First in a series to mark the 225th anniversary of the Bill of Rights on Dec. 15.
Every clause in the Bill of Rights has its own history, and each of those histories has two main parts. We need one story about the origins of particular rights, and another about their modern judicial interpretation.
Tracing the origins of all these rights involves a set of laborious forays into legal history that pay special attention to the development of English common law and its American adaptations. Understanding the current and oft-changing interpretation of the rights identified in the first eight amendments to the Constitution similarly requires mastering a vast corpus of judicial decisions and their scholarly interpretations. Legions of law professors ply this trade, with a raft of law reviews ready to market their products.
But the very idea of having a bill of rights also has its own history. Today, many Americans remain ignorant or confused about which rights are actually cited in the Bill of Rights. And when pollsters ask them whether specific rights really should be protected, a depressing portion of Americans appear to have a low opinion of its actual contents.
But there is one thing we all know: If a specific right has been infringed, the Bill of Rights gives us the authority to litigate our claims. For every right there must be a remedy, and the most obvious remedy is to find a lawyer or an agency like the ACLU and go to court.
That idea dominates modern thinking about the implementation of a bill of rights. But it was actually something of a novelty to its framers, most notably including James Madison, the leading author of our first constitutional amendments. When the American revolutionaries first drafted bills of rights in 1776, the year of independence, they had other ends in view. But over the course of the next decade, they began to reconceive the constitutional "work" that bills of rights could actually do.
As Americans began moving toward independence, they realized that they would need to write new constitutions of government to replace the old colonial charters. By 1780, 11 states had done this, and eight of these states wrote declarations of rights as part of this process. In six states, these declarations were companion documents enacted in conjunction with the process of creating new governments. In only two states - Pennsylvania (1776) and Massachusetts (1780) - were the declarations of rights inserted in the text of the Constitution.
In the revolutionary context of 1776, declarations of rights were not regarded as legal commands that governments were obligated to enforce. Instead they stated general principles of republican governance that Americans were morally obliged to follow. The operative verb of these declarations was ought, not shall.
A decade later, when the movement that led to the great Constitutional Convention of 1787 was getting underway, some Americans began thinking of declarations (or bills) of rights in more advanced terms. By then, Americans had worked out a better basis for distinguishing the authority of a constitution as supreme law from the lesser authority of ordinary legislation. A constitution, to be fully constitutional, had to be framed by a special convention elected for that purpose alone, and then ratified by some direct expression of the sovereignty of the people.
The same consideration applied to bills of rights.
Before 1776, Americans believed the rights they claimed or enjoyed had multiple sources. There were natural rights, English common law rights their ancestors had carried with them, rights created by the very acts of colonization, rights affirmed by colonial charters, and rights that could be established by a legislative act, as in Thomas Jefferson's celebrated Statute of Religious Freedom for Virginia.
But by the late 1780s, the idea of affirming the supreme authority of a bill of rights by entrenching it in the text of a constitution presented a more attractive alternative. Instead of appealing in complicated ways to multiple sources, Americans would have one commanding text to invoke, enacted through a special process that would make it supreme law. And that text would operate as a legal command, as the opening phrase of the First Amendment reminds us: "Congress shall make no law."
That was the understanding Madison acted on in 1789, when he persuaded the First Congress that it was indeed duty-bound to propose a bill of rights. But Madison's thinking about the protection of rights had other radical dimensions.
Before 1776, Americans would have said that the real purpose of a bill of rights was to protect the people as a whole against the concentrated power of the monarchy. Madison instead came to believe that the real purpose was to protect minorities and individuals against the dominant powers of the majority. Before 1776, Americans would have said that the legislature and the jury were the best institutions for protecting rights. Madison instead concluded that the legislature was the most dangerous institution precisely because it derived its power from the support of popular majorities.
These were momentous developments, and unless we know this history, we will not understand the true significance of the Bill of Rights.