Origins of the Bill of Rights

Origins of the Bill of Rights

Leonard W. Levy
Copyright Date: 1999
Published by: Yale University Press
Pages: 320
https://www.jstor.org/stable/j.ctt1nq0gx
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    Origins of the Bill of Rights
    Book Description:

    Americans resorted to arms in 1775 not to establish new liberties but to defend old ones, explains constitutional historian Leonard W. Levy in this fascinating history of the origins of the Bill of Rights. Unencumbered by a rigid class system, an arbitrary government, or a single established church squelching dissent, colonial Americans understood freedom in a far more comprehensive and liberal way than the English, Levy shows. He offers here a panoramic view of the liberties secured by the first ten amendments to the Constitution-a penetrating analysis of the background of the Bill of Rights the meanings of each provision of the amendments.In colonial America, political theory, law, and religion all taught that government was limited. Yet the framing and ratification of the Bill of Rights-in effect a bill of restraints upon the national government-was by no means assured. Levy illuminates the behind-the-scenes maneuverings, public rhetoric, and political motivations that led to each provision. The omission of a bill of rights in the original constitution presented the most serious obstacle to its adoption, despite Federalist claims that a bill of rights was unnecessary. Opponents of the Constitution claimed that inclusion of only some liberties-such as the right to habeas corpus and freedom from ex post facto laws-meant that all other liberties would be lost. But, Levy demonstrates, the people of the United States, aided by a persistent James Madison and by traditions of freedom, had the good sense to support both the Constitution and the Bill of Rights.

    eISBN: 978-0-300-12902-1
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-x)
  4. Chronology
    (pp. xi-xii)
  5. CHAPTER ONE Why We Have the Bill of Rights
    (pp. 1-43)

    THE BILL OF RIGHTS consists of the first ten amendments to the Constitution. The traditions that gave shape and substance to the Bill of Rights had English roots, but a unique American experience colored that shape and substance. “We began with freedom,” as Ralph Waldo Emerson wrote in “The Fortune of the Republic.” The first charter of Virginia (1606) contained a provision that the colonists and their descendants “shall have and enjoy all Liberties, Franchises, and Immunities . . . as if they had been abiding and born, within this our Realm of England.” Later charters of Virginia contained similar...

  6. CHAPTER TWO Habeas Corpus
    (pp. 44-67)

    THE WRIT OF HABEAS CORPUS—a writ to “have the body”—goes back in English history to time immemorial. The writ is even older than Magna Carta and may have originated in the courts of chancery. For centuries it served a variety of purposes; for example, it enabled the royal courts to command the presence of a person so that a suit might commence or continue. At an early stage of its development the writ applied not only to law enforcement officers but to private persons as well, compelling them to produce in court the person whose presence they might...

  7. CHAPTER THREE Bills of Attainder
    (pp. 68-78)

    THE CONSTITUTION denies to both Congress and the states the power to enact bills of attainder, which are legislative findings that a named individual or an identifiable one is guilty of a crime and must suffer death as punishment. Bills of attainder wholly circumvent the judicial system. In effect they are egregious violations of due process of law and specimens of unfairness. Parliament devised bills of attainder as a means of retaliating against individuals whom it regarded as objectionable or hostile. Bills of attainder punished their victims by authorizing their execution and the forfeiture of all their properties, both real...

  8. CHAPTER FOUR The First Amendment: The Establishment Clause
    (pp. 79-102)

    ALTHOUGH the Framers of the Bill of Rights did not rank the rights in order of importance, some are more precious than others. A right that has no superior is the first mentioned: freedom from a law respecting an establishment of religion. The First Congress recommended twelve amendments to the states, which failed to ratify the first two: as a result, the proposal that originally stood in the third place became the first, a fact swollen with symbolic significance. At the very least, establishments of religion summon historical memories associated with religious persecution. Equality for all opinions on the subject...

  9. CHAPTER FIVE The First Amendment: The Free Press Clause
    (pp. 103-132)

    ALMOST two months after the Constitutional Convention had begun its deliberations, Charles Pinckney of South Carolina recommended “sundry propositions” to supplement a partial list of rights that had been prepared by the Committee of Detail. One of Pinckney’s propositions urged that the liberty of the press should be “inviolably preserved.” He offered no explanation, as if the meaning of “liberty of the press” was self-evident.

    The Convention adopted Pinckney’s proposal for a ban on religious tests as a qualification for office and his guarantee of the writ of habeas corpus, but it did nothing about liberty of the press or...

  10. CHAPTER SIX The Right to Keep and Bear Arms
    (pp. 133-149)

    THE Second Amendment is the only provision of the Bill of Rights that has a preamble. The amendment states: “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.” Does the amendment vest a personal right to keep and bear arms? If it had no preamble it would undoubtedly vest such a right. But the preamble is present, and it creates problems about the amendment’s meaning. Some scholars mistakenly believe that the function of the preamble is to restrict the keeping and bearing...

  11. CHAPTER SEVEN The Fourth Amendment: Search and Seizure
    (pp. 150-179)

    BEFORE the American Revolution, the right to be secure against unreasonable searches and seizures had slight existence. British policies assaulted the privacy of dwellings and places of business, particularly when royal revenues were at stake. The right to be taxed only by the consent of representatives of one’s choice was the great right whose violation helped cause the Revolution. British attempts to enforce tax measures by general searches also occasioned deeply felt resentments that damaged relations between England and the American colonies and provoked anxious concerns that later sought expression in the Fourth Amendment. That amendment repudiates general warrants by...

  12. CHAPTER EIGHT The Fifth Amendment: The Right Against Self-Incrimination
    (pp. 180-202)

    AS ORIGINALLY proposed by James Madison, when he introduced the recommendations that became the Bill of Rights, the Fifth Amendment’s self-incrimination clause was part of a miscellaneous article that read: “No person shall be subject, except in cases of impeachment, to more than one punishment or trial for the same offense; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.” That hodgepodge reflects the industriousness and creativity...

  13. CHAPTER NINE Double Jeopardy
    (pp. 203-209)

    THE LEGAL PRINCIPLE that a person should not be tried more than once for the same offense is very old and widespread. Variants of it, usually in rudimentary form, can be found in early legal systems, including Roman, Talmudic, and canon law. In the Emperor Justinian’sDigestof the sixth century, government was commanded not to permit “the same person to be again accused of crime of which he had been acquitted.” In English law, glimmerings can be found in the English Yearbooks of the later fifteenth century. The King James Version of the Bible succinctly stipulates that “affliction shall...

  14. CHAPTER TEN The Double Jury System: Grand and Petty
    (pp. 210-230)

    KING HENRY II, who governed England from 1154 to 1189, was a man of powerful will and reforming spirit. Reformation of the machinery of justice at the expense of trial by battle was one of his foremost achievements. He tremendously increased both the civil and criminal jurisdiction of his royal courts in order to enhance his revenues and his authority. Henry regarded crimes against persons and property as offenses against the peace of his royal realm that were to be tried in his courts. Before his time, crimes were tried in the courts of the lords in whose immediate jurisdiction...

  15. CHAPTER ELEVEN The Eighth Amendment
    (pp. 231-240)

    THE EIGHTH AMENDMENT provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The amendment duplicates a provision in the English Bill of Rights of 1689. Its clause banning excessive bail was intended to prevent the once-frequent judicial practice of devising methods for keeping victims imprisoned indefinitely without trial. Judges used to fix bail at impossibly high rates, far in excess of a prisoner’s capacity to raise. Parliament, in effect, reformed that situation when it enacted that punishment should approximate the severity of the crime.

    The notion that punishment should not be barbarous...

  16. CHAPTER TWELVE The Ninth Amendment: Unenumerated Rights
    (pp. 241-260)

    FOR 175 years, from 1791 to 1965, the Ninth Amendment lay dormant, a constitutional curiosity comparable in vitality to the Third Amendment (no quartering of troops in private homes) or to the privileges and immunities clause of the Fourteenth Amendment after the Supreme Court had “interpreted” the meaning out of it in the Slaughterhouse Cases of 1873. The Court held that almost all rights depended on state, rather than federal, protection. Obscurity shrouded the meaning of the Ninth Amendment. One member of the Supreme Court, Robert H. Jackson, in a speech made after some reflection, acknowledged that the rights secured...

  17. Appendix: Key Documents
    (pp. 261-296)
  18. Bibliography
    (pp. 297-298)
  19. Index
    (pp. 299-306)
  20. Back Matter
    (pp. 307-307)