Hippocampus American Government: The Purpose and Intent of the Founders

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The Bill of Rights guarantees basic human and political rights to Americans. As an addendum to the United States Constitution, the document has evolved in scope through judicial interpretation.

Many states had a Bill of Rights in their own constitution and insisted that the protections be added to the federal document. Two states, North Carolina and Rhode Island, refused to ratify the Constitution until a Bill of Rights was included. Five other states, including New York and Virginia, voted for ratification with a strong recommendation that a Bill of Rights be added. Some states proposed specific amendments, using language from their own charters. These amendments included most of the individual rights that would later be incorporated into the federal Bill of Rights.

James Madison, the main congressional sponsor of the Bill of Rights, initially opposed adding it to the Constitution. At the time when the states were considering ratification of the Constitution, the Federalists and the Anti-Federalists battled over the issue. The Anti-Federalists were most concerned with civil liberties and lobbied for inclusion of a Bill of Rights. The Federalists supported the ratification of the Constitution as it was proposed. It was during this period that Madison, Alexander Hamilton, and John Jay wrote a series of essays supporting the Constitution that came to known as "The Federalist Papers."

Believing that sufficient limitations on government power were built into the Constitution, Madison saw no need for a Bill of Rights. However, he changed his mind after exchanging a series of letters with Benjamin Franklin. In writing the Bill of Rights, Madison's change of opinion led him to use even stronger language than that used in state charters. Most states' declarations of rights used the phrase "ought not be denied," while Madison used the expression "shall not be denied."

The Bill of Rights was originally intended to apply only to the national government. This was affirmed by the Supreme Court's ruling in Barron v. Baltimore in 1833. The Court ruled that the Bill of Rights restrained the national government, not the states. That interpretation of the founders' intent would stand for more than 90 years, until the Supreme Court's ruling in Gitlow v. New York.

In the 1925 Gitlow v. New York ruling, the Court established the doctrine of selective incorporation of the Bill of Rights to state governments by invoking the Fourteenth Amendment's equal protection and due process clause. The Gitlow case involved the First Amendment rights of freedom of speech and the press, which are rights that the Court described as "fundamental." At first, only part of the First Amendment was incorporated to the states as a result of Gitlow. However, over time, the Court applied most of the protections included in the Bill of Rights to the states.

Although concerns about individual liberties spawned the push for a Bill of Rights, the Constitution itself does extend three basic rights to citizens in Article One, Section 9. These rights involve writs of habeas corpus, ex post facto laws, and bills of attainder. Habeas corpus literally means "to produce the body." This right guarantees that citizens who are arrested have basic criminal rights and cannot be held indefinitely without being charged or tried, except in cases of national emergency. Ex post facto means, "after the fact," and prohibits a person from being punished for an action that was committed before it became a crime. The declaration concerning bills of attainder prohibits the government from passing a law that convicts a person of a crime.