English Bill of Rights, 1689
The Bill of Rights was the most important document of the Glorious Revolution, and constituted the core of the Revolution settlement. Among the primary causes of the revolution was conflict over whether James II possessed ‘‘dispensing power,’’ or prerogative to absolve a person from the duty to obey a particular law, and if he could thereby exercise the legislative power without consent of Parliament. After James II fled to France, William of Orange convened a convention Parliament to reestablish the government. A committee designed to resolve the issue of succession drew up a Declaration of Rights, which was to comprise the bulk of the Bill of Rights (the exclusion of Roman Catholics and spouses of Roman Catholics from the throne was included in the bill but not the declaration). However, the declaration needed the committee’s approval, the support of a majority of both houses of Parliament and the acquiescence of William: bargains and compromises had to be struck, among them that James could not be accused of violating a contract, and that the monarch could exercise dispensing power only with consent of Parliament. The Bill of Rights was enacted on December 16, 1689; in 1701, the Act of Settlement, an ‘‘Act for the further limitation of the Crown, and better securing the rights and liberties of the subject,’’ further strengthened Parliament against the monarchy. Beyond clarifying monarchical authority and situating legislative power with the king and both houses of Parliament, the Bill of Rights included among its provisions that ‘‘raising or keeping a standing army’’ in peacetime required parliamentary consent; that Protestant subjects ‘‘may have arms for their defense suitable to the conditions and as allowed by law;’’ that ‘‘excessive Bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted;’’ that parliamentary debate ought to be free; and that the subjects possessed the right to petition the king and the right of jury trials.
Although the English Bill of Rights certainly was part of the Framers’ intellectual background, scholars disagree about its significance: whereas some have highlighted the similarities between the two bills of rights, others have held that the English experience was obviously not taken by the Americans to be authoritative. Nevertheless, comparing the two texts helps to illuminate some of the American framers’ choices both to reflect and to deviate from this earlier document. Two recent controversies in American constitutional interpretation have focused attention on the proper understanding and the degree of influence of the English Bill of Rights on the American Constitution.
Remarkably, at least since Weems v. United States (1910), some of the most salient Eighth Amendment cases have focused at least in part on the question of whether the English Bill of Rights granted a right to proportionate punishment. The opinions in Furman v. Georgia (1972), in particular, debate the influence of the tenth section of the English Bill of Rights at substantial length; notably, Justice Thurgood Marshall’s concurrence featured a noteworthy discussion of the origins of the provision. Justice Lewis Powell’s dissent in Rummel v. Estelle (1980) suggested that English constitutional law was deeply concerned about disproportionality, and argued that this held enduring importance for Eighth Amendment jurisprudence even in noncapital cases. Further, Powell’s majority opinion in Solem v. Helm (1983) located a right to proportionate punishment in the English Bill of Rights. However, Justice Potter Stewart argued that the Framers focused on prohibiting torture rather than proportionality in his opinion in Gregg v. Georgia (1976), as did Burger in his dissent to Solem v. Helm (1983). This view was echoed in Harmelin v. Michigan (1991), in which Justice Antonin Scalia argued that the ‘‘cruel and unusual punishments’’ provision was not intended to forbid disproportionate sanctions.
Historical investigations of the English Bill of Rights have also shaped recent Second Amendment jurisprudence. Historian Joyce Lee Malcolm has recently argued that the seventh article of the English Bill of Rights granted Protestants an individual right to bear arms, and that the Framers had this provision in mind when they drafted the Second Amendment. Both Scalia (in Matter of Interpretation) and Judge Samuel Cummings, in United States v. Emerson (1999), have cited Malcolm’s work in this context. Although some prominent historians have challenged Malcolm’s understanding of the English Bill of Rights, as well as the claim that the seventh article influenced the Framers, the debate has generated fresh interest in the legacy of the English Bill of Rights for American constitutionalism.
References and Further Reading
- Granucci, Anthony, ‘Nor Cruel and Unusual Punishments Inflicted’: The Original Meaning, California Law Review 57 (1969): 839.
- Maitland, F.W. Constitutional History of England. Delanco, NJ: Legal Classics Library, 2000.
- Malcolm, Joyce Lee. To Keep and Bear Arms: The Origin of an Anglo-American Right. Cambridge, MA: Harvard University Press, 1994.
- Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, NJ: Princeton University Press, 1997.
- Schwoerer, Lois, Symposium on the Second Amendment: Fresh Looks: To Hold and Bear Arms: The English Perspective, Chicago-Kent Law Review 76 (2000): 26.
- Weston, Corinne Comstock, and Janelle Renfrow Greenberg. Subjects and Sovereigns: The Grand Controversy over Legal Sovereignty in Stuart England. Cambridge: Cambridge University Press, 1981.
Cases and Statutes Cited
- An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. (English Bill of Rights, 1689). 1 Gul. & Mar., sess. 2, c. 2. In Act for the Further Limitation of the Crown, and Better Securing the Rights and Liberties of the Subject (Act of Settlement, 1701). 12 Gul. III, c. 2. In Andrew Browning, ed., English Historical Documents, 1660–1714. New York: Oxford University Press, 1953
- Browning, Andrew, ed., English Historical Documents, 1660–1714. New York: Oxford University Press, 1953. https://www.yale.edu/lawweb/avalon/england.htm
- Furman v. Georgia, 408 U.S. 238 (1972)
- Gregg v. Georgia, 428 U.S. 153 (1976)
- Harmelin v. Michigan, 501 U.S. 957 (1991)
- Rummel v. Estelle, 445 U.S. 263 (1980)
- Solem v. Helm, 463 U.S. 277 (1983)
- United States v. Emerson, 46 F Supp. 598 (N.D. Tex. 1999)
- Weems v. United States, 217 U.S. 349 (1910)
See also Bill of Rights: Structure; Cruel and Unusual Punishment (VIII); English Tradition of Civil Liberties; Right to Bear Arms (II)