After the Revolution, the States adopted their own constitutions, many of which contained the Bill of Rights. The Americans still faced the challenge of creating a central government for their new nation. In 1777 the Continental Congress adopted the Articles of Confederation, which were ratified in 1781. Under the Articles, the states retained their ‘sovereignty, freedom and independence,’; while the national government was kept weak and inferior. Over the next few years it became evident that the system of government that had been chosen was not strong enough to completely settle and defend the frontier, regulating trade, currency and commerce, and organizing thirteen states into one union.Order now
So in the summer of 1787 delegates from the twelve states convened in Philadelphia to draft a new Constitution. They proposed a strong national government that would assume many of the powers previously imposed upon the states. (1) ‘No sooner than had the Continental Congress laid the proposed Constitution before the people for ratification, ‘; Irving Brant writes, ‘than a cry went up: it contained no Bill of Rights.’;(2) People objected because the liberties they had fought for in the Revolution were not being protected by the Constitution, and then could be ignored by the federal government. The Anti-Federalist called for another convention to outline a Bill of Rights before the Constitution was approved. The Federalist, fearing that the progress would unravel completely, urged immediate ratification.
With the understanding of a Bill of Rights to follow later. Eventually the Federalist prevailed. By 1788, eleven states had ratified the Constitution. Six states, however, sent Congress proposals for amendments, modeled on their state constitutions and designed to protect individual rights. (1)
James Madison realized that the public desire for a Bill of Rights could not be ignored. In 1789, after reviewing the state proposed amendments and the state Bill of Rights to be considered by Congress, he proposed nine amendments to be considered by Congress for insertion into the text of the Constitution.
After deliberation, debate, and some alterations, the House and Senate voted to add the amendments on the end of the Constitution and sent twelve amendments to the states for ratification. (1) Only ten of theses were ratified and from those are what we know as the Bill of Rights today.
As ratified in 1791, the Bill of Rights protected individual rights from violation by the federal government. For example the First Amendment begins, ‘;Congress shall make no law…
‘; Madison’s original draft had contained a proposal that would have also prohibited state governments from violating the Bill of Rights, but the Senate deleted it. (1)
It was not until after the Civil War that the Thirteenth, Fourteenth, and Fifteenth amendments were enacted and began protecting individuals against the states. The Fourteenth Amendment has been the principal means by which this protection has been accomplished. It reads, in part, ‘No State shall…
deprive any person of life, liberty, or property without due process of law.’; The Supreme Court had interpreted this guarantee of liberty to embrace the fundamental liberties in the Bill of Rights, meaning that the state governments must observe and protect them to the same extent as the federal government this is also known called incorporation. The amendments in the Bill of Rights are said to be incorporated against the states through the due process clause of the Fourteenth Amendment. There has been an ongoing debate on the Supreme Court about the extent of incorporation, and whether the entire Bill of Rights, or only some of it’s guarantees, should be incorporated against the states. (1)
The Supreme Court views and attitudes can change over time. First the membership of the court changes when a justice retires or dies, and when the new justice is appointed to fill his position the new justice may not share the same views as the previous one.
Also, new developments occur with the passing of time, which may cause a change in attitudes and feelings bringing about new concerns on an issue. (3)
One Supreme Court reversal with far reaching consequences involved the Court’s interpretation of whether the Bill of Rights protected citizens from state, as well as national violations. In 1833 case of Barron v. Mayor and .