Building the Bill of Rights

By Liu, Elise | Humanities, January/February 2007 | Go to article overview

Building the Bill of Rights


Liu, Elise, Humanities


THE CONSTITUTION SURVIVES TODAY AS A REVERED document, intact in its principles and most of its provisions. However, it was hotly contested among the first leaders of the United States. Amendments were promised during state conventions to appease Anti-Federalists, and in the summer of 1789, Congress finally agreed upon ten that would become known as the Bill of Rights. The nascent political factions clashed over the need for change as well as the proposed changes themselves. The First Amendment was bom in this charged atmosphere from idealistic hope, but it was also tinged with politics and practicality.

Demand for the First Amendment began early. While the Constitution was being written and ratified. Anti-Federalists were already clamoring for a Declaration of Rights of the people. Since the new government would be more powerful than its predecessor, they worried that the absence of a list of basic freedoms would grant the federal government tyrannical power (The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents). They observed that even a government of the people required a statement of rights to which the citizens could hold it responsible.

In contrast, Federalists opposed any change to the Constitution. They pointed out that the government had not existed long enough to know its flaws (Jackson, address to Congress, 8 June 1789). and contended that enumerated rights were unnecessary for a democratic republic. Hamilton noted that "bills of rights are in their origin, stipulations between kings and their subjects . . . they have no application to constitutions professedly founded upon the power of the people" (Hamilton. Federalist No. 84). Since the people had not explicitly granted the government any power to limit speech or religion, he argued, Anti-Federalists should not presume that those freedoms would be taken away.

Hamilton and his supporters not only believed enumeration to be unnecessary, they feared that it could restrict the freedom of the people. By limiting certain powers of the state, a Bill of Rights could be interpreted to grant all others (Hamilton, Federalist No. 84). Though Madison assured Congress that "the enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people" (Amendment IX). many of his colleagues still felt that exclusion would be implied by mentioning a few rights and ignoring various others.

However, there was little fundamental disagreement over the specific liberties outlined by the First Amendment. The freedoms of speech, press, and religion were widely considered among the "choicest privileges of the people" (Madison, address to Congress, 8 June 1789). Federalists conceded that if it were necessary to assure dissidents that they would not be silenced, these principles were hardly controversial. Instead, debate over the First Amendment centered on the extent of these values: If citizens deserved freedom of religion, did they have the freedom to profess no religion? If citizens had a right to speech and petition, should they expect their representatives to honor those demands?

First among the clauses in sequence and controversy, the prohibition against religious establishment was formed upon both ideas of tolerance and a sectional preference for local churches. Early Americans respected religious tolerance for its ability to keep the peace. Britain's history had been fraught with religious conflict between Catholics and Protestants, and among sects of each. William and Mary advanced tolerance as a solution when allowed a measure of liberty within the established church, declaring that no Protestant who swore an oath of allegiance would "be prosecuted in any ecclesiastical court, for . . . non-conforming to the Church of England" (Toleration Act, 1689). This idea of limited freedom of religion carried over to the New World, where both the New York Chapter of Liberties and the Maryland Toleration Act ensured in their respective colonies that "noe person . …

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