The Bill of Rights in Historical Context

When the Constitutional Convention met in Philadelphia to develop the United States Constitution, it produced a Constitution that did not include the present day Bill of Rights. The Constitution, however, could not be ratified without it, and the inclusion of the Bill of Rights became a condition in order to gain support of many states that had Anti-Federalist politicians leading the state. The discussion of the addition of the Bill of Rights became an important one in terms of the Constitution itself and what it meant in terms of rights and liberties of both the people in was supposed to protect and the government itself.

The Federalist Papers, the majority of which was written by Alexander Hamilton, argues that the Bill of Rights was not necessary and even a threat to liberties. Hamilton suggested that if a Bill of Rights had to be included in the Constitution, the Constitution was not doing enough to promote the liberty the American Revolution as fought for and that under the Constitution the government already did not have the power to violate what were considered civil liberties. James Madison, who also contributed to the Federalist papers, noted that a Bill of Rights could never be completed, and that the Bill of Rights was dangerous because a government could use this list as a way of abusing certain liberties that were not listed. The protection of liberty was not merely enforced by being written down but had to be enforced by the people and their government. While advocates of the Bill, such as Jefferson, argued that it could not hard civil liberties, Federalist believed that civil liberties that weren’t listed were at risk.

To support the ratification, Madison produced a Bill of Rights for Congress that itself was ratified in 1791. The Bill of Rights is a document that examines the relationship between the liberty of an individual and his government or community. Even after its ratification Hamilton believed that the Bill of Rights left an open-ended question in the terms of liberties and constitutionality. The biggest question of the Bill of Rights was whether it applied to all levels of government, such as state and federal. Many Anti-Federalists did not believe state and local governments were likely to abuse civil liberties, though Federalists such as Thomas Jefferson believed that governmental abuse, if concentrated, could come at any level of government.

The Bill of Rights came as a result of the separation of America from Great Britain, whose government was too oppressively powerful in the eyes of the colonists, through the American Revolution. The case of

Barron v. Baltimore established a ruling that the Bill of Rights applied only to the federal government to prevent it from threatening civil liberties. This decision meant that the civil liberties of the American citizens were not protected against state level governments. It wasn’t until around thirty years later, under the “incorporation doctrine”, that the Supreme Court began applying the Bill of Rights to state and local governments. The states, up until that point in time, did not have to use the amendment regarding the proper due process of law, and were not bound to respecting the civil liberties as the federal government was.

Sources:

Donald Kommers, John Finn, and Gary Jacobsohn. “American Constitutional Law.

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