The Bill of Rights, as the twelve proposed amendments submitted by Congress to the states were called at the time and as the ten ratified in 1791 have been called since, came in the twentieth century to symbolize American liberty. At the time of their drafting and ratification, however, and for over a century thereafter, their significance was understood to be highly limited; their draftsmen thought them unnecessary; and those who had insisted on the necessity of amendments considered the twelve that Congress drafted to be entirely inadequate.
The history of bills of rights in the English-speaking world dates to the Glorious Revolution of 1688 and the subsequent succession of William III and Mary to the English throne. The Stuart dynasty, to which Queen Mary was related, had experienced nearly constant friction with Parliament in the seventeenth century, and James II's expulsion was understood as having solved both the issue of the Protestant succession and the question of the relationship between the crown and Parliament. From 1688, Parliament was sovereign in England.
The English Bill of Rights of 1689, then, can be understood as a set of conditions to which William and Mary were required to subscribe before they could assume the throne. Had they refused, Parliament likely would have sought a new monarch elsewhere. Unlike American bills of rights, the English Bill of Rights included a series of severe limitations on royal authority. Specific provisions prevented future monarchs from emulating their Stuart predecessors in raising taxes without Parliament's consent, creating new courts without agreement from Parliament, attempting to rule without calling Parliament into session over a number of years, or refusing to hold new parliamentary elections over a long period of years.
When the American Revolutionaries set about creating republican governments for themselves in 1776, many of them looked to the example of England in this regard. In Virginia, which adopted the first American Declaration of Rights in 1776, George Mason, that document's chief draftsman, styled himself "a man of 1688." As he understood things, the Bill of Rights must be antecedent to the Constitution, because it must include an explanation of the ground on which the Constitution rested and guarantees of the basic rights intended to be protected by the Constitution. Thus, Virginia's Declaration of Rights opened with a Lockean assertion that all men were created free and equal. Section 1 continued by saying that when men entered into a state of society, they could not divest themselves of certain of their natural rights. The Virginia Declaration included references to, among others, the freedoms of speech, assembly, press, and—in a formula that later would be replicated in the federal Bill of Rights—the "free exercise of religion."
Reflecting the struggles over liberty and executive power that led to the Glorious Revolution, the Virginia Revolutionaries first adopted their Declaration of Rights and only then adopted their constitution. As James Madison, one of the men responsible, later put it, "In Europe, charters of liberty have been granted by power. America has set the example . . . of charters of power granted by liberty." What did the Declaration of Rights mean to Virginians? To the dismay of Thomas Jefferson, it was what lawyers call "hortatory language." That is, while it set a standard for the commonwealth to try to meet, it seemingly did not have legal effect, as the General Assembly repeatedly ignored it in responding to the exigencies of the day. James Madison considered the Virginia Bill of Rights to be a "parchment barrier" that had little power to prevent governmental abuse. This is why, for this reason and others, Jefferson called from 1776 to the end of his life a half-century later for a revised Virginia constitution including enforceable guarantees of individual rights and other limitations on legislative power. Other Virginians, however, did not slight the Declaration of Rights in the same way. While it may not have had the legal effect Jefferson wanted it to have, their Declaration had a significant political effect, within Virginia and without.
While Mason's was the first bill of rights of the Revolutionary epoch, several colonies had adopted statements regarding rights before the Revolution. Probably the most famous was William Penn's Pennsylvania Charter of Liberties of 1682. Like the English Bill of Rights, which was written seven years later, Penn's included extensive attention to questions of the structure of government, not merely to individual liberties. More pertinent to this discussion, perhaps, was the Massachusetts Body of Liberties of 1641, which guaranteed twenty-five of the twenty-eight rights mentioned in the federal bill of rights.
By the time the Philadelphia Convention that drafted the federal Constitution convened on 25 May 1787, bills of rights—many patterned on Virginia's—had been adopted in several states. The issue of including a bill of rights in the draft federal constitution was raised at Philadelphia by Elbridge Gerry, a delegate from Massachusetts, and by Virginia's Mason. Connecticut's Roger Sherman responded that a federal bill of rights was not needed, and other delegates considered the idea to be contrary to their general goal of strengthening the central government. By ten states to none, the motion was defeated. For Mason, it seems to have been a particularly sore point, although he also had other significant reservations about the Constitution. In the end, Gerry, Mason, and Virginia governor Edmund Randolph were the only delegates to stay to the end of the Convention and then refuse to sign the Constitution. In explaining his reservations to the Virginia General Assembly, Mason began by noting, "There is no Declaration of Rights." In Virginia and elsewhere, that soon came to be a capital objection.
When the Constitution was sent to the states for their ratification, a number of them ratified right away. Soon enough, however, significant contests had developed in New York, Massachusetts, and Virginia, among other states.
One of the common themes of the Constitution's opponents in the several states was the absence of a bill of rights. The Massachusetts convention, which convened on 9 January 1788, featured a sizable number—perhaps initially a majority—of anti-Federalists, and the popular governor, John Hancock, refused to commit himself. Finally, desperate Federalists lit upon a strategy, which they proposed to Hancock. Governor Hancock was told that if the Constitution was ratified, the Federalists would help enjoin Massachusetts's members of the First Congress to propose a series of amendments. If Hancock sponsored those amendments, Federalists would not oppose his coming bid for reelection, would support him for vice president, and—in case Virginia should not ratify—would point to him as the logical alternative to George Washington for president.
The Massachusetts Plan of unconditional ratification joined to recommended amendments and injunction of congressmen to press those amendments to immediate adoption became a popular gambit for Federalists in other states as well. Ultimately, this same strategy was adopted in the battleground states of New York (where a largely anti-Federalist convention had been elected) and Virginia (over strenuous opposition).
Alexander Hamilton of New York famously addressed calls for a bill of rights in The Federalist No. 84. First, Hamilton noted that some state constitutions lacked bills of rights, and he asked why no hue and cry was heard over those omissions. Then, harkening back to the Glorious Revolution and to the contents of the English Bill of Rights of 1689, Hamilton said that the unamended Constitution already was a bill of rights. It included numerous guarantees, such as the right to the writ of habeas corpus; a ban on ex post facto laws; a ban on granting titles of nobility; and a general plan for the proceedings of government, which was the main point of the English Bill of Rights. If some other traditional rights were not explicitly protected by the Constitution's language, Hamilton said, that was because the Constitution did not empower anyone to violate rights such as the freedom of the press, the right of petition, and freedom of religion.
In Virginia, the most populous and prestigious state in the Union, ratification was achieved only narrowly. The Constitution's chief advocate there, James Madison, subsequently saw his candidacy for the First Senate defeated through the efforts of anti-Federalist leader Patrick Henry in the General Assembly. Madison only narrowly won election to the First House, and that only after pledging to Baptists in his native Piedmont region that he would work to ensure that their religious liberty was protected via a constitutional amendment.
In the First Congress, however, virtually no one sympathized with Madison's proposal for a bill of rights. Madison's fellow House members believed that the other business they had to attend to, such as the creation of executive departments and the establishment of a judicial branch, should take precedence. Many, in fact, mocked Madison's singleminded advocacy of a bill of rights, seeing it as a crassly political matter of home-state fence-mending. In a sense, the cynics were right. Madison had been among those who were skeptical of the utility of a bill of rights. Madison believed that as in Virginia and, notoriously at that time, in Pennsylvania, so in the new Union, a majority might as easily circumvent the plain language of a bill of rights.
Jefferson, away in France, responded to his friend's misgivings by saying that "a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no government should refuse, or rest on inference." While a legislature might ignore a bill of rights, Jefferson noted that it would empower the judiciary to protect the people against abuses. Madison went along, largely in hopes of cementing the support of people such as Jefferson and Mason who had supported federal power in the past but who were concerned about the question of a bill of rights for the new government.
Only Virginia elected opponents of the Constitution to the First Senate. Those senators, William Grayson and Richard Henry Lee, were disappointed by the twelve amendments Congress ultimately sent to the states for ratification in October 1789. As they reported to Henry, there was nothing in the twelve to reduce the jurisdiction of the federal courts, to define the powers of Congress more clearly, to limit the congressional taxing power, or to weaken the new federal government—that is, to reinforce the position of the states in the federal system—as the Constitution's opponents had desired.
In short, leading anti-Federalists understood the Bill of Rights as essentially useless. Madison also expected the Bill of Rights to be essentially without value. (He had tried to use the amendment process to empower the federal courts to supervise state legislatures in some respects, but his colleagues in Congress rejected the idea.)
President Washington in 1791 asked his cabinet for opinions on the constitutionality of a congressional bill chartering a bank, which had been adopted by Congress at the request of Secretary of the Treasury Hamilton. Washington knew that Madison had called it unconstitutional in Congress. In response to Washington's request, Secretary of State Jefferson wrote that since there was no explicit grant to Congress of power to charter any kind of corporation, much less a bank, and since the Tenth Amendment said, "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," the bank bill was unconstitutional.
Hamilton, in response, denied that the Tenth Amendment had such force. He argued that a wide variety of powers was implicitly granted to Congress by the Constitution and that the power to charter a bank was among them. Washington, accepting Hamilton's argument, signed the bill.
The Jeffersonian Republicans responded to the Alien and Sedition Acts of 1798 by insisting on their unconstitutionality in the Kentucky Resolutions of 1798 and 1799, the Virginia Resolutions of 1798, and the Virginia Report of 1800. In his Kentucky Resolutions of 1798, Jefferson wrote that the Sedition Act was unconstitutional. He argued that it violated the First, but far more prominently, the Tenth Amendment. He also claimed that the Tenth Amendment reflected the ongoing primacy of the states in the federal system; in Jefferson's draft, that primacy allowed the states to nullify laws they considered unconstitutional and dangerous.
With the election of 1800, Jeffersonians assumed control of the elected branches of the federal government. They would maintain that dominance for a quarter-century, and Jefferson attributed his party's success in the Revolution of 1800 to popular acceptance of the Principles of '98.
The Republicans' state-centered view of the Constitution and their emphasis on the Tenth Amendment repeatedly affected their stewardship of the federal government. Thus, for example, President James Madison in 1817 vetoed the Bonus Bill, legislation intended by House Speaker Henry Clay and John C. Calhoun, chairman of the House Committee on Foreign Relations, to give effect to Madison's and Jefferson's repeated calls for a large-scale public works program. Madison's explanation of his veto was that the Tenth Amendment required that the Constitution's grants of power to Congress be read strictly, and that such a reading disclosed no power in Congress to appropriate money for the building of infrastructure. Before Congress could adopt such a law, the Constitution must be amended. This position prevented broad federal support for public works through the early Republican era.
In the case of Barron v. Baltimore (1833), the Federalist (and nationalist) chief justice John Marshall wrote, for a unanimous Supreme Court, that the Bill of Rights only applied to the federal government. Everyone had understood it that way at the time of its adoption, Marshall wrote, which explained why the First Amendment began by saying "Congress shall make no law" without any reference to the states. If the plaintiff wanted relief from a local ordinance that took his property without just compensation, in violation of the principle reflected by the Fifth Amendment's takings clause, he should look to his state or local government.
Because of this understanding of the Bill of Rights, no federal or state law was ruled unconstitutional on the basis of any provision of the Bill of Rights until after the Civil War.