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BILL OF RIGHTS

Bill of Rights, a formal constitutional declaration or legislative assertion by which a government both (1) defines fundamental rights and liberties of its citizens and (2) establishes their protection against arbitrary or capricious interference or infringement by the government. Specifically, in Western political tradition, the term is used to signify the Bill of Rights (1689) of England, the Declaration of the Rights of Man and of the Citizen (1789) of France, and in the United States the first 10 amendments to the federal CONSTITUTION (1791) and portions of the constitutions of the individual states that establish similar guarantees.

By extension of meaning, bills of rights sometimes are regarded as including the definition and establishment of rights and liberties through tradition or in documents or enactments prior or subsequent to any formal declaration bearing the name. In Great Britain, for example, many of the rights and liberties safeguarded the citizens are not specified in the Bill of Rights of 1689 but are established in common law or defined in the Magna Carta (1215) and the Petition of Right (1628). In the United States, where the protections of its Bill of Rights derive significantly from English sources, the general term "bill of rights" sometimes is construed to include also those additional or strengthened protections asserted throughout the federal Constitution (importantly in the 14th Amendment) and enunciated in constitutional decisions of the federal courts.

Formal bills of rights or their equivalents in legislative enactments—although too often disregarded—have been written by the governments of most nations of the world. In 1948 the Universal Declaration of Human Rights was adopted by the United Nations to serve as a standard of definition of rights among the nations.

Among provisions most commonly found in bills of rights are those asserting the general right to life and liberty; defining specific protections for the freedom of speech, press, and religious expression, the right of petition and of peaceful assembly, the right to equal protection before the law, and the right to public trial; and protections against arbitrary arrest or unreasonable search, against excessive bails or fines, and against cruel or unusual punishment.

United States

In American history and constitutional law the term "Bill of Rights" usually signifies the first 10 amendments to the Constitution of the United States. These amendments, more precisely the first eight of them, specify certain basic freedoms and procedural safeguards of which the individual may not be deprived by governmental power. Taken together, these specified freedoms and protections are the core of American civil liberty and provide the constitutional basis for judicial protection of the rights of the individual. Of particular importance are the provisions of the 1st Amendment (freedoms of religion, speech, press, assembly, and petition); the 4th Amendment (prohibition of unreasonable searches and seizures); the 5th Amendment (prohibitions against double jeopardy and self-incrimination; no taking of life, liberty, or property without due process of law; requirement of fair compensation when private property is taken for public use); the 6th Amendment (procedural safeguards in criminal prosecutions); and the 8th Amendment (prohibitions against excessive bail and cruel and unusual punishments).

The Constitution itself, as submitted to the 13 states for ratification in 1787, contained several provisions of major significance for civil liberties—for example, the clauses in Article I, section 9, forbidding bills of attainder, ex post facto laws, and suspension of the writ of habeas corpus—but it did not include a catalogue of individual rights and immunities. The probable explanation for this omission is that the delegates to the Constitutional Convention did not expect the new national government to expand its regulatory activities to any great extent, and therefore thought that there would be few occasions when federal power would come into collision with individual interests and concerns. Liberty-conscious Americans of the post-Revolutionary period were, however, unwilling to take the risk that a powerful national government might some day move to impair individual liberty.

Indeed, the Bill of Rights tradition was so strong at this time that by 1789, bills of individual rights had been written into eight state constitutions. Of these state documents the Virginia Bill of Rights, drafted in large part by George Mason and adopted in Virginia in 1776, was the most influential model for what became the Bill of Rights of the national Constitution. A Virginian, James MADISON, was a principal draftsman of the first 10 amendments to the Constitution, and use of the Virginia Bill as a drafting model is evident from a comparison of the two texts concerned.

Throughout the time that the Constitution was before the state conventions for ratification (1787-1788), strong concern was expressed in every state at the absence from that document of a detailed Bill of Rights. Criticisms were severe in Virginia and Massachusetts, for example, and North Carolina went so far as to make its ratification of the Constitution expressly conditional on the adoption of a Bill of Rights. Historians are agreed generally that the Constitution might never have been ratified if its proponents had not given assurance that the proposal of a bill of individual rights would be an early order of business at the First Congress convened under the new Constitution. This pledge was honored, and the first 10 amendments, which constitute the Bill of Rights, were submitted together in 1789 and their ratification by the states was completed on Dec. 15, 1791. The first 10 amendments are, therefore, virtually contemporaneous with the Constitution itself.

As originally drafted and ratified, the Bill of Rights was understood as having effect only as a limitation on what might be done constitutionally by the new national government. State, county, and municipal officers were, of course, subject to the limitations prescribed by each state's own constitution, but the Supreme Court early decided (Barron v. Baltimore, 7 Peters 243, 1833) that the guarantees of the first 10 amendments to the Constitution of the United States did not apply as limitations on the power of the states and their subordinate local authorities. Suppose, for example, that a state legislature, at some time before 1868, had enacted a statute calling for the censorship of newspapers within the state. That statute could have been challenged in the courts as violative of some relevant provision of the local state constitution, but no question of federal constitutional law would have been presented. The 1st Amendment's guarantee of freedom of the press, like all the other provisions of the national Bill of Rights, operated, of its own force, only to bar restrictive action by the national government. The states were free, subject only to their own constitutions, to place such restrictions on civil liberties as their legislatures might see fit to impose.

The original constitutional situation was profoundly changed by the adoption of the 14th Amendment in 1868. The key clause of that amendment, in relation to the judicial protection of civil liberties, reads as follows: "nor shall any State deprive any person of life, liberty, or property, without due process of law." In a long series of constitutional decisions, the Supreme Court has interpreted this clause as a general limitation on state power, thus making many of the specific protections of the Bill of Rights as good against the states as against the national government. The “incorporation” of the essential provisions of the first eight amendments into the due process clause of the 14th is one of the most important developments in constitutional history.

As the principal steps in the process of incorporation, the Supreme Court has held: (1) that the essential civic freedoms guaranteed against unreasonable federal interference by the Bill of Rights—for example, the free exercise of religion, freedom of speech, and freedom of the press—are aspects of the "liberty" specified in the above quoted clause of the 14th Amendment and so secured to the individual against state as well as federal impairment; and (2) that certain of the procedural safeguards specified in the Bill of Rights—for example, an accused's right to counsel in felony prosecutions and the prohibition of cruel and unusual punishments—are aspects of the "due process" guaranteed by the 14th Amendment and so secured to accused persons in state, as well as federal, adjudicative proceedings.

This is not to say that the “due process” of the 14th Amendment embodies each and every one of the specific protections recited in the Bill of Rights. The incorporation of the Bill of Rights into the 14th Amendment extends only to such of the safeguards of the first eight amendments as are “of the very essence of a scheme of ordered liberty.” (Cardozo, J., in Palko v. Connecticut, 302 U.S. 319, 1937.) As applied by the Supreme Court, this text excludes from incorporation such procedural safeguards as the necessity of a grand jury indictment in prosecutions for crime (5th Amendment), the right of trial by jury in criminal cases (6th Amendment), and the right of trial by jury in civil suits at common law (7th Amendment). But the court affirmed the 5th Amendment privilege against self-incrimination in Escobedo v. Illinois (1964), on the right to an attorney during police questioning, and in Miranda v. Arizona (1966), ruling invalid any confession unless the suspect had been warned of his right to be silent and to see a lawyer.

Sharp differences of opinion developed among the members of the Supreme Court since World War II. Justice Hugo L. Black was particularly critical of the selective approach to "incorporation" and urged repeatedly in dissenting opinions that the 14th Amendment be interpreted to make all the specific protections of the Bill of Rights applicable as fully against the states as against the federal government. Although the court has moved in this direction, it is unlikely that it will move all the way; Justice Benjamin Cardozo's “ordered liberty” test seems well established. To this extent the procedural safeguards of the Bill of Rights apply more directly and comprehensively in federal than in state proceedings, and some differences in federal and state practice are therefore to be anticipated. The likelihood that serious differences will exist between federal and state procedures is greatly lessened, however, by the circumstance that almost every state constitution contains in its own bill of rights procedural safeguards substantially coextensive with those specified in the first eight amendments to the Constitution of the United States.

Britain

The English Bill of Rights, enacted by the Convention Parliament on Dec. 16, 1689, is one of the three great landmarks of the English constitutional tradition, the others being Magna Carta (1215) and the Petition of Right (1628). The Bill of Rights was the product of the Glorious Revolution of 1688, whereby the absolutist James II was deposed and replaced with William and Mary; it represents the triumph of Parliament over the crown in the long contest for supremacy that had marked English history. The Convention Parliament's offer of the English throne to William and Mary had been accompanied by a Declaration of Right, in which certain governmental principles and legal protections were set out as “the true, ancient, and indubitable rights and liberties of the people of this kingdom.” In other words, the Declaration of Right stated the conditions on which the invitation to the new sovereigns was being extended. The declaration was accepted by William and Mary on Feb. 19, 1689, and the Bill of Rights was, in effect, a recasting of the declaration into the form of an act of Parliament. Thereafter in English political history, claims to royal prerogative were doomed, and parliamentary supremacy was established as the central principle of the English constitutional tradition.

The specific clauses of the Bill of Rights can be grouped into three broad categories: (1) provisions confirming and safeguarding the institution of parliamentary supremacy, notably those stating that parliaments are to be held frequently, that freedom of speech and debate in Parliament is guaranteed, that there can be no suspension of laws without parliamentary consent, and that parliamentary consent is required for the levying of money or the keeping of a standing army; (2) provisions settling the succession to the crown and restricting the succession to Protestants; and (3) provisions guaranteeing certain individual freedoms and procedural safeguards against impairment by governmental power, for example, the right of petition, prohibitions of excessive bail, and reaffirmation of the right to jury trial.

A century later the English Bill of Rights served as an important source for the first 10 amendments to the Constitution of the United States. Thus, the clause in the English Bill of Rights prohibiting excessive bail and cruel and unusual punishments was taken over, virtually word for word, in the Virginia Bill of Rights of 1776 and ultimately became the 8th Amendment to the Constitution of the United States.

Harry Willmer Jones
Columbia University