Saturday, February 19, 2011

US Bill of Rights

United States Bill of RightsFrom Wikipedia, the free encyclopedia
United States Bill of Rights
(At end see addendum on Pastor Niemoller's famous statement: "First they came for the Socialists...")

United States Bill of Rights
Created September 25, 1789
Ratified December 15, 1791
Location National Archives
Authors James Madison
Purpose To set limits on what the government can and cannot do in regard to personal liberties.
The Bill of Rights is the name for the first ten amendments to the United States Constitution.[1] They were introduced by James Madison to the First United States Congress in 1789 as a series of legislative articles and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States.

The Bill of Rights is a series of limitations on the power of the United States federal government, protecting the natural rights of liberty and property including freedom of speech, a free press, free assembly, and free association, as well as the right to keep and bear arms. In federal criminal cases, it requires indictment by a grand jury for any capital or "infamous crime", guarantees a speedy, public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibits double jeopardy. In addition, the Bill of Rights reserves for the people any rights not specifically mentioned in the Constitution[2] and reserves all powers not specifically granted to the federal government to the people or the States. Most of these restrictions on the federal government were later applied to the states by a series of legal decisions applying the due process clause of the Fourteenth Amendment, which was ratified in 1868. The Bill was influenced by George Mason's 1776 Virginia Declaration of Rights, the 1689 English Bill of Rights, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as Magna Carta (1215).

Delegates to the Philadelphia Convention on September 12, 1787 debated whether to include a Bill of Rights in the body of the U.S. Constitution, and an agreement to create the Bill of Rights helped to secure ratification of the Constitution itself.[3] Ideological conflict between Federalists and anti-Federalists threatened the final ratification of the new national Constitution. Thus, the Bill addressed the concerns of some of the Constitution's influential opponents, including prominent Founding Fathers, who argued that the Constitution should not be ratified because it failed to protect the fundamental principles of human liberty.

Twelve articles were proposed to the States, but only the last ten articles were ratified in the 18th Century, corresponding to the First through Tenth Amendments. The proposed first Article, dealing with the number and apportionment of U.S. Representatives, never became part of the Constitution. The second Article, limiting the power of Congress to increase the salaries of its members, was ratified two centuries later as the 27th Amendment.

The Bill of Rights plays a key role in American law and government, and remains a vital symbol of the freedoms and culture of the nation. One of the first fourteen copies of the Bill of Rights is on public display at the National Archives in Washington, D.C.

Contents [hide]
1 Text of the Bill of Rights
1.1 Preamble
1.2 Amendments
1.3 Proposed amendments not passed with Bill of Rights
2 Background
2.1 Early sentiments favoring expanding the Bill of Rights
2.2 The Anti-Federalists
2.3 Ratification and the Massachusetts Compromise
2.4 Ratification timeline
2.5 Antecedents
2.5.1 Locke
2.5.2 Virginia Declaration of Rights
2.5.3 English Bill of Rights
2.6 Madison's preemptive proposal
3 Ratification process
3.1 Ratification dates
3.2 Later consideration
4 Copies of the Bill of Rights
5 Incorporation extends to States
6 Display and honoring of the Bill of Rights
7 See also
8 References
9 Bibliography
10 External links
10.1 U.S Government sites
10.2 Related documents
10.3 History and analysis

Text of the Bill of RightsPreambleCongress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.[4]

AmendmentsFirst Amendment – Establishment Clause, Free Exercise Clause; freedom of speech, of the press, and of assembly; right to petition
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Second Amendment – Militia (United States), Sovereign state, Right to keep and bear arms.
A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. [5]

Third Amendment – Protection from quartering of troops.
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Fourth Amendment – Protection from unreasonable search and seizure.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fifth Amendment – due process, double jeopardy, self-incrimination, eminent domain.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Sixth Amendment – Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
Seventh Amendment – Civil trial by jury.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.

Eighth Amendment – Prohibition of excessive bail and cruel and unusual punishment.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Ninth Amendment – Protection of rights not specifically enumerated in the Constitution.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Tenth Amendment – Powers of States and people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Proposed amendments not passed with Bill of RightsArticle I – Apportionment.
After the enumeration required by the first article of the Constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall be not less than two hundred representatives, nor more than one representative for every fifty thousand persons.
Article II (ratified in 1992 as Twenty-seventh Amendment) – Congressional pay raises.
No law varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.
BackgroundThe Philadelphia Convention set out to correct weaknesses inherent in the Articles of Confederation that had been apparent even before the American Revolutionary War had been successfully concluded.[6] The newly constituted Federal government included a strong executive branch, a stronger legislative branch and an independent judiciary.

Early sentiments favoring expanding the Bill of Rights
A portrait of Alexander Hamilton shortly after the American RevolutionThe idea of adding a bill of rights to the Constitution was originally controversial. Alexander Hamilton, in Federalist No. 84, argued against a "Bill of Rights," asserting that ratification of the Constitution did not mean the American people were surrendering their rights, and, therefore, that protections were unnecessary: "Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations." Critics pointed out that earlier political documents had protected specific rights, but Hamilton argued that the Constitution was inherently different:

Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was "Magna Charta", obtained by the Barons, swords in hand, from King John.[7]

Finally, Hamilton expressed the fear that protecting specific rights might imply that any unmentioned rights would not be protected:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?[7]

Essentially, Hamilton and other Federalists believed in the British system of common law which did not define or quantify natural rights. They believed that adding a Bill of Rights to the Constitution would limit their rights to those listed in the Constitution. This is the primary reason the Ninth Amendment was included.

Thomas Jefferson was a supporter of the Bill of Rights.[8] George Mason "wished the plan [the Constitution] had been prefaced with a Bill of Rights." Elbridge Gerry of Massachusetts "concurred in the idea & moved for a Committee to prepare a Bill of Rights." Roger Sherman argued against a Bill of Rights stating that the "State Declarations of Rights are not repealed by this Constitution." Mason then stated "The Laws of the U. S. are to be paramount to State Bills of Rights." Gerry's motion was defeated with 10-Nays, 1-Absent, and No-Yeas.[9]

The Anti-Federalists See also: Anti-Federalism and Anti-Federalist Papers

On June 5, 1788, Patrick Henry spoke before Virginia's ratification convention in opposition to the Constitution: "Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings—give us that precious jewel, and you may take every thing else!"Following the Philadelphia Convention, some famous revolutionary figures and statesmen, such as Patrick Henry, publicly argued against the Constitution.[10] Many were concerned that the strong national government proposed by the Federalists was a threat to individual rights and that the President would become a king, and objected to the federal court system in the proposed Constitution.

Thomas Jefferson, at the time serving as Ambassador to France, wrote to Madison advocating a Bill of Rights: "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can."[11] George Mason refused to sign the proposed Constitution, in part to protest its lack of a Bill of Rights.[12]

In a paper later collected into the Anti-Federalist papers, the pseudonymous "Brutus" (probably Robert Yates) wrote,

We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion — that no bill of attainder, or ex post facto law, shall be passed — that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.[13]

Brutus continued with an implication directed against the Founding Fathers:

Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.[13]

Ratification and the Massachusetts Compromise
George Washington's 1788 letter to the Marquis de Lafayette observed, "the Convention of Massachusetts adopted the Constitution in toto; but recommended a number of specific alterations and quieting explanations." Source: Library of CongressIndividualism was the strongest element of opposition; the necessity, or at least the desirability, of a bill of rights was almost universally felt, and the Anti-Federalists were able to play on these feelings in the ratification convention in Massachusetts. By this stage, five of the states had ratified the Constitution with relative ease; however, the Massachusetts convention was bitter and contentious:

In Massachusetts, the Constitution ran into serious, organized opposition. Only after two leading Anti-federalists, Adams and Hancock, negotiated a far-reaching compromise did the convention vote for ratification on February 6, 1788 (187–168). Anti-federalists had demanded that the Constitution be amended before they would consider it or that amendments be a condition of ratification; Federalists had retorted that it had to be accepted or rejected as it was. Under the Massachusetts compromise, the delegates recommended amendments to be considered by the new Congress, should the Constitution go into force. The Massachusetts compromise determined the fate of the Constitution, as it permitted delegates with doubts to vote for it in the hope that it would be amended.[14]

Four of the next five states to ratify, including New Hampshire, Virginia, and New York, included similar language in their ratification instruments. They all sent recommendations for amendments with their ratification documents to the new Congress. Since many of these recommendations pertained to safeguarding personal rights, this pressured Congress to add a Bill of Rights after Constitutional ratification. Additionally, North Carolina refused to ratify the Constitution until progress was made on the issue of the Bill of Rights. Thus, while the Anti-Federalists were unsuccessful in their quest to prevent the adoption of the Constitution, their efforts were not totally in vain.

James Madison, "Father of the Constitution" and first author of the Bill of RightsAfter the Constitution was ratified in 1789, the 1st United States Congress met in Federal Hall in New York City. Most of the delegates agreed that a "bill of rights" was needed and most of them agreed on the rights they believed should be enumerated.

Madison, at the head of the Virginia delegation of the 1st Congress, had originally opposed a Bill of Rights but hoped to pre-empt a second Constitutional Convention that might have undone the difficult compromises of 1787: a second convention would open the entire Constitution to reconsideration and could undermine the work he and so many others had done in establishing the structure of the United States Government. Writing to Jefferson, he stated, "The friends of the Constitution...wish the revisal to be carried no farther than to supply additional guards for liberty...and are fixed in opposition to the risk of another Convention....It is equally certain that there are others who urge a second Convention with the insidious hope of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself."[15]

Madison based much of the Bill of Rights on George Mason's Virginia Declaration of Rights (1776),[16] which itself had been written with Madison's input. He carefully considered the state amendment recommendations as well. He looked for recommendations shared by many states to avoid controversy and reduce opposition to the ratification of the future amendments.[17] Additionally, Madison's work on the Bill of Rights reflected centuries of English law and philosophy, further modified by the principles of the American Revolution.

Martin Niemöller: "First they came for the Socialists..."
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Martin Niemöller, a prominent Protestant pastor who opposed the Nazi regime. He spent the last 7 years of Nazi rule in concentration camps. Germany, 1937.

— Bildarchiv Preussischer Kulturbesitz
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Martin Niemöller (1892-1984) was an ardent nationalist and prominent Protestant pastor who emerged as an outspoken public foe of Adolf Hitler and spent the last 7 years of Nazi rule in concentration camps.

Niemöller is perhaps best remembered for the quotation:

First they came for the Socialists, and I did not speak out --
Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out --
Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out --
Because I was not a Jew.

Then they came for me -- and there was no one left to speak for me.

The quotation stems from Niemöller's lectures during the early postwar period. Different versions of the quotation exist. These can be attributed to the fact that Niemöller spoke extemporaneously and in a number of settings. Much controversy surrounds the content of the poem as it has been printed in varying forms, referring to alternating groups such as Catholics, Jehovah's Witnesses, Jews, Trade Unionists or Communists depending upon the version. Nonetheless his point was that Germans -- in particular, he believed, the leaders of the Protestant churches -- had been complicit through their silence in the Nazi imprisonment, persecution, and murder of millions of people.

At the same time, however, Niemöller, like most of his compatriots, was largely silent about the persecution and mass murder of the European Jews. Only in 1963, in a West German television interview, did Niemöller acknowledge and make a statement of regret about his own antisemitism (see Gerlach, 2000, p. 47).

Further Reading

James Bentley, Martin Niemöller: 1892-1984 (NY: Macmillan Free Press,1984)

Victoria Barnett, For the Soul of the People: Protestant Protest under Hitler (NY: Oxford University Press, 1992)

Wolfgang Gerlach, And the Witnesses were Silent: The Confessing Church and the Jews (Lincoln, Nebraska: University of Nebraska Press, 2000)

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