Structure Bill of Rights

The structure of the American Bill of Rights reflects its eighteenth-century origins. The framers of the Constitution did not include a bill of rights because they honestly believed that one was unnecessary. They understood that they were creating a government of limited powers. As Gen. Charles Cotesworth Pinckney told the South Carolina legislature after the Convention, ‘‘It is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.’’ Thus, framers like James Madison, James Wilson, and Roger Sherman argued that there was no need to prohibit the government from infringing on civil liberties because the government had no power to do so.

Tied to this structural argument was the belief that fundamental liberties, such as those in a bill or rights, had to be taken from a king or monarch. The founders took their lessons from English history. The barons at Runnymede surrounded King John I and forced him to sign the Magna Carta. In the seventeenth century, Parliament struggled with the king to gain the English Bill of Rights and other laws that protected basic liberties. The framers reasoned that Parliament or ‘‘the people’’ had to force the king to give them these liberties and rights. Along these lines, the framers argued that in a republic this was unnecessary because the people already had these rights and liberties. Because the government was representative, the people could never lose these rights because the government represented the people.

Anti-Federalists and even some supporters of the new Constitution did not accept these arguments. They argued that a democratically elected legislature could still take away rights from the people. They also feared that the new central government might fail to represent the interests of ‘‘the people’’ because the legislature was so distant from the people it represented and the terms were so long that members of the House and Senate would become estranged from their constituents. Combined with a president from far away who served for four years, the Anti- Federalists feared the new government would trample on the liberties of the people. Some Anti-Federalists feared that the president would become a king or a dictator. Thus, they demanded a bill of rights to protect their liberties.

The Bill of Rights reflected the concerns of both the Federalists and the Anti-Federalists. For the most part, the Bill of Rights did not grant liberties to the people but rather placed limitations on what the government could do. These amendments thus created ‘‘negative rights.’’ Another aspect of the bill of rights was its use of general language, rather than specific details.

The First Amendment illustrates this. The amendment does not give the people the right to worship as they wish, or to speak as they wish. Rather, the amendment says that ‘‘Congress shall make no law . . . prohibiting the free exercise’’ of religion or ‘‘abridging the freedom of speech, press, or the right of the people to peaceably assemble and to petition the government for a redress of grievances.’’ The amendment assumes that the people have these rights. There is no need for a toleration act in America, as there was in England. The king could in theory grant toleration to the people to worship as they wished, because the king, as the sovereign, had the right to set the religious standard for the nation. But under the American republic the people retained this right. Thus, the people did not need the permission of the government to speak or pray as they wish because the people were the sovereign, and so they had this right. Thus, under the Bill of Rights, the government was prohibited from taking these rights away from the people. Similarly, with this language the people could make no claim on Congress to facilitate these rights. Thus, for example, while Congress cannot pass laws ‘‘abridging the freedom of . . . the press,’’ Congress has no obligation to provide every citizen with his or her printing press.

The only clause in the First Amendment that does not presume that the people have rights is the Establishment Clause. Congress could conceivably have passed a law establishing a national religion. Madison and other framers denied that Congress had the power to do this—it was not an enumerated power. But, Madison also did not have any problem adding this extra level of protection against congressional action.

Most of the rest of the Bill of Rights was also phrased in negative terms, rather than the granting of positive rights. Thus, the Second Amendment presumed that the people of the states would be able to have organized militias, as the states already had. Thus, the amendment simply said that Congress could not disband the state militias. But the Federalists who controlled Congress were not willing to go beyond the simple statement that ‘‘a well regulated militia’’ was ‘‘necessary to the security of a free State.’’ Madison and his colleagues ignored Anti-Federalists from Pennsylvania who demanded elaborate amendments setting out positive rights in great detail. This group of Pennsylvanians, who had been in the distinct minority at the state’s ratifying convention, wanted amendments declaring ‘‘that the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game’’ and that ‘‘the inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.’’ Such provisions were too specific, and did not fit with the general pattern of using the Bill of Rights to place limits on Congress.

The ‘‘negative rights’’ or limitations on Congress in some ways provide for more universal protection of civil liberties than positive rights language might have accomplished. The Third Amendment assumed that soldiers could never be quartered in private homes except under narrowly defined circumstances created by positive law. Similarly, the Fourth Amendment ‘‘assumes’’ that there is a right to be secure against unreasonable searches, and so the amendment denies the government the right to conduct a search except under certain circumstances. In the same way, the Fifth Amendment declares that no one can be tried without a grand jury indictment. This limitation goes to the government action, and requires no act of enforcement by the person under investigation. Similarly, the right against self-incrimination is presumed and cannot be taken away, rather than given in the Fifth Amendment. The same is true with the Eighth Amendment’s ban on cruel and unusual punishment. People are not protected from torture; rather the government simply may not use torture. A curious exception to idea of general rights is the Seventh Amendment, which provides for jury trials in civil cases where the amount at issue exceeds twenty dollars. In the modern world, this limitation is absurdly outdated.

The Sixth and Seventh Amendments contain a series of positive rights, perhaps because these rights—to a jury trial or to legal counsel—were not seen as fundamentally inherent to a nature of free political society. The rights to a speedy and public trial by an impartial jury with subpoena power, confrontation of witnesses, and an attorney are new positive rights that were not secure in English law and not fundamental to a republican society. The right to counsel was truly an innovation—something never before secured by law.

The Ninth Amendment was the most creative of all the amendments, and goes directly to the heart of the way that the framers saw positive and negative rights. Many Federalists opposed a bill of rights because they thought that it was impossible to write one. They doubted the ability of anyone to list all the rights of the people and any rights left out would be lost. This argument assumed that a complete enumeration of all rights would be impossible. Thus, in defending the Constitution in the Pennsylvania ratifying convention, James Wilson asked who would ‘‘be bold enough to undertake to enumerate all the rights of the people?’’ He thought no one could, but warned that ‘‘if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted.’’ He later argued that members of the Convention considered a bill of rights ‘‘not only unnecessary, but improper.’’ Alexander Hamilton made a similar point, arguing that a bill of rights was ‘‘not only unnecessary in the proposed Constitution, but would even be dangerous. It would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.’’ Madison agreed with this analysis. He told Jefferson that if a bill of rights were added to the Constitution, it had to ‘‘be so framed as not to imply powers not meant to be included in the enumeration.’’

During the debates over the Constitution, Oliver Ellsworth, who would later become chief justice of the United States, made a similar point. He noted with frustration the persistent Anti-Federalist complaint that ‘‘[t]here is no declaration of any kind to preserve the liberty of the press, etc.’’ He answered, ‘‘Nor is liberty of conscience, or of matrimony, or of burial of the dead; it is enough that Congress have no power to prohibit either, and can have no temptation. This objection is answered in that the states have all the power originally, and Congress have only what the states grant them.’’ In part, Ellsworth reaffirmed the impossibility of listing all the rights of the people in a bill of rights. Madison responded to this problem with the Ninth Amendment, which provides that ‘‘the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’’ Since the amendments listed few positive rights, Madison wanted to be sure that no one believed the government could take basic rights from the people. Thus, the Ninth Amendment preserved those rights that were either too obvious to name—such as the right ‘‘of matrimony, or of burial of the dead,’’ and also those rights that the framers might not even have thought of. In the modern era, this amendment has helped create a right of privacy that protects reproductive rights and other kinds of personal privacy.

The Bill of Rights is a creation of the eighteenth century, written by politicians who were both pragmatists and skeptical of the power of government. Thus, it lacks large promises—such as the right to a job, housing, food, medical care, or education— which are found in some modern bills of rights. The Bill of Rights in fact makes few promises—such as that persons arrested will have fair trials, due process, and the right to an attorney. Rather, for the most part, the Bill of Rights simply limits government power so that individuals can exercise rights they presumably have always had—such as the right to speak, write, or worship as they wish, to be secure from intrusion in their homes, and to be free from being forced to incriminate themselves or face torture from their own government. While the government sometimes tried to trample their rights, most Americans, most of the time, have been able to exercise their rights without intrusion from the government. Moreover, because the rights come from what the government cannot do, for the most part Americans have been able to exercise them without having to depend on Congress or the president to vindicate their rights. Similarly, by placing a limitation on what the government can do, the Bill of Rights provided a legal claim to be taken into the courts to resist government misbehavior. Ironically, in this way the Bill of Rights has functioned to force citizens to challenge their own government, but in doing so they did not approach rights as supplicants. They did not have to ask the president or Congress for their rights, as English citizens had to ask the king for rights. Rather, they could go to the courts and demand that the national government not take away from them what they already possess, and use the explicit limitations in the Bill of Rights or the more general allpurpose limitation in the Ninth Amendment to vindicate their rights.

PAUL FINKELMAN

References and Further Reading

• Amar, Akhil. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998
• Finkelman, Paul, James Madison and the Bill of Rights: A Reluctant Paternity, Supreme Court Review 1990 (1991): 301–47
• ———, The Ten Amendments as a Declaration of Rights, Southern Illinois University Law Review 16 (1992): 351–96
• Rutland, Robert A. The Birth of the Bill of Rights, 1776–1791. Chapel Hill: University of North Carolina Press, 1955
• Veit, Helen E., Kenneth R. Bowling, and Charlene Bangs Bickford. Creating the Bill of Rights: The Documentary Record of the First Federal Congress. Baltimore: Johns Hopkins University Press, 1991.