League logo

Return to Previous Page

The Bill of Rights

What is it?
Why was it added to the Constitution?
What does it mean that the Bill of Rights has been incorporated to apply to the states?

Without the essential rights and freedoms contained in the Bill of Rights, the United States would not be a democracy, especially those in the First Amendment: freedoms of religion, speech, press, assembly (association), and to petition the government.  However, no freedom contained in the Bill or Rights is absolute; limits may be imposed on all of them by amending the Constitution or by a Supreme Court’s interpretation.  For example, freedom to practice one’s religion does not permit one to engage in human sacrifice or to marry more than one person.  Additionally, some freedoms may, in practice, conflict with other freedoms.  For example, a person1 accused of a crime has the right to confront the accuser(s) and to have access to information that may exonerate the accused.  If, however, a newspaper prints a story that contains information from a confidential source that would exonerate the accused, the newspaper may refuse the accused lawyer’s request for the information by invoking freedom of the press to protect its source. 

When the Framers drafted the Constitution in secrecy in Philadelphia, during the hot summer of 1787, they believed that the new, democratic, republican government contained internal mechanisms that would prohibit the government from infringing on the people’s basic freedoms.  To this end, the Framers embedded devices in the system so the people could rectify any harm done by the government. 

Article VII of the Constitution provided for its ratification: the states were to elect delegates to state ratifying conventions at which the votes of only nine of the 13 states were required to approve it.2  When the Constitutional Convention’s work concluded, Madison3 immediately wrote to his supporters around the country informing them of the ratification process, which gave the Federalists, Madison’s allies, an organizing advantage at the state level so that their members were elected to the ratifying conventions and held majorities in each. 

Madison’s strategy nearly worked to perfection.  Delaware promptly voted to ratify on December 12, 1787.  Pennsylvania held its convention next, but those opposing ratification, the Anti-Federalists, were sufficiently organized by this time, and gained seats at the convention.  It was here that a proposal was first made for a Bill of Rights.4  Subsequent state conventions also heard calls for such an addition, but it wasn’t until Massachusetts that a full-throated argument from the Anti-Federalists was articulated.5  They contended that the absence of a Bill of Rights made the new government no better than any other large, national government, one capable of trampling on the people’s freedoms.  Without an explicitly stated guarantee of their rights, the people would be subject to the whims of the federal government. 

The Federalist’s response was made in the Federalist Papers, authored by Hamilton, Madison, and John Jay under the pseudonym Publius.  These were essays that appeared in newspapers and eventually circulated around the country.  Publius claimed that the Constitution is a bill of rights and that it inherently protects the people’s freedoms: there was, therefore, no need for an additional statement of rights.  Publius also warned of the danger of enumerating a list of rights.  If a list neglected to include a particular freedom, for example privacy, then a future government could invade the public’s privacy by, say, gathering personal information and using it in nefarious ways.  This would have been considered constitutional.6

During the Massachusetts, Virginia and New York conventions — the three states with the largest populations — the Anti-Federalists’ demands were finally met with a major concession from the Federalists: that constitutional amendments would be introduced and debate during the first session of Congress.  Madison held true to the agreement, and he aided in the drafting of the amendments and supported their passage.  Twelve amendments cleared Congress and were sent to the states, but only ten were ratified, the last on December 15, 1791.7

It wasn’t until 1833 that the extent of the Bill of Rights’ protections was fully understood.  In Barron v. Baltimore, Chief Justice John Marshall’s decision for the unanimous Court held that the Bill of Rights only protected the people’s freedoms against actions taken by the federal government, not state government’s actions.8  The decision remained as precedent until 1897, when the Supreme Court considered the case of Chicago, Burlington, & Quincy Railroad Co. v. City of Chicago9 and overturned Barron.  What dramatically altered the Court’s interpretation of the Bill of Rights was the 14th Amendment, in particular the following clauses:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

These are known as the privileges and immunities, due process, and equal protection clauses, respectively.  The Court found that these words applied the Bill of Rights’ protections to state government, thereby incorporating the Bill of Rights, and in doing so, overturned Barron.  Supreme Courts thereafter slowly incorporated other parts of the Bill of Rights.  The first was in Gitlow v. New York (1925), when the Court incorporated the freedom of speech to apply to the states.10  Other decisions followed that selectively incorporated elements of the Bill of Rights:

to name a few. 

  1. The word “people” is used throughout this discussion, because the protections guaranteed by the Bill of Rights are available to everyone in the United States, citizens and non-citizens alike.   ⇧
  2. The Framers set the number at nine rather than thirteen, because they were certain that at least one state, Rhode Island, would refuse to adopt the new Constitution.  Nine was a compromise figure, though it reflected a supermajority of the states.   ⇧
  3. Madison is often referred to as the Father of the Constitution.  His work in advance of the Convention’s meeting, drafting a proposal for a new Constitution rather than merely amending the Articles of Confederation, shifted the Convention’s debate dramatically.  When the Continental Congress called for a convention, it intended that the convention merely consider changes to strengthen the national government, not replace it.  Though Madison’s proposal, the Virginia Plan, presented by delegate Edmund Randolf, was not adopted, several important elements from it were included in the final document.   ⇧
  4. The Anti-Federalists also worried that the national government would dominate the states; they believed the states needed additional protections, which explains the 9th and 10th Amendments.  They expressed displeasure with House, which gave too much control to the largest states (by population).  They also raised concerns about the presidency: they thought the office was too powerful and dangerous.  They feared the President would become king-like.   ⇧
  5. The order of ratification was Delaware, 12/7/1787; Pennsylvania, 12/12/1787; New Jersey, 12/18/1787; Georgia, 1/2/1788; Connecticut, 1/9/1788; Massachusetts, 2/6/1788; Maryland, 4/28/1788; South Carolina, 5/23/1788; New Hampshire, 6/21/1788; Virginia, 6/25/1788; New York, 7/26/1788; North Carolina, 11/21/1788; Rhode Island, 5/29/1790.   ⇧
  6. There is not an explicitly stated or enumerated right to privacy in the Bill of Rights.  There are legal scholars and Supreme Court justices who believe in the legal theories of original intent and/or literal interpretation.  They argue that because privacy is not included, people are not guaranteed this freedom.  The decision in Griswold v. Connecticut (1965) discovered a right to privacy by drawing on the 1st, 3rd, 4th, 5th and 9th Amendments to claim that the protections contained in them formed a “penumbra” that created a right to privacy.  The Court ruled that the state could not make it a crime for a woman to discuss birth control with her doctor.  The debate over the existence of a right to privacy continues.   ⇧
  7. The first unratified amendment dealt with the size of the House of Representatives.  A formula was proposed based on each states’ population to ensure that each state would receive a certain number of representatives based on the number of citizens, not the state’s total population.  This was likely introduced to undermine the effects of the three-fifths compromise, which counted slaves as three-fifths of a person whenever a census was taken.  Slaves were not citizens. 
      The second unratified amendment proposed to limit the ability of a sitting Congress to raise its own salary.  There was no time limit imposed on the ratification of either amendment, however.  In 1992, a Michigan became the last state to ratify the salary amendment that became the 27th Amendment.  It reads: “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until the election of Representatives shall have intervened.”   ⇧
  8. The case, Barron ex rel. Tiernan v. Mayor of Baltimore, better known as simply Barron v. Baltimore, involved the owner of a wharf,  John Barron, who alleged that Baltimore’s construction in the harbor diverted water from his wharf, lowering the water level and thereby reducing his business and his profits.  He sued the city to recover some of his financial loss and won at the state trial court, but lost when the city appealed to the state appellate court.  Barron then went to federal court, arguing that the city had violated his Fifth Amendment right to not have the government take his property without proper compensation (“the taking clause”).  Marshall’s opinion said that the Supreme Court lacked jurisdiction because Fifth Amendment (and by extension, the entire Bill of Rights) was not applicable to the states.   ⇧
  9. The case involved actions by Chicago that involved adding a new street that ran through private property owned by the railroad company and several private citizens.  The city had the land involved condemned; the individuals were given compensation while the railroad company was not.  The company went to state court to receive compensation but was denied at all levels of the Illinois court system.  Finally, on appeal to the US Supreme Court, the company argued that its rights under the 5th Amendment’s “taking clause” had been violated.  The Court agreed, and the first incorporation decision was delivered.   ⇧
  10. Mr. Gitlow, a socialist, was arrested in 1919 for advocating the violent overthrow of the government by distributing leaflets that promoted socialism and the use of strikes and class action to do so.  He was charged under New York’s Criminal Anarchy Law prohibiting seditious speech or actions.  At his trial, Gitlow invoked his First Amendment right to freely speak, arguing that his words and the leaflets did not lead to action, and that the statute penalized the mere use of words that were unpopular.  The Court ruled that the First Amendment could be invoked by Gitlow; however, the majority found that New York’s statute was constitutional because the government may punish speech that threatens its very existence.   ⇧

Return to Previous Page