The Bill of Rights is widely viewed as the American people's most important defense of their civil liberties. However, many proponents of the U.S. Constitution intended that it would not protect Americans' rights.

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December 15 is Bill of Rights Day in the United States.   As President Obama's proclamation states,

When President Franklin D. Roosevelt recognized the 150th anniversary of our Nation's Bill of Rights, he called it the "great American charter of personal liberty and human dignity."   He understood that the freedoms it protects - among them speech, worship, assembly, and due process - are freedoms that reinforce one another.   They form the bedrock of the American promise, and we cannot fully realize one without realizing them all.

Unfortunately, both Roosevelt and Obama have ignored the Bill of Rights and violated the fundamental human rights of people in America and abroad.

Most Americans grow up thinking of the Bill of Rights as our primary defense against governmental entities that might, from time to time, become over-zealous in their desire to ensure our security, and encroach on our rights.   But in 21st Century America, one has to wonder how effective a bulwark the Bill of Rights has been.   Organizations such as the American Civil Liberties Union and the Center for Constitutional Rights argue that the federal and state governments are violating our rights at this very moment.  

One certainly can question how effective the Bill of Rights has been in protecting our rights.   For one thing, it doesn't even address fundamental human rights such as the right to travel within a country, which was recognized in the Magna Carta in 1215.   But even the rights which were supposed to be enshrined in the Bill of Rights are now ignored by current policies: The "right of the people peaceably to assemble," included in the First Amendment, is routinely violated by laws that require permits and restrict demonstrations to "free speech zones," which are not mentioned anywhere in the Constitution.   And HR 347, which took effect this year, makes it a felony punishable by up to 10 years in jail to merely be in the presence of anyone under Secret Service protection.   You don't even have to know the party is protected by the Secret Service to be found guilty.

Although the First Amendment states that , "Congress shall make no law... abridging the freedom of speech, or of the press," our rights to freedom of expression on the internet have been threatened by proposed legislation like SOPA and PIPA.   Although these bills have been defeated for now, there is reason to believe that similar legislation will be proposed in the future.

Most of the other nine amendments have fared no better.   Gun control supporters have simply ignored the Second Amendment, instead of amending the Constitution.   Although the Fourth Amendment purports to protect us against warrantless searches and seizures, warrantless wiretaps and searches are commonplace.   In fact, when the Bush administration was caught conspiring with telecommunications companies to violate federal law and spy on Americans, Congressman Adam Schiff (D-CA) simply wrote an amendment to the FISA act that legalized their behavior after the fact.    

The Fifth Amendment was supposed to protect people from capital punishment without a Grand Jury indictment, and to prevent private property from being "taken for public use without just compensation."   But now, President Obama claims the right to assassinate anybody, anywhere in the world, without any indictment or trial whatsoever.    And eminent domain laws are routinely used to take property away from their rightful owners and given to other private owners (usually big businesses), instead of being used for any public purpose whatsoever.   This practice, usually done in the name of economic development, always concentrates wealth in the hands of the politically powerful.

The Sixth Amendment is supposed to protect people's right to a fair trial when they are accused of a crime, but the recent National Defense Authorization Act includes provisions that allow the federal government to jail people indefinitely, without any trial whatsoever.   Unfortunately the amendment by Senator Dianne Feinstein (D-CA), which was supposed to resolve that problem, was mere window dressing.

The Eighth Amendment, which supposedly protects people from excessive bail, excessive fines, and torture, has clearly been ineffective in the cases of Bradley Manning and the Guantanamo prisoners.    And the Ninth and Tenth Amendments, which supposedly limited the federal government's powers to the ones expressly provided for in the Constitution, have been widely ignored.   In fact, these amendments are so lightly regarded that, according to the University of Missouri at Kansas City, "in some usages 'The Bill of Rights' refers only to the first eight amendments."  

 It appears that the Third Amendment (which prevents quartering of soldiers in private homes during peacetime) and the Seventh Amendment (providing for a right to jury trial in any civil suit exceeding $20) are the only ones being implemented.   So, if indeed, "They form the bedrock of the American promise, and we cannot fully realize one without realizing them all," then where does that leave us?

It might be useful to look at the history of the Bill of Rights.   Contrary to the prevailing conventional wisdom, the adoption of the U.S. Constitution was not universally accepted.   In fact, many Americans saw the Constitution's supporters as a counter-revolutionary movement.   Many of those who fought against British rule were just as suspicious of government power that originated within the former colonies.   These opponents of a strong central government, who favored keeping the loose confederation of states that existed under the Articles of Confederation were given the misleading name, "Anti-Federalists."   According to Saul Cornell in The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788 - 1828,  "Anti-Federalists' view of liberty and rights was still closely akin to the one patriot leaders espoused in 1766."

By the time of the American Revolution, most political leaders in the British colonies had extensive experience writing constitutions for their colonies, and for their states after independence.   Many of these constitutions included bills of rights that the colonial and state governments were forbidden to encroach upon.   The Anti-Federalists, who were already suspicious of a strong central government, saw the lack of a Bill of Rights in the original text of the Constitution as confirmation of their view that the Federalists wanted a government that could take away the freedom they had fought so hard to win from the British Empire.   According to Cornell,

 

[The Anti-Federalist John] DeWitt was not satisfied with the argument, frequently employed by the Federalists, that the Constitution was a limited grant of authority and hence did not require a bill of rights.   Bills of rights functioned as an additional check on those who might try to manipulate the language of constitutions for nefarious purposes.   Americans were aware "that the words made use of, to express the rights so granted might convey more than they originally intended."   The proper remedy for such a danger was to "express in different language those rights which the agreement did not include."   Judged by DeWitt;s standards, the new constitution was flawed in two profound ways.   It lacked a formal bill of rights and contained too many ambiguous grants of power.

One Anti-Federalist writer, using the pseudonym Columbian Patriot, went so far in his criticism of the proposed Constitution as to say that

 

The undefined meaning of some parts, and the ambiguities of expression in others, is dangerously adapted to the purposes of an immediate aristocratic tyranny.

In order to ensure that the Constitution would be adopted, at the Virginia ratification convention the Federalists agreed to include a bill of rights later.   According to the University of Missouri at Kansas City's website,

 

In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that.   With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes [sic] into session.   The concession was undoubtedly necessary to ensure the Constitution's hard-fought ratification.   Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison called the omission of a Bill of Rights a major mistake:   "A bill of rights is what the people are entitled to against every government on earth."

But when the First Congress considered the Bill of Rights, the Federalists and Anti-Federalists argued over how far they would go in limiting the new government's power.   According to Cornell, "The goal of the Anti-Federalists was to limit the powers of the new government and bolster the states so that they would continue to be in a position to protect the liberty of their citizens."

The Anti-Federalists proposed several amendments which were not recommended by the Special Committee.   These amendments were rejected by Congress.   When ten of the twelve amendments submitted by the Special Committee were adopted, the Anti-Federalists did not believe they would be adequate to protect Americans' freedom.   As Cornell wrote:

 

William Grayson confided to Patrick Henry that amendments being considered in Congress "shall affect personal liberty alone, leaving the great points of the Jud[iciar]y and direct taxation etc. to stand as they are."...   Grayson's observation that the proposed amendments "are good for nothing, and I believe as many others do, that they will do more harm than benefit" reflected his concern that issues of taxation and the structure of the new federal judiciary could render all other amendments protecting personal liberty nugatory....   To Grayson, the threat that the new government would overstep its bounds and use the power of taxation arbitrarily and oppressively negated any paper check on governmental authority.   This threat was compounded by the nature of federal judicial power.   Where the only legal recourse to challenge federal authority would be through the federal courts, without structural change mere parchment barriers could not protect liberty.

The debate over the Tenth Amendment reflected the struggle of the Anti-Federalists to obtain specific language to limit the federal government's powers, and the Federalists' ability to prevail with broader, more ambiguous language.   According to Cornell,

 

No issue was more bitterly contested than the Anti-Federalist effort to limit the powers of the new government to those expressly delegated by the Constitution.   Madison's response was an amendment:   "The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the states respectively."   Anti-Federalist Thomas Tudor Tucker moved to insert the word "expressly" between "not" and "delegated."...   Without the insertion of the word "expressly," many Anti-Federalists believed that amendments were of little consequence: the new government would eventually absorb all power within its orbit....   More than any other issue, the notion of restricting the powers of the government to those expressly delegated by the Constitution would define the core around which a distinctively Anti-Federalist interpretation of federalism would evolve into a dissenting constitutional discourse.

Another issue which divided Federalists and Anti-Federalists was control of the military.   As far back as England's Glorious Revolution, many writers (including the authors of Cato's Letters) had warned that standing armies were threats to the people's freedom.   The Articles of Confederation reflected this view, and it allowed state militias, but not a national army, during peacetime.   As described by Cornell,

 

Elbridge Gerry reminded members of Congress of the indispensable role that a militia played in a republican government.   "What, sir, is the use of a militia?   It is to prevent the establishment of a standing army, the bane of liberty."   The importance of this issue was difficult to overstate.   "Whenever government[s] mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."   Gerry sought to define the role of the militia such that it would continue to be a creature of the states....   A sacred tenet of republican faith was that standing armies were dangerous to liberty, and Gerry feared that the language of the proposed amendment opened that door.

As with the ratification controversy, the Federalists prevailed over the Anti-Federalists in forming the Bill of Rights.   As one can imagine, the Anti-Federalists were pessimistic about the country's future:

 

A number of prominent Anti-Federalists, including Gerry, believed that the amendments adopted by the First Congress failed to achieve the structural changes necessary to protect the rights of individuals and the power of the states....

In the view of Aedanus Burke, those amendments... adopted were not "those solid and substantial amendments which the people expect; they are little better than whip-syllabub, and frothy and full of wind, formed only to lease the palate....

Richard Henry Lee, like other Anti-Federalists, assessed the amendments approved by Congress even less optimistically.   "The idea of subsequent amendments was delusion altogether, and so intended by the greater part of those who arrogated to themselves the name of Federalists."   He echoed the arguments of his fellow Virginians:   "The great points of free election, Jury trial in criminal cases much loosened, the unlimited right of Taxation, and Standing Armies in peace, remain as they were.   Some valuable Rights are indeed declared, but the powers that remain are very sufficient to render them nugatory at pleasure."

Even some Federalists were skeptical of the Bill of Rights:

 

Federalist George Clymer wrote to Tench Coxe, dewcribing "Madison's amendments" as a mere placebo:   "Like a sensible physician," Madison "has given his malades imaginaires bread pills powder of paste and neutral mixes to keep them in play."

With the Federalist victory in forming the content of the Bill of Right, the debate changed to interpretation of the Constitution, and the extent of powers it gave the federal government.   Cornell cites the experience of Pennsylvania Senator William Maclay as an example of a Federalist who was not altogether pleased with the results of his party's victory:

 

A supporter of the Constitution in 1787 - 1788 and a Democratic-Republican during the 1790s, Maclay's observations about politics provide important clues to the evolution of political discourse in this period....   He noted the emergence of a new group, which he described as the "Court party."   This group was committed to strengthening the executive branch and generally expanding the powers of the federal government.   Maclay even found himself in agreement with the "notorious Antifederalist" from Virginia, Lee.

The development of the "Court party" did not surprise many Anti-Federalists, who suspected the Federalist leaders of being power-hungry all along.   The fact that the Alien and Sedition Acts were enacted by the Federalists, in obvious violation of the First Amendment, must have seemed to confirm their suspicions.   According to Cornell,

 

For many Anti-Federalists, the actions of the court faction vindicated their earlier stance during ratification; the most politically astute realized that it was vital to forge a working alliance with those members of the old Federalist coalition who were alarmed by the rise of a court-style political faction.

The fact that some Federalists were surprised by the emergence of the court faction indicates that they were, intentionally or not, mislead about the motives of some Federalist leaders.   Senator Maclay's experience illustrates this point:

 

Maclay... took exception to William Grayson's suggestion that the court party was merely carrying forward the designs of the original supporters of the Constitution....   He thought Grayson's reference to Patrick Henry's charge that "consolidation is the object of the New Government" was "remarkable."...

Maclay was especially puzzled by the newfound affection for British government expressed by members of the court party.   He was particularly confused by the "conduct of [William] Patterson," who had "been characterized to me as a Staunch Revolution man and Genuine Whig."   Despite this reputation, Patterson "has in every republican Question deserted and in some instanced betrayed Us."   A clear pattern had emerged in the First Congress, and Maclay sincerely believed that "the desi[gns] of a certain party" were to use "the General Power to carry the Constitution into effect by a constructive interpretation."   This strategy "wou[l]d extend to every Case That Congress may deem necessar[y] or expedient."

Thus, the First Congress validated the Anti-Federalists' warnings that adopting the Constitution would result in a government far more powerful than most Americans realized.   And, even if we give every benefit of the doubt to the Federalists, Cornell's next statement makes it clear that at least some of them intentionally his their true intentions from the public:

 

Maclay was astonished that politicians boasted that they had "cheated the People" and established "a form of Government over them which none of them expected."

Clearly, Maclay and many other well-intentioned Americans were fooled into ratifying a Constitution that gave away much of the freedom they had fought for during the American Revolution.   And in return, they received guarantees that their framers knew would be ineffective.   Is it any wonder that, more than 200 years later, we find our rights under assault?

Happy Bill of Rights Day, America.

Authors Bio:
Alan Pyeatt is an award-winning Civil Engineer who lives in Monrovia, California. He also enjoys music, organic gardening, economics, and audio/video production.