5.2: The Bill of Rights

Civil liberties were at the heart of the ratification debate between Federalists and Anti-Federalists. Both sides recognized the importance of liberty. Most delegates to the Constitutional Convention had fought in the American Revolutionary War and understood firsthand both how precious it was and how easily it could be lost. The question was not whether liberty needed protecting but how to protect it.

The Anti-Federalists feared the new Constitution would embolden the national government to pass laws that would chip away at the people’s liberties. To prevent this, they demanded a clearly specified list of rights, like the lists in many of the states’ constitutions. The Federalists promised the Constitution would not undermine liberty, but the Anti-Federalists wanted those promises in writing as part of the Constitution itself.

To the Federalists, this approach seemed wrongheaded. First, it was redundant. The Constitution already imposed clear limits on the national government, so a list of rights was unnecessary. (As Alexander Hamilton put it in Federalist No. 84, “Why declare that things shall not be done which there is no power to do?”) Second, attempting to protect rights by listing them could backfire. There were simply too many rights to include them all, and any right left off the list would inevitably be perceived as less important or perhaps even nonexistent on account of its omission.

Ultimately, the Anti-Federalists won out. In exchange for their support for ratification, the Federalists reluctantly pledged that the new Congress would immediately take up the task of crafting a list of rights to append to the Constitution. James Madison begrudgingly led the effort to whittle down over 200 proposed amendments to a list of just 12. Ten of those 12 were ratified by the states in 1791, making them the first ten amendments to the Constitution, known as the Bill of Rights. (See Figure 5.1 below for a summary of the Bill of Rights, the full text of which can be found beginning on page 193.)

Figure 5.1: Bill of Rights (summarized)

Each of the first eight amendments in the Bill of Rights explicitly enshrines one or more civil liberties. The Ninth Amendment addresses one of the Federalists’ worries by noting that the presence of a Bill of Rights in the Constitution should not be interpreted as a sign that other, unlisted rights do not exist. The Tenth Amendment stipulates that any powers not granted to the national government in the Constitution are reserved for the states or the people, preventing the national government from arbitrarily claiming extra powers.