Bill of Rights: Ensuring Unstated Freedoms

The Constitution did not just become the law of the land once it was written. Nine of the 13 states needed to ratify it. This was no easy process and a divide emerged. There were the Federalists, who supported the Constitution as it was, and the Anti-Federalists, who had many concerns. The Federalists defended all the protections built into the Constitution, most famously in a series of anonymous articles written in New York, an Anti-Federalist stronghold, by John Jay, Alexander Hamilton, and James Madison (remember that name for later). But the Anti-Federalists, led by Patrick Henry, had some reasonable concerns. They worried that the president might evolve into a monarchy, that the judicial branch’s powers were so vague that it would lead to their power growing out of control, that a federal government was too removed from the people, that the power of the states were being taken away, and most important, that individual freedoms were not protected. The Federalists believed that if it was not explicitly stated in the Constitution, it was protected. The Anti-Federalists wanted it written down. They wanted a Bill of Rights.

So the Federalists, in an effort to get ratification in tight states, promised a list of amendments that would be considered when the first Congress met. Federalist Madison narrowly beat Anti-Federalist James Monroe, later his political ally. Had Madison lost, history may have been altered forever because it was Madison that largely proposed and got the Bill of Rights passed.

The Bill of Rights is the first ten amendments to the Constitution. They work to protect individual freedoms, starting with phrases like “Congress shall make no law that…” but they also each address the previously mentioned concerns of the Anti-Federalists.

The First Amendment (look for our series on this coming soon), says that no national religion shall be established and the government shall not prohibit citizens from practicing any religion. It also ensures freedom of speech, freedom of the press, freedom to assemble peacefully and freedom to petition the government over grievances.

The Second Amendment says, “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.” This was a means of protecting the government from becoming a monarchy as a state militia could defend itself against a hostile government. It is hotly debated today as to whether the founders meant that all people should have access to guns or if the right to bear arms only applies to that well regulated militia.

The Third Amendment says that soldiers cannot be housed in private residences without the owner’s permission. This is often considered the least controversial amendment and has never been the main basis for a Supreme Court ruling. It did, however, see some discussion recently as President Trump housed soldiers in hotels as part of his response to protests.

The next five amendments protect you from an overreaching judiciary. The Fourth Amendment protects against unreasonable search and seizure. The Fifth Amendment protects you from being charged for the same crime again after being acquitted, the right to due process including inditement by a grand jury, and protection against self-incrimination (“pleading the fifth”). The Sixth Amendment ensures the right to a speedy and public trial by a jury of peers, the right to an attorney, the right to be informed of what you are being charged with, and the right to both compel witnesses to testify as well as to cross-examine witnesses. The Seventh Amendment ensures the right to a jury in a civil trial. Finally, the Eight Amendment protects against cruel and unusual punishment.

The final two amendments are concerned with citizens connectedness to the government and the rights of states. The Ninth Amendment says that citizens have other fundamental rights. Just because they are not explicitly stated does not mean that they are not protected. The Tenth Amendment says that all powers not reserved for Congress in the Constitution are reserved to the states. This is often at odds with the “necessary and proper” clause in the Constitution which says that Congress’ powers can expand as needed.

Two amendments originally purposed did not pass. One said that no congressional district shall exceed 50,00 people. This was passed by Congress but not ratified by the states. That’s probably a good thing considering how the population has grown. Had this been enacted, we would currently have 6,560 members of the House. The second also was passed by Congress but not by the states. It says that Congress cannot give itself a pay raise within a session because the raise cannot take effect until the next Congress. It was largely forgotten until a student at the University of Texas, Gregory Watson, wrote a paper in 1982 on why it could still be ratified if enough states decided to approve it. His teacher gave him a bad grade. Believing it was a good amendment, mixed with a lot of spite, he set out on a national campaign to get it ratified. In 1992, 202 years after it was proposed, it became the Twenty-Seventh Amendment, the most recent amendment to be passed.