From: kadie@cs.uiuc.edu (Carl M. Kadie)
Newsgroups: alt.society.civil-liberty,soc.history,alt.politics.usa.constitution,alt.politics.homosexuality,soc.women,uiuc.civil-liberty,soc.culture.african.american,alt.censorship,talk.politics.theory
Subject: [ACLU] A History of the Bill of Rights
Date: 9 Nov 92 22:05:07 GMT
Article-I.D.: cs.BxGyoJ.38q
Followup-To: alt.society.civil-liberty,soc.history
Organization: University of Illinois, Dept. of Comp. Sci., Urbana, IL

[Default follow up to alt.society.civil-liberty and soc.history.
Comments welcome. See end of this article for information on other
on-line statements. - Carl]


Published by the Department of Public Education
American Civil Liberties Union
132 West 43rd Street.
New York, NY 10036
(212) 944-9800

ACLU Briefing Paper Number 9
A History of the Bill of Rights

"[Al bill of rights is what the people are entitled to against every
government on earth, general or particular, and what no just government
should refuse, or rest on inference."

-- Thomas Jefferson
   December 20, 1787

In the summer of 1787, delegates from the 13 colonies convened in
Philadelphia to discuss how best to govern themselves.  Out of the
gathering came the Constitution of the United States, that remarkable
blueprint of a new nation whose people had fought hard and valiantly to
win their independence from England.

The first draft of the Constitution set up a system of checks and balances
that included a strong executive, a representative legislature and a
federal judiciary, as well as a division of federal and state powers.
But contrary to the urging of some delegates, the framers did not include
a specific declaration of rights.  In other words, the Constitution
specified what the government _could_ do but did not say what the 
government _could not_ do.

The Constitution was signed in September 1787 and sent to the Congress.
Eleven days later, it was submitted to the states for ratification. But
as the people began to examine the document, they came to share the
sentiments of those who advocated that the  Constitution include a set of
specific guarantees - among them, the right to free speech, freedom of
religion, due process of law and freedom from governmental search and 
seizure.  The people ratified the Constitution only after its framers
pledged to add to it such protections.  Congress added those protections
in 1789, and in 1791 two-thirds of the states ratified the first ten
amendments to the Constitution, which became known as the Bill of Rights.

But ratification marked only the beginning of the quest for individual
freedom in the United States.  The Bill of Rights did not end the
enslavement of Africans and their descendents, and it slighted or ignored
the rights of Native Americans, women, children, gay people, prisoners,
the mentally and physically disabled, and others.

In the early 1900s, the American Civil Liberties Union and the National 
Association for the Advancement of Colored People were founded to
strengthen and advance efforts to remedy the inequities that prevented
millions of Americans from enjoying full freedom.  These and other
organizations gradually developed the resources to challenge
constitutional violations on behalf of people who never could have
protected their freedom by themselves.

The fight to preserve American freedoms, which has never been easy,
continues to this day.  Slavery ended in 1863, but the persistence of
racism in various forms has compelled African Americans to fight for
equality of opportunity for more than a century since.  Women fought for
and won the right to vote in 1920, but 45 years later, they are still
struggling to secure their right to privacy and reproductive freedom.  
Religious minorities must still fight to freely practice their faiths,
and those who espouse unpopular political viewpoints must still defend
their right to speak and publish.  Threats to the separation of church
and state still arise periodically, as do challenges to freedom of the
press.  Civil liberties battles never stay won.

For 200 years, the struggle to fully realize the principles established in
the Bill of Rights has been a major theme of life in the United States.  
We celebrate that ongoing struggle in this Bicentennial year of the Bill
of Rights, believing that much remains to be achieved and protected.


---
The Origins Of Liberty
---

The framers of our Constitution drew their concept of civil liberty from
various historical experiences.  From the ancient Greek philosophers,
whose society of city- states enshrined the principle of the rule of law,
came the idea of "natural law" and its derivative, the concept of
equality.  From the Romans, who advanced the Greek idea of natural law,
came a governmental structure based on separation of powers.

The framers were also deeply influenced by England's centuries-long
struggle to create political institutions founded on the principle of
equality before the law, and the equalization of political power.  That
struggle culminated in the formulation of the Magna Carta in 1215, which
Winston Churchill said, centuries later, established that "there is a law
above the king." The Magna Carta was the first written document to set
forth rules that the monarch was bound to obey, including such basic
civil liberties as the security of person and private property, the right
to seek redress of grievances from the sovereign, and the right to due
process of law.

England's Petition of Right, issued in 1628, asserted the right of
citizens to be free from unrepresentative taxation and arbitrary
imprisonment.  The English Bill of Rights of 1689 declared that
parliamentary elections should be free and binding, and it condemned
excessive bail, as well as cruel and unusual punishments.

Americans were also influenced by 17th and 18th century English political 
philosophers, particularly John Locke.  Locke maintained that: government
originates as a compact freely entered into by the citizens of a society;
government gains legitimacy only through the consent of the governed, not
from brute force; and a free society is the highest purpose of organized
government.  According to Locke, "[T]he end of law is not to abolish or
restrain but to preserve and enlarge freedom."

Out of these influences evolved a common law understanding in the United
States of the basic civil liberties that all Americans enjoy as their
birthright, and that government should be bound to respect.


---
The Constitutional Convention
---

The 55 delegates who attended the First Constitutional Convention in 1787
did not initially intend to draft a federal Constitution.  They had come
to Philadelphia to amend the Articles of Confederation, a loosely defined
set of rules formulated to resolve the numerous boundary and interstate
commerce disputes that arose among the former colonies at the end of the
Revolutionary War.

After four months of debate, a majority of the delegates signed a petition
to draw up a new Constitution.  The result was a document that defined
the functions of a new government's legislative, executive and judicial
branches.  It also included several specific provisions for protecting
individual rights, such as the right to trial by jury in criminal cases,
and the prohibition of bills of attainder.  Yet about such other basic
civil liberties as freedom of speech, religion and the press, the
Constitution said nothing.

Throughout the debate, a minority of delegates, led by George Mason of
Virginia, raised an objection: The American people would be
uncomfortable, he argued, with a federal Constitution that lacked a
specific list of protected rights.  Mason proposed that the Convention
appoint a committee to prepare a Bill of Rights for inclusion in the 
Constitution.

The Convention unanimously rejected Mason's motion, for a variety of
reasons.  Some delegates believed that a Bill of Rights was unnecessary
because government respect for civil liberties would follow automatically
as a by-product of the limited system they had created, with its division
of functions, separation of powers, and checks and balances.  Alexander
Hamilton argued that since Congress had no authority to act beyond the
scope of its enumerated powers, "Why declare that things shall not be done
which there is no power to do?"

Other delegates believed that individual rights should be protected in
state constitutions, not the federal.  Already, 11 of the 13 states had
adopted such provisions.

Still other delegates opposed Mason's motion out of fear that if the
federal government enumerated certain rights, and not others, only the
specified rights would be protected.  This danger would be avoided, they
contended, if the Constitution simply left the rights of Americans
unspecified.

A few historians offer a different reason for the rejection of Mason's
proposal: The Convention delegates had been working hard on the
Constitution throughout a long, hot summer.  They were tired and wanted
to go home.


---
Ratification Of The Constitution
---

The Constitution was sent to the states, and less than four months later
five of the nine states required for ratification - Connecticut,
Delaware, Georgia, New Jersey and Pennsylvania - had ratified.  The
Constitution, it appeared, would soon be the law of the land.  However,
three of the largest states, in which the Anti-Federalist movement 
wielded great influence - Massachusetts, New York and Virginia - strongly
opposed ratification.

The Anti-Federalists, who aimed to prevent the creation of a strong
central government, felt that the Constitution authorized too much
federal power at the expense of states' rights.  They did not want to
cede to a federal government the direct authority to raise taxes,
exercise judicial power over the states or regulate interstate commerce.  
But they found that the more politically popular argument to use against
ratification was the Constitution's lack of a Bill of Rights.  So they
advanced that argument, although it was a smokescreen for their real
concerns, to fuel criticism of the Constitution.  By dramatically
objecting to the absence of a Bill of Rights, the Anti-Federalists hoped
to compel revision of the proposed Constitution so as to greatly reduce
the powers of the national government or, alternatively, to sponsor a
second constitutional convention.

Their strategy worked.  Just as George Mason had predicted, the public
became increasingly suspicious of the Constitution, and the absence of a
federal Bill of Rights became the dominant criticism of the document at
the state conventions.  As the debate intensified, critics suggested that
the Constitution would make it possible for the federal government to
impose taxes on the press or on religious institutions.  They voiced 
concern about giving Congress the authority to define crimes and set
penalties for lawbreakers.  Patrick Henry complained that the
Constitution empowered the government to torture citizens.

Despite a vigorous Federalist campaign for swift passage of the
Constitution, led by Alexander Hamilton, John Jay and James Madison, the
Anti-Federalists succeeded in blocking ratification.  The Federalists
then had to regroup.

At this point, the correspondence that was transpiring between Thomas 
Jefferson, then Ambassador to France, and James Madison played a
noteworthy role in the ratification debates.  In a letter dated December
20, 1787, Jefferson wrote what was to become one of the preeminent
statements for a federal Bill of Rights: "[A] bill of rights is what the
people are entitled to against every government on earth, general or 
particular, and what no just government should refuse, or rest on
inference."

Not only did Jefferson persuade Madison, but his widely distributed
letters influenced others.  Madison, whose political influence had
diminished in Virginia because of his opposition to a Bill of Rights,
switched positions and led the Federalists in a drive to promote a Bill
of Rights - the very cause that the Anti-Federalists had created as an 
instrument for defeating the Constitution.  To promote ratification, and
to fulfill the promise he had made in his heated campaign against James
Monroe for election to the House of Representatives, Madison pledged to
attach civil liberties amendments to the Constitution as soon as the new
government was in operation.  With this pledge, the party that had first
opposed a Bill of Rights became its foremost advocate.

The Constitution was ratified on July 2, 1788.  However, several states
ratified solely on the basis of Madison's pledge that the first Congress
would amend the Constitution to include a Bill of Rights.  In
Massachusetts, New York and Virginia, in particular, the Federalist
promise was instrumental in securing votes for ratification.  Still,
North Carolina refused to ratify until the document was actually amended.

In all, the states proposed a total of 210 amendments (100 of which were 
substantially different) for inclusion in a comprehensive Bill of Rights.  
The addition of a Bill of Rights to the Constitution was to be the first
order of business for the new Congress.


---
The First Congress
---

Despite the public demand for a Bill of Rights, the first Congress quickly
became preoccupied with other issues.  The Federalists, for example,
became absorbed with the passage of tonnage duties.  The Anti-Federalists
were now reluctant to promote the attachment of a Bill of Rights to the
Constitution they had opposed on other grounds.

James Madison, now a staunch Bill of Rights advocate, insisted that
Congress fulfill its pledge to the people.  On June 8, 1789, Madison
submitted 17 amendments to the House, culled mostly from state
constitutions and recommendations made during the ratification debates.  
He argued that the Constitution should guard "the great rights of 
mankind," and that government power should be limited to prevent abuses by
"the body of people operating by the majority against the minority." 
Madison answered those who feared the consequences of omitting some
rights with what became the Ninth Amendment - "The enumeration in the
Constitution, of certain rights, shall not be construed to deny or
disparage others retained by the people."

The House was persuaded by Madison's arguments but rejected his proposal
to incorporate each of the proposed rights amendments into the text of
the Constitution because that would have altered a document the states
had already ratified.  Instead, the House agreed to group the amendments
together at the end of the document (which also spared Congress the
laborious task of having to debate the precise placement of each 
amendment).

On August 24, 1789, the House approved the 17 amendments and passed them
on to the Senate for its consideration.  The Senators combined freedom of
religion, press, speech, assembly and petition into one amendment.  They
killed the proposed restrictions on the states.  They also eliminated the
exemption of conscientious objectors from compulsory military service and
some other provisions, reducing the list of 17 amendments to 12.  A
conference committee, comprised of members from both houses, met to
review the declaration and reported back to Congress.  The House accepted
the committee's favorable report on September 24, 1789, and the Senate
approved it the next day.  After the President gave his approval, the 12
amendments were sent to the states.


---
Ratification Of The Bill Of Rights
---

The states rejected only two of the proposed amendments: one concerning
the ratio between population and House representation; the other
regulating congressional

Nine states ratified the remaining ten amendments within six months.  
Connecticut and Georgia refused to ratify on the ground that the document
was unnecessary.  (These two states did ratify the Bill of Rights, as did
Massachusetts, at the sesquicentennial of the Constitution in 1939.  
Although the Massachusetts legislature had adopted most of the amendments
in 1790, it failed to send official notice of its action to the national
government.)

With the admission of Vermont into the Union in 1791, an 11-state majority
was required for ratification.  Vermont ratified in November 1791.

Virginia's approval, though not technically required, was viewed as
indispensable to ensuring a cohesive union.  The Anti-Federalists who
controlled the legislature in Virginia had sought to undermine the Bill
of Rights there.  And they had struggled for two years to delete from the
Constitution the provision that empowered Congress to impose direct
taxes.  Having failed in that effort, they finally acquiesced to the Bill
of Rights.  On December 15, 1791, Virginia ratified, making the Bill of
Rights a part of the Constitution.


---
Rights Declared, But Justice Denied
---

For 130 years after ratification, the most notable thing about the Bill of
Rights was its almost total lack of implementation.  For example, the
right to a free press was frequently breached.  In 1798, passage of the
Alien and Sedition Act forbade, among other things, publication of any
"false, scandalous or malicious writing." In 1859, booksellers in
Southern states faced arrest for selling Hinton Helper's banned 
_Impending Crisis of the South_.  And in 1863, the mailing of four New
York City newspapers was prohibited because of alleged sedition.

The Bill of Rights was never intended to apply to Native Americans, or to
the Africans imported to labor as slaves in the South.  Moreover,
Congress and the Supreme Court often sanctioned our society's pervasive
inequalities.  In 1830, Congress approved the Indian Removal Act, which
authorized the relocation of Native Americans west of the Mississippi
River.  And the federal Civil Rights Act of 1866, passed at the end of the
Civil War, excluded Native Americans even as it ostensibly extended
citizenship and "full and equal benefit of all laws and proceedings" to
all people.

The Bill of Rights did not apply to the slaves who were totally excluded
from citizenship and all rights attending it.  When the slaves were
emancipated and granted citizenship after the Civil War, the Fourteenth
Amendment was incorporated into the Bill of Rights to prohibit states
from denying the vote, due process or equal protection of the laws on the
basis of race.  But following the Reconstruction period, which provided a 
brief respite for African Americans from systematic persecution, enactment
of the "Black Codes" and "Jim Crow" laws, as well as unrestrained
terrorism by the Ku Klux Klan, returned blacks to a status of mere
nominal freedom.

Although the first American Women's Rights Convention, meeting in Seneca
Falls, New York in 1848, demanded women's suffrage, 70 more years would
pass before that demand would be met.  Indeed, in 1873 the Supreme Court
ruled that the "law of the creator" required women to be wives and
mothers - not professionals - because of their "natural and proper
timidity and delicacy." In 1879, the Court reaffirmed state suffrage laws
that disfranchised women.

Gay men and lesbians, the physically disabled, aliens, soldiers, students,
children, prisoners, the poor - the list of those who were, in effect,
excluded from protection by the Bill of Rights was a long one.


---
The Fourth Branch
---

In the early years of the 20th century, civil liberties were in a sorry
state.  Racial segregation was legal and pervaded all aspects of American
society, with lynchings and other racist violence against African
Americans occurring frequently.  Sex discrimination was firmly
institutionalized, denying women the right to vote and prompting their
arrest for discussing birth control in public.  Employers fired workers 
for advocating labor unions.  The police conducted warrantless searches of
criminal suspects and their homes with impunity.  The government routinely
deported aliens because of their political views.

This climate of repression became especially harsh during the years of
World War I, when more than 1,900 legal actions were brought against
Americans for their public speeches, newspaper articles, pamphlets or
books.  American citizens languished in jail for holding anti-war views,
including a minister sentenced to 15 years for saying that the war was
"un-Christian." United States Attorney General A.  Mitchell Palmer 
instigated nationwide raids to arrest anarchists, communists and labor
organizers.  Four thousand people were detained, and 1,000 were deported.

As yet, remedies for these assaults on liberty did not exist, but efforts
to create them were underway.  In 1920, a small group of visionaries came
together in New York to discuss how to make civil liberties a reality.  
Led by Roger Baldwin, an anti-war activist and labor union advocate, the
group formed the ACLU and dedicated itself to holding government to the
promise of freedom set forth in the Bill of Rights.  The founding of the
ACLU and the National Association for the Advancement of Colored People 
11 years earlier, to help Americans challenge violations of their rights
in court, marked the beginning of what is known today as public interest
law.

Baldwin and his colleagues knew that the nation's founders had entrusted
the protection of the American people's rights to the judiciary.  But the
courts could only respond to civil liberties violations if lawsuits were
brought to challenge them once they had occurred.  While Congress and the
President could initiate action, the courts were and are powerless to
fulfill their function unless an aggrieved person files a lawsuit.

Unfortunately, the people most often denied their rights were precisely
those least aware of their rights and least able to hire a lawyer, or
afford the other costs involved in protracted litigation.  Thus, for many
years the most common violations of individual rights went unchallenged
largely due to widespread lack of access to the judicial process.  Not
until the first part of the 20th century - 130 years after the Bill of
Rights was ratified - was the Supreme Court asked to hear a case involving
the infringement of free speech.

The ACLU, NAACP and labor unions seeking to defend their members' First 
Amendment rights to picket, demonstrate, leaflet and organize, began to
directly challenge constitutional violations in the courts in the 1920s.  
The earliest of such lawsuits to reach the Supreme Court were lost.  But
powerful dissents in two cases, authored by Justices Louis D.  Brandeis
and Oliver Wendell Holmes, set forth the "clear and present danger" test
for suppressing speech and laid the groundwork for future judicial
protection of First Amendment rights.  In 1925, the ACLU challenged a New
York Criminal Anarchy law, under which a communist had been convicted for
advocating revolution.  The Supreme Court affirmed the conviction but
held, for the first time, that First Amendment rights are protected from
abridgment by state and local, as well as by the federal, government
under the due process clause of the Fourteenth Amendment.

Also in 1925, after Tennessee passed a law making it a crime to teach
evolution, the ACLU ran advertisements in local newspapers offering legal
assistance to any teacher who wished to test the new law by exercising
his or her academic freedom rights.  A high school biology teacher, John
Scopes, responded to the ad.  Roger Baldwin, the ACLU's principal
organizer and first executive director, persuaded Clarence Darrow, the
most eminent criminal defense lawyer of that era, to represent Scopes for
the ACLU.  On his own, Scopes would not have been able to afford a
lawyer, much less a lawyer willing to represent such an unpopular client.
Nor would he likely have risked violating the law without the promise of
legal assistance from the ACLU.  Although Scopes lost, his case 
underscored the value of academic freedom and alerted the nation to the
dangers of its suppression.

By the 1940s and early '50s, the numbers and resources of public
interest organizations had grown.  As a result, the national stage was
crowded with successful court challenges to violations of
constitutional rights.  These actions established the important legal
precedents that made possible the expansion of civil liberties during
the late 1950s and 1960s, a time when Chief Justice Earl Warren
presided over a Supreme Court more responsive to civil libertarian
concerns than at any time in American history.  During that era, the
Supreme Court: declared segregated public schools unconstitutional
(_Brown v. Board of Education_); expanded the right to counsel and due
process for the accused in three landmark cases (_Gideon_, _Escobedo_
and _Miranda_); struck down racially discriminatory voting laws in the
South; affirmed the free speech rights of anti-Vietnam War protesters,
and ruled that states could not criminalize abortion.

In recent years, the Supreme Court has shown less willingness to bolster 
individual rights and has even cut back the scope of several previous
decisions.  Fourth Amendment protections against government searches have
been badly eroded, and civil rights laws have been newly interpreted to
reduce their strength.  Nevertheless, the Court retains the
responsibility to ensure that individual rights are protected.

Public interest organizations, which provided the missing ingredient that
made our constitutional system and the Bill of Rights finally work, exist
to remind the Supreme Court of its historic role.  In a very real sense,
these organizations have operated alongside government as a kind of
fourth, and wholly independent, branch, providing the "eternal vigilance"
so necessary to ensuring preservation of the freedoms that are the
foundation of our democratic way of life.

The American Civil Liberties Union
132 West 43rd Street
New York, N.Y. 10036

===========================================================================
ANNOTATED REFERENCES

(All these documents are available on-line. Access information follows.)

=================
civil-liberty/README
=================
* Civil Liberty Archive
  [part of the Computers and Academic Freedom (CAF) Archive
     [part of the Electronic Frontier Foundation (EFF) Archive]]

This is an on-line collection of civil liberty statements. It includes
Briefing Papers from the American Civil Liberties Union. (The ACLU
material is made available by permission of the American Civil
Liberties Union)

If you have gopher, the archive is browsable with the command:
  gopher -p academic/civil-liberty gopher.eff.org

The archive is also accessible via anonymous ftp and email. Ftp to
ftp.eff.org (192.88.144.4). It is in directory
"pub/academic/civil-liberty".  For email access, send email to
archive-server@eff.org. Include the line:

send acad-freedom/civil-liberty <filenames>

where <filenames> is a list of the files that you want. File README is
a detailed description of the items in the directory.

For more information, to make contributions, or to report typos
contact J.S. Greenfield (greeny@eff.org).

=================
=================

If you have gopher, you can browse the CAF archive with the command
   gopher gopher.eff.org

These document(s) are also available by anonymous ftp (the preferred
method) and by email. To get the file(s) via ftp, do an anonymous ftp
to ftp.eff.org (192.88.144.4), and get file(s):

  pub/academic/civil-liberty/README

To get the file(s) by email, send email to archive-server@eff.org.
Include the line(s) (be sure to include the space before the file
name):

send acad-freedom/civil-liberty README
-- 
Carl Kadie -- kadie@cs.uiuc.edu -- University of Illinois at Urbana-Champaign
Xref: sparky alt.society.civil-liberty:6541 soc.history:9347 alt.politics.usa.constitution:1027