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As the Colonists grew less willing to endure the tyrannical rule of England, the spirit of revolution began to spread throughout America. The war for independence grew increasingly inevitable as the Colonists saw their inalienable rights being threatened by the English crown. Consequently, the Colonists drafted other documents for the purpose of proclaiming more specifically their individual rights. Two such documents were the Declaration of Rights and Grievances of 1765, and the Rights of the Colonists and a List of Infringements and Violations of Rights, in 1772. In 1774, the First Continental Congress organized a committee to draft yet another document declaring both the rights of the Colonists and the infringements of these rights by the Crown. The result was entitled "The Declaration and Resolves of the First Continental Congress, although the title page referred to it as the Bill of Rights.4
July 4, 1776 witnessed the culminating action of the colonial grievances. With the adoption of the Declaration of Independence, the Colonists denounced British rule and proclaimed their intention to be free and independent States. Almost immediately, each of the thirteen Colonies met in convention to establish a State constitution. In fact, Virginia had already accomplished this when it adopted the Virginia Declaration of Rights on June 29, 1776. In drafting their constitutions, many of the States decided to attach a separate Bill of Rights: Delaware (1776), Maryland (1776), Massachusetts (1780), New Hampshire (1784), North Carolina (1776), Pennsylvania (1776), and Virginia (1776). Other States-Georgia (1777), New Jersey (1776), New York (1777), and South Carolina (1778)-opted to list individual rights in the bodies of their constitutions.
With the adoption of the New Hampshire Constitution in 1784, virtually all the rights that would be guaranteed in the Federal Bill of Rights were expressed in various State constitutions. For example, the Virginia Constitution of 1776 contained the following rights:
1. Freedom of religion and press.
2. A well-regulated militia.
3. Protection from a standing army during peace.
4. Protection against unwarranted search and seizure.
5. Protections from providing evidence against one's self in criminal proceedings, deprivation of liberty, and seizure of private property for public use.
6. The rights to know the cause of accusation in criminal and capital prosecution, to be confronted by accusers, to call for evidence in one's favor, and to receive a speedy trial by an impartial jury.
7. Trial by jury in suits and controversies.
8. Protection from excessive bail or fines and cruel and unusual punishment.
The Massachusetts Bill of Rights guaranteed additional individual liberties:
1. The right to assemble peaceably.
2. The right to give instruction to representatives, and to request from the stateby way of addresses, petitions, or remonstrances-redress for wrongs committed against individuals.
3. Protection against quartering soldiers in private homes in time of peace without the owner's consent, or in time of war without authorization of the civil magistrate.
The New Hampshire Constitution ensured that:
No subject shall be liable to be tried, after an acquital, for the same crime or offense. 5
During the summer of 1787, delegates from then newly created States met to remedy the perceived weaknesses of the Articles of Confederation, which, until that time, had held the States together in a loosely-bound federation of autonomous States. Under the Articles, the central governments' inability to provide for revenue and to enforce laws had produced a burdensome national debt and several interstate disputes that threatened to divide the Union.
By the time the summer sessions and debates had ended, the Convention produced much more than a mere revision of the Articles of Confederation. The new Constitution went far beyond the scope of the Articles of Confederation in establishing a powerful central government-a government that many delegates saw as a potential threat to individual rights. One effort to confront this threat came late in the Convention on September 12, 1787, just five days before the final meeting. The Convention's record reveals that George Mason:
Wished the Constitution had been prefaced with a Bill of Rights and would second a motion if made for the purpose. It would give great quiet to the people; and with the aid of the state declarations a bill might be prepared in a few hours.
Mr. Elbridge Gerry concurred in the idea and moved for a committee to prepare a Bill of Rights.
Gerry's motion to organize a Bill of Rights committee was soundly defeated by a vote of 10 to 0, the result of at least two important factors. The delegates had worked through one of the hottest summers in the history of Philadelphia and were eager to see their work concluded. The thought of setting up another committee to draft a Bill of Rights and of the ensuing debate that would follow was very unpopular. In addition, Roger Sherman led a successful appeal to convince the Convention that the U.S. Constitution would not infringe on the rights already guaranteed by the State constitutions.
Although initially defeated, the effort to include a Bill of Rights in the new Constitution has just begun. Indeed, it was to play a key role in the debate that began immediately after the signing of the Constitution on September 17, 1787. The debate separated the Nation into two major factions. One was the "Federalists," those who supported the Constitution and the strong national government it created. They were opposed by the "Anti-Federalists," who feared that the document threatened State sovereignty and individual liberties.
On September 28, the Constitution was sent to the States for ratification. Delaware was the first state to ratify on December 2, 1787. The vote was unanimous. However, as the ratification process continued, most of the remaining States did not ratify the Constitution as easily as had Delaware. Rather, nearly every convention witnessed delegates expressing their dissatisfaction with the document in the form of proposed amendments. Pennsylvania, the next State convention to ratify, proposed 15 amendments. In addition, the Massachusetts Convention submitted four new articles as amendments to the Constitution. A committee within the Maryland Convention proposed 28 amendments. South Carolina recommended four amendments, 10 while New Hampshire added twelve. 11
Most of the State convention delegates who proposed amendments were "Anti-Federalists," determined that, if the Constitution were to be ratified, it should at least be amended to protect the rights of individuals. Consequently, most of the proposed amendments dealt with protecting these rights.
The New Hampshire ratification was significant because it meant that the necessary three-fourths of the States had approved the Constitution. Each of the States knew, however, that unless the large and populous States of Virginia and New York ratified, the newly-formed Union could not succeed. James Madison, Alexander Hamilton, and John Jay, three of the leading "Federalists," led the ratification effort in New York. Their famous essays, collectively entitled "The Federalist," proved to be an invaluable asset in the ratification effort during the New York debates. The numerous essays contained in "The Federalist" convinced a number of key delegates to alter their positions. The New York Convention ratified by just one vote.
In the Virginia Convention, several heated debates once again centered on the issue of amending the Constitution. Some 40 amendments were proposed, 20 of which were intended as a Bill of Rights and would later strongly influence both the nature and writing of the Federal Bill of Rights. 12 Although the Virginia Convention finally ratified on June 25, it was apparent to many of the Nation's leaders that a compromise between the "Federalists" and the "Anti-Federalists" would ultimately be needed for the Government to succeed. It also became equally clear that this compromise would require the inclusion of some kind of Bill of Rights in the Constitution. In fact, North Carolina's Convention voted to delay ratification until a specific Bill of Rights was added to the document. 13
With the adoption of the Constitution by New York and Virginia, the ratification process was finally completed. Nevertheless, the debate over the Bill of Rights issue continued to rage across the Nation. "Anti-Federalists" and other groups from nearly every State placed intense pressure on the First Congress to take up the problem immediately. This public clamor, along with North Carolina's continuing refusal to ratify, led President George Washington to recommend to Congress in 1789 that they pay special attention to the public demand for a Bill of Rights. 14
On May 4, 1789, James Madison responded to Washington's instructions when he stood before the Congress and became the first representative to introduce a Bill of Rights. 15 Action on the proposal, however, was deferred until a later time. A month passed, and then on June 8, it is recorded that Madison "rose and reminded the House that this was the day he had heretofore named for bringing forward amendments to the Constitution as contemplated in the fifth article of the Constitution." 16 Madison's proposal initially met with considerable dispute among the Members of Congress. Many felt it too early to amend the Constitution, arguing that the new government had not even had a chance to perform. Madison in turn responded that it was important to demonstrate to the public
that Congress was responsive to their demands. He then proceeded to offer a series of amendments which he had collected from numerous recommendations by State legislatures and several alreadyestablished State constitutions. 17
Madison's motion was debated and then referred to the Committee of the Whole. When taken up again on July 21, 1789, a resolution was adopted, referring the amendments proposed by Madison, along with those which had been proposed by the State conventions, to a Select Committee of the House. The Committee, made up of a Member from each State, was instructed to consider and report the matter to the House.18 One week later, the Select Committee finished its work, and the report was again referred to the Committee of the Whole.19 The report, although rearranged and rephrased, had retained virtually all the content proposed by Madison. 20
The report was debated in the Committee of the Whole on August 13-18. It was then sent to the full House, where it was subjected to further debate during the next 4 days.21 On August 22, another committee was appointed to put the resolutions, as amended by the House, into a final form.22 After 2 days, the resolution received approval by the House and was sent to the Senate as reproduced below: 23
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, two thirds of both Houses deeming it necessary: That the following articles be proposed to the legislatures of the several states, as amendments to the constitution of the United States; all or any of which articles, when ratified by three-fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said constitution: to wit.
"Articles in addition to, and amendment of, the constitution of the United States of America, proposed by Congress, and ratified by the legislatures of the several states, pursuant to the fifth article of the original constitution.
"ART. 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 not be less than two hundred representatives, nor less than one representative for every fifty thousand persons.
"ART. II. No law, varying the compensation to the members of Congress, shall take effect, until an election of representatives shall have intervened.
"ART. III. Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed.
"ART. IV. The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.
"ART. V. A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no one relgiously scrupulous of bearing arms shall be compelled to render military service in person.
"ART. VI. 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.
"ART. VII. 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.
"ART. VIII. No person shall be subject, except in case of impeachment, to more than one trial, or one punishment, for the same offence, 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.
"ART. IX. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial; 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.
"ART. X. The Trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger) shall be by an impartial jury of the vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherways infamous, crime, unless on a presentment or indictment by a grand jury; but, if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may, by law, be authorised in some other place within the same state.
"ART. XI. No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars; nor shall any fact, triable by a jury according to the course of the common law, be otherwise reexaminable, than according to the rules of common law.
"ART. XII. In suits at common law, the right of trial by jury shall be preserved. "ART. XIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
"ART. XIV. No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
"ART. XV. The enumeration in the constitution of certain rights, shall not be construed to deny or disparage others, retained by the people.
"ART. XVI. The powers delegated by the constitution to the government of the United States, shall be exercised as therein appropriated, so that the legislative shall never exercise the powers vested in the executive or judicial; nor the executive the powers vested in the legislative or judicial; nor the judicial the powers vested in the legislative or executive.
"ART. XVII. The powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively."
It is interesting to study the modifications that Madison's original proposal underwent during the House committee meetings and debates before it arrived in its final form. During the process, the amendments appeared in at least three forms, including the versions of Madison, the Select Committee, and the final House.24
Originally, both Madison and the Select Committee recommended that the amendments be incorporated into the body of the Constitution. However, the Select Committee was not in agreement with Madison's first formal proposal, which would have changed the preamble of the Constitution to read that the power to govern was derived from the people, who retained the privilege of altering its form.
Article I of the approved House resolution related to the apportionment of House members among the States, as had Madison's second amendment and the second paragraph of the Select Committee's report. However, the final version did not include a cap on the size of total House membership, which had appeared in both the Madison and Select Committee proposals. In addition, unlike the original Constitution, which guaranteed each State at least one member in the House, Madison's proposal would have granted at least two representatives to each State.
Article II, stating that no law altering the compensation of members of Congress could be enacted until a subsequent election of