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The Bill of Rights

The Bill of Rights, the first 10 Amendments to the U.S. Constitution, were the product of many hours of discussion, debate, and agitation. The driving force behind these efforts was James Madison.

One of the first things that the newly free Americans began doing after the completion of the Revolutionary War was to get along with the drafting of state constitutions. Most of these state constitutions had additional documents proclaiming or affirming basic rights, as defined in legal documents in the English tradition such as Magna Carta and the 1689 Bill of Rights. The idea of a federal Bill of Rights accompanying or incorporated within the Constitution was a hot topic during the discussions of the Constitutional Convention, but the delegates, having approved the Constitution, adjourned with deciding the matter. When ratification by the necessary number of states seemed in doubt, however, some of the prime movers changed their minds.

Among these was Madison, who originally had opposed the inclusion of a Bill of Rights on the grounds that it wasn't necessary. Madison agreed in some part with his fellow Federalist Papers author Alexander Hamilton that listing a number of rights to which people were naturally entitled would mean that the federal government could infringe on what was not mentioned. (Hamilton argued that exact position in Federalist No. 84, asserting that a list of individual rights was implicit in the Constitution already.) Madison, however, became convinced that the Constitution should contain an enunciated Bill of Rights.

During the Constitutional Convention, Virginia's George Mason had introduced a proposal to include a Bill of Rights, and Elbridge Gerry of Massachusetts had put forward the idea as an official motion to be voted on by the delegates. The motion was defeated. Gerry spoke out against ratification of the Constitution, in part because of the lack of a Bill of Rights. Other famous opponents of the Constitution as written were Samuel Adams, Patrick Henry, and Richard Henry Lee. The main charge was that the Constitution gave the federal government, particular the President, too much power. The movement against the idea of a strong central government came to be known as "Antifederalism."

Taking George Mason's Virginia Declaration of Rights and his inspiration, Madison crafted a list of rights that are familiar to modern Americans (freedom of speech, freedom of trial by a jury of peers, freedom from unreasonable search and seizure). Madison envisioned that these rights should be interwoven into the fabric of the Constitution itself and so went about weaving them into the existing language of the governmental blueprint. He also envisioned an amendment to the Preamble.

Madison came up with a total of 20 rights, 17 of which were approved by the House of Representatives on August 21, 1789. Members of the Senate whittled the list to 12, and a conference committee made up of Representatives and Senators solidified that number, resulting in approval by a joint resolution of Congress on September 25, 1789. Significantly, Congress had rejected Madison's proposed amendment to the preamble and also consolidated all of his ideas as an appendage to the Constitution, so that the rights were listed separately, at the end, not sprinkled throughout.

Thus, then, the Bill of Rights went to the states for ratification. As with the Constitution, the Bill of Rights required the approval of a majority of voters in nine of the 13 states.

New Jersey, on November 20, 1789, was the first state to ratify, approving 11 of the 12 Amendments. (The one not approved, a regulation of Congressional pay increases, eventually became the 27th Amendment, approved in 1992.)

Maryland and North Carolina followed suit two months later, approving all 12 Amendments. Next up were South Carolina, New Hampshire, and Delaware, although New Hampshire voters joined New Jersey opposing the regulation of Congressional pay increases and Delaware opposed the first amendment in the list, which regulated the size of the House of Representatives.

Ratification then slowed a bit. Connecticut and Georgia did not ratify, on the grounds that a Bill of Rights wasn't necessary. Massachusetts then approved most of the amendments but didn't bother to tell anyone else.

In the first half of 1790, New York, Pennsylvania, and Rhode Island ratified 11 Amendments, rejecting the regulation of Congressional pay increases. Recently admitted state Vermont wasted no time in approving all 12 Amendments. Virginia's approval of all 12 made legal 10 of Madison's 12, the 10 most familiar to Americans. The only one of the 12 not yet approved provided a larger House of Representatives than some states were comfortable with. Despite the addition of many more states, this proposed amendment has not seen the light of day.

The first 10 Amendments to the Constitution, then, are these:

Amendment I
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.

Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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