The first 10 amendments to the U.S. Constitution are commonly referred to as the Bill of Rights. These 10 articles resulted from the clash between those who supported replacing the Articles of Confederation with the Constitution, drafted by the convention in Philadelphia, and those who opposed the new document. Opponents of the Constitution—dubbed Anti‐​Federalists by its proponents—argued that the Constitution created a consolidated or national government. As evidence for that charge, they cited the lack of a Bill of Rights, which, in Thomas Jefferson’s words, was “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.” Anti‐​Federalists were not so much interested in obtaining a Bill of Rights as they were in using its absence as a reason to reject the Constitution altogether.

Supporters of the Constitution, who called themselves Federalists, argued that a Bill of Rights was both unnecessary and dangerous. It was unnecessary because the general government was one of limited and enumerated powers and was not given the power to violate such rights as the right to freedom of the press. As Alexander Hamilton wrote, “Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

Federalists also argued that a Bill of Rights would be dangerous because the enumeration of any rights would inevitably be incomplete, but would nevertheless imply that those rights not enumerated had been surrendered to the general government and were thereby lost. Later, James Madison summarized this objection in noting that,

by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure.

Although ingenious, those arguments were ultimately unpersuasive. Opponents of the Constitution pointed to the few rights that were already explicitly protected in the text and replied that, even if an incomplete enumeration were dangerous, the danger already existed, and it could only improve matters to lengthen the list. When it became clear that the Constitution would not be approved by the necessary number of state legislatures, Federalist supporters turned the tables on the Anti‐​Federalists by pledging to propose to the states a Bill of Rights after the Constitution was ratified. That promise tipped the balance, and the Constitution was narrowly approved. Along with their ratification, several states submitted to Congress long lists of amendments they wished adopted. Some of those proposed changes in the structure or powers of the general government, whereas others were explicit protections of rights.

Getting the first Congress to consider a Bill of Rights, however, was not easy. The Annals of Congress show Representative James Madison repeatedly urging the House to take up the matter, only to be opposed by other members who were more interested in enacting taxes than in drafting a Bill of Rights to protect against “speculative” abuses that might occur in the future. Madison persisted and eventually offered his own list of proposed amendments. He was named to a select committee of the House that considered his and other proposals. The first Congress ultimately proposed 12 amendments to the states, the first 2 of which were not ratified. (One of those first two amendments, which concerns when increases in compensation for members of Congress may take effect, was ratified in 1992; it is now the 27th Amendment.) What is now the 1st Amendment was actually the 3rd of those originally proposed. What we now call the Bill of Rights consists of a few of the natural or inherent rights of the people—such as the rights to freedom of speech, freedom of the press, freedom of assembly, and the free exercise of religion—and some enhanced procedural restrictions on the exercise of governmental power, such as the right to be free from unreasonable searches and seizures and the right to a jury trial in civil cases. The 9th and 10th Amendments affirm that the rights of the people extend beyond those that were singled out for enumeration and that the national government was limited to its enumerated powers. In his speech to the House, Madison described what later became to the 10th Amendment as “superfluous” and “unnecessary” in light of “the whole of the instrument.” However, because several states had requested this language, he thought “there can be no harm in making such a declaration.” Madison was much more adamant about the 9th Amendment, considering it his response to “one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system”—viz., that an incomplete enumeration was dangerous because it implied that all rights not enumerated had been surrendered to the general government—“but, I conceive it may be guarded against.” Madison then referred his audience to what eventually became the 9th Amendment.

Historical accounts of the Bill of Rights are revealing in a number of ways. First, they support the view adopted by the U.S. Supreme Court in Barron v. Mayor of Baltimore (1833) that the Bill of Rights only applied to the national government and not the states. That became a bone of contention in the years leading up to the Civil War and set the stage for the 14th Amendment, which was intended by its authors to reverse Barron by extending federal protection of the “Privileges or Immunities” of citizens against infringement by their state governments.

Second, scrutiny of the debates makes it clear that the Bill of Rights was not intended to change anything. It was generally agreed that it was not strictly necessary to add those rights because they were already protected. They were added only out of a sense of caution. But that implied that those rights were protected both before and after they were enumerated. It further suggested that unenumerated rights deserved the same protection as had been accorded enumerated rights, an inference made explicit in the 9th Amendment. The Amendment reads, “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

Somewhat surprisingly, none of the enumerated rights received much, if any, attention in the early years of the United States. Indeed, the first time that a federal statute was held to be an unconstitutional violation of the 1st Amendment was in the 1965 case of Lamont v. Postmaster General. The most likely reason for the early neglect of the Bill of Rights by the courts was that, in the early years of the Republic, as was already noted, the Bill of Rights did not apply to state laws, and the national government largely kept within its enumerated powers. Even where Congress or the president did claim broader implied powers, those powers did not usually restrict the liberties of the people. The early history strongly suggests that a Bill of Rights is of greatest functional importance when governmental powers are not properly limited.

This question thus arises: Who was more prescient, the Federalists, who declared a Bill of Rights to be unnecessary and dangerous, or the Anti‐​Federalists, who insisted on having one? Clearly both were right. The Federalists’ warning that a Bill of Rights would be dangerous has largely come true. With few exceptions, such as the right of privacy or the right to travel, only the enumerated rights have received any protection. Notwithstanding the 9th Amendment, in practice, almost every right that was not enumerated has been considered to have been surrendered to the general government. However, the Anti‐​Federalists accurately foresaw that the scheme of enumerated powers was inadequate to protect the rights retained by the people. Thanks to their insistence, the Bill of Rights has served as an essential, although incomplete, safeguard to limit the powers of government.

Further Readings

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998.

Barnett, Randy E., ed. The Rights Retained by the People: The History and Meaning of the Ninth Amendment. 2 vols. Fairfax, VA: George Mason University Press, 1989–1993.

Bodenhamer, David J., and James W. Ely, Jr., eds. The Bill of Rights in Modern America: After 200 Years. Bloomington: Indiana University Press, 1993.

Cogan, Neil, ed. The Complete Bill of Rights. New York: Oxford University Press, 1997.

Hickok, Eugene E., Jr., ed. The Bill of Rights and Current Understanding. Charlottesville: University Press of Virginia, 1991.

Veit, Helen E., Kenneth R. Bowling, and Chalene Bangs Bickford, eds. Creating the Bill of Rights: The Documentary Record from the First Federal Congress. Baltimore: Johns Hopkins University Press, 1991.

Randy E. Barnett
Originally published