In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government, the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary. The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration, or bill, of individual rights. It specified what the government could do but did not say what it could not do. For another, it did not apply to everyone.
The consent of the governed meant propertied white men only. The Bill of Rights did not come from a desire to protect the liberties won in the American Revolution, but rather from a fear of the powers of the new federal government. The Bill of Rights derives from the Magna Carta, the English Bill of Rights, the colonial struggle against king and Parliament, and a gradually broadening concept of equality among the American people. The bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse. The absence of a bill of rights turned out to be an obstacle to the Constitution’s ratification by the states. It would take four more years of intense debate before the new government’s form would be resolved.
The Federalists opposed including a bill of rights on the ground that it was unnecessary. In the end, popular sentiment was decisive. Recently freed from the despotic English monarchy, the American people wanted strong guarantees that the new government would not trample upon their newly won freedoms of speech, press and religion, nor upon their right to be free from warrant less searches and seizures. So, the Constitution’s framers heeded Thomas Jefferson who argued: A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference. The American Bill of Rights, inspired by Jefferson and drafted by James Madison, was adopted, and in 1791 the Constitution’s first ten amendments became the law of the land.
Early American mistrust of government power came from the colonial experience itself. Most historians believe that the pivotal event was the Stamp Act, passed by the English Parliament in 1765. Taxes were imposed on every legal and business document. Newspapers, books and pamphlets were also taxed. Even more than the taxes themselves, the Americans resented the fact that a distant government in which they were not represented imposed them.
And they were further enraged by the ways in which the Stamp Act was enforced. Armed with writs of assistance issued by Parliament, British customs inspectors entered people’s homes even if they had no evidence of a Stamp Act violation, and ransacked the people’s belongings in search of contraband. The colonialists came to hate these warrant less searches and they became a rallying point for opposition to British rule. The protection of rights was not the government’s only purpose. It was still expected to protect the community against foreign and domestic threats, to ensure economic growth, and to conduct foreign affairs. It was not, however, the government’s job to tell people how to live their lives, what religion to believe in, or what to write about in a pamphlet or newspaper.
In this sense, the idea of individual rights is the oldest and most traditional of American values. Democracy and liberty are often thought to be the same thing, but they are not. Democracy means that people ought to be able to vote for public officials in fair elections, and make most political decisions by majority rule. Liberty, on the other hand, means that even in a democracy, individuals have rights that no majority should be able to take away.
The most common constitutional violations went unchallenged because the people whose rights were most often denied were precisely those members of society who were least aware of their rights and least able to afford a lawyer. They had no access to those impenetrable bulwarks of liberty, the courts.