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B, Bill of Rights.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Bill of Rights.

The Bill of Rights is commonly viewed as consisting of the first ten articles of Amendments to the Constitution of the United States of America. But it is the specific guarantees of individual liberties in the first eight amendments that the public normally regards as the Bill of Rights. The *Ninth and *Tenth Amendments provide generally that rights not specified and powers not delegated to the federal government in the Constitution will remain with the people and the states.

Origin of the Bill of Rights

Comprising a mere 413 words, the Bill of Rights was an outcome of the 1787–1788 debate on ratification of the Constitution. The absence of a bill of rights was the most compelling criticism by opponents of the Constitution. To allay the public’s fears of an overbearing federal government, supporters of the Constitution promised to add a bill of rights if the document were ratified. This pledge influenced decisions to ratify the Constitution in key states, such as Massachusetts, Maryland, New Hampshire, Virginia, and New York.

James *Madison, a leading advocate of ratification, won election to the House of Representatives and fulfilled his campaign pledge to add civil liberties guarantees to the Constitution. On 8 June 1789, he proposed several amendments derived from declarations of rights in state constitutions and proposals from several state ratifying conventions. On 25 September 1789, by the required two-thirds majority in both of its chambers, Congress sent twelve amendments to the states for ratification, but the first two failed to be ratified; one called for a fixed schedule of apportionment for the House of Representatives; the other prohibited increases (p. 83) in the pay of members of Congress until after the next biennial election of Representatives. (In 1992, this second rejected proposal was finally ratified by the required three-fourths of the states and became the *Twenty-seventh Amendment of the Constitution.) On 15 December 1791, Virginia became the eleventh of the fourteen states (Vermont joined the United States in 1791) to ratify the ten amendments that comprise the Bill of Rights; and they became part of the Constitution.

Provisions of the Bill of Rights

The first of the ten amendments includes civil liberties pertaining to religion, speech, press, assembly, and petition. The *Second Amendment concerns “the right of the people to keep and bear arms.” The *Third Amendment, which prohibits the coercive quartering of troops in private homes, is the only one of the ten amendments that has never been the subject of a case in the federal courts.

The next five amendments (four through eight) specify procedural rights (see due process, procedural). For example, the *Fourth Amendment’s stipulated safeguards against “unreasonable searches and seizures” spell out in remarkable detail the obligations to be met by both the executive branch’s enforcement personnel and hearing and adjudicating appeals arising from their activities. The *Fifth Amendment contains among other procedural guarantees the fundamental proviso against compulsory self-incrimination. The *Sixth Amendment provides, among its components, for rights of notification about the nature of an accusation and the procuring of both favorable and unfavorable witnesses, as well as for the “assistance of counsel” for the defense. The *Seventh Amendment protects the right to a trial by jury in civil cases, and the *Eighth Amendment protects individuals from punishments that are too harsh and fines and bail that are too high.

The Ninth and Tenth Amendments are general statements depicting constitutional structural divisions of power rather than specific, identifiable guarantees on behalf of the individual versus the state. The Ninth commands that the “enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth requires that 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.” It has been, and surely will continue to be, the source of a substantial amount of litigation before the federal courts. For example, in *Printz v. United States (1997), the Supreme Court struck down part of a federal gun control law that required local officials to do a background check on a customer before a gun sale could be completed. The Court held that the Tenth Amendment prohibits the federal government from controlling or commandeering certain acts of state or local officials that are powers reserved to the state governments.

Application to the States

The very first phrase of what became Article 1 of the approximately twenty-five specific rights to be found in the Bill of Rights reads: “Congress shall make no law. …” Although the noun Congress reappears nowhere in the other articles, they were apparently intended to be applicable against the federal government only. Certainly that was the understanding with which most of the states ratified the Bill of Rights. Chief Justice John *Marshall, in *Barron v. Baltimore (1833), spoke for a unanimous tribunal in ruling that the Bill of Rights applied only against the national government, emphatically not against the states.

The passage of the *Fourteenth Amendment in 1868 opened new possibilities. This amendment says, “No State shall … deprive any person of life, liberty, or property, without due process of law.” Beginning in the 1920s, the Supreme Court developed the *Incorporation Doctrine by which it used the Fourteenth Amendment’s due process clause to absorb provisions of the Bill of Rights and apply them against state governments. For example, in 1931 the Court incorporated the First Amendment rights to free speech (*Stromberg v. California) and free press (*Near v. Minnesota) through the Fourteenth Amendment’s due process clause to limit the power of state governments and protect civil liberties of individuals. From the 1930s until 1969, the Supreme Court incorporated through the Fourteenth Amendment most of the specific protections of rights in Amendments One through Eight.

Hugo L. *Black, an associate justice from 1937 to 1971, provided strong intellectual leadership to shape the Court’s application of the Bill of Rights to the states and thereby establish national standards for protection of civil liberties. Justice Black has triumphed—but not quite. Five of the enumerated rights in the Bill of Rights are still “out,” that is, not incorporated—although they are relatively insignificant. Yet ironically and intriguingly, “not quite” also because the Court, led by Justice William O. *Douglas in the 1950s and 1960s, and after Douglas’s departure notably by Justices William *Brennan and Thurgood *Marshall until their retirements, has at least partially adopted a position advanced by Justices Frank *Murphy and Wiley *Rutledge in the key case of *Adamson v. California in 1947. There the Court held that if the verbiage of the Bill of Rights guarantees did not suffice to attain “justice” as they believed it to require, then the Court’s resort to other, implied or inherent provisions of the Constitution, and even natural law, might be invoked—what some have called “incorporation plus.” That policy, which (p. 84) Justice Black derided as “going upstairs” or which Justice Oliver Wendell *Holmes referred to as resorting to a “brooding omnipresence in the sky,” was anathema to the libertarian Alabaman, who was a principled literalist. If it was not written down in the Constitution, it could not be utilized; but if it was spelled out, Justice Black viewed the literal commands of any provision as absolutist, especially the First Amendment’s quintet of rights, which Justice Benjamin Cardozo had pronounced as being “the matrix, the indispensable condition, of nearly every other form of freedom.”

When Hugo Black joined the Court in 1937, only those few rights that conformed to Justice Cardozo’s fundamental rights test, which he had created in *Palko v. Connecticut (1937) earlier that year, had been incorporated, or would soon be by virtue of his classification. Justice Black, however, would steer the Court to a triumphant “selective incorporation,” that is, application to the states on a case-by-case basis of most provisions in the Bill of Rights, guarantees that all of the states are now constitutionally bound to follow.

As the Supreme Court concluded its 2002–2003 term, no further provisions of the Bill of Rights had been incorporated since the Fifth Amendment’s double jeopardy clause in 1969. Those provisions that remain “out” include (1) grand jury indictment—a segment of the Fifth Amendment; (2) trial by a jury in civil cases in the Seventh Amendment; (3) the excessive bail and fines prohibitions of the Eighth Amendment; (4) the so-called right to bear arms in the Second Amendment; and (5) the *Third Amendment’s safeguards against involuntary quartering of troops in private homes. There is an increasing recognition and acceptance, both on and off the bench, that there is a national application under the U.S. Constitution of our fundamental civil rights and liberties.

Under the Supremacy Clause of Article VI, state courts cannot interpret the Bill of Rights (or the Constitution generally) differently than the U.S. Supreme Court. But a number of state supreme courts—in many hundreds of opinions since 1969—have in fact interpreted their own constitutions more liberally than the federal constitution to provide additional protections for their citizens. The Supreme Court has found this to be acceptable provided that the enhanced rights are grounded entirely and exclusively in state law or state constitutions (e.g., *Michigan v. Long, 1983). States do not, however, have the authority to reduce civil rights and liberties from what the federal constitution requires.

Consensus and Controversy after Two Hundred Years

In 1991, Americans celebrated the bicentennial of their Bill of Rights. Before the bicentennial and beyond it, Americans agreed generally on the minimal national standards on individual rights that have emerged from the Supreme Court’s Doctrine of Incorporation.

Consensus on nationwide application of most provisions of the Bill of Rights, however, has often been accompanied by controversy about the meaning of particular rights in certain circumstances. At the beginning of the twenty-first century, Americans argued vigorously about various constitutional rights issues. In particular, troubling new issues emerged that pertained to intrusive technology and national security policies stemming from the “war on terror” following the tragedy of 11 September 2001 (see detainee cases). In Kyllo v. United States (2001) for example, the Supreme Court maintained traditional Fourth Amendment guarantees by ruling that a thermal imaging device cannot be used without a search warrant to intrusively examine from a distance the interior of a private dwelling. But in United States, et al. v. *American Library Association (2003), the Court partially restricted *First Amendment freedoms of speech and press via the Internet by upholding the Children’s Internet Protection Act. This federal law requires public libraries that receive federal funds to install software in their personal computers to prevent minors from accessing obscene or pornographic content. In Chavez v. Martinez (2003), the Supreme Court’s first case stemming from the “war on terror” about the rights of suspects, the majority decided that failure to read “Miranda warnings” prior to questioning the suspect did not necessarily violate Fifth Amendment protection against self-incrimination.

Strong public interest in the continuing civil liberties controversies shows that the spirit of the Bill of Rights is deeply engraved in the collective consciousness of Americans.

Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction (1998). Hugo Lafayette Black, A Constitutional Faith (1968). David J. Bodenhamer and James W. Ely, Jr., eds., The Bill of Rights in Modern America after 200 Years (1993). John J. Dinan, Keeping the People’s Liberties: Legislators, Citizens, and Judges as Guardians of Rights (1998). Leonard W. Levy, Origins of the Bill of Rights (1998). Michael J. Perry. We the People: The Fourteenth Amendment and the Supreme Court (1999). Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights (1992).

Henry J. Abraham; revised by John J. Patrick