The Bill of Rights: Its Text, Structure and Scope

THE TEXT

The first Ten Amendments to the United States Constitution, popularly known as The Bill of Rights, has become the world’s hallmark of liberty. Yet, as a charter of liberty, most Americans have little understanding of its various provisions. Too often we are content to leave that to the experts, especially the lawyers.

But the Bill of Rights, like all of law, is too important to leave to lawyers. Somehow most of us know that, but believe that the subject is too complex to master, particularly when told that one has to read a passel of court opinions in order to really know our rights.

The purpose of this introduction and following series is to provide a primer on the Bill of Rights without bogging the reader down with a bunch of court precedents.

My goal is not to give a professional working knowledge of the guarantees, but to illumine the fundamental principles as written in the constitution, itself. After all, Article VI of the Constitution states: “This Constitution … shall be the supreme law of the land ….” Court opinions, however relevant and helpful, are not to be substituted for the constitutional text.

The entire text of the Bill of Rights appears at the end of this essay so that the reader may read the original language. In this day of language overload one is struck first by the brevity of the text: Only 468 words total, ranging from a mere 12 in Article VIII (the 8th Amendment) to a maximum of 117 in Article V (the 5th Amendment).

The Bill was not produced with remarkable foresight that one day America would be plagued by a generation of non-readers spoiled by television. No, the Bill is brief primarily because its framers had something definite in mind when they wrote it.

For example, the word, “religion,” and the phrase, “the freedom of speech,” did not occur for the first time in Article I (the 1st Amendment). As for the word, religion, it had appeared 15 years earlier in the 1776 Virginia Bill of Rights and was defined as those duties “which we owe to our Creator… [which] can be directed only by reason and conviction, not by force or violence ….”

Today, courts and legal scholars act as if the word, religion, is undefinable, so one looks in vain for a definition in the key court opinions applying the two religion clauses in Article I.

By ignoring the plain language of the text and its historic antecedents, the courts have proceeded to rob the American people of their God-given rights. See Titus, “Religious Freedom: The War Between Two Faiths,” 1984-85 Journal of Christian Jurisprudence 111-138.

“The freedom of speech” had been guaranteed members of the English Parliament in the 1689 English Bill of Rights. While that phrase was not defined in the document, the historical events that occasioned it was the king’s use of executive power to destroy his political enemies by prosecuting them for seditious libel or stirring up sedition. Sources of Our Liberties 233-35, 247 (R. Perry, ed., 1978).

Today, courts and legal scholars have substituted phrases such as “free speech” and “free expression” for “the freedom of speech,” and, thereby, have extended constitutional protection beyond the textual language to such activities as pornography. See Titus, “The United States Supreme Court and Obscenity: Reversed and Remanded,” in Pornography: Solutions Through Law (C. Clancy, ed., 1985).

The founders did not choose language with any expectation that the words they used would be open-ended categories into which courts and lawyers could shove whatever suited their political or legal philosophies.

To the contrary, almost all of the operative words and phrases in the Bill of Rights were carefully selected from pre-existing documents which either defined the word more specifically or which reflected well-known events that had inspired earlier foundational documents.

Some of those expressions, like “due process of law” in Article 5, stretched as far back as 1354 when the English Parliament declared:

That no man … shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without … due process of law.

Others, like “free exercise” of religion in Article I were of more recent vintage, dating back only 15 years to the 1776 Virginia Bill of Rights which provided that “all men are equally entitled to the free exercise of religion …. “

It is true that some language appeared for the first time in the Bill of Rights. For example, no pre-existing document contained the phrase prohibiting any “law respecting an establishment of religion.” But the principle in that maxim is unmistakably linked to Jefferson’s famous Statute for Establishing Religious Freedom enacted in Virginia in 1786. Titus, “No Taxation or Subsidization: Two Indispensable Principles of Freedom of Religion,” 22 Cumberland Law Review 505, 506-507 (1992-93).

The Bill of Rights of 1791, then, marked the culmination, not the beginning, of an historical drama for freedom. Not only was it preceded by the Magna Carta, but by a host of other English documents dating from 1215 and extending to the English Bill of Rights of 1689.

Moreover, the Bill of Rights was preceded by a number of American documents beginning with the colonial charters of the early 17th century and continuing with the 1776 Declaration of Independence and the State constitutions that preceded the United States Constitution.

As part of its contribution to the bicentennial celebration of America’s birth as a nation, the Committee on American Citizenship of the American Bar Association recommended that this documentary history be made available in a single volume. As a result the American Bar Foundation, under the inspired editorship of Richard Perry, compiled a book of the major original sources and published them in a book entitled Sources of Our Liberties.

In his introduction to the 1215 Magna Carta, Perry laid the foundation for America’s legacy of freedom with the following paragraph:

The liberties of the American citizen depend upon the existence of established and known rules of law limiting the authority and discretion of men wielding the power of government. Magna Carta announced the rule of law…. It is this characteristic which has provided … the foundation on which has come to rest the entire structure of Anglo-American constitutional liberties.

What sets the 1791 Bill of Rights apart from its predecessors is its economy of expression and its demarcation of jurisdiction. Those twin features have been lost to a modem world inundated with a glut of bureaucratic regulations of an increasingly totalitarian state.

This predicament, however, is not without precedent. Jesus Christ chastised the lawyers of his day for having placed upon the people “burdens grievous to be borne” (Luke 11:46). The intricate and innumerable regulations governing the keeping of the Sabbath (See, e.g., Mark 2:27) triggered in Jesus a response calling the people back again and again to the simple, but straightforward, decalogue given to Moses.

So it should be likewise in America. We should return to the simple and straightforward language of our nation’s founding documents. Because of the importance placed today on the Bill of Rights, it seems appropriate to begin with that document.

In the next [section] I will set forth the jurisdictional structure of the Bill of Rights. That structure, together with the specific textual expressions, must first be understood before one can comprehend each of the individual protections found in the Amendments, themselves.

ITS STRUCTURE

On July 4, 1776, with the signing of the Declaration of Independence, the United States of America proclaimed dissolution of “all political connexion” with “the state of Great Britain” and claimed nation status with “full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts … which INDEPENDENT STATES may of right do.”

In November 1777, the Articles of Confederation provided the governing structure of the United States lasting until September 13, 1787, when the Congress ordered the newly ratified United States Constitution to be placed in operation. Sources of Our Liberties (hereinafter Sources) 399, 408 n. 29 (R. Perry, ed., 1978).

The original Constitution did not contain a Bill of Rights. Inclusion of a comprehensive enumeration of the liberties of the people was debated towards the close of the Convention, but a bid to add a formal statement of liberties failed. Sources, at 403-05.

Many delegates opposed including a bill of rights believing that it was unnecessary “in a constitution founded upon the will of the people themselves.” Others claimed that the people’s liberties received sufficient protection in the existing state constitutions. Sources, at 404-05.

The case for a bill of rights, however, did not die. The first 5 states that ratified the constitution did so without proposing any amendments to secure the people’s rights. But the sixth, Massachusetts, after narrowly approving the constitution, “enjoined its representatives in Congress … to secure approval of nine amendments ….” Sources, at 419.

Prompted by continuing efforts to reject the Constitution for having omitted a bill of rights, Alexander Hamilton defended the omission in Federalist No. 84, but to no avail. Opponents rallied in Virginia, North Carolina, New York, and New Hampshire threatening its defeat.

In order to save the Constitution, its backers agreed “to support a bill of rights when the First Congress had been assembled ….” Sources, at 421. With this assurance, the Constitution was ratified and became the new form of government for the United States. Sources, at 419-20.

On June 8, 1789, James Madison introduced in the House of Representatives a set of proposed amendments to the Constitution. The Madison proposal served as the working draft of the Bill of Rights that eventually emerged from Congress. Sources, at 421-25.

Madison’s offer began with the guarantee of freedom of religion followed in order by speech, press, assembly, petition, keep and bear a:ms, and freedom from the quartering of soldiers. The order in which these freedoms were initially stated was never altered. Eventually, these guarantees would appear in the first three amendments to the Constitution.

The Rule of God

The appearance of the freedom of religion as the initial liberty in a bill of rights was no accident. Securing such freedom is the first business of any civil order. In his famous Memorial and Remonstrance, James Madison stated its preeminence:

Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Great Governor of the Universe; And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society, do it with a saving of his allegiance to the Universal Sovereign ….

This obligation to God, Madison claimed, provided the foundation for the freedom of the heart and mind of every man from civil rule:

The Religion … of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may indicate. This right in its nature is an unalienable right. It is unalienable; because the opinions of men … cannot follow the dictates of other men: It is unalienable also; because what is here a right towards men, is a duty towards the Creator…. This duty is precedent both in order of time and degree of obligation, to the claims of Civil Society.

The freedom of religion clauses in the First Amendment were designed to provide constitutional security to those rights of man that are mirror images of man’s duties subject only to the rule of God. In order to acknowledge God’s exclusive sovereignty over such rights, freedom of religion required jurisdictional immunity from the power of the civil authorities.

So the language of the First Amendment is stated in absolute terms: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…. For, as Madison maintained in his Memorial and Remonstrance, “in matters of Religion, no man’s right is abridged by the institution of Civil Society, and that Religion is wholly exempt from its cognizance.”

The Rule of the People

Unconditional protection was also extended to the next four freedoms and packaged into the same First Amendment: Congress shall pass no law … 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.

These rights were granted constitutional security in recognition of the continuing sovereignty of the People after the institution of a civil order.

According to the Declaration of Independence, this principle was established by the laws of nature and of nature’s God {that is, by the very will of God [See Titus, “The Law of the Land,” 6 J. of Christ. Juris. 57, 59-63 (1986)]}:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them ….

Later, the Declaration invoked this principle to justify their action:

(T)hat all men … are endowed, by their Creator, with certain unalienable rights …. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Prior to the American Revolution, the People of Great Britain had relied on their representatives in Parliament to guard their God-given rights. The American colonists discovered, however, that the English Parliament was not a faithful guardian of their rights as Englishmen.

In constituting the government of the United States, they would not make the mistake of their English forefathers. Thus, Madison proclaimed:

In the United States … (t)he people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power …. Hence … the great and essential rights of the people are secured against legislative as well as executive ambition. Sources, at 425-26.

Because sovereignty remained in the people, “the freedom of speech” that had been guaranteed to Parliament in the 1689 English Bill of Rights was extended to the people in the 1791 American Bill of Rights. “The freedom of the press” that had been left by the 1689 English Bill of Rights to be protected by Parliament from executive encroachment was now protected from Congressional infringement by the 1791 American Bill.

The right of the peoples representative’s to assemble to consult for the common good protected in the 1689 English Bill of Rights was extended to the people in the 1791 American Bill. And the right of the people to petition the king for redress of grievances, secured by the 1689 English Bill, was extended to the right to petition the “government.”

But what if the exercise of these rights fail to preserve the liberties of the people? America’s founders hoped that they would, but knew that any government, no matter how well constituted, could become tyrannical necessitating the people to take up arms.

The Declaration of Independence affirmed such a right in the people: (W)hen a long train of abuses and usurpations … evinces a design to reduce … (the people) under absolute despotism, it is their right, it is their duty, to throw off such government….

In order to secure this right in the people, Madison proposed constitutional security for the “right of the people to keep and bear arms” and to be free from the forcible quartering of soldiers.

The right to bear arms had been affirmed in the 1689 English Bill of Rights, but it had been limited to “Protestants … for their defence suitable to their conditions, and as allowed by law.” Sources, at 246. Madison’s proposal extended the right to all of the people for the purpose of securing “a free country.” Sources, at 422.

The practice of forcible quartering of soldiers on people’s property had been condemned in England since the 1628 Petition of Right (Sources, at 72, 74, 75), but it had never been adequately protected. In 1765 Parliament had authorized the quartering of British soldiers to enforce the hated stamp tax, and again in 1774, “to quell riots within the city” of Boston after the Boston Tea Party. Sources, at 72, 277-79.

The Second and the Third Amendments, then, embraced two rights to guarantee to the people the means to resist tyranny should their civil rulers persist in violating their rights.

The Rule of Law

Once the sovereign rule of God and the people were secure, then Congress could turn its attention to securing the rights of the people in the exercise of power in those areas where the civil authorities have jurisdiction. Thus, Amendments 4 through 8 guarantee the exercise of civil power according to certain procedural rules limiting the exercise of government power. The 4th and 5th Amendments primarily provide rules of law governing the exercise of executive power, whereas the 6th, 7th and 8th Amendments primarily set such rules limiting judicial power.

The final two amendments (9 and 10) state rules of construction of the Constitution now that it contained a Bill of Rights. While neither offers constitutional security for any substantive or procedural right, both affirm two important constitutional realities. The 9th Amendment testifies that the rights of the people did not originate with the constitution, but preexisted it in the unwritten law of nature. The 10th Amendment attests that the United States government is a government of enumerated, not plenary, power, thereby preserving the states as independent political entities.

In the next [section] I will address a second structural issue. Does the Bill of Rights apply only to the general government, or does it apply to each of 50 state governments? This examination will focus primarily upon the impact of the 14th Amendment on the applicability of the Bill of Rights to the exercise of state government power.

THE SCOPE OF THE BILL OF RIGHTS

Since the early 1970’s, the Supreme Court has routinely applied to the States all but five of the specific guarantees contained in the first eight articles of the Bill of Rights of the United States Constitution. Nowak, Rotunda, and Young, Constitutional Law 316-18 (3d ed. 1986).

The Court has justified its decisions, not on the original text of the Bill of Rights, nor upon the original intent of the Bill’s framers, but on the due process clause of the 14th Amendment (adopted in 1868) which reads, as follows: “(N)or shall any State deprive any person of life, liberty, or property without due process of law.”

For over one hundred years, from 1873 to the late 1970’s, various justices on the High Court waged a vigorous battle over the claim that the 14th Amendment made the Bill of Rights applicable to the state governments. At first, this claim rested on the “privileges and immunities” clause of the 14th Amendment. But the Court ruled squarely against it in the Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 72-80 (1873).

24 years later, however, the Court held that the due process clause of the 14th Amendment made the Fifth Amendment guarantee that private property could not be taken for public use without just compensation applicable to the States. CB&Q RR v. Chicago, 166 U.S. 226 (1897).

In the early 20th Century, efforts to extend the due process clause to incorporate other guarantees of the Bill of Rights largely failed until the Court began in the 1920’s to apply the freedoms of speech, press, and assembly to the States. Palko v. Conn., 302 U.S. 319, 324 (1937).

The Court reasoned that these guarantees applied to the States because they were “implicit in the concept of ordered liberty:”

[F]reedom of thought and speech … is the matrix, and indispensable condition, of nearly every form of freedom. Id., 302 U.S. at 325-27.

Under this scheme, none of the specific guarantees extended by the Bill of Rights to defendants in criminal cases, such as the privilege against self-incrimination, were found fully applicable to the States. Adamson v. Cal., 332 U.S. 46 (1947).

The Warren Court Coup

Beginning in the 1960’s the Warren Court began a constitutional revolution, overruling Adamson, and applying the self-incrimination privilege to the States via the due process clause. Malloy v. Hogan, 378 U.S. 1 (1964).

By the end of the decade, the Court had ruled that state criminal investigations and trials were governed by Articles 4 and 6 of the Bill of Rights, and by all but one provision of Article 5 and by the cruel and unusual punishment rule of Article 8. Stone, Seidman, Sunstein and Tushnet, Constitutional Law 783-84 (2d ed. 1991).

Only Justice Hugo L. Black tried to justify this revolution as consistent with the language and intent of the framers of the 14th Amendment:

[The] words “No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States” seems … an eminently reasonable way of expressing … that henceforth the Bill of Rights shall apply to the States. What more precious “privilege” … could there be than that privilege to claim the protection of our great Bill of Rights. Duncan v. Louisiana, 391 U.S. 145, 166 (1968).

Black’s colleagues paid attention to neither text nor original intent, but only to Court precedents. Justice Byron R. White simply stated that, according to its prior rulings, the due process clause required the application to the States of all “procedures necessary to an Anglo-American regime of ordered liberty,” including the right to trial by jury. Id., 391 U.S. at 149, n. 14.

Yet, from the Magna Carta through the 1791 Bill of Rights, the guarantee of trial by jury had always been treated as a separate and distinct right from that of due process of law. Sources of Our Liberties 5-9, 406, 422-24, 428-29 (R. Perry, ed. 1978). Thus, Madison and his Congressional colleagues included in Article 5 of the Bill of Rights a due process clause and, also, a right to jury trial in criminal cases in Article 6. If due process of law included the jury trial right, then there would have been no need for its explicit protection.

Indeed, if due process of law meant to Madison and his colleagues what it meant to the Warren Court, then why all the specific guarantees in Articles 4 and 6, and the additional ones in Article 5? For all of these guarantees (except for the requirement of a grand jury indictment) had been found by the Warren justices to have been incorporated by the due process clause of the 14th Amendment and, thereby, made applicable to the States.

These textual issues were never addressed by any member of the Warren Court majority. Nor have they been attended to by recent Republican appointees, notwithstanding the efforts by several GOP Presidents to reverse the Warren Court’s revolution.

Today’s justices, whether liberal or conservative, pay little heed to the constitutional text, much less to the original intent of its framers. That was not, however, the case in the early history of the Court when it ruled that the Bill of Rights did not apply to the States.

The Marshall Legacy

In 1833, a man named, Barron, sued the city of Baltimore claiming that it had impaired the value of his wharf in the Baltimore harbor without paying him any compensation. Barron contended that this action violated the Constitution because the city had taken his property without just compensation in direct violation of the “takings” clause in Article 5 of the Bill of Rights.

Barron insisted that the Bill of Rights restrained “the legislative power of the state, as well as of that of the United States.” Chief Justice John Marshall, writing for a unanimous Court, ruled that the Bill of Rights applied only to the United States government, not to the States. Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

In his short opinion of 8 pages, Marshall stated that the question raised by Barron was of “great importance, but not of much difficulty.”

First, the Chief Justice turned to the written Preamble of the United States Constitution and observed:

The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.

Next, he stated that “(e)ach state established a constitution for itself, and in that constitution provided such limitations and restrictions on the powers of its particular government as its judgment dictated.”

Then, he noted that in the constitution creating the general government there were two kinds of limitations, those written in general terms and those written in language specifically naming the States. This, Marshall said, reflected the very nature of the federal system contemplated by the framers, namely, the continued existence of the States as independent political entities governed by their own constitutions, unless specifically modified by the U.S. Constitution.

Marshall called attention to Article I, Section 10 of the U.S. Constitution which explicitly limited the States from enacting a “bill of attainder or an ex post facto law,” even though the immediately preceding Section 9 prohibited their enactment in general terms.

Marshall further noted that Section 9 also contained specific references to Congress, reinforcing his understanding that limitations written in general terms apply to the government created by the constitutional document, not to governments created by other constitutions.

From this pattern of written limitations contained in the original Constitution, Marshall turned to the First Ten Amendments with the following rule of construction:

If the original constitution … draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the states; if, in every inhibition intended to act on state power, words are employed which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course in framing the amendments, before that departure can be assumed.

Noting that the language of the Bill of Rights followed the precise pattern of Article I, Section 9, namely, the First Amendment like the first paragraph included a specific reference to Congress followed by generally stated limitations, Marshall clinched his case:

Had Congress engaged in the extraordinary occupation of improving the constitutions of the several states by affording the people additional protection from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.

35 years later, Congress had before it this very opportunity when it addressed the proposed 14th Amendment. The language of that Amendment was chosen with care and deliberation. In 1873, the Court in the Slaughter-House Cases chose to follow the Marshall legacy that constitutional law was found in the written text, not in the original intent of the framers, much less in some judicial scheme of ordered liberty.

APPENDIX – THE BILL OF RIGHTS

ART. I   Congress shall pass 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.

ART. 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.

ART. 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.

ART. 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.

ART. 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 offence 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.

ART. 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 the 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 the cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence.

ART. 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 re-examined in any court of the United States than according to the common law.

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

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

ART. 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.