250th Series: The Bill of Rights

By Charles R. Lampman
SAR Magazine
Summer 2017 Vol. 112 No. 1

Background

The First Continental Congress (September–October 1774) was a meeting of representatives from the Colonies to discuss how they were going to handle the Cohesive Acts. At adjournment, it was arranged that they would meet again in May 1775.

The Second Continental Congress convened in May 1775, as planned. A new item to the agenda was to discuss the reactions to the battles of Lexington and Concord. Since there were no ground rules or organization of the Congress, they appointed a committee to create the Articles of Confederation and Perpetual Union. The Articles intentionally did not include a strong central government because they didn’t want to recreate the kind of government that they were fighting against (the British). For instance, the Congress did not have the authority to tax. There was no judiciary to handle arbitration and boundary disputes between the states. The largest stumbling block of the Articles was that it required 100 percent of all states’ representatives, which created the Congress, to be present and have unanimous approval of any major changes to the Articles. There were other problems, and it became apparent to many people that the Articles of Confederation were not going to satisfy a new government. The Articles, however, were ratified by the proper number of states on March 17, 1781.

By the time of ratification, some of the Founding Fathers were saying the Articles should be amended to correct various deficiencies in the original document. Some of the stronger voices of our forefathers were James Madison and Alexander Hamilton. There were several attempts to amend the Articles, but whenever they gathered, some state representatives were absent, so no business could be conducted. Finally on Feb 21, 1787, the Congress called for a convention in Philadelphia to specifically make changes to the Articles and report back to the Congress. This was to become the Constitutional Convention.

The states appointed representatives to the group to amend the Articles for the Congress. A total of 74 representatives were appointed to attend the convention. Unfortunately, there were never more than 55 of the appointed representatives in attendance at any one time. The representatives would come and go from Philadelphia over the course of the meetings. It only took a few days for the attendees to realize that amending the Articles was not the answer for a permanent government. Consequently, it was agreed they should work to create an entirely different framework for the government. Because they were changing the purpose of the meeting, it was determined that only convention members could attend any of the meetings and, to ensure secrecy, the convention’s doors were locked and all windows closed. In this way, every member was free to discuss all options without worry of being heard by the public. Each member was sworn to maintain the secrecy
of these discussions. Many people were worried about having a strong central government, so there were many heated discussions and much deliberation. The result, after several months of closed meetings, was a model of the new government.

When the Congress received the full report of the closed meetings, it decided to send copies to each governor for ratification, rather than to the state legislatures. In its letter to the governors, Congress suggested that each state have a convention made up of the citizens of that state to determine ratification.

The states were greatly concerned about the strong central government specified under the new Constitution. There was general agreement that a new government was desperately needed, and quickly, but there also was concern that citizens’ rights had to be guaranteed to avoid the same issues that had created the need for the hard-won war for independence. It was agreed that the first order of business for the new government would be to create a Bill of Rights that would guarantee citizens’ rights. To assist the people in New York to understand the new Constitution they were being asked to ratify, 84-85 articles appeared in New York City newspapers, which were eventually entitled, “The Federalist Papers.” Alexander Hamilton, using the pseudonym, “Publius,” wrote approximately 51 articles. James Madison wrote about 26 articles while John Jay wrote about five. The difference in the number of articles is attributed to several being written by unnamed authors. If one desires to know and understand the thinking of Constitutional Convention attendees, the Federalist
Papers are the only group of articles that explain why the Constitution was the document created for the framework of the government and the thinking behind it.

The Constitution was ratified on November 21, 1788 with the first federal election to be held in April 1789.

The Bill of Rights

The first federal Congress put out a call for possible amendments to the Constitution, which would create the promised Bill of Rights. More than 100 proposed amendments were submitted to the Congress. Congress debated and whittled these down to 12 amendments, which they forwarded to President George Washington for approval. Upon his approval, they were forwarded to the states for their consideration and ratification.

“The original first amendment stipulated one representative for every 30,000 citizens up to 100,000 and one Representative for every 40,000 thereafter until 200 Representatives was reached. Above 200, one
Representative would be added for every 60,000 citizens.”

The original Second Amendment stated, “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.” (Kozak)

The states did not ratify either of the first two amendments, but did accept and ratify the next 10 amendments, which are known as the Bill of Rights. The preamble to the Bill of Rights was never submitted for ratification and is not a part of the U.S. Constitution today.

A synopsis of the ratified 10 amendments follows, with comments:

The First Amendment guarantees freedom of speech, press, peaceful assembly, religion and the right to petition the government. This was one of the amendments that ensured the various rights above because they were denied, in many cases, under British rule from about 1774 through 1781. Speech and press pretty much go together. The freedom to speak and freedom of the press were not meant to be unrestricted or all inclusive. Both had some restriction, for the safety of others. For example, it is unlawful to yell, “Fire!” in a crowded place, which can cause panic and harm to others. Also, the interpretation that an individual can say anything he/she desires, under “freedom of speech,” cannot deny other individuals their right to freedom of speech.

The same is a problem for the press. The press must be responsible to print “facts” to avoid defamation or slander.

Peaceful assembly—the freedom to assemble in a peaceful assembly does not give an individual or group the right to incite emotions which could lead to any type of violence.

Freedom of religion—no government (national, state or local) may establish a state religion or give any one religion favorable status over any other religion. It also means
that the right to practice a religion of choice will not be impeded by any level of government.

Right to petition government—through the proper channels to have complaints heard without threat of retribution.

The Second Amendment gives the states the right to have a regulated militia and gives individuals the right to bear arms. At the time, the right to bear arms was basically referring to flintlock muskets and hunting rifles, as well as handguns. The problem today is that technology has given us many more deadly weapons, such as MI5s, Uzis, AK-47s, etc. This advance in weaponry is what has people questioning whether the right of citizens to bear arms of any type is an all-encompassing statement. The amendment, however, was a direct result of the British attempting to eliminate all arms and gunpowder from
the Colonies. When war was almost assured, British Gen. Gates attempted to confiscate all the gunpowder in and around Boston to deny the Patriots use of their weapons. This was also a factor in the western settlements, where militias had to be able to handle the Native American problem on the frontier.

The Third Amendment prohibits the quartering of soldiers in private homes. The exception is in a future war, when the United States may request quartering of U.S. soldiers only with the permission of the citizens affected. This was a direct result of the various Quartering Acts that the British enforced, specifically in the Boston area.

The Fourth Amendment covers searches and seizures. This is a result of the British writs of assistance in which, with a writ, the British could search private homes, businesses, warehouses, outbuildings, etc. without any probable cause. Today’s search warrants must be signed by
a judge and be specific as to what can be searched and why.

The Fifth Amendment specifically discusses double jeopardy and self-incrimination. Basically, if a person goes to trial in a criminal case and is found not guilty, he/she cannot be charged in the future for the same crime, even if new evidence is discovered. The self-incrimination clause means that a person cannot be forced or coerced into an admission of guilt. Today, this also includes an accused being advised of “Miranda Rights.”

The Sixth Amendment is further protection against self- incrimination and double jeopardy. It includes requiring
the accused to be fully briefed on the crime for which he/ she is being arrested, and that the accused has the right to face those witnesses against them and to subpoena witnesses to testify on their behalf. The right to a “speedy trial” is also guaranteed in this amendment. Again, these were rights that were taken away by the British under the British system of justice.

The Seventh Amendment deals with appeals of guilt and sentencing. One of the major factors in appealing is not made on the law but made on the facts of the case only.

The Eighth Amendment is the basis for the criminal law system. It also includes the prohibition against “cruel and unusual” punishments.

The Ninth Amendment basically states that the rights of individuals that are guaranteed by the Bill of Rights and the U.S. Constitution are not exclusive. There may be many more rights that can be added at a later date.

The 10th Amendment is a catch-all. In this case, it further emphasizes the Ninth Amendment.

In many cases, the language of the Bill of Rights has been further refined to grant the rights guaranteed while not harming the rights of others. The primary thing to recall about the Bill of Rights is how they directly assured citizens’ rights following the abuse of those rights under British rule. The language of the Bill of Rights is not necessarily interpreted the same today as it was 225 years ago. Court cases have frequently been the reason for
adjustments in the interpretation of the Bill of Rights as we understand them today.

Bibliography

• Cooke, Edward F. A Detailed Analysis of the Constitution.
• Littlefield, Adams & Co. Totowa, NJ, 1974.
• Cooke, Jacob E. The Federalist. Wesleyan University Press
  Middletown, CT, 1961
• Corwin & Peltasons. Understanding the Constitution. Hinsdale, IL: Dryden Press, 1973.
• Kozak, Ellen M. The U.S. Constitution Book. Avon, MA; Adams Media, 2011.
• Meese III, Edwin. The Heritage Guide to the Constitution.
  Washington, DC; Heritage Foundation, 2005.
• St. John, Jeffrey. Forge of Union Anvil of Liberty. Ottawa, IL: Jameson Books, Inc. , 1992.
• VanDoren, Carl. The Great Rehearsal. New York, NY;
  Penguin Books, 1986.