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1791: The bill of rights: the constitution might never have been ratified without a promise to add safeguards of fundamental, rights.

The Constitution, John Adams once said, was the result of "the greatest single effort of national deliberation that the world has ever seen." Indeed, it created a wonderfully calibrated structure for the new American nation, balancing the relationship between the three branches of government, as well as the relationship between the federal government and the states.

But at the time, a lot of people thought the Constitution was woefully incomplete.

It lacked, detractors claimed during the ratification debates in 1787 and 1788, protections for fundamental rights like free speech, religious liberty, jury trials, and due process. It lacked, in other words, what we now know of as the Bill of Rights, the first 10 Amendments to the Constitution.

That shortcoming was so grave, critics known as anti-Federalists said, that the states should refuse to vote for ratification of the Constitution. Had ratification failed, it would have left the 13 states bound together only by the weak national government created by the Articles of Confederation, possibly jeopardizing the very existence of the country.

In response, James Madison and other supporters of the Constitution--the Federalists--promised that they would propose a set of constitutional amendments in the first session of Congress to address these concerns.

With Madison's promise in mind, key states like Massachusetts, Maryland, Virginia, and New York voted for the Constitution, which took effect in March 1789.

Later that year, Madison was elected to the first House of Representatives, and he promptly introduced a series of amendments based on declarations of rights in state constitutions and in other foundational legal documents from around the world.

Recalling the recently concluded Revolutionary War, Madison said the amendments were meant "to extinguish from the bosom of every member of the community any apprehension that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled."

Though he kept his word to the anti-Federalists, Madison actually thought that the amendments were "unnecessary and dangerous." They were unnecessary, he said, because the Constitution had not granted the government the powers that the Bill of Rights would guard against. And they were dangerous because any rights not on the list might be thought to be unprotected.

Despite those misgivings, Congress agreed, by the required two-thirds majorities of the House and Senate, to approve Madison's handiwork. In September 1789, it sent 12 amendments to the states for ratification. That's right: 12, of which only 10 were initially adopted (see box, p. 26).

On Dec. 15, 1791, Virginia became the 11th of what were by then 14 states to ratify 10 of the amendments. That satisfied the constitutional requirement of ratification by three-quarters of the states, and the Bill of Rights became part of the Constitution.

Many people say that the Bill of Rights, which is celebrating its 215th anniversary this year, is the most important part of America's most important document. Packed into 413 words are not only the majesty of the First Amendment (see p. 20), but also a series of protections from many kinds of potential government abuse:

The Fourth Amendment protects against "unreasonable search and seizures." That's why, for example, the police must usually get a warrant, based on "probable cause," before searching a criminal suspect's home.

The Fifth Amendment prohibits double jeopardy (being tried twice for the same crime), the taking of private property for public use without compensation, and forced self-incrimination in criminal cases. That last prohibition is the basis for the "you have the right to remain silent" part of the "Miranda warning" that police recite to suspects after their arrest. (The warning was named for Miranda v. Arizona, a 1966 Supreme Court case.) The Amendment also gives defendants the right to "take the Fifth" in court, or even when testifying before Congress, and not answer questions about their alleged involvement in a crime.

The Sixth Amendment, which concerns criminal prosecutions, guarantees public trials, impartial juries, and the "right to an attorney" part of the Miranda warning.

The Seventh Amendment requires jury trials in most civil cases, while the Eighth Amendment prohibits "cruel and unusual punishments," a term that continues to be the subject of intense debate. Just last year, the Supreme Court ruled that the Eighth Amendment forbids the execution of offenders younger than 18.

The Second Amendment, which guarantees the right to "keep and bear arms," is easily the most controversial one. Constitutional scholars continue to debate whether that right is limited to the "well-regulated militia" mentioned in the Amendment or whether it is a personal right of every American.

The other Amendments do not pack quite the same power, at least not today. The Third Amendment, which bars the government, from housing soldiers in private homes, was of great significance at the time: Before and during the Revolutionary War, the British had forced Americans to house their soldiers. And the Ninth and Tenth Amendments speak about the distribution of power between the people, the states, and the federal government.

These days, the Bill of Rights is being tested in new areas. The Bush administration has said that it is considering prosecuting news organizations for publishing classified information about some of its efforts to fight terrorism, but such prosecutions might violate the First Amendment. Some of the surveillance undertaken in the war on terror, including the monitoring of phone calls without warrants, may give rise to Fourth Amendment issues.

And various aspects of the death penalty have been challenged as a violation of the Eighth Amendment's ban on cruel and unusual punishment.

There have been scores of lawsuits around the country, for instance, taking issue with the chemicals used in lethal injections.

Not everyone will agree about precisely how far the protections in the Bill of Rights ought to reach. But 215 years after its ratification, even James Madison would probably agree that the Constitution would not be complete without it.


Critics of the Constitution said it spelled out what the federal government could do, but not what it could not do. Having just escaped from British rule, Americans were reluctant to create too strong a central government. The Bill of Rights protected citizens from potential abuses of power by the federal government.


* Ask students which of the Amendments seems most important to them or most vital to society in 2006.

* Have students ever relied on the protection of one of the Amendments? If the response is a blank stare, remind them of the First Amendment, of freedom of religion and of speech.


Focus on one of the issues in the news today: surveillance for the purpose of finding terrorists.

Have students read the Fourth Amendment. Then tell them that the federal government has eavesdropped on Americans' phone calls and e-mails without warrants in the search for terrorist links. Have them take sides: Does this eavesdropping program violate the Fourth Amendment protection against "unreasonable searches and seizures"? Should the President have this power during a war?


* Why do you think the Second Amendment, which allows the bearing of arms, is so contentious?


[right arrow] The Bill of Rights is based in part on the Virginia Declaration of Rights, written by George Mason in 1776, the English Bill of Rights and England's Magna Carta, and France's Declaration of the Rights of Man.

WEB WATCH The Bill of Rights Institute site provides background and the Bill of Rights in the news today.

Go to the right and click on "Bill of Rights in the News" to see how the Bill of Rights figures in current news and issues.

1. The Bill of Rights protects Americans' rights in each of the following areas except

a due process.

b religious liberty.

c access to education.

d self-incrimination.

2. Those Founding Fathers who thought the Constitution was fine as first written--without the addition of a Bill of Rights--were known as

a Federalists.

b Anti-Federalists.

c Strict constructionists.

d Abolitionists.

3. Why did James Madison think the Bill of Rights was unnecessary? Why did he think it was dangerous?--

4. The Supreme Court ruled against the administration of President Richard Nixon in a freedom of press case involving the publication of a history of

a racial integration.

b American education.

c the Vietnam War.

d corruption in Congress.

5. Before the Bill of Rights could be sent to the states for ratification it had to

a be approved by the President.

b receive the support of a majority vote in the Supreme Court.

c receive a two-thirds majority in both houses of Congress.

d be approved by the U.S. Attorney General.

6. The Fourth Amendment to the Constitution, hotly debated in the age of terrorist investigations, prohibits "unreasonable--and seizures,"


1. The Fifth Amendment prohibits authorities from trying a person twice for the same crime, even if new evidence is found. Explain why you agree or disagree with this Bill, of Rights protection.

2. How would you explain the Bill of Rights to a visitor from a country that has no such protections?

1. [c] access to education.

2. [a] Federalists.

3. Madison thought the Bill of Rights unnecessary because the Constitution had not granted government the powers the Bill of Rights would protect against. He thought it dangerous because rights not listed might be thought to be unprotected. [Similar wording is acceptable.)

4. [c] the Vietnam War.

5. [c] receive a two-thirds majority in both Houses of Congress.

6. searches.

Why You Don't Talk About Your Third Amendment Rights

When people invoke their First Amendment rights to free speech and religion, they frequently say there is a reason those rights were listed first. What those people fail to realize is that, but for politics and happenstance, they might be invoking their Third Amendment rights instead. That might not have the same force. As it happened, the states failed to ratify the original, first amendment, which concerned the apportionment of seats in the House. They did eventually ratify the original second amendment, which says that Congressional pay raises cannot take effect until after a subsequent erection. But that didn't happen until, 1992--more than 200 years tater--when it became the 27th Amendment.--Adam Liptak
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Title Annotation:TIMES PAST
Author:Liptak, Adam
Publication:New York Times Upfront
Date:Oct 9, 2006
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