Big Head Press

L. Neil Smith's
Number 669, May 6, 2012

"I'm thoroughly tired of all this fascist crap"

Previous Previous Table of Contents Contents Next Next

A Brief History of the Bill of Rights
by Neale Osborn

Bookmark and Share

Attribute to L. Neil Smith's The Libertarian Enterprise

"[A] bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse."
—Thomas Jefferson, December 20, 1787

Started in the middle of 1776, and sent for ratification to all 13 colonies by the end of 1777, the Articles of Confederation were our original agreement to become a country- a confederation of 13 separate states that agreed to work together to achieve their independance from England. The last state, Maryland, ratified it in March of 1781. It was felt this was necessary in order to legitimize our revolutionary government and allow us to enter into diplomatic relations with European countries, deal with Indian problems, and settle territorial problems. Soon, certain of the Founding Fathers decided our weak central government was a detriment to our continuing existance. They didn't allow for the government to collect taxes to pay war debts, and provided for no president or court system. (link)

From the linked article—

On January 21, 1786, the Virginia Legislature, following James Madison's recommendation, invited all the states to send delegates to Annapolis, Maryland to discuss ways to reduce interstate conflict. At what came to be known as the Annapolis Convention, the few state delegates in attendance endorsed a motion that called for all states to meet in Philadelphia in May 1787 to discuss ways to improve the Articles of Confederation in a "Grand Convention." Although the states' representatives to the Constitutional Convention in Philadelphia were only authorized to amend the Articles, the representatives held secret, closed-door sessions and wrote a new constitution. The new Constitution gave much more power to the central government, but characterization of the result is disputed.

From the ACLU's "The Bill of Rights; A Brief History"

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration—or bill—of individual rights. It specified what the government could do but did not say what it could not do. For another, it did not apply to everyone. The "consent of the governed" meant propertied white men only.

The absence of a "bill of rights" turned out to be an obstacle to the Constitution's ratification by the states. It would take four more years of intense debate before the new government's form would be resolved. The Federalists opposed including a bill of rights on the ground that it was unnecessary. The Anti-Federalists, who were afraid of a strong centralized government, refused to support the Constitution without one.

It is important to note that the mood in the country was one of great anger at the treatment of the colonists by England. Particularly vexing was the enactment and enforcement of the Stamp Act of 1765. From the ACLU link above:

"Early American mistrust of government power came from the colonial experience itself. Most historians believe that the pivotal event was the Stamp Act, passed by the English Parliament in 1765. Taxes were imposed on every legal and business document. Newspapers, books and pamphlets were also taxed. Even more than the taxes themselves, the Americans resented the fact that they were imposed by a distant government in which they were not represented. And they were further enraged by the ways in which the Stamp Act was enforced.

Armed with "writs of assistance" issued by Parliament, British customs inspectors entered people's homes even if they had no evidence of a Stamp Act violation, and ransacked the people's belongings in search of contraband. The colonialists came to hate these "warrantless" searches and they became a rallying point for opposition to British rule.

From these experiences came a uniquely American view of power and liberty as natural enemies. The nation's founders believed that containing the government's power and protecting liberty was their most important task, and declared a new purpose for government: the protection of individual rights."

A number of prominent Americans were alarmed at the omission of individual liberties in the proposed constitution. George Mason, author of the Virginia Bill of Rights, refused to sign the document, as did Elbridge Gerry of Massachusetts.

Thomas Jefferson, U.S. Minister to France at the time, wrote James Madison that he was concerned about "the omission of a bill of rights.... providing clearly.... for freedom of religion, freedom of the press, protection against standing armies, and restriction against monopolies."

Aware of the lack of these provisions, George Washington urged Congress in his first inaugural address to propose amendments that offered "a reverence for the characteristic rights of freemen and a regard for public harmony."

Motivated by these leading Americans, Congress responded by submitting Amendments to the Constitution providing for essential civil liberties. They were officially proposed on September 25, 1789. Of the original twelve, Articles 3-12 were ratified. Accordingly, in 1791 these articles became the first ten amendments to the Constitution.....known collectively as The Bill of Rights. Source

Here are the two which did not make it into the BOR. Personally, I (Lee) believe that Article II should have been kept. It might have had a major impact on whether some of the elected stretched it out to be a career.

Article I

After the first enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.

Article II
No law varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

So we arrive at the creation of the Bill of Rights. For the purposes of this series, we are going to gloss over the fact that WHEN WRITTEN the Bill of Rights was not aimed at women or blacks, and Indians were not even considered Americans. We will discuss it as applying to ALL citizens of the United States of America, as it does now, even though women, blacks, and Indians weren't citizens then.

The conclusion we can draw from this history is that without the Bill of Rights, the United States would not exist as it does today. The Constitution would never have been ratified. We might still be a confederation. Or we might have broken up into a balkanized group of small countries. We might even have been re-conquered by England. So, it is safe to say the Bill of Rights is why America exists today. It behooves us all to refuse to tolerate anything that might even tend to weaken the Bill of Rights. In order to protect it, we must know what it says, and what it meant to the people of the day who said it. Words change. 200 years ago, "faggot" was a bundle of wood. Today, we all know that is not the case. Today, it is a word loaded with hate. We need to read the Bill of Rights with a careful eye towards the definition of the words used in the context of the day they were written. We will attempt to provide those definitions and where we got them whenever we explain the context. In conclusion, I leave you with the Bill of Rights. Contemplate the individual parts. I look forward to our discussions of each part over the ensuing weeks.

We would prefer that this portion of the discussion not focus on individual Amendments, but rather the manner and means that brought us these wonderful words.

Amendment I

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.

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV

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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Was that worth reading?
Then why not:
Pay Neale Osborn

payment type


Big Head Press