The origin of the Bill of Rights was less a principled and honorable declaration of the founders’ commitment to fundamental liberties and more a compromise to get the states to ratify the new Constitution of the United States.
In a speech given in commemoration of the 200th anniversary of its ratification, former Supreme Court Chief Justice Warren E. Burger relates how the need for these explicit and enumerated rights became a complicated discussion around which rights were reserved by the states and people for themselves, how thirteen states’ bills of rights might create conflict and confusion with a constitutional bill of rights, and whether, as Alexander Hamilton believed, “the Constitution unto itself was a bill of rights.”
Burger describes how James Madison went from skeptic to believer in the need for the amendments as they’d become necessary to secure ratification of the whole. He submitted his proposed amendments to the House and Senate: seventeen were approved by the House and twelve by the Senate. After the reconciliation process, twelve were approved by Congress as a whole and then sent to the states for ratification in 1789. Of those, articles 3 through 12 were ratified by the necessary three-quarters of states, Virginia being the last, voting on December 15, 1791.
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But while it may have begun as a means to an political end, that securing agreement so that the the Articles of Confederation could be replaced with a new, more mature document, the Bill of Rights has made its necessity repeatedly clear throughout its existence. Former Supreme Court Justice William Brennan, in his speech “Why Have a Bill of Rights?” summarized his thoughts on it after serving thirty-four years on the bench, arguing that
[t]he American Bill of Rights, guaranteeing freedom of speech, religion, assembly, and the press, along with other important protections against arbitrary or oppressive government action, provides a noble expression and shield of human dignity. Together with the Civil War Amendments, outlawing slavery and involuntary servitude and ensuring all citizens equal protection of the laws and due process of law, the Bill of Rights stands as a constant guardian of individual liberty.
Having participated in some of the most important civil rights decision in American history, including Roe v. Wade, Furman v. Georgia, New York Times Co. v Sullivan, and the voting redistricting case Baker v. Carr, Brennan was in a uniquely qualified position to speak on the importance of the Bill of Rights. In answering his own question on why it was, and is, needed, he closed his address with the assertion that
[w]hether liberty withers or flourishes depends not on the alignment of the planets, or the allegedly iron laws of economics or genetics. It depends on us, and the struggle is a constant one. I know of no surer weapon in that fight against intolerance than an entrenched, enforceable bill of rights.
The text of the Bill of Rights can be found below, annotated with relevant scholarship from JSTOR. As always, these works are free to read and download.
The red J indicates free access to the linked research on JSTOR.
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
[Text taken from The United States Senate: Constitution of the United States: https://www.senate.gov/about/origins-foundations/senate-and-constitution/constitution.htm#amendments]
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