In the present-day world, the term “bill of rights” is used as a proper noun referring to the specific and exclusive ten amendments of the American Constitution. Majorly, the popular civic drives in the 1920s and 30s popularised the same. Even though the founding father did attach the bill of rights to the Constitution, they never equated it… Read More »

In the present-day world, the term “bill of rights” is used as a proper noun referring to the specific and exclusive ten amendments of the American Constitution. Majorly, the popular civic drives in the 1920s and 30s popularised the same. Even though the founding father did attach the bill of rights to the Constitution, they never equated it with the first ten amendments. With the help of a constant linguistic revolution, motivated by the need to draw a definition and work its application with respect to the political principles, citizens of America created the bill of rights. While the judiciary and political parties took aid from the bill of rights to justify the federal spread of power, people discovered that this historic bill could be used to resist the same.

I. Introduction

To many Americans, the place of the Bill of Rights stands at the core of the constitutional order- and yet scholars lack an adequate account of it. In the United States of America, the Bill of Rights has within its ambit the first ten amendments of the American Constitution. It was adopted as a singular unit on 15th December 1791 and constituted a compilation of mutually exclusive rights of individuals and sanctions and limitations on the government. The Bill of Rights owes its inspiration to the Magna Carta of the English law in the year 1215 and the English Bill of Rights 1689.

Although the overall thought of a bill of rights was often connected with the initial ten amendments, Americans in the late eighteenth and mid-nineteenth century didn’t utilize the term “the bill of rights” and “the initial ten amendments” reciprocally, in a balanced correspondence. Many instructed spectators believed that the initial ten amendments to the Constitution gave a bill of rights, was in the idea of a bill of rights, or that it was “our” American or government bill of rights. Some said that the initial eight or nine amendments, not the first ten, framed a bill of rights, or, once more, were in the idea of a bill of rights. There was a sense, as well, that the bill of rights was an earlier thing to and greater than the initial ten amendments.[1]

This can be seen when Americans talked about the bill of rights as something ensured in the Announcement of Independence or something which the Constitution safeguarded. All in all, it shows up from nineteenth-century use of the term, that similarly as the British had faith in an unwritten constitution, the legacy of English law and custom, probably a few Americans trusted in an unwritten bill of rights, a legacy from the English past that was bigger than also, went before the amendments.

One explanation that the initial ten amendments were not called “the Bill of Rights” in the establishing period was that there were different bills of rights in existence, especially the forerunners at the state level. Before 1791, seven of thirteen states previously had bills of rights of their own, so few could discuss “the” bill of rights as though there were just one in existence.

A bill of rights or a presentation of rights was here and there an independent record, yet it typically filled in as a prelude to a written constitution. The ten amendments were, obviously, important for the public Constitution, however, they came toward the finish of the report; so while counterparts realized that the amendments made claims like those in different bills of rights, those amendments were not of the customary structure of such a bill and were not unmistakably deserving of the name.[2]

II. Limited Government

Early mistrust in the American government draws its roots from the colonial experience. According to most historians, the pivotal point was the passing of the Stamp Act by the English Parliament in the year 1765. As per its provisions, taxes were levied from every legal and business document. It even taxed newspapers, pamphlets and books. More than the taxes, what really hurt the Americans was the fact that the tax was being levied by some foreign government in which they were not represented. In pursuance of this, British officers used to barge inside American households ransacking people’s belongings without a warrant.

After this experience, the American lawmakers came up with a view that power and liberty are sworn enemies. Hence, they believed that limiting the government’s power while protecting the liberty of the individuals was their most important task. To further fulfil this task, they declared a new purpose for the government, i.e., protecting individual rights.

However, the protection of individual rights was not the only task that the government had to deal with; it also had to take care of the foreign threats, economic stability and conducting foreign affairs. It was not, be that as it may, the public authority’s responsibility to advise individuals how to carry on with their lives, what religion to trust in, or what to expound on in a flyer or paper. In this sense, the possibility of individual rights is the most seasoned and generally conventional of American qualities.

III. A Bulwark to Liberty

The Bill of Rights presented principles that ensured the most essential rights in the most basic terms. In any case, all along, live cases emerged that brought up real issues about how, and regardless of whether, the Bill of Rights would be applied. Before the paper rights could become real rights, somebody needed to decipher what the language of the Bill of Rights implied in explicit circumstances.[3] Who might be the final authority for judging how the Constitution ought to be applied?

From the outset, the appropriate response was not clear. Thomas Jefferson imagined that the judiciary ought to have that power; James Madison concurred that an arrangement of autonomous courts would be “a bulwark” of freedom. However, the Constitution didn’t make this unequivocal, and the issue would not be settled until 1803. That year, interestingly, the U.S. High Court struck down a demonstration of Congress as illegal in the landmark judgment of Marbury v. Madison.

Even though the factual circumstances of this case were genuinely mundane (a disagreement about the Secretary of State’s refusal to commission four adjudicators named by the Senate), the principle it set up – that the Supreme Court had the ability to invalidate demonstrations of Congress that abused the Constitution – ended up being the way in to the turn of events and insurance of the greater part of the rights Americans appreciate today. As per one prominent legitimate researcher, the free judiciary was “America’s most unmistakable commitment to constitutionalism.”[4]

IV. Judgments or Controversies

Out of all the branches of the government, the judiciary was the most distinct now, as the courts did not any longer enjoy the freedom to initiate action by themselves. Now, laws could be passed by the Congress and orders could be issued by the President, but the courts were shackled by not given the power to review these actions on their own discretion and initiative. The court would do nothing but wait for a “judgment or controversy”. Consequently, the people who were the most vulnerable and whose rights were most endangered had the least capacity to sue.

Thus, even though the concept of judicial review was established in the year 1803, more than a century had passed before the Apex Court where it had the opportunity to even protect those rights. Even after a long 130 years after the ratification of the Bill of Rights, the most important thing about it was it absolute lack of implementation by the judiciary.

The most well-known infringements went unchallenged in light of the fact that individuals whose rights were frequently denied were exactly those citizens who were least mindful of their rights and least ready to manage the cost of a lawyer. They had no admittance to those invulnerable bulwarks of freedom – the courts. The Bill of Rights resembled an engine nobody knew how to start.[5]

V. Criticism

The Bill of Rights appeared to be written in broader language that prohibited nobody, yet indeed, it was not intended to ensure protection for every individual. Ladies were never considered first-class citizens, basically the property of their spouses, incapable even to cast a ballot until 1920, when the nineteenth Amendment was passed and ratified.

Local Americans were altogether outside the sacred framework, characterized as an outsider group in their own territory. They were administered not by customary American laws, but rather by government arrangements and rules that stripped clans of the greater part of their territory and quite a bit of their autonomous nature. The Bill of Rights was in power for almost 135 years before Congress conceded Native Americans U.S. citizenship.[6]

Also, it was surely known that there was a “race exception” to the Constitution. Slavery was this nation’s original sin. For the initial 78 years, after it was ratified, the Constitution secured slavery and sanctioned racial subjection. Rather than established rights, slaves were administered by “slave codes” that controlled each part of their lives. They had no admittance to law and order: they couldn’t go to court, make contracts, or own any property. They could be whipped, marked, detained without preliminary, and hanged. So, as one scandalous Supreme Court assessment proclaimed: “Blacks had no rights which the white man will undoubtedly regard.”

Sadly, it took decades of resistance and struggle coupled with a bloody civil war before the Constitution was further amended, giving slaves the full right of citizenship, well at least on paper. However, it took more than a century before these rights could be actuated.[7]

VI. Conclusion

As per the general findings, it is found that the rights in the bill of rights led the state to claim power over the other rights. Some scholars were of the belief that there was not a real need to bring in the bill of rights as the Constitution had no authority to restrict the rights that it had not claimed from the state. However, historical evidence shows that the bill of rights has been instrumental in recognizing the ten amendments. These amendments have been useful for restricting and limiting the government’s abuse of power.[8]

The question that arises is that whether the bill of rights succeeds in defending individual liberty. It does seem so. By highlighting a particular set of rights rather than a wide legacy of thoughts, safeguards of freedom had an energizing call, sacred writing, a hotspot for motivation in restricting the state. Does an exact significance of the expression “The Bill of Rights” add to a literal perusing of the Constitution when all is said in done? Gone is the feeling of the bill of rights as a broad assortment of the relative multitude of rights of a group, a legacy from the English past.

[1] Jason Mazzone, “The Bill of Rights in the Early State Courts” Minnesota Law Review 92 (2007), 1-82; Stephen L.

Schechter and Richard B. Bernstien, Contexts of the Bill of Rights (Albany, NY: New York State Commission on the

Bicentennial of the United States Constitution, 1990).

[2] Lael Weinberger, “Enforcing the Bill of Rights in the United States,” in Suri Ratnapala, Gabriël A. Moens, eds.

Jurisprudence of Liberty (Lexix-Nexis Butterworths, 2011), 99-113, specifically 103.

[3] Carol Berkin, The Bill of Rights: The Fight to Secure America’s Liberties (Simon & Schuster, 2015), 2.

[4] Akhil Reed Amar, The Bill of Rights, Creation and Reconstruction (Yale University Press, 1998), 205.

[5] Gerard N. Magliocca, “The Bill of Rights As A Term of Art,” 92 Notre Dame L. Rev. — (forthcoming 2016), 5

[6] James Waterman Wise, ed., Our Bill of Rights, What it means to us: A National Symposium (Bill of Rights

Sesqui-Centennial Committee, New York, 1941). 9.

[7] In Michael Kammen, A Machine That Would Go of Itself: The Constitution in American Culture (New York: Alfred A. Knopf, 1986),” 340-342.

[8] Eugene W. Hickok, ed. The Bill of Rights: Original Meaning and Current Understanding (Charlottesville, VA: University Press of Virginia, 1991), 4.

  1. Law Library: Notes and Study Material for LLB, LLM, Judiciary and Entrance Exams
  2. Legal Bites Academy – Ultimate Test Prep Destination
Updated On 2 April 2021 9:02 PM GMT
Antariksh Anant

Antariksh Anant

Antariksh is a Law student at RGNUL - Rajiv Gandhi National University of Law Patiala, Punjab, India.

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