Development of the Bill of Rights

When the American colonies rebelled against Great Britain, the rebels gave their reasons in the Declaration of Independence. According to the Declaration, people have unalienable rights to liberty. “The ideology of the revolutionary generation shaped the later American Bill of Rights. This revolutionary ideology combined and wove together both the natural rights of man and the historic rights of Englishmen”. The colonists emphasized natural rights and historic liberties as a result of their view of government.

Government was potentially hostile to human liberty and happiness. Power was essentially aggressive. The rebellious colonists dealt with the problem of aggressive political power by several devices: separation of powers, an independent judiciary, the right of people to have a share in their own government by representatives chosen by themselves, and an insistence on the natural and historical rights and liberties of citizens reflected in revolutionary bills of rights of the several states. These concessions to slavery produced some protests.

George Mason, delegate from Virginia and a leading advocate of a federal bill of rights, complained that delegates from South Carolina and Georgia were more interested in protecting the right to import slaves than in promoting “the Liberty and Happiness of the people. ” Some framers rationalized the compromise with slavery on the assumption that the institution would soon die out. In truth, however, a compromise was made in the interest of the Union. While the framers compromised with slavery, they took steps to prevent its spread to new states.

Particularly after the adoption of the Bill of Rights the Constitution reflected the Jekyll-and-Hyde character of the nation. The nation sought simultaneously to protect liberty and slavery. All in all, the Bill of Rights was adopted because of the fear of abuses of power by the federal government. It simply had no application to the states. The idea that the federal Bill of Rights protects liberty of speech and press, freedom of religion, and other basic rights from violations by the states has become commonplace, even for lawyers. Indeed, many Americans probably accepted this commonplace when careful lawyers knew it was not so.

From 1833 to 1868 the Supreme Court held that none of the rights in the Bill of Rights limited the states. From 1868 to 1925 it found very few of these liberties protected from state action. Those the states were free to flout (so far as federal limitations were concerned) seemed to include free speech, press, religion, the right to jury trial, freedom from self-incrimination, from infliction of cruel and unusual punishments, and more. State constitutions, with their own bills of rights, were available to protect the individual, but too often they proved to be paper barriers.

Most, but not all, scholars believe that the Supreme Court was right, at least as a matter of history, up to 1868. They believe, that is, that the founding fathers did not intend for the Bill of Rights to limit the states. In contrast to the English Bill of Rights of 1689, in which the powers of Parliament are protected against the encroachments of the monarch, the American Bill of Rights was created to protect the individual against the intrusions of the legislative and executive branches of the government.

As James Madison expressed it, “If we advert to the nature of Republican Government we shall find that censorial power is in the people over the Government, and not in the Government over the people. ” Nowhere in the Bill of Rights is this more sharply affirmed than in the words of the First Amendment: “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. “

Although nine of the thirteen colonies had established churches, four did not (Rhode Island, Pennsylvania, New Jersey, and Delaware). By the time the First Amendment was adopted, however, only three states had an established church -Massachusetts, New Hampshire, and Connecticut. Of even greater significance is that no two states shared the same religious configuration with respect to its population. Not to be overlooked is that in the decade between the Declaration of Independence and the Constitutional Convention, numerous states had made declarations in support of religious freedom prior to the adoption of the Bill of Rights.

In 1868 the Fourteenth Amendment was ratified. Beginning in the 1920s, the U. S. Supreme Court began to apply the Bill of Rights to states through a process now called the incorporation of the Bill of Rights into the Fourteenth Amendment. As originally passed, the Bill of Rights applied only to the federal government and not to state governments. The Fourteenth Amendment’s equal protection and due process clauses clearly applied to the states. Through a series of lengthy cases, the Court engaged in a piecemeal process of interpreting the Fourteenth Amendment clauses to include the various freedoms protected in the Bill of Rights.

In Near v. Minnesota (1931) the Supreme Court applied freedom of the press to the states. In this case, the city of Minneapolis tried to suppress the publication of scandalous, malicious and defamatory material in newspapers. A newspaper publishers association, fearing censorship, challenged the Minnesota law on the grounds of violation of freedom of press. The Supreme Court struck down the law by contending that it represented prior restraint of future issues. The most important freedom given to the press is freedom from prior restraint, the freedom not to be censored.

The process of nationalizing the Bill of Rights through the Fourteenth Amendment continued in the area of free exercise of religion. In Hamilton v. Board of Regents (1934), the Court held that freedom of religion was protected by the First Amendment against invasion by the national government and by the states. This decision was confirmed in Cantwell v. Connecticut (1940). This case questioned the constitutionality of a Connecticut law which banned solicitation of money for religious or charitable reasons unless approved by the secretary of the public welfare council.

This particular official had the authority to decide whether a fund-raising cause was truly a religious one. In a unanimous decision, the Supreme Court ruled that the statute violated religious freedom and the due process clause of the Fourteenth Amendment. From the critical standpoint, the Bill of Rights not only constitutionally protects individual rights of citizens, such as freedom of religion, peaceable assembly, right to keep and bear arms, trial by jury, but it also secures the entire system of American democratic values and implementation of democracy in reality.

For instance, freedom of press, declared of in the First Amendment, does not mean only that “Congress shall make no law… abridging the freedom of…press. ” Considering the fact independent media is one of the pillars of modern democracy, this constitutional guarantee aims to secure democratic principles of the country. Moreover, the freedom of press implies automatically the absence of any censorship limiting the execution of freedom of speech, which is too declared in the First Amendment and similarly is to protect democratic principles.

The Bill of Rights has been created not only to protect freedoms and liberties of American citizens on individual levels, but also to secure the position of a person before the government. For example, the Fifth Amendment provides that no person shall be forced in any criminal case to be a witness against oneself. At the same time, from my personal viewpoint, the fundamental importance of the Bill of Rights is its long lasting effect and its tremendous influence on American legislative and judicial system.

Firstly, the Bill triggered the adoption by the Congress of several important acts protecting civil liberties like Civil Rights Act. Secondly, because the Bill is an integral and vital part of US Constitution, and thus the ultimate legal power, legislative and judicial system have been continuously improving constitutional doctrine on individual rights. For example, one can notice during 1960-70s the constitutional rights of public employees to freedom of speech and association, procedural due process, and equal protection have also been vastly expanded.

Historically the Constitution has retained its flexibility because interpretations of its meaning have changed. Choosing between two or more sets of competing values, the Supreme Court has played a major role in maintaining this flexibility. A significant trend has been the extension of civil rights to the previously powerless. For instance, the involvement of the U. S. Supreme Court in civil rights for blacks is long-standing, dating back to issues from the days of slavery.

In the Dred Scott case (1857), Chief Justice Taney ruled that no blacks, slave or free, were citizens, and that blacks had no citizenship rights (Hall, 38). In 1883, two decades after the Civil War and the official end of slavery, the Court ruled on five separate suits affecting the rights of blacks, and collectively called the Civil Rights Cases (1883). These cases arose in response to the Civil Rights Act of 1875 which prohibited racial discrimination in jury selection and public accommodations. In these cases, the public accommodations portions of the 1875 act were challenged.

The Court recognized that the Fourteenth Amendment forbade discrimination by states but it made no mention of discriminatory acts committed by individuals. Since the Civil Rights Act prohibited discrimination by individuals and private businesses, the Court ruled that the act had overstepped congressional authority and was therefore unconstitutional. By the end of World War II, the Supreme Court had become more supportive of civil rights for blacks. It struck down the all-white primary in Smith v.

Allright (1944), arguing that the Democratic party was in essence an agent of the state and was therefore subject to the Fifteenth Amendment. During the late 1940s and the 1950s, the Court followed the trends begun earlier of moving away from the doctrine of “separate but equal” (Hall, 51). This may be seen in the cases of Sipuel v. Oklahoma (1948), Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents (1950). In the Sipuel case, which was similar to the Gaines case, the Court ordered Oklahoma to provide a separate but equal law school for a black woman and stressed the need for equality in facilities.

In Sweatt v. Painter, the state of Texas had established a separate black law school but it was inferior to the white law school at the University of Texas in the size of its faculty and the quality of its library and student body. The court ruled that the black law school had to be improved. The Court nearly overturned the “separate but equal” doctrine in the McLaurin case in which Oklahoma had allowed a black student to attend a white graduate school but had segregated him from the rest of the students by designating separate sections of the library, cafeteria and classrooms for him.

The Court struck down these segregation provisions, claiming that they interfered with the ability of the black student to exchange ideas with other students, a requisite for a good education. Although these cases fell short of invalidating the “separate but equal” principle, they made segregation at the graduate school level more difficult to implement. Perhaps the most significant civil rights cases to aid blacks in the fight for equality were the two Brown cases in the 1950s.

Brown v. Board of Education I (1954) arose as the result of a suit against Topeka, Kansas where Linda Brown, a black child, was not permitted to attend a segregated white school four blocks from her home. In Brown I, under the leadership of Supreme Court Chief Justice Earl Warren, the Court overturned the Plessy decision of “separate but equal” in the public schools by declaring that the separate but equal doctrine made black children feel inferior. In Brown v.

Board of Education II (1955), the Court ruled on how to accomplish desegregation, concluding that local school boards should establish plans for desegregation under the supervision of federal district judges and “with all deliberate speed”. Despite these court rulings, southern school boards were slow to respond and avoided court orders by closing public schools and placing white children in private schools. Consequently, desegregation was only implemented very slowly.

Women are not a minority but they have historically experienced legal discrimination based on their gender. The Supreme Court has played an important role in the expansion of rights for women. Overall the Court has been less important in than it has been in the extension of rights to blacks and other racial minorities. A major reason for the less important role of the Court is that women’s rights have mostly been broadened through legislation. Many women’s rights cases addressed by the Supreme Court have been concerned with employment.

Early court decisions followed a trend of protectionism and upheld restrictions on the nature and conditions of employment for women. In Bradwell v. Illinois (1873), the Supreme Court upheld a state law preventing women from practicing law. Not until the 1970s did U. S. Supreme Court rulings begin to move away from the restrictive, protectionist trend of the past. Reed v. Reed (1971) was the first instance of the Court striking down a state law which discriminated against women. Taylor v. Louisiana (1975) overturned the precedent set in Hoyt v. Florida. Phillips v.

Martin-Marietta (1971) ruled that employers could not discriminate against mothers of preschool children, despite fears that they might often miss work to care for their children. In Stanton v. Stanton (1975) the Court struck down a Utah law which required divorced fathers to support sons until they were twenty-one under the assumption that they would need support while being educated, while daughters had to be supported only until they were eighteen under the assumption that they would get married and be supported by their husbands. Beginning in the 1920s, the U.

S. Supreme Court began to apply the Bill of Rights to states through a process now called the incorporation of the Bill of Rights into the Fourteenth Amendment. As originally passed, the Bill of Rights applied only to the federal government and not to state governments. The Fourteenth Amendment’s equal protection and due process clauses clearly applied to the states. Through a series of lengthy cases, the Court engaged in a piecemeal process of interpreting the Fourteenth Amendment clauses to include the various freedoms protected in the Bill of Rights. In Near v.

Minnesota (1931) the Supreme Court applied freedom of the press to the states. In this case, the city of Minneapolis tried to suppress the publication of scandalous, malicious and defamatory material in newspapers. A newspaper publishers association, fearing censorship, challenged the Minnesota law on the grounds of violation of freedom of press. The Supreme Court struck down the law by contending that it represented prior restraint of future issues. The most important freedom given to the press is freedom from prior restraint, the freedom not to be censored.

In many cases the statements embedded in the Bill of Rights are impacted directly or indirectly through the process of governance in the United States. One of the most peculiar examples of this impact is adoption of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, commonly known as the Patriot Act. This act significantly expands the power of the federal government to investigate, detain, and deport those people who the government suspects are linked to terrorist activity and other crimes.

The Fourth Amendment of the United States Constitution requires the government to prove to a judicial officer that it has probable cause of a crime before it conducts an invasive search to find evidence of that crime or in exact words, this Amendment declares that “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…” Before the enactment of the Patriot Act, if the primary purpose was a criminal investigation, the law enforcement officials had to first prove the higher standard of probable cause. Investigating criminal activity cannot be the primary purpose of surveillance. Now American society witnesses how one of the most fundamental statements of the Bill of Rights, particularly that one protecting individual freedoms from the state, is challenged.

The change made by Section 218 of the Patriot Act authorizes unconstitutional activity by impinging on the Fourth Amendment protection that requires probable cause. Section 218 now provides law enforcement officials with a tool to avoid probable cause when conducting criminal investigation surveillance. The adoption of the Patriot Act has been triggered with the war the United States declared against terrorism. Interestingly, the same event, the war on terrorism, challenged another important element of the Bill of Rights, namely the due process clause of the Fifth Amendment, which states that “no person shall … be deprived of life, liberty, or property, without due process of law….”

Practically, this statement aims to secure individuals from unconstitutional exercise on the behalf of the government. Importantly, this article provides Americans with the right to be tried by unprejudiced courts with application of lawful procedures and laws. However, during the war in Afghanistan and Iraq, the US government intentionally deterred in prisons many prisoners of war (identifying them as terrorists) without court orders, indictments and further court hearings. Here one can notice the constitutional collision, in which the rights of the US government during wartime (including deterring of individuals without due process clause) challenges the statements embedded in the Bill of Rights.

Works Cited

Barnett, Randy E. ed., 1989. Ninth Amendment. supra note 29, at 18

Bailyn, Bernard. 1967. Ideological Origins of the American Revolution. Cambridge, Mass.: Harvard University Press.

Ely, J. 1980. Democracy and Distrust. Cambridge, MA: Harvard University Press.

Hall, Kermit L. 1989. The Magic Mirror. Law in American History, New York: Oxford University Press.

Levine, James P. 1992. Juries and Politics, Pacific Grove, CA: Brooks/Cole Publishing Company.

Madison, James. November 27, 1794. Republicanism. Speech in Congress. Annals of Congress 934.

Nelson, William E. 1988. The Fourteenth Amendment: From Political Principle to Judicial Doctrine. Cambridge, MA: Harvard University Press.

Schwartz, B. 1971. The Bill of Rights. A Documentary History. pp. 222-226.

Wiecek, W.  1976. The Sources of Antislavery Constitutionalism in America, 1760-1848. Ithaca: Cornell University Press. P. 74