Historical and Philosophical Roots
of the Founding
David Roberts (British, 1796–1864). The Houses of Parliament from Millbank, 1861.
Bill of Rights Institute
Prairie State College---Matteson Area Center
Matteson, IL
March 19, 2009
Artemus Ward
Department of Political Science
Northern Illinois University
http://polisci.niu.edu/polisci/faculty/ward
Introduction
• We will look at a number of important documents
and thinkers that were central to the formation of
the American Republic, the Constitution, and the
Bill of Rights.
• Specifically, we will discuss the Magna Carta
(1215), the English Bill of Rights (1689), John
Locke’s Two Treatises of Government (1690),
and the Declaration of Independence (1776),
among other writings.
• Along the way, we will see how the Constitution
and the Bill of Rights were built on a rich
historical and intellectual foundation.
Thesis: “Rights” as an Evolving Concept
• In the American context, the notion of “rights” is rooted in the
English experience. Hence we must understand the political
and legal history of England in order to understand how the
American conception of “rights” came to be.
• The medieval king had a right to govern, and the English had
their feudal rights, but over the course of the 17th century,
rights came to be understood as something to be held
against the monarch while Parliamentary sovereignty was
understood to be the protector of the people’s rights.
• The American experience grew out of a tradition of rights
claims against a monarch, but after the experiment with state
sovereignty under the Articles of Confederation, Americans
developed a recognition that legislatures and executives,
though agents of the people, might also threaten the rights of
the people as monarchs once had.
• Hence, today American understand individual rights as
protections against their own representatives in the form of
the government.
Origins
• The Bill of Rights contain twenty-six specific rights in its ten
provisions.
• At most, seven of these rights can be traced to Magna Carta, the
English Petition of Right (1628), or the English Bill of Rights
(1689).
• Seven others can be traced in their origin to the Massachusetts
Body of Liberties (1641), which also included the seven Englishoriginated rights and four more rights that were first codified in
Massachusetts prior to 1641.
• All but three of the remaining rights in the U.S. Bill of Rights would
originate in other colonial documents.
Magna Carta (1215)
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Magna Carta required King John of England to proclaim
certain rights (pertaining to lords: nobles and barons),
respect certain legal procedures, and accept that his will
could be bound by the law. It was the first document forced
onto an English King by a group of his subjects (the lords)
in an attempt to limit his powers by law and protect their
rights.
It explicitly protected certain rights of the King's subjects—
most notably the writ of habeas corpus, allowing appeal
against unlawful imprisonment. Indeed, the U.S.
Constitution does not grant this right, it merely limits the
government’s ability to suspend it: “The privilege of the Writ
of Habeas Corpus shall not be suspended, unless when in
Cases of Rebellion or Invasion the public Safety may
require it (Article I, §9).
King John agreed to:
– preserve the freedom of the Church and to hear
petitions from the barons (1st Amendment);
– remove foreign armies from England (3rd Amendment);
– not seize land to pay for debts (4th Amendment);
– not take life or liberty without due process or
repayment (5th Amendment);
– not delay court proceedings or punish without hearing
from witnesses (6th Amendment);
– repay unjust fines and not issue excessive
punishments (8th Amendment).
The Petition of Right (1628)
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Charles I by Anthony Van Dyck, 1636
Not long after he became King, Charles I sought to raise
funds on his own for an unpopular war with Spain. He
unilaterally imposed taxes and forced loans. He housed
soldiers in civilian homes to save funds and punish political
opponents. When five knights refused to pay the force loan,
Charles arrested and imprisoned them without charge.
In response, Parliament passed a Petition of Right,
establishing the principle that the King was not above the
law.
The Petition relied heavily on the Magna Carta (1215) and
was essentially a restatement of ancient rights, rather than
an establishment of new ones.
It is most notable for its confirmation of the principles that
taxes can be levied only by Parliament, that martial law may
not be imposed in time of peace, and that prisoners must be
able to challenge the legitimacy of their detentions through
the writ of habeas corpus. Additionally, the Petition's ban on
billeting (quartering) soldiers in private residences is
reflected in the 3rd Amendment to the U.S. Constitution.
Ultimately, Charles I gave royal assent to the petition in order
to gain the funds he needed for his military conflicts.
However, he had no intention of abiding by it. He refused to
convene parliament and undertook a period of “Personal
Rule” which included religious oppression, a war with
Scotland, and an ongoing struggle to raise funds. He finally
had no choice but to convene a new parliament but it
immediately turned on him and their battles led to the
English Civil War (1642-1651), his trial for treason, and
beheading in 1649.
The English Bill of Rights (1689)
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Following the Glorious Revolution of 1688, William and Mary
became joint sovereigns of England. As a condition of their rule,
they agreed to abide by the provisions of the Bill of Rights (also
known as the Declaration of Rights) which was passed by
Parliament in December 1689.
The Bill of Rights (1689) requires the Crown to seek the consent of
the people (parliament) for its actions. This is similar to the
lawmaking power of the U.S. Constitution where both congress and
the president are part of the legislative process. It also prohibited
royal interference with the law in terms of unilaterally establishing
courts or acting as a judge. This is similar to the U.S. Constitution’s
delegation to court-creation to congress and judicial appointments
to both congress and the president.
The Bill of Rights also enumerates certain rights to which citizens,
permanent residents, and members of Parliament in a constitutional
monarchy were entitled to. Many of these provisions are similar to
provisions in the American Bill of Rights:
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freedom of parliamentary speech (1st Amendment)’
right to petition the monarch (1st Amendment);
right to keep and bear arms (2nd Amendment);
protections of property and liberty, such as fines and
forfeiture without trial (4th and 5th Amendments);
– rights of the accused (6th Amendment)
– rights of criminals such as cruel and unusual
punishment and excessive bail (8th Amendment)
The Act of Toleration (1689)
• William and Mary also agreed to the
Toleration Act of 1689 which
expanded freedom of religion.
• It’s formal title was “An Act for
Exempting their Majesties Protestant
Subjects dissenting from the Church
of England from the Penalties of
certain Laws.”
• Though it did not protect Catholics or
Quakers, It granted Protestants who
did not attend the Church of England
the right to freely exercise their faith.
• The principle of religious freedom
guaranteed in this Act became an
important protection in the American
1st Amendment.
John Locke
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During the English Civil War Thomas Hobbes published
Leviathan (1651) which postulated a war-like state of
nature where men pursue selfish desire and life is “solitary,
poor, nasty, brutish, and short.” Hence, Hobbes explained
the importance of men engaging in a social contract,
necessarily giving up their rights in the state of nature, and
being governed under a single sovereign authority. Many
immediately saw Hobbes as an advocate of absolute
monarchy.
In the Two Treatises of Government (1690) John Locke
argued against the divine right of kings and instead said
that in the state of nature all men were created equal by
God with rights to life, liberty, and property. In order to
protect these rights, men enter into a social contract with
each other in the form of a government with separation of
powers. Should government no longer protect individual
rights, the people have the right to “revolution” – to dissolve
the government.
Though some saw Locke’s ideas as little more than a
rationalization of the Glorious Revolution, Locke ultimately
proved influential on early American revolutionaries. For
example, Thomas Jefferson and the drafters of the
Declaration of Independence included verbatim passages
from the Two Treatises. Samuel Adams cited Locke’s ideas
in his attempts to gain support for the revolution. And in the
end, the U.S. adopted a separation of powers system
where “life, liberty, and property” were constitutionally
protected.
Massachusetts Body of Liberties (1641)
• An important model for the American Bill of
Rights, it is considered the first post-medieval, or
modern, bill of rights.
• Included many familiar protections including:
– free speech and petition (1st Amendment);
– just compensation for property taken for public use
(5th Amendment);
– double jeopardy (5th Amendment);
– trial by jury and council 6th Amendment);
– cruel punishment and excessive bail (8th
Amendment).
• The Body of Liberties, however, did not make
these rights explicitly inalienable in that they
could be altered by the legislature—an important
difference from the American Bill of Rights.
Prelude to Revolution
(1763-1776)
• The British government limited a number of
freedoms which ultimately were addressed by the
Bill of Rights:
– Quartering Act (1765): demanded colonists house British
troops (3rd Amendment);
– Coercive Acts (1774): restricted speech, press, and
assembly (1st Amendment);
– Seized colonists weapons (2nd Amendment);
– Lifting property protections (4th and 5th Amendments);
– Prosecuting colonial protesters in English courts or
holding them without trial (6th Amendment);
The Virginia Declaration of Rights (1776) and
the Declaration of Independence (1776)
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George Mason
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George Mason drafted the Virginia Declaration of Rights
(1776) which protected the press, exercise of religion,
arms, property, the accused, and criminals. In drafting the
Declaration of Independence, Thomas Jefferson borrowed
heavily from it (as well as concepts from John Locke) and
James Madison later modeled the Bill of Rights after
Mason’s language.
In the Declaration of Independence, Jefferson began with
Mason’s statement “that all men are born equally free and
independent,” which he rewrote to say they were “created
equal & independent” then (on his “original rough draft”)
cut out the “& independent.”
Mason said that all men had “certain inherent natural
rights, of which they cannot, by any compact, deprive or
divest their posterity,” which Jefferson compressed into a
statement that men derived from their equal creation
“rights inherent & inalienable,” then moved the noun to the
end of the phrase so it read “inherent & inalienable rights.”
Among those rights, Mason said, were “the enjoyment of
life and liberty, with the means of acquiring and possessing
property, and pursuing and obtaining happiness and
safety,” which Jefferson again shortened first to “the
preservation of life, & liberty, & the pursuit of happiness,”
and then simply to “life, liberty, & the pursuit of happiness.”
The Bill of Rights as Political Concession
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After the revolution, state constitutions governed the
former colonies until the Articles of Confederation were
effectuated from 1781-1788. However, the Articles
proved inadequate and the U.S. Constitution was
written.
For many of the framers, the most important purpose of
the new Constitution was to safeguard individual rights
and liberties. They created a limited government that
would wield only those powers delegated to it and that
could be checked by its own component parts—the
states and the people.
The majority of the founders felt it unnecessary to load
the Constitution with specific individual rights, such as
those later spelled out in the Bill of Rights. As Alexander
Hamilton put it, “The Constitution is itself…a Bill of
Rights.” Under it, the government could exercise only
those functions specifically bestowed upon it; all other
rights remained with the people. He and others felt that
a list of rights might even be dangerous because it
would inevitably leave some out.
Ultimately, the promise of a bill of rights was necessary
to obtain ratification from the states. Accordingly, after
ratification and after the government began, specific
amendments were added.
Conclusion
• The guarantees in the Bill of Rights came
from an evolving conception of rights and
liberties stemming from the Magna Carta
(1215) and subsequent documents.
• The Bill of Rights was passed in order to
secure the ratification of the Constitution.
Further Reading
• Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction.
New Haven: Yale University Press, 1998.
• Brant, Irving. 1965. The Bill of Rights: Its Origin and Meaning.
Indianapolis, IN: Bobbs-Merrill, 1965.
• Rakove, Jack. Original Meanings: Politics and Ideas in the Making of
the Constitution. New York: Knopf, 1996.
• Shain, Barry Alan, ed. The Nature of Rights at the American Founding.
Charlottesville: University of Virginia Press, 1997.
• Wood, Gordon S. The Creation of the American Republic. Chapel Hill:
University of North Carolina Press, 1969.