The Bill of Rights and Individual Liberties

The Bill of Rights

Introduction to the Bill of Rights

  • On March 4, 1789, the Bill of Rights was proposed in the City of Vin, marking a significant constitutional moment for the United States.

Original Constitution and Individual Rights

  • The original Constitution included minimal explicit protections for individual rights.

  • The Federalist No. 84:

    • Alexander Hamilton argued that a Bill of Rights was unnecessary as the Constitution already established a limited government structure.

Whiggish Concept of Liberty

  • Liberty is primarily understood as self-government through representative institutions.

  • Main threats to liberty arise from abuses of executive power.

  • Example: Sir Robert Walpole, British Prime Minister (1721–1742).

Historical Foundations: The English Bill of Rights (1689)

  • Key excerpts:

    • Suspension of Laws:

    • The power to suspend laws or the execution of laws without Parliament's consent is illegal.

    • Dispensation with Laws:

    • Dispensing with laws or executing laws without Parliament approval is illegal.

    • Commissions/Courts:

    • Establishing commissions or courts without Parliament consent is illegal and harmful.

    • Levying Money Without Consent:

    • Raising funds without Parliament's consent is illegal.

    • Right to Petition:

    • Subjects have the right to petition the king; any prosecution for this is illegal.

    • Standing Armies:

    • Maintaining an army in peacetime without Parliament’s consent is against the law.

    • Right to Bear Arms:

    • Protestant subjects may have arms for defense as allowed by law.

    • Elections:

    • Elections for Parliament members should be free.

    • Freedom of Speech:

    • Freedom of speech and debates in Parliament should not be impeached in courts outside Parliament.

    • Bail and Punishments:

    • Prohibitions against excessive bail, fines, and cruel and unusual punishments.

    • Jurors:

    • Jurors should be freeholders and duly impaneled.

    • Grievances:

    • Parliament should meet frequently to address grievances and strengthen laws.

Acknowledgment of Common Law Rights (1776-1784)

  • Rights acknowledged under common law included:

    • Property Rights

    • Due Process

    • Jury Trials

    • Habeas Corpus

  • Seven states included enumerated rights in their constitutions:

    • Virginia (June 1776)

    • Delaware (September 1776)

    • Pennsylvania (September 1776)

    • Maryland (November 1776)

    • North Carolina (December 1776)

    • Massachusetts (March 1780)

    • New Hampshire (June 1784)

Reception of Common Law in America

  • Blackstone's Commentaries (1765-1769):

  • Rights under common law include property rights, due process, jury trials, and habeas corpus.

Thomas Jefferson's Letter to James Madison (December 27, 1787)

  • Jefferson's Concerns:

    • Omissions in the Constitution, particularly regarding the lack of a Bill of Rights.

    • Suggested rights: freedom of religion, press, protection against standing armies, restrictions on monopolies, habeas corpus, and jury trials.

    • Stated a Bill of Rights is a necessity and a right against government tyranny.

Madison's Compromise

  • Initially, James Madison opposed the idea of enumerating rights.

  • Jefferson's perspective eventually dominated, leading to the creation of a proposed Bill of Rights.

Madison's Proposed Bill of Rights

  • His proposal sought to limit both the states and federal government.

  • Initially 12 amendments were sent to Congress in September 1789.

  • Only 10 were ratified by November 1791; 2 were rejected by the states.

Jack Rakove's Observations

  • Emphasized the necessity for protections for individuals and minorities against majority rule.

Individual Liberty in the Bill of Rights

  • All provisions relate to various aspects of individual liberty:

    • Examples include freedom of speech, the right to bear arms, and protection against unreasonable searches and seizures.

    • The Ninth Amendment implies that the rights listed are not exhaustive, though freedom is not explicitly defined.

Majority Rule vs. Minority Rights

  • Individual rights are crucial in a democracy.

  • The risk exists for majorities to leverage power against minorities.

  • Civil rights frameworks provide legal mechanisms to protect minority rights from majoritarian policies.

First Amendment

  • Text: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

John Locke’s Letter on Toleration (1689)

  • Discussion on the limits of civil authority regarding matters of faith.

    • Key Argument: The civil magistrate only wields power in the external realm and cannot dictate faith, which is internal.

Puritan Vision of America

  • John Winthrop's Sermon (1630): Vision of America as a model society under divine scrutiny.

Puritan Politics and Law

  • Puritan view on democracy as suspect; ideal governance as a theocracy.

  • Massachusetts Body of Liberties (1641): Laws must uphold the Word of God; certain crimes were punishable by death.

Roger Williams’ Plea for Religious Liberty (1644)

  • Argued against enforced uniformity in religion, emphasizing individual conscience to avoid civil conflict.

State-Established Religions in Early America

  • Nine of the thirteen original colonies supported official churches with state funding.

  • Example: Virginia maintained the Anglican Church until 1779.

  • Connecticut, Massachusetts, and New Hampshire recognized official churches at the Bill of Rights' ratification.

James Madison’s Memorial and Remonstrance (1785)

  • Asserted the necessity of religious freedom as an unalienable right tied to individual conscience.

Virginia Statute for Religious Freedom (1786)

  • Declared that no individual should be compelled to support any religious institution or face penalties due to religious beliefs.

Establishment Clause

  • Debate regarding framers' intentions to prevent state-supported religion; Jefferson described it as a "wall of separation" between church and state.

Jefferson’s Wall of Separation

  • Emphasized governmental power should not extend to religious beliefs.

Alexis de Tocqueville on Separation of Church and State in America

  • Observed that complete church-state separation allowed religion to thrive independently of political power.

Concepts of Free Speech in Athenian Democracy

  • Isegoria: The equal right to participate in public debate.

  • Parrhesia: The freedom to speak one's mind at will.

Seditious Libel under English Law

  • Defined as statements that incite hatred toward the Crown or Parliament.

  • Established by the 1606 case De Libellis Famosis.

Licensure of Publications

  • Pre-Protestant Reformation, the Church mandated licensing of publications.

  • Afterwards, the Crown and Parliament held this power with restrictions.

John Lilburne's Trials

  • A radical who favored universal suffrage; he was persecuted for advocacy against established authority and unlicensed publications.

  • Lilburne faced severe consequences, including imprisonment and torture for his beliefs.

John Milton's Areopagitica (1644)

  • A call for freedom of speech and critique against state licensing of prints.

Freedom of Speech as Parliamentary Privilege

  • Explicitly stated as protected under the English Bill of Rights (1689).

Trial of John Peter Zenger (1733)

  • Established the principle that statements cannot be libelous if they are true, reinforcing free press rights.

Importance of Free Speech

  • Benjamin Franklin's belief: Freedom of speech is a keystone of government integrity and societal liberty.

Blackstone on Prior Restraint

  • Defined essential paper publication freedoms.

The Sedition Act of 1798

  • Criminalized false public writings against the government with targeted prosecutors