Why were the first ten amendments to the Constitution proposed only at a later date?

Maybe this is common knowledge among Americans, but it’s not clear to me (a Canuck) why the first ten amendments to the US Constitution (“Bill of Rights”) were not incorporated into the body of the Constitution itself. In other words, why was there a delay of several years for the various components of the Bill of Rights to even be proposed?

I assume there was no opposition to at least some of them (e.g. #1, 3, and 4), so even if the remaining ones were still under discussion, those three (as an example) could have been directly written into the Constitution. Did the Founders perhaps want a well-defined, complete, ‘stand alone’ document?


This is hard even for Americans to understand, but before the Fourteenth Amendment and the “doctrine of incorporation” in the early Twentieth Century, the federal Bill of Rights wasn’t all that significant.

Much of the Bill of Rights concerns the rights of criminal defendants, and the overwhelming majority of criminal prosecutions in the Nineteenth Century were conducted by the states, to which the BoR didn’t apply. Federal courts dealt with treason, piracy, and smuggling, and that was about it.

The other provisions of the Bill of Rights are limitations on (before incorporation) federal government power. The framers regarded these provisions as redundant, because they envisioned a federal government of limited, enumerated powers. If the Constitution gave the federal government no power to establish a church, a separate, specific prohibition was unnecessary.

During the debates on ratification (1787-89), however, many delegates raised concerns (correctly, as it turned out) that the feds would expand their power over time, and that specific prohibitions modeled on those within state constitutions would be a useful backup. The first ten amendments were proposed in 1789–after a lag of only two years from the original Convention–and ratified in 1791, and then forgotten.

An American of 1840 or 1880 would be dumbfounded by the reverence in which we hold the Bill of Rights today, and the frequency with which it is litigated.

See: Anti-Federalism - Wikipedia
And: Massachusetts Compromise - Wikipedia
Basically, the US Federalists seemed to have taken the same stand as the government of Britain has always had, and that the Candian government had until the re-patriation of the constitution: “Why do we need to explicitly enumerate your rights? Trust us and the courts to protect your rights, it’s better than writing them down. Written rights will only make it more difficult for us to pass the best laws.”

Fortunately, it seems the majority of Americans did not fall for this and unlike the Canadian constitution, did not include weasel-worded exmption clauses.

According to my high school social studies classes, many state leaders were reluctant to ratify the Constitution, specifically because it didn’t have a Bill of Rights in it. Rather than scrap the whole thing and start over, the framers of the Constitution promised to add a Bill of Rights via ammendment later. They kept their word.

If I understand it, the “Massachussets Compromise” basically said “no bill of rights, no ratification.” Other states were following suit. It’s not like the feds had much choice.

Also - this was very new territory. Most european governments were monarchies; the English had a bloody civil war over the rights of parliament, but basically between the government and the King could still do whatever they wanted. Common law civil rights were those established by tradition, and history has shown that parliaments are as adept at chipping away these rights as any dictatorship. The idea that a judge would tell the government “sorry, that’s not allowed” was somewhat rare - especially on major matters, especially since the government appointed most judges.

To be fair, Canada, following the BNA of 1867, worked on an implied bill of rights that was really only expanded and codified in 1960 as the Canadian Bill of Rights. Those are now superseded by the Charter.

The original bill of rights was just a nice piece of paper. Under the common law, no parliament (or legislature or any other assembly) can explicitly bind the hands of future members. Even a law saying “this law needs 60% to be repealed” cannot prevent a future parliament from overiding it with a 50.1% majority. Unless a Canadian law passed after the 1960 Bill of Rights explicitly allowed the Bill to take precedence, it did not.

Constitutional provisions explicitly overrule anything except amendments to them pased by the amendment process. That’s what gives rights - American and Canadian - their teeth.

Is a really good book on the subject.

Madison and The Federalists wanted the constitution without the Bill of Rights with the argument that the people retained all their rights anyway. The Anti-Federalists campaigned against the constitution on the grounds that it didn’t have a Bill of Rights. Madison promised to write one if it was ratified and then did so, which included the doctrine that people retained all rights not specified in one of the amendments, I believe the ninth.

In view that American courts have been so restrictive on what are rights people have and left the ninth amendment a dead letter, I agree with the anti-Federalists that the Bill of Rights was necessary.

True the Bill of Rights was simply federal legislation and not a consitiutional change, but it did lay the framework for the eventual emergence of the Charter. I was just pointing out that Canada had nothing similar to the US Bill or Rights for ages (relatively speaking).

Another good book on the subject is Akhil Amar’s The bill of rights–most useful for helping a layperson understand what the bill of rights meant to the framers, before the fourteenth amendment, and how most people dramatically misunderstand the original constitution by thinking of it from a viewpoint defined by the modern constitution and the Reconstruction Amendments.

It’s been a little while since I’ve read it–but as I recall it, the short version is that the bill of rights was, as others have pointed out, mainly preserving the rights of states to govern themselves. The example I remember best is the first amendment–which was often understood as a tool to protect legislators–to prevent the federal government from restricting the speech or debate in state houses.

So I’m not sure it’s fair to say Americans in the early U.S. didn’t value the bill of rights–but that they didn’t value it as a source of individual rights–rather, it had substantial value as a tool to protect state power, and the ability of states to protect individual liberties.

Thanks so much. I wasn’t at all aware of the “history” or rationale underlying the Bill of Rights. Looking at things from different temporal perspectives helps a lot.

And, md2000, don’t get me started on the “notwithstanding clause”.

I find what you say (and I suppose, therefore, what Amar wrote) to be extremely interesting. Thanks. Let me ask, would a strict “originalist” like Scalia favour looking at the BOR from the perspective you describe, i.e. as a means for enhancing the powers and the “stature” of the various states, and not so much as a means to guarantee the rights of an individual?

Well, I’m not an expert or a lawyer–but I’d be happy to offer my opinion. Also, let me be clear–I’m working within the framework of Amar’s argument–these are not my views, but how I would think an originalist justice would apply the BOR as Amar interprets it. Also, to avoid debating whether Scalia really is a “strict” originalist, I’ll analyze your question from the perspective of a hypothetical justice who does strictly follow original intent.

Second, to break down your question, it really contains two issues: (1) what is the “originalist” perspective we should use when interpreting the bill of rights, and (2) does the fact that the original meaning of the BOR was more of a collective right (although not necessarily one that enhances state power–instead, one that reduces the ability of the national government to interfere with state power) mean that we should limit the individual rights claimed under it?

That being said, the answer to (2) is no–or at least not because of the original conception of the BOR–because our justice is not just applying the bill of rights–but the BOR as expanded, altered, and applied to the states by the fourteenth amendment (it is quite properly understood to have changed everything).

The answer to (1) depends on whether we’re applying the BOR directly or through the fourteenth amendment. (some of this you may already know, but it’s useful to be thorough):

The “originalist” argument is that the only legitimate way to interpret the constitution is to look to its meaning when enacted. (compare the two other major originalist strands of constitutional interpretation–textualism, which looks solely to the text itself, or original intent, which looks to the intent of those enacting the provision in question).

So if we are applying the BOR directly–a right it granted in 1789, in a way unaffected by later amendments, the originalist perspective is that of 1789.

If we are looking at an application of the BOR beyond that, (say, applying it to invalidate a state law restricting speech), the originalist should not look at 1789, but to the point at which the constitution was amended to grant the individual rights relied on–which in most cases will be 1867, when the Fourteenth Amendment was ratified. This would look to both what the BOR meant at that point and whether the ratifiers of the fourteenth meant to incorporate it in whole or part (or something else)–but that doesn’t matter–the point is that in such a case, “original meaning” does not mean the meaning in 1789.

This is because the originalist theory is not “look to the framers” but “look to the source of constitutional authority”–which in some cases is the framers, and in other cases is those who enacted the amendment in question.

Also (missed the edit window)–but while I’m happy to try to interpret Amar’s arguments, I’m not a legal historian, and his book also addresses how the bill of rights was reinterpreted after the reconstruction amendments, including the question of incorporation (whether and how XIV applies 1-10 to the states). In other words, Amar’s book probably has better answers to your questions than I can hope to provide.

Hence, I’d wholeheartedly encourage you to try the book–it’s an easy read, well-written, and whether or not you agree with his method of constitutional interpretation, the historical perspective he offers is almost essential to really understand the pre-civil war bill of rights.

Reverse that. Unless a law passed by Parliament explicitly opted out of being subject to the Bill of Rights 1960, it was subject to the Bill. See section 2 of the Bill. It is true that no past Parliament can bind a future Parliament, but the Bill tried. See section 3 of the Bill. My reading of Section 3 leads me to believe that Section 3 has just enough wiggle room involving review and reporting to be at least inoffensive to future Parliaments; unless any Parliament amends the Bill to remove Section 3. At any rate, the Bill only applied to Parliament; it did not apply to any Act passed by any province, as the Charter does.

Of course, the Charter made all this moot; but clarification as to how the Bill affected acts of Parliament from 1960 to 1982 is important, I believe.

I am enlightened!

I found the quoted section above, as well as the other things you’ve been generous enough to take the time to write about (and perspicuously explain) to be truly illuminating. I simply had no idea. Thank you.

Actually, there was very little opposition to any of the Amendments, with the exception of on principle.

On principle, one party wanted no Bill of rights, because it gave the idea that “those rights not specifically protected did not exist.”

The original Bill of Rights contained twelve amendments, and not ten. Since the original proposal of twelve, eleven have been ratified and are now part of the Constitution; the last one was ratified in 1992.

Sure there was opposition - the first two amendments proposed by Congress didn’t get passed at that time by the states. Since they didn’t get passed, the third amendment proposed by Congress became the First Amendment to the Constitution.

The Congress proposed a package of twelve amendments, introduced by James Madison. The first one on the list read:

It has to date been ratified by 11 states.

The second proposed amendment read:

From 1789 to 1791, only six states ratified the proposed amendment. It then languished for nearly two centuries, when it was finally ratified by the sufficient number of states in 1992, becoming the Twenty-Seventh Amendment.

Similarly, I believe there is some evidence that the freedom of religion clause was intended to protect then-existing established state churches from interference by a federally-established national church.

It is perhaps worth noting that Justice Scalia describes himself as a “faint-hearted originalist.”