Little-known facts about the Bill of Rights
December 15th is a special day in American history. It was on this day in 1791 that Virginia became the eleventh state to ratify the Bill of Rights, thus officially adding the first ten amendments to the Constitution.
Few people know how close we came to not having those amendments, which have become the foundation of individual liberty. If not for the extraordinary efforts of James Madison, who had to overcome one obstacle after another, we might not have had a bill of rights then or perhaps ever.
Today is a good time to think about our fundamental rights such as freedom of speech and press and religion and the other rights protected by those amendments.
Here are some facts you may not know about the Bill of Rights:
- Many people assume that the First Amendment is listed first because of the paramount importance of freedom of speech, press and religion. But when the First Congress sent 12 amendments to the states, what we know today as the First Amendment was listed third. It moved up to its exalted position only because the first two original amendments were not ratified during the 1789-1791 period.
- The Bill of Rights and the rest of the Constitution provide protection only from government, not from private entities. For example, students at a private university have no First Amendment right to demonstrate or hand out literature on the campus, while students at a public university (because it is a unit of government) are granted such rights (although some reasonable limits can be enforced).
- When it became part of the Constitution, the Bill of Rights applied only to the federal government, not the states. It was not until 1925, for example, that states had to abide by the freedom of speech clause of the First Amendment. Not until 1961 did the Fourth Amendment’s protection against illegal search and seizure limit the power of the states. When the Bill of Rights was adopted in 1791, citizens wanted protection against the new and potentially dangerous federal government. They were less worried about oppression by the states.
- For all of his highly developed political skills, James Madison made one of the most egregious errors of his long career when he insisted that the amendments that became the Bill of Rights be scattered throughout the Constitution. He believed that unless they were placed next to the original language they were modifying, no one would take them seriously. Imagine how much less the Bill of Rights would mean today if instead of being listed separately at the end of the Constitution, the amendments were sprinkled throughout the document.
- For a while during the ratification period, both supporters and opponents of the Constitution were lukewarm or strongly unreceptive to adding a bill of rights, something that is hard to understand today considering how important those amendments have become. Some supporters of the Constitution thought the document should have more experience before it was changed and that the First Congress had more important business to deal with in the early days of the new government. Opponents objected mostly because they knew that new amendments protecting individual rights would satisfy the people and prevent the passage of more radical amendments, which opponents hoped would stop the planned transfer of power to the new federal government.
Richard Labunski is a journalism professor at the University of Kentucky. Labunski has a Ph.D. in political science from the University of California and a J.D. from Seattle University School of Law. To learn more about James Madison and the Struggle for the Bill of Rights check out this excerpt from the book. To learn more about “This Day In History” read Labunski’s article in the Star-Ledger titled, “A Difficult Birth for the Bill of Rights,” or his article in The Enquirer, “Honor Madison Today For Bill of Rights.”