How the Bill Was Born
Contrary to common belief, the Bill of Rights did not introduce the concept of inalienable freedoms from government power. In fact, the early settlers and colonists began defining liberties shortly after setting foot in the New World.
Maryland passed the Toleration Act of 1649, becoming the first colony to codify religious liberty. The others soon followed suit. A decade earlier, Massachusetts had adopted the Body of Liberties, a rudimentary bill of rights that (although it was silent on religious freedoms) guaranteed the right to assemble peaceably, the right to a jury trial in civil cases, the equal protection of laws, and compensation for private property taken for public purposes, among other things. William Penn took it one step further, creating a long list of enumerated rights in Pennsylvania's first Constitution, which was adopted in 1682.
State Constitutions
Following the Declaration of Independence, the states began adopting new state constitutions. The first of these efforts, the Virginia Constitution of 1776, actually begins with a sixteen-point Declaration of Rights that restrained all three branches of government — executive, legislative, and judicial. It was the first to proclaim that all men are created equal, and that all power derives from the people.
Pennsylvania's Bill of Rights introduced the separation of church and state, the right to counsel in criminal cases, the right to bear arms, and the right to travel. Delaware's Bill of Rights was the first to prohibit the quartering of troops in homes during peacetime, while Maryland's outlawed bills of attainder.
What is a bill of attainder?
A bill of attainder is a legislative act that finds a person guilty of a crime without conducting a trial. This was fairly common in the colonial era, and one of the biggest grievances of the colonists. Eliminating bills of attainder is one of the cornerstones of our legal system.
Massachusetts's Bill of Rights made an important contribution in outlawing all unreasonable searches and seizures, but more important was the method by which it was created. Unlike the other states, which created their bills of rights through the normal legislative process, Massachusetts was the first to call a special constitutional convention. By doing this, it established the precedent that the Bill of Rights could only be altered by constitutional convention — an important safeguard against a whimsical legislature.
Creating the Bill of Rights
The Constitution that was signed in Philadelphia in September of 1787 did not contain a bill of rights. Throughout the convention, the issue was barely raised at all, save Virginian George Mason's last-minute suggestion that the Constitution be prefaced by such a bill in order to “give quiet” to citizens back home. The matter was hardly debated, and a motion to adopt a bill of rights was defeated unanimously.
However, as the states began deliberating the adoption of the newly created Constitution, the delegates quickly realized their political blunder in not including a bill of rights. Antifederalists used the lack of a bill of rights to rally the public against the Constitution. In response, James Madison and his fellow Federalists promised that the new Congress would create a bill of rights as its first order of business.
The Bill of Rights was not the first federal document to safeguard personal freedoms and liberty. One of the first acts of Congress was to pass the Northwest Ordinance of 1787, which established the process for territories to become states. The Ordinance contained a bill of rights that guaranteed settlers habeas corpus (the right to go before a judge to determine if imprisonment is lawful), trial by jury, just compensation for taken property, and the right to bail.
True to his word, Madison took up the issue of a bill of rights in the summer of 1789. Borrowing from state bills of rights and other public writings, Madison proposed seventeen amendments to the Constitution, which the House quickly passed. The Senate pruned the list, and the Bill of Rights was submitted to the states for ratification. On December 15, 1791, Virginia became the eleventh state to ratify ten amendments, and with that the United States Constitution had a Bill of Rights.
