The Bill of Rights

"Bills of Rights are for the most part reactions against evils of the past rather than promises for the future." Many of our revolutionary forefathers in the new nation could recall from bitter personal experience the memory of civil rights recently denied them. Moreover, they could review the record of struggles over such rights scattered through centuries of English governmental practice. Yet the framers of the Constitution appear to have given little thought to a bill of rights. Late in the convention it was, however, suggested that a bill of rights "would give great quiet to the people," but a motion to appoint a committee to prepare such a bill was defeated on the grounds that it was unnecessary and impracticable. "Who," Pennsylvania's delegate, James Wilson, once wanted to know, "will be bold enough to undertake to enumerate all the rights of the people?" It was no doubt pointed out at the Convention that scattered clauses already included in the Constitution safeguarded certain individual liberties.

Subsequently, in the Federalist, Alexander Hamilton continued the discussion in a vein approaching sophistry. He pointed out that the Constitution was not a reservation of rights in a compact with a prince but was a sovereign act of "WE, THE PEOPLE," done on purpose to "secure the blessings of liberty to ourselves and our posterity." This, Hamilton maintained, was a "better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government."

Nevertheless, at the insistence of certain of the ratifying states, the first Congress under the Constitution submitted twelve amendments to the states. Ten of these were ratified and thus incorporated into the Constitution. The first eight are commonly called the Bill of Rights. They were based, whether taken in the historical or the rhetorical context, upon the attitude that government was the enemy of freedom. It was against government and government alone that these safeguards were interposed. Only the central government was limited thereby. This is manifest in the First Amendment by the inclusion of the word "Congress." Although the remaining amendments composing the Bill of Rights are rendered less specific by the omission of this word, there is little reason to doubt the historical evidence that their framers intended that they be interposed just as exclusively against usurpation of traditional liberties by the Congress alone. The omission did make it possible to argue that these guarantees were restrictions on states as well as on the central government, but Chief Justice John Marshall was enabled to put an end to the controversy for a time by an opportunity presented in the last decision he handed down. Referring to the Bill of Rights in the case of Barron v. Baltimore in 1833 he said: "These amendments contain no expression indicating an intention to apply them to state governments. This court cannot so apply them."

Thereafter, for a century, in the case of religion at least, "Congress had little opportunity and less inclination to violate the First Amendment, and what the states did by way of dealing with religious matters was their own business so far as the federal Constitution was concerned." Thus there were few Supreme Court decisions dealing with religion or bearing religious connotations until after World War I. The "Mormon cases" in the last quarter of the nineteenth century afford an exception. In one of these, Reynolds v. United States, the Court held that the religious liberty guaranteed by the First Amendment does not include the right to commit immoral or criminal acts, i.e., polygamy, even though such acts are sanctioned by religious doctrine.