On December 15th, 1791, the first ten amendments, known as the Bill of Rights, were ratified and became part of the U.S. Constituiton. However, there is more to the story than just the names and dates.
Why is our Bill of Rights included as amendments to the Constituiton rather than part of the original document? How was it created? Why was it created? And what is the state of the Bill of Rights today, in the 21st century? Let’s celebrate the 229th anniversary of these amendments by finding the answers to those questions.
The story of the Bill of Rights begins on September 17th, 1787 with the signing of the Constitution of the United States and its presentment to the states for ratification. Five of the 13 states, Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut quickly ratified the new agreement, while several states opposed the document because it failed to protect the basic rights of the people. It seems as if political intrigue about the future of our nation is nothing new in America.
Federalists vs Anti-Federalists.
While not political parties as we know them today, there were two main political factions in America when the Constitution was signed, the Federalists and the Anti-Federalists.
The Federalists included Alexander Hamilton, John Jay, and James Madison. Together they anonymously published 85 essays lobbying for the adoption of the proposed Constitution. The Anti-Federalists included people like Richard Henry Lee, Patrick Henry and George Mason. They, and many more, also anonymously published essays, but these were critical of the proposed Constitution. One of the areas of disagreement between these two factions was the question of a Bill of Rights.
The Anti-Federalist were generally wary of a powerful central government since America had just fought a war for liberty against a powerful central government. The Anti-Federalists, knowing first hand what such a government could do, were adamant that protections for the rights of the people needed to be part of this more perfect union. They were concerned that a central government could easily infringe on any right without specific prohibitions in the Constitution. On the other hand, the Federalists, after seeing how ineffective the Congress under that Articles of Confederation was, wanted to make sure that any new government would have the power to exercise any authority it was given. The Federalists argued that since the central government was not given any power to infringe on the rights of the people, a Bill of Rights was unnecessary. In fact, they were concerned that by listing rights in the Constitution, someone would get the idea that the central government would have the authority to regulate them. History has shown both sides were right. The dispute between these two positions got quite heated in many states, to the point that civil war almost broke out in Rhode Island.
Deadlock
Without at least nine states willing to ratify it, the new Constitution appeared about to go down in defeat. Then, some Anti-Federalists in Massachusetts came up with a compromise. They would support ratification only with the assurance that amendments creating a Bill of Rights would be proposed by the first Congress. After Massachusetts, Maryland, South Carolina, and New Hampshire quickly ratified the Constitution with the same requirement, providing the nine states necessary for the agreement to take effect on June 21, 1788. Virginia and New York ratified the Constitution later that summer, North Carolina did so in November of 1789, and lastly, Rhode Island in May of 1790. It was agreed that the new government under the newly ratified Constitution would begin in March 1789, and per their agreement with Massachusetts and the other reluctant states, quickly began work on a Bill of Rights.
Ratification
Many people refer to the rights protected by the First Amendment as our “First Freedoms”. However, James Madison, with input from many of his colleagues, drafted twelve amendments to the Constitution, which were sent to the states for ratification on September 25th, 1789. While only ten of them were ratified originally, the first two amendments were left languishing. The first proposed amendment, setting the size of the House of Representatives, has never been ratified. The second, preventing any law changing the pay for Congressmen from taking effect until after the next election, wasn’t ratified until 1992 as the 27th Amendment.
Three states, New Jersey, Maryland, and North Carolina, ratified the third through twelfth proposed amendments in 1789, while six more, South Carolina, New Hampshire, Delaware, New York, Pennsylvania, and Rhode Island did so in 1790. Vermont, which entered the union in March of 1791, and Virginia ratified them in the same year. With Virginia being the 11th state to ratify the amendments, they legally became part of the Constitution. The remaining states, Massachusetts, Georgia, and Connecticut, did not ratify the amendments since it was not legally necessary. However, on the 150th anniversary of the submission of the amendments to the states in 1939, all three states symbolically submitted their approvals to Congress.
The Bill of Rights
The Bill of Rights is not only important for its function of legally protecting the rights of the American people, but for what rights it protects. Many people seem to focus on the First or Second Amendments, but does anyone else find it interesting that half of the amendments in the Bill of Rights protect our right to Due Process?
Just as the Declaration of Independence includes many more grievances than the “taxation without representation” we all learned in school, the Bill of Rights protects a lot more than just freedom of speech, press, and the bearing of arms. Why did those who wrote and ratified the Bill of Rights place so much emphasis on our due process rights? To understand that, we need to understand what due process is.
Due Process
An established course for judicial proceedings or other governmental activities designed to safeguard the legal rights of the individual.
Due Process: The Free Legal Dictionary
Yes, your rights to freedom of religion, speech, press, assembly, and petition are all important, but what good are they if there is no way to safeguard those rights? Yes, the right to keep and bear arms is there to insure that both you and your state remains free, but without the protections of due process, how do you defend that right? The Declaration of Independence says: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” What happens when those in government see their role not as protecting our rights, but protecting us? The answer is as simple as it is sweeping. When we loose our rights to due process, we cease to be citizens in a free republic and we become subjects of a tyrannical government. And before you think that I am referring to some dystopian future, I want to tell you plainly that today in America, we live not as citizens but as subjects.
The native of a city, or an inhabitant who enjoys the freedom and privileges of the city in which he resides;
Citizen: Webster’s 1828 Dictionary
Being under the power and dominion of another;
Subject, Webster’s 1828 Dictionary
Ask yourself, do you enjoy the freedom and privileges of citizenship within the United States of America, or are you under the power or dominion of governments? Are you free to move about your city or state, without restrictions, or do others issue rules and edicts to control your movements? Are you able to engage in any legitimate business, when and where you desire, or must you submit to government for permission to do so? And who decides whether your business is legitimate and what is essential? Can you engage in whatever form of employment you desire, or does government mandate that you must join an organization to do so? Are you free to worship, speak, and publish whatever you wish without government interference or approval? Ask those in California and New York who have been ordered to limit both how they are allowed to worship and how many at a time? Can you gather with friends and family for the holidays or do government edicts control that as well? Can you exercise your right to keep and bear arms freely or must you seek permission from those who hold dominion over you? Are you free to peaceably assemble or is that determined by whether you are in a group favored by the current government or not? And when you petition the government for a redress of grievance, are your claims treated with respect or with political bias?
How did this happen? How did the American people fall from free citizens who instituted governments to protect their rights, to subjects of governors, mayors, and innumerable bureaucrats who assume the power to tell us how to live our lives and seem more than willing to use force to get their way? The answer to that question is also simple and sweeping: We stopped being the overseers of those in government and we let due process fade into tradition, myth, and legend.
You may think I’m wrong, that the Bill of Rights still protects you, but the Bill of Rights is just ink on parchment. Unless it is used and unless the rules it establishes are followed and enforced, the Bill of Rights can no more to protect you than a squirt gun can protect you from a forest fire. You may say that the courts are there to enforce the protections enshrined in the Bill of Rights, but they are some of the chief abusers of due process. Remember, it was the courts that deemed that governments can infringe on your rights if they have a sufficiently “compelling government interest”. It was courts that said that governments could steal from you in an effort to punish criminals. And it was courts that said government employees could violate the law, as long as the courts hadn’t previously said that they couldn’t. Does that sound like a process designed to safeguard our rights?
And since the preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.
George Washington’s First Inaugural Address, 1789
What use is the Bill of Rights if those who have sworn to uphold the Constitution ignore it when it’s inconvenient? It’s not the governments who have subjugated the people; We the People have done it to ourselves. We hired the elected officials that are abusing our rights. While in most cases those judges who are destroying due process are not elected, they are appointed by people we elected to do so. And judges, bureaucrats, and all government officials can be removed by the very same representatives we hire. Yet it seems the American people are not interested in protecting their rights, due process or otherwise. They seem more interested in party politics, accepting government bribery, and social media than in their right to live free.
Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it. If you do not, I shall repent in Heaven, that I ever took half the Pains to preserve it.
John Adams
To all the American people who failed to make good use of the blessings of liberty our Founding Fathers purchased at so high a price, I ask if you are happy now? We have left those who paid so much for our freedom to repent of all the blood, sweat, and tears they paid so you could be free.
Conclusion
Yes, December 15th is a day we should remember the Bill of Rights and the freedoms it was designed to protect. In the 21st century however, it should also be a day of weeping for the empty shell it has become. The fault for its demise lies not with those in government who ignore the Constitution, nor with the courts who so frequently abuse it. Rather, the fault lies squarely with the American people who thought that freedom and liberty would always be there, so they failed to defend it when it was under attack.
Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.
Ronald Reagan
