Dutko Law, LLC


The Bill of Rights: History and Overview, Part 1

The Bill of Rights: History and Overview, Part 1

Here in America, we have a proud and storied history. As a Reading family, labor law, and criminal defense lawyer, we are no strangers to the history of America’s legal system. One of the most iconic parts of that system is the Bill of Rights. Many countries had them before the United States, and in fact, each state had them before the formation of the United States. However, no other country’s or state’s bill of rights has garnered quite as much attention as ours. As Americans, it is our duty to understand and learn from our country’s history. To that end, we thought we’d go over the history of the Bill of Rights, as well as an overview of its amendments.

Detractors of the Constitution

You may have heard the terms “Federalist” and “Anti-Federalist” before in a history class. Federalists were for the United States constitution, while Anti-Federalists were against it. Notable Anti-Federalist states included New York, Virginia, and Massachusetts, with prominent patriots and founding fathers including Sam Adams, George Mason, Patrick Henry, and Richard Henry Lee.

The argument of Anti-Federalists boiled down to the fear that the states would get absorbed by the national government, the president and senators would collude to create an aristocratic class, and even that the president might attempt to become a monarch.

However, they were not patently against a federal government, they just were skeptical at the lack of an acceptable bill of rights. As we mentioned, many states already had a bill of rights and didn’t want it superseded by federal power. After fighting a war that they espoused was for personal liberty, they did not want those liberties taken away by trading out a domestic power for a foreign one.

Proponents of the Constitution

Notable Federalist proponents included George Washington, John Jay, Jon Marshall, Alexander Hamilton, and James Madison. In a bid to drum up support for the new constitution, Madison, Hamilton, and Jay published a series of papers explaining their cause, which came to be known as the Federalist Papers. In these papers, calm and even-tempered apologies were used to address the concerns laid out by the Anti-Federalists. They carefully laid out all the safeguards in place to protect people from a domestic tyrant.

11 states had already ratified the Constitution by 1788, but that wasn’t enough for the government to go into effect. Two states, North Carolina and Rhode Island, held out on ratification until after the government was created. However, their needs were heard and by 1791 they had joined and the Bill of Rights was approved.

Amendment Overview

The Bill of Rights and the Constitution were meant to be living, breathing documents. Even today, courts are constantly making decisions that affect what their implementation actually looks like. Here is just a general overview of what each right entails.

The First Amendment: Thought Liberties

Arguably the most important amendment in the Bill of Rights, the First Amendment lays out basic liberties involved with thought, expression, and belief, and could largely be attributed to the Anti-Federalists.

  • Freedom of Speech

    — America has always prided itself on free speech, and this amendment is why. However, it does come with some limitations. For instance, slandering someone’s reputation with false allegations is still illegal, as is yelling “Fire” in a crowded area where panic could cause injury. If these limitations seem vague, that’s because they are, and are constantly being reevaluated. Some controversies regarding what is and isn’t protected speech include speech with children present and speech made by an authority figure, such as the president. Additionally, free speech is only legally protected from and by the government, and the amendment can’t be used as a defense against social or many instances of corporate pressure in reaction to certain speech.

  • Freedom of Religion

    — The gist of this belief is that the government can’t make you accept one religion (or set of religious beliefs) over another. It’s a little more cut and dry than freedom of speech, but there are still controversies. For instance, recently the Supreme Court has upheld its verdict that forcing prayers and a moment of silence in school violates the First Amendment.

  • Freedom of Press

    — Freedom of press is essentially the freedom of speech extended to professional reporters. It means that a reporter cannot be punished for reporting news, as long as that report is not a deliberate lie. Additionally, news, print, magazines, books, and movies/television do not have to be inspected by the government before being published.

  • Freedom of Assembly/Petition

    — We lumped these together because they’re similar. Americans are able to both criticize government policies and join in political parties and groups of their choosing. This allows them to organize and have their critiques heard without fear of violent government reprisal.
    The Second Amendment: Right to Bear Arms
    The Second Amendment allows for a “well-regulated militia” for individual states, as well as the “right to bear arms”. Despite popular knowledge, the blanket right for citizens to bear arms wasn’t established until 2008 in the landmark District of Columbia v. Heller case in 2008. Before that, there was a heavy debate about whether the citizens’ “right to bear arms” was meant to be taken inherently, or in the context of “For a well-regulated militia”.

The Third Amendment: No Housing Troops

Before the American Revolution, the British forces had often commandeered colonists’ lodgings for military purposes, as well as raiding their food stores. This instilled a deep resentment in the colonists, who made this act unconstitutional, at least during times of peace when the country is not at war.

The Fourth Amendment: Protection Against Search and Seizure

This amendment provides protections for those accused of a crime. While there is a common adage of “innocent until proven guilty” in this country, in effect that’s not always the case. However, this amendment provides some much-needed protections in the spirit of the adage. These include the right of security in your person, property, and homes. A warrant is required for these actions. However, this protection has been legally circumvented in a number of instances, one instance being the (according to some studies, unreliable) use of drug dogs to gain access to vehicles without consent.

The Bill of Rights History and Overview

Hopefully, the first half of The Bill of Rights history and overview proved interesting. Stay tuned for the next half later this month. We believe that all citizens should be aware of their history, and the rights those history provides in order to avoid having those rights taken away, and improving on them in the future. If you require labor law, family law, or criminal law services in Reading or the surrounding areas, please don’t hesitate to give us a call. One of our knowledgeable representatives will be happy to answer any questions you may have.