a monarchical constitution were replaced with rights within a free constitution of the people.

Rights, Liberties, and the English Bill of Rights

During struggles against the Stuart kings in the 1600s, rights and liberties developed as concepts to limit government power. Magna Carta (1215) (often spelled Magna Charta) began to be interpreted as a fundamental charter limiting the monarch and assuring liberty of the person, trial by jury, habeas corpus, and due process. The Petition of Right demanded that King Charles I reaffirm rights and liberties such as taxation with common consent and no imprisonment without cause. The Agreement of the Free People of England (1649) proposed a government with a right to choose representatives, freedom of religious conscience, and right to jury trial. Rights and liberties seemed to exist inherent in the people rather than as a gift of the monarch.

After the English Revolution and King James II’s abdication, a national Convention drafted the Declaration of Rights (1689). The Declaration was read to William of Orange and Mary, who agreed to govern as king and queen according to the parliamentary statutes, laws, and customs. With royal assent, Parliament then enacted the Declaration as a bill: the “Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown.” Declaration underscored the rights independent of monarchical authority; Bill emphasized the enacted statutory nature of parliamentary legislation. The Declaration of Rights and Bill of Rights created a new genre of constitutional instrument involving rights and liberties.

In the 1689 Declaration and Bill of Rights, the Convention and Parliament declared “ancient rights and liberties” in response to parallel grievances about the king. Certain declarations limited the crown: it could not suspend or dispense with laws, tax without parliamentary consent, and prosecute subjects for petitioning. Controversial monarchical actions explained specific grievances and declarations. For example, King James II had increased Catholics in the army, taken command of the militia, and “disarmed” dissenting parliamentary members “ at the same time when papists were both armed and imployed contrary to law.” In response, standing armies were disallowed without parliamentary consent and protestant subjects were permitted to have arms “for their defence suitable to their conditions and as allowed by law.” In contrast, other provisions used broad language: “election of members of parliament ought to be free”; “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted”; “freedom of speech … in Parliament ought not to be impeached.” Throughout the provisions, the origin and purpose of a right and liberty remained ambiguous. The documents suggested simultaneously that rights and liberties were inherent in the people and that they existed by enacted legislation.

This culture of rights and liberties operated also in the American colonies under colonial charters which guaranteed the “rights of Englishmen.” In 1765, the Stamp Act Congress passed a Declaration emphasizing “full and free enjoyment of their rights & liberties,” including “all the inherent rights and libertys” and the “right of Englishmen.” In 1768, the Massachusetts Circular Letter declared a “natural and constitutional right” to be taxed only with representative consent and the “unalienable right of a representation.” In 1773, enslaved Massachusetts residents declared the “natural right to be free and without molestation to enjoy such Property as they may acquire by their industry.” The language of rights and liberties offered arguments to oppose the political slavery of the British monarchical constitution and the legal slavery of human bondage.

Rights, Liberties, and Declarations of Rights in the Revolutionary Era

With the American Revolution, Congress embraced this culture of rights and liberties. In responding to the Intolerable Acts in 1774, Congress drafted the Declaration of Rights and Grievances describing that “they are entitled to life, liberty and property” and could not be taxed without consent. The “foundation of English liberty, and of all free government, is a right in the people to participate.” The people had the rights of trial by jury, assembly and petition, and other privileges and immunities. Two years later, the Declaration of Independence reversed the traditional order, first declaring that “all men are created equal” with “unalienable rights,” including “life, liberty, and the pursuit of happiness” and then listing the king’s “repeated injuries and usurpations” to rights and liberties. The Articles of Confederation included provisions declaring that “freedom of speech and debate” in Congress could not be questioned in courts nor could congressional members be arrested for their participation. The “free inhabitants” of each state were entitled to the “privileges and immunities of free citizens” of other states.

As the states drafted instruments forming constitutions as free governments of the people, two rights repeatedly appeared. The vast majority included a guarantee of a jury trial in criminal cases and most recognized religious liberty in various ways. But in other respects, there was little consensus. Between 1776 and 1780, five states enacted separate Declarations of Rights: Virginia, Pennsylvania, Maryland, North Carolina, and Massachusetts. These Declarations preceded the constitutions and began with statements affirming government to be vested and derived from the people. Maryland’s Declaration contained the most provisions (42), including bars on ex post facto laws, monopolies, and titles of nobility. In addition, New Hampshire’s second constitution and Vermont (not yet a state) included Declarations. Other states, however, did not include separate declarations. Although Delaware drafted a “declaration of rights and fundamental rules of this State,” there was no list and few explicit rights. New Jersey, New York, and Georgia similarly protected certain rights without a separate declaration.

For some states, Virginia's Declaration of Rights, drafted by George Mason in June 1776, was an influential model. It began with an assertion that “all men are by nature equally free and independent and have certain inherent rights”: life, liberty, property, safety, and happiness. The Declaration then outlined rights relating to the structure of government. After describing government as derived from the people, it banned hereditary titles, separated the judiciary from the powers of the executive and legislature, required term limits, insisted on free elections, barred taxation without representative consent, and placed limits on suspension or execution of laws. Additional provisions addressed rights in criminal prosecutions (confrontation of evidence, speedy trial by jury of peers, right against self-incrimination, barring of excessive bail and fines, no cruel and unusual punishment, requiring warrants). Other rights included a jury in civil cases, freedom of the press, a well-regulated militia instead of a standing army, and free religious exercise according to the dictates of conscience. The Declaration advised that a “firm adherence to justice, moderation, temperance, frugality, and virtue” was required to preserve “free government, or the blessings of liberty.”

Because Declarations’ opening sentences described the people’s political status as free and equal, these clauses challenged slavery. In Virginia, a state with over 200,000 people enslaved, Mason’s draft was rewritten to include a complicated caveat suggesting that such freedom only belonged to those in a “state of society.” In contrast, Pennsylvania broadly declared people “born equally free and independent.” The Massachusetts Declaration of Rights’s statement, “All men are born free and equal,” was interpreted by state courts to abolish slavery. In 1777, the not-yet-state of Vermont explicitly addressed the tension in its Declaration of Rights. After beginning “all men are born equally free and independent,” the first article declared that no person born or brought from overseas could serve as a servant or slave except by consent.

At the Philadelphia Convention in 1787, delegates focused primarily on the structure of the proposed new government rather than on the question of rights and liberties. The first draft included freedom of speech and debate for congressional members, a bar on corruption of the blood for treason, a right to a jury trial in criminal cases, and state privileges and immunities. In late August, the Convention inserted additional rights, including habeas corpus and unanimously agreeing on a bar on religious tests for office. On September 12, a proposal for a “Committee to prepare a Bill of rights” was unanimously rejected (0-10). Historians speculate that the delegates wanted to be finished and that divergences among the states over specific rights (including the free and equal clauses) would have sabotaged the completion.

Although lacking a separate declaration of rights, the instrument contained important rights and liberties. The preamble affirmed power in the people by opening “we the people,” a republican form of government was assured to the states, and titles of nobility were prohibited. Congressional members were protected from arrest in attending Congress and could not be questioned about debates. Limits on the power of Congress were established with provisions that barred suspension of habeas corpus, bills of attainder, corruption of blood for treason, and ex post facto laws. Article III ensured that there would be a right to a trial by jury in criminal cases. Citizens of each state were entitled to the privileges and immunities of any state. Article VI barred religious tests for office and guaranteed the right to affirm instead of swearing an oath. Jews, Catholics, Deists, Unitarians, and Muslims were under religious disabilities in certain states and the Constitution represented a dramatic divergence in ensuring a national government without regard to religious belief.

Almost immediately after the Convention, the lack of a bill of rights galvanized those who opposed the proposed form of government. Before Congress sent the Constitution out for ratification, congressional representative Richard Henry Lee (Virginia) wanted Congress to amend the Constitution by adding a “declaration, or Bill of Rights,” describing the “social compact” and important rights. The Convention delegates who had refused to sign justified their actions, in part, because there was “no Declaration of Rights” (George Mason) and “that the system is without the security of a bill of rights” (Elbridge Gerry). At ratification conventions and in newspapers, opponents complained about the omission. The influential Dissent of the Minority of the Pennsylvania Ratifying Convention proposed a list of rights with other amendments. In the Virginia ratification convention, Patrick Henry declared, “A Bill of Rights is a favourite thing with the Virginians, and the people of the other States likewise.”

Defenders of the Constitution offered various arguments against a separate bill or declaration of rights. James Wilson argued that the government only had defined powers and explicit rights might further enlarge government powers. But the government’s extensive powers through the general welfare, necessary and proper clause, vesting, and sweeping clauses belied this claim. Others suggested that state bills of rights were sufficient. But this argument was undermined by the lack of state uniformity and the Constitution’s explicit inclusion of historically important rights. In Federalist No. 84, Alexander Hamilton repeated the argument that bills of rights protected subjects against kings but were not needed in governments of the people. This claim, however, disregarded the power of a culture of rights and liberties. Indeed, some Federalist defenders began to worry about the absence of a bill of rights.

Although by August 1788, the Constitution had been ratified by eleven states, the absence of a bill of rights remained controversial. State conventions sent recommendatory amendments with their ratifications; six proposed additional rights or a declaration of rights. In New York and Virginia, ratification passed only by a narrow margin and a bill of rights and structural amendments were proposed. Both states also requested a second constitutional convention on amendments. Rhode Island and North Carolina had not ratified. North Carolina’s initial failed convention recommended a Declaration of Rights, and Rhode Island’s beloved colonial charter guaranteed “full liberty” and “free exercise and enjoyment of all their civil and religious rights.”

Amendments, Rights, and Liberty

James Madison initially opposed the addition of a bill of rights to the Constitution, calling such documents “parchment barriers.” In letters with Thomas Jefferson, Madison began to reconceptualize rights in a government of the people. Perhaps rights could become “incorporated with the national sentiment” and become “fundamental maxims of free Government.” Then, if “artful and ambitious rulers” subverted liberty, a bill of rights would allow for “an appeal to the sense of the community.” Jefferson argued that, even if all rights could not be secured, “let us secure what we can” and that rights would provide a “legal check” for the judiciary. After failing to be selected as U.S. Senator, Madison publicly changed his position on amendments to win election to the U.S. House of Representatives. He now favored revising the Constitution with “the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c.”

As a member of the first House of Representatives, Madison advanced a lengthy group of amendments to the Constitution. He insisted that his amendments would not injure the Constitution. Moreover, to “declare the great rights of mankind secured” would encourage North Carolina and Rhode Island to ratify. Madison planned to interweave the amendments in eight places in the 1787 instrument, in effect revising the language. He did not recommend a separate bill or declaration of rights but included provisions related to “what may be called a bill of rights.” Judges (“independent tribunals of justice”) would consider themselves “the guardians of those rights” and they would “resist every encroachment” by the legislative and executive. Equally importantly, public opinion would come to believe in these “paper barriers” and prevent majorities from oppression.

Madison drew on amendments offered by the ratifying conventions appearing in The Ratifications of the New Fœderal Constitution, together with the amendments, proposed by the several states (New York, Massachusetts, New Hampshire, Maryland, South Carolina, Virginia, and North Carolina). The pamphlet indicated considerable consensus about some rights as well as a breadth of diversity about others. He ignored the many proposed amendments which sought to fundamentally alter the structure of constitutional government or involved detailed statute-like restrictions. In addition, The Constitutions of the Several Independent States of America provided examples of existing state constitutions. British constitutional sources continued to be relevant; indeed, the proposed provision barring excessive bail, fines, and cruel and unusual punishments was nearly identical to the 1689 Declaration of Rights.

Following the pattern established by the state declarations of rights, a “declaration” was to be prefixed to the Constitution that the power was vested and derived from the people, that government was for the benefit of the people, and that the people had the right to change it. In Article I, two commonly proposed changes were to be made altering congressional representation and barring any sitting Congress from increasing its compensation. As section 9 already contained prohibitions on Congress, Madison recommended inserting additional broadly described rights “of the people”: religious conscience, speech and press, assembly and petition, bearing arms and the militia, quartering soldiers, double jeopardy, self-incrimination, due process, deprivation of property without just compensation, excessive bail and fines, cruel and unusual punishments, searches and seizures, speedy public trials, confrontation, and defense counsel. Another set of rights was to be inserted in section 10 as prohibitions on states. Other amendments related to trials and appeals (Article III), including a right to jury trials in civil cases. A new article (Article VII) was recommended declaring limits on the exercise of distributed powers among departments and reserving undelegated and unprohibited powers to the states.

Madison’s proposals diverged from state recommendations in important respects. First, Madison worried about “one of the most plausible arguments” against bills of rights, that the list would “disparage those rights which were not placed in that enumeration.” He solved this concern by including a provision—now, the Ninth Amendment—stating that the list was not to “diminish the just importance of other rights retained by the people.” Second, he desired double protection for certain rights—providing protections against abuses by both the national government and state governments. Thus, he proposed, “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Third, Madison included a clause that protected property from being taken for public use without just compensation. This right first appeared in the Vermont constitution immediately after the clause abolishing nonconsensual slavery and servitude. Lastly, Madison’s proposals reflected his preference for broad, direct language. He followed the Constitution’s style in using “people” and “person,” instead of the southern states’ use of “freemen.” Similarly, he continued to use “shall” and “shall not” as appeared in Article I, section 9.

Congress significantly altered Madison’s proposal. His suggestions were redrafted by committee. Some proposals—for example, the prohibition on quartering soldiers (now, the Third Amendment)—remained relatively untouched. But other proposals were altered significantly and the separate declaration shortened to state simply that government derived from the people’s authority (eventually dropped entirely). In the subsequent House debates, the most consequential change involved placement of the amendments. Roger Sherman argued that they should be supplemental—that is inserted as a group after the 1787 instrument. The “sacred constitution” was “lodged in the archives of Congress.” After a “long and animated debate,” Sherman’s position won. Madison thought that “some ambiguities will be produced by this change” and that it might “sometimes be not easily solved, how far the original text is or is not necessarily superseded” by the amendment. The House sent seventeen articles to the Senate, which rewrote and regrouped the list. No official record exists of the Senate debates. The Senate merged the article on religion with that on speech and press. It also deleted a number of amendments, including the provision providing for prohibitions on the states.

On September 28, 1789, twelve amendments were transmitted to the states for ratification. The first and second amendments related to Congress: the first altering the allocation of representatives and the second barring Congress from altering compensation until after an election. The third amendment began, “Congress shall make no law ….” The eleventh amendment stated that the enumeration “shall not be construed to deny or disparage others retained by the people.”

Ratification proceeded slowly. Georgia refused to ratify, preferring to wait to see how the Constitution operated in practice. Massachusetts and Connecticut never completed their ratification processes. New Jersey (the first state to ratify), New Hampshire, New York, and Pennsylvania failed to ratify the second amendment addressing changes to congressional compensation. Delaware and Pennsylvania refused to ratify the first amendment altering apportionment in the House. With the admission of Vermont, eleven states were required. On December 15, 1791, Virginia ratified the amendments as the eleventh state. On March 1, 1792, Secretary of State Thomas Jefferson announced that ten articles had been ratified “in addition to and amendment of the Constitution.”

The ten amendments related to rights but did not follow the structure of a classic bill of rights. There were no grievances, no opening declarations regarding the people, no hortatory language. Into the early nineteenth century, the twelve articles continued to appear in print as if they had all been ratified. The failure of ratification of the first two articles relating to Congress meant that the ten ratified articles began to resemble a list of rights. Nevertheless, as late as 1833 Chief Justice John Marshall referred instead to the prohibitions in Article I, section 9 as “in the nature of a bill of rights.” Although some scholars disagree, only with the Civil War did the ten articles begin to be referred to on occasion as the bill of rights.

 The Bill of Rights

The contemporary American understanding of the Bill of Rights is a product of the twentieth century. In 1937, the sesquicentennial of the Constitution and the subsequent World War brought renewed focus to the first ten amendments. In 1939, Massachusetts, Connecticut, and Georgia ratified the ten articles. (In 1992, the original second article was ratified as 27^th Amendment.) Decisions of the Supreme Court altered the constitutional meaning of the amendments. Beginning in the late nineteenth century, the Supreme Court used the language of the Fourteenth Amendment gradually to permit some of the rights to be used against state actions through a process known as incorporation. Rights related to property, the First Amendment, and certain criminal procedure rights followed. In the 1960s, the Court under Chief Justice Earl Warren incorporated the vast majority of the remaining enumerated rights. In the twenty-first century, the Second Amendment was incorporated. The Third Amendment (quartering soldiers), the Fifth Amendment (grand jury) and the Seventh Amendment (trial by jury in civil cases) have not been incorporated. The Ninth and Tenth Amendments continue to be contested areas in constitutional law. 

In June 1789, Madison argued that rights mattered most by establishing public opinion in favor of them and controlling “the majority from those acts to which they might be otherwise inclined.” A culture of rights and liberties continues to serve an essential role against encroaching governmental power. We may disagree passionately about the content of enumerated and unenumerated rights and liberties. And we may debate vociferously whether various actions of the government violate our rights and liberties. But our culture of rights and liberties reminds us that government is founded by the people. And that culture constitutes the blessings of liberty we secure for posterity.

Mary Sarah Bilder is Founders Professor, Boston College Law School.