The United States Constitution was originally adopted at the Constitutional Convention in 1787, after the perceived failure of the colonies' first attempt at a foundational document for federal government, the Articles of Confederation. This is important to recall because in many ways the Constitution was written with an awareness of how such documents may fail in practice, and so its drafters included in Article 5 a set of provisions whereby the Constitution itself could be "amended" or changed in order to address anything that was not already covered in the existing text. Article 5 specifies that this may be done by Congress "whenever two thirds of both Houses deem it necessary." Yet there was not a slow and gradual trickle of such proposals -- instead, the first ten amendments that were actually made to the U.S. Constitution were all done at the same time, in 1791. Collectively, these ten amendments are known as the "Bill of Rights." Brant gives a useful summary of how these amendments, proposed by the Constitution's principal architect James Madison, would come to be added so quickly after the ratification of the Constitution itself:
The first ten amendments were added to the Constitution of the ?United States in a period of uneasy calm. The Americans who were ?most apprehensive over that untried document, because its guarantees of liberty did not go far enough, included a great many who ?wanted to cut down its grants of legislative and executive power. But the amendments were drafted and submitted to the nation by ?men who supported both the substantive powers of the new government and the protection of civil rights and liberties. If some of ?them had little zest for the amendments they voted for, they at ?least recognized the force of the popular demand and joined in ?satisfying it. The major task of Madison and his congressional ?associates was to place the amending of the Constitution high on ?the House of Representatives agenda, ahead of important bills ?that were to fill out the structure of government. With that ?achieved, the amendments submitted by Madison were taken up, debated and perfected with scarce a single move to weaken them. (Brant 223).
It is worth looking into the origins of the U.S. Bill of Rights as a way of better explaining what its provisions are.
It is worth noting at the outset that government of Great Britain -- whose North American colonies would eventually revolt to form the United States -- already had an act of Parliament which was known as the "Bill of Rights." Levy compares the U.S. Bill of Rights with its earlier analogue, noting that even in the colonial period
Americans had progressed far beyond the English in securing their rights….The English "Bill of Rights," its exalted name notwithstanding, had a narrow range of protections, including the freedom of petition, free speech for members of Parliament, and, in language closely followed by the American Eighth Amendment, bans on excessive bail, excessive fines, and cruel and unusual punishments. As an antecedent of the American Bill of Rights, the English one was a skimpy affair, though important as a symbol of the rule of law and of fundamental law. (Levy 5).
But it is important to realize the English "Bill of Rights" had been proposed as a sort of follow-up to Parliament's original Habeas Corpus bill, which safeguarded personal freedom and liberty. Although Habeas Corpus still serves as the legal bedrock of the freedom from arbitrary interference in the lives of individuals by the state, it falls far short of the extraordinary enumeration of liberties that would comprise the Constitution's first ten amendments. Madison's proposals would compensate for the "skimpy" character that Levy attributes to these existing provisions, from which the American authors of the Constitution derived little more than the name and the concept.
To a certain degree the original ten amendments as proposed by Madison would reflect existing policies and liberties in America by enshrining them in law. The religious liberty guaranteed in the First Amendment had always been a policy in the colonies, each of which had a different religious affiliation -- Maryland settled by Roman Catholics, Pennsylvania by Quakers -- such that the first synagogue in North America, in Newport, Rhode Island, would write to the newly elected President George Washington to ask if the religious liberty of Jews would be safeguarded, and Washington replied in 1790 that the U.S. government "gives to bigotry no sanction, to persecution no assistance." The fact that the President could make this assurance the year before the passage of the First Amendment indicates that to a certain degree the Bill of Rights was clearly reflecting and enshrining existing practice. Of course, the amendments were added only four years after the passage of the original Constitution. Labunski notes that, to a certain degree, Madison proposed them in order to defuse the complaints about that original document which were already agitating for a second Constitutional Convention:
By the time those amendments were added to the Constitution in 1791, the drive to hold a second convention had dissipated, and opponents of the government knew they had no choice but to work within the new system. The Bill of Rights would become of critical importance to the American people, but they would have to wait along time before those words had much meaning. The first two amendments proposed by Congress -- on the size of the House of Representatives and congressional pay -- fell short of ratification in 1789-91. Thus what we know today as the First Amendment moved up to its exalted position not by design but because those original amendments failed to earn sufficient support among state legislatures. Nevertheless, protection for freedom of speech, of the press, and of religion would become the foundation of individual liberty, without which most other rights in the Constitution would be virtually meaningless. (Labunski 256)
Madison's original plan was for twelve amendments, of which two failed. It is worth noting that the "congressional pay" amendment which Labunski refers to here was eventually ratified by the number of states specified in Article 5, and is now Amendment 27 -- this ratification would occur in 1992, a little more than two centuries after it was first proposed by Madison.
To a certain degree, then, Madison's proposals had been political in nature, designed to address criticisms of the existing Constituion on the part of various different state governments and elected officials. This accounts for the slightly heterogenous nature of the rights covered in the Bill of Rights. Briefly, the First Amendment guarantees freedom of religion, of speech, and of the press, and specifies the rights to assemble freely and to petition the government. The Second and Third are more militaristic: the Second guarantees citizens the right to bear firearms, and the Third protects citizens from having their homes requisitioned by the military in wartime. The Fourth protects from "unreasonable search and seizure" and is the rationale for many of our legal proceedings, like the Miranda warning or the need for a search warrant. The Fifth and Sixth Amendments relate to courts of law: the Fifth guarantees due process and compensation in cases of eminent domain, and protection from double jeopardy or self-incrimination (the "right to remain silent" from the Miranda warning) and the Sixth specifies the right to a fair trial, to the assistance of a lawyer, and the right to confront accusers. The Seventh guarantees jury trials for civil matters; the Eighth (as noted by Levy above) is modeled on the English "Bill of Rights," prohibiting excessive bail and "cruel and unusual punishment." The Ninth Amendment is self-reflexive, and states that the enumeration of specific rights in these amendments does not imply the non-existence of rights not mentioned in the text. And the Tenth relates to the interplay between states' rights and the federal government, by assigning powers which are not delegated to the federal government within the text to the states instead. If this seems like a broad array of different topics addressed, it is. Amar notes that
In a typical law school curriculum, the First, Ninth and Tenth Amendments are integrated into an introductory survey course on Constitutional Law; the Sixth, Eighth and much of the Fifth are taught in Criminal Procedure; the Fifth Amendment takings clause is featured in Property; the Fourth Amendment becomes a course unto itself, or is perhaps pushed into Criminal Procedure or Evidence (because of the judicially created exclusionary rule); and the Second and Third are ignored. Each clause is typically considered separately… (Amar xi)
Indeed to a certain extent the Ninth Amendment seems designed to address the fact that the preceding amendments are so various: Madison wanted it clear that the specific guarantees within the Bill of Rights did not imply the nonexistence of rights not listed within it.
Yet this openness within the Ninth Amendment has to a certain degree led inevitably to a different conception of what the Bill of Rights represents. McDowell notes…