BILL OF RIGHTS
A declaration of individual rights and freedoms,
usually issued by a national government.
A list of fundamental rights included in each state
constitution.
The first ten amendments to the U.S. Constitution,
ratified in 1791, which set forth and guarantee
certain fundamental rights and privileges of
individuals, including freedom of religion, speech,
press, and assembly; guarantee of a speedy jury
trial in criminal cases; and protection against
excessive bail and CRUEL AND UNUSUAL PUNISHMENT.
As a fundamental guarantee of individual
liberty, the U.S. Bill of Rights (see appendix volume
for primary document) forms a vital aspect
of American law and government. It establishes
many legal principles that have had a decisive
effect upon law and society, including the functioning
of the criminal justice system, the separation
of church and state, and the exercise of
FREEDOM OF SPEECH.
The concept of a bill of rights as a statement
of basic individual freedoms derives in part
from the English Bill of Rights, passed in 1689
(see appendix volume for primary document).
This document, which was created after the Glorious
Revolution of 1688, established the terms
by which William and Mary were accepted as
king and queen of England. It forbade the
monarchy to suspend laws, raise taxes, or maintain
an army without consent of Parliament. It
also declared that freedom of speech in Parliament
could not be challenged, protected those
accused of crimes from “excessive bail” and
“cruel and unusual punishments,” and provided
a number of other privileges and freedoms (1
Will. & Mar., Sess. 2, C. 2).
Nearly a century later, seven of the 13 states
of the newly independent United States of
America adopted a bill of rights as part of their
state constitutions, and the remaining six
included elements of the English Bill of Rights
in the bodies of their constitutions. Virginia, the
first state to adopt a bill of rights, passed the VIRGINIA
DECLARATION OF RIGHTS in 1776.
Drafted largely by GEORGE MASON, Virginia’s
declaration became a model for later state bills
of rights and ultimately for the federal Bill of
Rights, and it remains a part of that state’s constitution.
At the Constitutional Convention of 1787,
the Framers of the U.S. Constitution used the
English Bill of Rights and state bills of rights as
resources as they sought to define the fundamental
principles and institutions of U.S. government.
However, they declined to add a bill of
rights to the Constitution, on the grounds that
the Constitution itself provided adequate protection
from intrusive government. Indeed, the
Constitution contained some elements of the
English Bill of Rights, including Congress’s
exclusive power to maintain armed forces and,
on the federal level, to pass laws and impose
taxes. The Constitution also incorporated other
specific rights traditional in ENGLISH LAW,
including that of HABEAS CORPUS, which protects
against unlawful imprisonment. However,
the Constitution made no mention of other
basic rights of constitutional government such
as freedom of speech, press, and religion, and
the rights of those accused of crimes.
During the Constitution’s ratification
process, from 1787 to 1789, state ratifying conventions
pointed out the lack of such fundamental
guarantees in the Constitution and
submitted lists of proposed constitutional
amendments. The Federalists, who supported
ratification of the Constitution, eventually conceded
and promised to attach a bill of rights to
the document. The leading contributors to the
creation of these amendments—which came
collectively to be called the Bill of Rights—were
George Mason, THOMAS JEFFERSON, and JAMES
MADISON, with Madison serving as their principal
author and sponsor on the floor of the U.S.
House during the First Congress.
On September 25, 1789, 12 amendments to
the Constitution were submitted to the states by
the required two-thirds majority of Congress.
Two of the amendments—which dealt with congressional
pay and the APPORTIONMENT, or assignment,
of congressional seats to the states—were
voted down by the states. The other ten amendments
were ratified by December 15, 1791.
Scholars have described the Bill of Rights as
protecting three different types of HUMAN
RIGHTS: (1) rights of conscience, including the
First Amendment’s freedom of speech and religion;
(2) rights of those accused of crimes, such
as the Eighth Amendment’s protection against
excessive bail and fines; and (3) rights of property,
such as the Fifth Amendment’s provision
that no one may be deprived of property without
DUE PROCESS OF LAW.
One vital issue in the history of the interpretation
of the Bill of Rights has concerned
its application to the states. In the case of Barron
ex rel. Tiernan v. Mayor of Baltimore, 32
U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), the
Supreme Court ruled that the Bill of Rights
applied only to the federal government. However,
by the 1920s, the Court, using a principle
known as the INCORPORATION DOCTRINE, had
begun to apply selected elements of the first
ten amendments to the states. According to
this doctrine, elements of the Bill of Rights
may be applied to the states through the Due
Process Clause of the FOURTEENTH AMENDMENT,
which holds that no state shall “deprive any
person of life, liberty, or property, without due
process of law.” Thus in 1925 the Supreme
Court ruled that the FIRST AMENDMENT protections
of freedom of speech applied to the states
as well as the federal government (GITLOW V.
NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed.
1138). Incorporation gave the Supreme Court
wide power to strike down state laws that it
deemed to be in violation of the Constitution’s
Bill of Rights.
By the end of the twentieth century, nearly
all provisions of the Bill of Rights had been
declared binding on the states. Only five provisions
of the Bill of Rights had not been applied
to the states: (1) the Second Amendment’s right
to bear arms; (2) the Third Amendment’s prohibition
against involuntary quartering of troops;
(3) the Fifth Amendment’s requirement of
GRAND JURY indictment in capital cases; (4) the
Seventh Amendment’s provision for trial by jury
in civil cases; and (5) the Eighth Amendment’s
prohibition of excessive bail and fines.
States are free to provide additional protections
beyond those offered in the federal Bill of
Rights, but they may not reduce CIVIL RIGHTS
or liberties to standards lower than those of the
federal Constitution.
Other countries have passed bills of rights
that differ from those of England and the United
States. In 1789 the Constituent Assembly of
France passed the Declaration of the Rights of
Man, a document that stated the philosophical
principles of the French Revolution. Canada
adopted the Act for the Recognition and Protection
of Human Rights and Fundamental Freedoms
in 1960 (8-9 Eliz. II, ch. 44, § 1[c]-[f]
[Can.]) and the Charter of Rights and Freedoms
in 1982 (Can. Const. [Constitution Act, 1982]
pt. I).
FURTHER READINGS
Amar, Akhil Reed. 1998. The Bill of Rights: Creation and
Reconstruction. New Haven: Yale Univ. Press.
Coleman, John. 1998. What You Should Know about the U.S.
Constitution and the Bill of Rights. Carson City, Nev.:
Bridger House.
Lewis, Thomas T., ed. 2002. The Bill of Rights. Pasadena,
Calif.: Salem Press.
Monk, Linda R. 2000. The Bill of Rights: A User’s Guide.
Alexandria, Va.: Close Up Pub.
Reese, Lee F. 1986. George Mason’s Part in Framing the Constitution
of the U.S.A. and the Bill of Rights. Lexington,
Ky.: Lexington Books.
CROSS-REFERENCES
Constitutional Amendment; Eminent Domain; English Bill
of Rights (Appendix, Primary Document); Equal Protection;
Freedom of Association and Assembly; Freedom of the Press;
Privilege Against Self-Incrimination; Religion; Right to
Counsel; Search and Seizure; Speedy Trial; U.S. Bill of Rights
(Appendix, Primary Document). See also entries on each
amendment to the U.S.Constitution (e.g., First Amendment).
