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Bill of Rights

Further Readings, Cross-references

A declaration of individual rights and freedoms, usually issued by a national government.

A list of fundamental rights included in each state constitution.

The first ten amendments to the U.S. Constitution, ratified in 1791, which set forth and guarantee certain fundamental rights and privileges of individuals, including freedom of religion, speech, press, and assembly; guarantee of a speedy jury trial in criminal cases; and protection against excessive bail and CRUEL AND UNUSUAL PUNISHMENT.

A sample motion for bill of particulars

As a fundamental guarantee of individual liberty, the U.S. Bill of Rights (see appendix volume for primary document) forms a vital aspect of American law and government. It establishes many legal principles that have had a decisive effect upon law and society, including the functioning of the criminal justice system, the separation of church and state, and the exercise of FREEDOM OF SPEECH.

The concept of a bill of rights as a statement of basic individual freedoms derives in part from the English Bill of Rights, passed in 1689 (see appendix volume for primary document). This document, which was created after the Glorious Revolution of 1688, established the terms by which William and Mary were accepted as king and queen of England. It forbade the monarchy to suspend laws, raise taxes, or maintain an army without consent of Parliament. It also declared that freedom of speech in Parliament could not be challenged, protected those accused of crimes from "excessive bail" and "cruel and unusual punishments," and provided a number of other privileges and freedoms (1 Will. & Mar., Sess. 2, C. 2).

Nearly a century later, seven of the 13 states of the newly independent United States of America adopted a bill of rights as part of their state constitutions, and the remaining six included elements of the English Bill of Rights in the bodies of their constitutions. Virginia, the first state to adopt a bill of rights, passed the VIRGINIA DECLARATION OF RIGHTS in 1776. Drafted largely by GEORGE MASON, Virginia's declaration became a model for later state bills of rights and ultimately for the federal Bill of Rights, and it remains a part of that state's constitution.

At the Constitutional Convention of 1787, the Framers of the U.S. Constitution used the English Bill of Rights and state bills of rights as resources as they sought to define the fundamental principles and institutions of U.S. government. However, they declined to add a bill of rights to the Constitution, on the grounds that the Constitution itself provided adequate protection from intrusive government. Indeed, the Constitution contained some elements of the English Bill of Rights, including Congress's exclusive power to maintain armed forces and, on the federal level, to pass laws and impose taxes. The Constitution also incorporated other specific rights traditional in ENGLISH LAW, including that of HABEAS CORPUS, which protects against unlawful imprisonment. However, the Constitution made no mention of other basic rights of constitutional government such as freedom of speech, press, and religion, and the rights of those accused of crimes.

During the Constitution's ratification process, from 1787 to 1789, state ratifying conventions pointed out the lack of such fundamental guarantees in the Constitution and submitted lists of proposed constitutional amendments. The Federalists, who supported ratification of the Constitution, eventually conceded and promised to attach a bill of rights to the document. The leading contributors to the creation of these amendments—which came collectively to be called the Bill of Rights—were George Mason, THOMAS JEFFERSON, and JAMES MADISON, with Madison serving as their principal author and sponsor on the floor of the U.S. House during the First Congress.

On September 25, 1789, 12 amendments to the Constitution were submitted to the states by the required two-thirds majority of Congress. Two of the amendments—which dealt with congressional pay and the APPORTIONMENT, or assignment, of congressional seats to the states—were voted down by the states. The other ten amendments were ratified by December 15, 1791.

Scholars have described the Bill of Rights as protecting three different types of HUMAN RIGHTS: (1) rights of conscience, including the First Amendment's freedom of speech and religion; (2) rights of those accused of crimes, such as the Eighth Amendment's protection against excessive bail and fines; and (3) rights of property, such as the Fifth Amendment's provision that no one may be deprived of property without DUE PROCESS OF LAW.

One vital issue in the history of the interpretation of the Bill of Rights has concerned its application to the states. In the case of Barron ex rel. Tiernan v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), the Supreme Court ruled that the Bill of Rights applied only to the federal government. However, by the 1920s, the Court, using a principle known as the INCORPORATION DOCTRINE, had begun to apply selected elements of the first ten amendments to the states. According to this doctrine, elements of the Bill of Rights may be applied to the states through the Due Process Clause of the FOURTEENTH AMENDMENT, which holds that no state shall "deprive any person of life, liberty, or property, without due process of law." Thus in 1925 the Supreme Court ruled that the FIRST AMENDMENT protections of freedom of speech applied to the states as well as the federal government (GITLOW V. NEW YORK, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138). Incorporation gave the Supreme Court wide power to strike down state laws that it deemed to be in violation of the Constitution's Bill of Rights.

By the end of the twentieth century, nearly all provisions of the Bill of Rights had been declared binding on the states. Only five provisions of the Bill of Rights had not been applied to the states: (1) the Second Amendment's right to bear arms; (2) the Third Amendment's prohibition against involuntary quartering of troops; (3) the Fifth Amendment's requirement of GRAND JURY indictment in capital cases; (4) the Seventh Amendment's provision for trial by jury in civil cases; and (5) the Eighth Amendment's prohibition of excessive bail and fines.

States are free to provide additional protections beyond those offered in the federal Bill of Rights, but they may not reduce CIVIL RIGHTS or liberties to standards lower than those of the federal Constitution.

Other countries have passed bills of rights that differ from those of England and the United States. In 1789 the Constituent Assembly of France passed the Declaration of the Rights of Man, a document that stated the philosophical principles of the French Revolution. Canada adopted the Act for the Recognition and Protection of Human Rights and Fundamental Freedoms in 1960 (8-9 Eliz. II, ch. 44, § 1[c]-[f] [Can.]) and the Charter of Rights and Freedoms in 1982 (Can. Const. [Constitution Act, 1982] pt. I).

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