Chapter 2.0. Amendments: The Bill of Rights, Introduction

The First U.S. Congress to meet under the new Constitution (March, 1789- March, 1791) began with a House of Representatives of 65 members, as specified in the apportionment clause (C1.2.3), and a Senate of 26 members, with two from each state (C1.3.1); for the Constitution itself, see above, Module 8, ch. 3. As the delegates to the Philadelphia Convention had anticipated, the First Congress would make some momentous decisions, including the adoption of the first ten amendments, which are known as the Bill of Rights.

This introductory section provides background on the passage of these amendments, drawing some of this material, including the original text below, from the National Archives’ site on “America’s Founding Documents,” under the Bill of Rights. Most of the specific rights included in these amendments were already traditional by 1776, deriving from the two overlapping traditions, English and American colonial, that we have studied earlier in this class. According to Gordon Lloyd, the second of these two traditions was the most important: he traces 40% of these specific rights to the English tradition, but fully 70% to the American colonial experience. For more on these roots, see his analysis on the Teaching American History website, under The English and Colonial Roots of the U.S. Bill of Rights.

Congress Proposes a Bill of Rights, 1789. Partly in response to Antifederalist criticisms, James Madison dropped his early position that the structure of the Constitution so limited the federal government as to make such a statement of rights unnecessary. Instead, as a representative from Virginia, on June 8, 1789, he introduced a bill that contained versions of all of the later first ten amendments. After further debate, on Sept. 25, 1789, both houses of Congress passed by the necessary two-thirds majorities a joint resolution that included twelve amendments to the Constitution, and recommended that the states ratify them.

Ratification, 1791. Ten of the proposed twelve amendments were ratified by three-fourths of the state legislatures on December 15, 1791. The ratified Articles (Articles 3–12) constitute the first 10 amendments of the Constitution, or the U.S. Bill of Rights. In 1992, 203 years after it was proposed, Article 2 was ratified as the 27th Amendment to the Constitution. Article 1 has never been ratified. Notes have been added in brackets to indicate the current number of the amendment, if ratified.

*Note: The above introduction is part of the required reading. However, the details of the text below, Madison’s original proposal of twelve amendments, is optional. In some cases you may find the wording interesting to compare with that of the final first ten amendments (see the next sub-chapter), but you do not have to study this wording for any quiz, nor are you required to use it in your papers.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Article the first… [not ratified]. After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second… [27th Amendment, ratified 1992]. No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third… [1st Amendment]. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article the fourth… [2nd Amendment]. 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.

Article the fifth… [3rd Amendment]. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth… [4th Amendment]. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the seventh… [5th Amendment]. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Article the eighth… [6th Amendment]. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article the ninth… [7th Amendment]. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article the tenth… [8th Amendment]. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the eleventh… [9th Amendment]. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth… [10th Amendment]. 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.