The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Historical and Political Background to the Bill of Rights

The first ten amendments to the Constitution that are so familiar to Americans today had to undergo a lengthy and arduous journey before they could become the Bill of Rights. Finding their roots in the British Petitions of Right and Magna Carta, as well as bills of rights which had been adopted by several states, the amendments that make up the Bill of Rights are an enduring exposition of the fundamental political, social, and personal rights which citizens of the American republic enjoy. They began as a confused and sometimes contradictory multitude of recommended amendments proposed by the state ratifying conventions.

James Madison is widely considered to be the chief architect of the Bill of Rights, but he was reluctant to support the addition of a Bill of Rights to the Constitution, thinking for a variety of reasons that it was unnecessary and might even be detrimental. The Constitutional Convention had decided against a bill of rights without much debate. During the ratification debates, however, Antifederalists argued against the Constitution vigorously, chiefly because it lacked a bill of rights. The Antifederalist sentiment in favor of a bill of rights was so strong that Madison ultimately conceded. He took up the cause in the First Congress, compiling the recommendations of the state ratifying conventions and pushing Congress to debate and propose amendments to the Constitution. After lengthy debate and other delays, Congress approved the text of twelve amendments to be submitted to the states. The ten amendments we have come to know as the Bill of Rights were ratified on December 15, 1791.

America did not invent the concept of a bill of rights; that honor goes to Great Britain. Understanding how England’s Bill of Rights developed is necessary for understanding why there was a controversy over whether or not to add a bill of rights to the United States Constitution. Both the defenders and the detractors of that proposal drew upon the English tradition to support their positions. In the end, the proponents of a bill of rights would prevail, but the rights protected in the United States Constitution would undergo some significant transformations from their British predecessors. And which freedoms a bill of rights should guarantee has been a matter of some debate ever since.

Since its adoption, the Bill of Rights has been subject to a vast interpretive landscape that has changed and evolved over time. The courts have interpreted many of the first ten amendments in ways that are very different from what the Framers had in mind when they were originally adopted, fitting the principles which they represent to new and changing circumstances and values. Each amendment has been subject to a long line of case law and interpretation, and the Supreme Court has even called on the Bill of Rights as a whole to protect rights that are not specifically enumerated in the text.

Since its adoption, the most significant change to the interpretation of the Bill of Rights has been the “Incorporation Doctrine.” The Bill of Rights originally only applied to the federal government, and not individual state governments. Following the passage of the 14th Amendment, however, most of the individual rights named in the Bill of Rights have been “incorporated against the states” under the Equal Protection Clause of the 14th Amendment. This means that most of the Bill of Rights now protects us from incursions on our individual rights whether committed by our state governments or the national government.