The Bill of Rights & Constitutional Change — Print · Grade 7 Social Studies

Part 1 · An objection that could not be answered

Anti-Federalists made the case in plain terms. Every state constitution had a declaration of rights; the English had Magna Carta and the Bill of Rights of 1689; and the colonists had just fought a war over rights they said were being violated. To hand a new national government the power to tax, raise armies and make supreme law without writing down what it could not do looked, to a great many people, like a bad trade.

Hamilton's answer in Federalist 84 has real logical force and still failed politically. The government, he argued, could exercise only enumerated powers, so there was no power to abridge the press and therefore no need to forbid it — and forbidding it would imply the power existed. Madison added a practical worry: a list of rights on paper would not stop a determined majority, and might lull people into thinking it would.

Massachusetts found the way through in 1788 by ratifying and simultaneously recommending amendments. Virginia and New York followed the same route, and so the Constitution was adopted on an understanding rather than a condition. Madison's answer to his own objection, once elected, was that a written right at least gives courts something to enforce and citizens something to point at.

Part 2 · What the ten protect

Madison introduced twelve amendments in 1789; ten were ratified by the states in 1791. The First protects religion, speech, press, assembly and petition — five freedoms in one sentence, all of them about the ability to criticise and organise. The Fourth requires warrants and probable cause for searches. The Fifth and Sixth govern criminal process: no self-incrimination, no deprivation of life, liberty or property without due process, a speedy public trial by jury, and counsel.

A pattern runs through them that is easy to miss. The great majority concern what happens when the government accuses you of something — how it may search, charge, try and punish. The framers' most vivid fear was not censorship in the abstract but the knock at the door, the general warrant, the trial without a jury, which were the concrete grievances of the 1760s and 1770s.

The Second and Third now read very differently than they did. The Third, forbidding the quartering of troops in houses in peacetime, has produced almost no litigation in two centuries and looks obscure — until you remember the Quartering Acts of the 1760s and 1770s, which made it one of the sharpest grievances in the Declaration. The Second, written when the states relied on militia rather than a standing army the framers feared, has become among the most contested, with the Supreme Court addressing its meaning directly only in 2008. The same text can sit quiet for two hundred years and then become the centre of an argument.

Two amendments do a different job. The Ninth says that listing some rights does not deny others retained by the people — Madison's direct answer to Hamilton's objection. The Tenth reserves to the states or the people whatever is not delegated, which is the federalism of the last unit written as a rule.

Part 3 · Whom the Bill of Rights binds

For its first seventy years the Bill of Rights restrained only the federal government. In Barron v. Baltimore in 1833 the Supreme Court held exactly that: a city had ruined a man's wharf, and he could not invoke the Fifth Amendment, because the amendments limited Congress and not the states. A state could establish a church, censor a newspaper or deny a jury, and the federal Bill of Rights had nothing to say.

That changed through the Fourteenth Amendment of 1868, which forbade any state to deprive a person of life, liberty or property without due process. Over the following century the Supreme Court used that clause to apply most of the Bill of Rights against the states one protection at a time, a process called incorporation, running well into the 1960s.

Incorporation happened case by case and unevenly, which is why the dates are worth knowing. Free speech was applied to the states in 1925, the establishment clause in 1947, the right to counsel in criminal cases in 1963, and the Second Amendment only in 2010. Each arrived because somebody lost in a state court and appealed, which means the scope of American rights has been set less by the framers than by the particular people who kept pushing after they lost.

So the rights you have against your own state government mostly arrive by a route opened after the Civil War, not in 1791. That is a genuinely surprising fact about a document everyone treats as foundational, and it shows that constitutional text acquires meaning through the fights that follow it.

Part 4 · Changing it is meant to be hard

An amendment needs two-thirds of both chambers of Congress and then ratification by three-quarters of the states — thirty-eight of fifty today. There is a second route, never used, in which two-thirds of state legislatures call a convention.

The record shows how severe that is. Thousands of amendments have been proposed since 1789 and twenty-seven have passed, and one of those repealed another. The first ten came as a batch, so in more than two centuries of ordinary politics the country has amended its constitution seventeen times.

Not every proposal that clears Congress arrives. The Equal Rights Amendment passed both chambers in 1972 and fell short of thirty-eight states within its deadline, and an amendment to abolish child labour, proposed in 1924, has never been ratified and has no deadline at all. Those two show the same machinery from the other side: a proposal can command two-thirds of a Congress and still be stopped by thirteen state legislatures.

The oddest case is the most recent. The second of Madison's original twelve, forbidding a congressional pay rise from taking effect until an election has intervened, was simply never ratified — until a university student noticed in the 1980s that it carried no deadline and campaigned to revive it. It became the Twenty-Seventh Amendment in 1992, 202 years after it was proposed.