Constitution Day typically focuses on the document drafted in convention in 1787, ratified in 1788, and implemented in 1789. However, students are often surprised to learn that the original document did not specifically include many of the civil liberties that we often call our "constitutional rights," such as the freedoms of speech, religion, and the press, as well as the right to bear arms. These are laid out in the first 10 amendments to the Constitution, collectively called the Bill of Rights.

Historical Background of the Bill of Rights

It seems inconceivable that the original U.S. Constitution did not include a bill of rights; it seems so fundamental. Such bills or declarations date to medieval English history. In 1215, the nobility of England reined in the grasping King John by forcing him to sign a declaration of their rights known as Magna Carta ("the Great Charter"). Another British document, the Bill of Rights of 1689, clarified the rights of the English people, calling for frequent Parliaments to represent them and freedom of speech on the Parliament floor. The concept of rights due to citizens under English law came to the New World with the colonists. Ironically, it was what they perceived as violations of their rights as Englishmen, and specifically their right not to be taxed except by their own representatives, that caused the American colonists to rebel against the British government in 1775.

Given this history, it should come as no surprise that after the colonies declared themselves free of British rule in 1776, they wrote state constitutions that included bills of rights. Virginia adopted its Declaration of Rights in June of 1776. The chief author of the Virginia declaration, George Mason, attended the Constitutional Convention of 1787. He proposed a similar bill for the federal Constitution toward the end of its summer-long proceedings. After fellow delegates soundly rejected his proposal, he became one of three delegates at the convention who refused to sign the finished document on September 17, 1787.

Initial Reluctance Concerning a Bill of Rights

But why did the delegates to the Constitutional Convention initially reject the idea of adding a bill of rights? In The Federalist Papers (No. 84), framer Alexander Hamilton indicated that supporters of the new Constitution regarded the entire document as a bill of rights. True enough, delegates had focused chiefly on creating a stronger central government, but the delegates thought that they had protected American liberties through mechanisms like federalism, which divided powers between state and national governments, and the separation of powers, which divided them among three branches of government. In Federalist No. 10, Virginia's James Madison further argued that a system of representation spread out over a large land area, able to embrace many factions, would protect individual liberties.

Also, the framers had incorporated some protections for civil liberties into the Constitution. Article I, Section 9 limits congressional suspensions of the writ of habeas corpus (which require authorities to specify charges against arrestees); prohibits bills of attainder (legislative punishments without trials); and bans ex post facto law (retroactive criminal laws). Article I, Section 10 imposes further limits on the powers of the states. Article III provides for jury trials in criminal cases, limits prosecutions for treason, and prohibits Congress from imposing penalties on wrongdoers' innocent offspring. Article VI forbids religious tests as a condition for public office.

The Bill of Rights is Written

But even while they argued that it was unnecessary to articulate further rights, the Constitution's main backers, the Federalists, realized that their Antifederalist opponents might use this issue to insist on a new Constitution altogether. One of the Antifederalists' chief complaints was that the rights of U.S. citizens were not spelled out directly in the document and protected forever from the encroachments of government. They were demanding a bill of rights. Bowing to necessity, leading Federalists agreed to press for a bill of rights once the Constitution was ratified. In 1789, Madison led the fight as a member of the first House of Representatives, even though he was not terribly enthusiastic about what he called "parchment barriers." Congress phrased the Bill of Rights as outright prohibitions that courts could enforce rather than as mere "shoulds" or "oughts." It followed the suggestion of Connecticut's Roger Sherman to add the amendments to the end of the Constitution, rather than integrating them into the original text.

Madison proposed 17 amendments to Congress, which were whittled down to 12. In the end, 10 amendments were accepted by the state governments. The necessary number of states ratified the Bill of Rights in 1791. They include protections for the freedoms of worship, speech, press, assembly and petition (First Amendment); the right to bear arms (Second Amendment); limits on quartering troops in private homes (Third Amendment); provisions against unreasonable searches and seizures (Fourth Amendment); protections for individuals accused of crimes or on trial (Fifth through Seventh Amendments); provisions against excessive bail, fines, and cruel and unusual punishments (Eighth Amendment); and recognitions of un-enumerated rights (Ninth Amendment) and states' rights (Tenth Amendment).
 

Over time, judicial interpretations of the Fourteenth Amendment (1868) have applied the provisions of the Bill of Rights to state governments as well as to Congress. Today, Americans increasingly look to the Bill of Rights as the premier expression of constitutional ideals. Constitution Day is an appropriate time to study and celebrate them.