The rights or liberty of the people were ostensibly protected by the limited grant of power provided to the federal government under the Constitution. Between the limited grant of power and the specific limitations on the use of those powers, some saw little need to protect the rights of individuals or the rights of the people as a collective. However, that vision quickly faded and the Constitution was amended many times to protect and expand the rights of individuals and of the people collectively.
Rights come in two varieties – positive rights and negative rights. Positive rights are those things that a government must do for its people, and negative rights are those things that a government may not do to its people. While some rights such as the writ of habeas corpus are included in the body of the Constitution, most of the rights Americans would identify today are protected in the Bill of Rights.
The Constitution was not originally structured to guarantee rights to people through explicit prohibitions on the federal government’s power. The people gave limited powers to the federal government, and without a specific power to infringe on rights; there should not have been a diminution of the rights or the liberty of the people. A list of enumerated rights, many believed, could impinge unintentionally on the rights of the people. A declaration that Congress could make no laws establishing a religion, for instance, implied that Congress would have had that power without the prohibition. But nowhere in the enumerated powers is Congress ever granted the power to establish a religion.
Those who objected to a Bill of Rights for the federal Constitution generally argued that not only were explicit prohibitions unnecessary, but they would produce dangerous implications that would undermine the limited scope of government intended by the enumerated powers. Notwithstanding the protections initially included in the Constitution, the Bill of Rights was adopted soon after the Constitution was ratified. Many subsequent constitutional amendments protect, specify, and expand the rights of the people collectively or individually.
The Constitution itself provides implicit protection for individual liberty through explicit limitations on congressional power. For example, the limits on the suspension of the writ of habeas corpus functionally require that the government justify its detention of those who have been jailed. Similarly, the prohibition of ex post facto laws ensures that the government cannot criminalize action an action that was lawful when it occurred. Those explicit limitations on governmental power reflect the Constitution’s calculus that liberty can be protected by constraining government power.
The Constitution’s carryover of the privileges and immunities clause (Article IV) from the Articles of Confederation was intended to increase liberty by guaranteeing that citizens can move freely from state to state without being treated poorly just because they are travelers or newcomers rather than citizens of the host state. The reiteration of that language in the 14th Amendment makes the import of the notion clear.
Perhaps more important than the implicit protections of the Constitution itself, the Bill of Rights—the first ten amendments—explicitly provides protections for individuals and for the people as a collective. The first few amendments effectively provide rights by specifically limiting congressional power from abridging freedoms, such as the freedom of speech and religion. In addition, some of the Bill of Rights amendments protect specific rights, such as the right of the people to be secure in their persons, houses, papers and effects (the 4th Amendment). Other amendments protect rights in specific circumstances, such as criminal defense rights under the 5th and 6th Amendments. The 9th and 10th Amendments more generally protect the rights of the people by explicitly noting that the enumeration of rights was not meant to be exhaustive and that federal powers are limited to the powers specifically given by the Constitution.
Other individual rights, such as voting rights, have been expanded by limiting states in the manner that they can restrict rights. For example, the 15th, 19th and 26th Amendments limit states from discriminating on the basis of race, sex and age when defining the rights of suffrage. The 24th Amendment prohibits poll taxes.
Even as the rights of individuals have expanded since the Bill of Rights was adopted, the rights of the people as a collective have also expanded. For example, the 17th Amendment provides for the popular election of senators, transferring the power of selection from the state legislature to the people.
Before the Constitutional Convention adjourned, George Mason set forth a list of reasons why he could not support the new Constitution. Heading that list was something it lacked: “There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declaration of Rights in the separate States are no security.” Most of the states had included a Declaration or bill of rights in their own Constitutions, and many Americans believed that no Constitution could be deemed safe to the people’s liberties if it omitted one. James Monroe declared in the Virginia Ratifying Convention that he was “a decided and warm friend to a bill of rights—the polar star and great support of American liberty” (June 10, 1788). Patrick Henry “declared a bill of rights indispensably necessary” (June 7, 1788). The issue became so contentious in Virginia that the Ratifying Convention drafted their own proposed amendments for the purpose of preemptively adding a Bill of Rights before they adopted the Constitution. James Madison tried to moderate their demands. He conceded that they may send a “recommendation” of amendments, but they had no authority to unilaterally add amendments without the consent of the other states.
Virginia came very close to voting down the Constitution as a whole unless its suggested amendments were adopted first. Similar clamors for a bill of rights were taking place in the ratifying conventions of other states. Many of them attached an enumeration of recommended rights to their statements of ratification. As a Congressman in the first House of Representatives, James Madison sorted through and compiled these recommendations – rejecting some outright and altering others – in order to draft his own proposal for a bill of rights. In 1789, the first Congress crafted twelve proposed amendments from Madison’s initial proposal; they then submitted them to the states. The states adopted ten of these amendments in 1791, which came to be known as our Bill of Rights. One more of those original twelve was adopted more than 200 years later, in 1992; it is the Constitution’s 27th Amendment.