Bill Of Rights Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

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A bill of rights is a list of legally protected rights or immunities enjoyed by citizens or holders of public office. The English Bill of Rights (1689) was drawn up during the Glorious Revolution of 1688 that ended repressive Stuart rule and brought William and Mary to the English throne. It lists such protections as the right to trial by jury, freedom of speech (for members of Parliament only), the right to keep and bear arms (for Protestants only), and other limited rights and immunities.

A century later, a more sweeping and inclusive Bill of Rights was added to the United States Constitution in 1791, as the first ten amendments to the Constitution. These amendments were added as an afterthought, for the Founders who met in Philadelphia in the summer of 1787 did not believe that a bill of rights needed to be included in the newly drafted document. This view was, however, hotly disputed during the course of the ratification debate of 1787 and 1788.

Most Anti-Federalist opponents of the proposed constitution, and some strong Federalist supporters of the new constitution, including Thomas Jefferson, decried the absence of a bill of rights in the document drafted in Philadelphia. The Anti-Federalists hammered the point home: Without a bill of rights, the new constitution created a system that is republican in name only. A bill of rights would serve as a reminder to rulers and citizens alike that the government’s authority is limited by its citizens’ inviolable liberties. Didn’t England’s Glorious Revolution result in a bill of rights to which King William agreed to abide? Didn’t the American Revolution of 1776 deserve no less a guarantee? For what was the revolution fought, if not to preserve American rights and liberties? The Anti-Federalists believed that if rights and liberties are to be properly protected, the nature and extent of those liberties must be fixed from the outset. The goodwill or solicitude of rulers or representatives was not to be relied on for very long, if at all. Unless checked by the law and an active and vigilant citizenry, those to whom power is entrusted will abuse it sooner or later. Without an explicit “declaration of rights” to protect “the democratical part” of the citizenry, wrote the pseudonymous Anti-Federalist pamphleteer Brutus (thought by most to be Robert Yates),“the plan is radically defective in a fundamental principle, which ought to be found in every free government” (Brutus 2003, 453–454). Because the arguments in favor of such a declaration are so clear and compelling, its omission is an ominous portent, revealing the malign designs of the Federalists: “so clear a point is this,” Brutus added, “that I cannot help suspecting, that persons who attempt to persuade people, that such reservations were less necessary under this constitution, than under those of the states, are willfully endeavoring to deceive, and to lead you into an absolute state of vassalage” (453).

Anti-Federalist objections to the absence of a bill of rights grew louder over the course of the ratification debate. Writing as “Publius” in The Federalist, Alexander Hamilton first derided these objections as confused and incoherent (No. 38). Later, in Federalist (No. 84), he felt obliged to respond, albeit reluctantly and under the heading of “miscellaneous points.” Hamilton wrote, “The most considerable of these remaining objections is that the plan of the convention contains no bill of rights.” He replied by noting that several state constitutions, including New York’s, are also without bills of rights. Acknowledging the force of the Anti-Federalists’ answer to this objection—namely, that no separate bill of rights is needed because provisions for protecting those rights are incorporated into the texts of the state constitutions—Hamilton asserted that the same is true of the new federal constitution as well. “The truth is, after all the declamation we have heard, that the constitution is itself in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” Yet the bill of rights that Hamilton tried to tease out of the text is a motley assortment of legal guarantees, prohibitions, and definitions. The “privileges” of habeas corpus and jury trials are affirmed (although there is no requirement that the jury be composed of one’s peers), and the prohibition of titles of nobility (Art. I, sec. 9) Hamilton offered as positive proof of the rights-respecting character of the new constitution. But, in any event, Hamilton added, a bill of rights is out of place in a republican constitution. Harking back to Magna Carta (1215) and the 1689 English Bill of Rights, Hamilton said that “bills of rights are in their origin, stipulations between kings and their subjects,” and therefore have no place in a truly republican constitution.

Hamilton’s argument fell on deaf ears. Although the proposed constitution was eventually ratified by all thirteen states, several did so on the condition that a bill of rights be added as soon as possible. The bill of rights drafted by James Madison and adopted in 1791 explicitly enumerated the rights to freedom of religion, speech, press, assembly, and other protections.

By no means a static and unchanging enumeration of rights, the 1791 Bill of Rights—like the Constitution to which it is attached—has been subjected to repeated reinterpretation. The original (or originally intended) meanings of free speech, due process, “takings,” and a host of other rights have been modified in the course of American legal and political history. Successive U.S. Supreme Court cases have expanded the scope and range of the rights enumerated in the Bill of Rights. The First Amendment, in particular, has been the object of interpretive dispute and controversy. For example, freedom of speech and the press has been expanded to mean freedom of expression of various sorts, including artistic and other nonverbal forms of expression. And the Second Amendment, which originally appeared to apply only to members of militias, was in 2008 reinterpreted by the Supreme Court to apply to all law-abiding adult citizens.

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