The Bill of Rights -- the first 10 amendments to the
Constitution -- was ratified 200 years ago today. No less an
American than Alexander Hamilton thought this addition unnecessary. He did so for an interesting reason that is often overlooked in discussions of constitutional development.
"Bills of rights," he penned in his next-to-last Federalist paper, "are in their origins stipulations between kings and their subjects, abridgments of prerogative in favor of such privilege, reservations of rights not surrendered to the prince. . . . Here [the Constitution], in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."
Yes, but, just to be sure, the other side said, and the Bill of Rights was born. These "particular reservations" had already been included in many state constitutions when Hamilton wrote. In the state and the national constitutions, what these Framers were saying was that they wanted an American, not an English, society. Those who like to note the English antecedents and inspirations for the United States' political institutions and traditions need to remember "the rights of Englishmen" may have limited a king's authority, but not a parliament's. The 18th century parliament in England had rights the people could not challenge.
America's Bill of Rights was something new. "The rights of Americans." It was aimed precisely at our "parliament" -- Congress, which the Framers insisted had no authority to violate citizen rights, especially those dealing with free expression; security of home and person; fair, humane administration of justice, and anything else about which the states and Congress might disagree.
In a series of editorials this past week, we have noted how the Bill of Rights limits government's authority over individuals. Originally this limitation only applied to the national government. For example, a federal law-enforcement officer could not give a suspect the third degree and use the resultant confession in court, but a state trooper could, if his state's constitution did not have something similar to the Fifth Amendment.
After the Civil War, the Fourteenth Amendment was enacted, forbidding state and local governments from abridging "the privileges or immunities of citizens of the United States" and calling for "equal protection of the laws." Some jurists and scholars soon began to read this to mean citizens were now at last Americans first and Marylanders or Virginians second, and were due the Bill of Rights' protections in their dealings with all governments. It was another long generation before the Supreme Court started to read the Fourteenth Amendment this way, but beginning in 1925 and continuing into the 1960s, a series of decisions "incorporated" into state jurisprudence most of the guarantees of the Bill of Rights, making them truly American in scope as well as originality.