When presidents of the United States want to draw attention to authoritarian regimes elsewhere in the world, they remind us that people suffering under foreign tyrannies enjoy no fundamental rights, no freedom of religion, no freedom of speech, no freedom of assembly. . . . When American secretaries of state want to highlight abusive judicial systems, they note the lack of guarantees of due process, jury trials, and protection against self-incrimination. When lawmakers want to distinguish representative democracy from oppressive police states, they tell stories about unreasonable search and seizure and cruel and unusual punishment. Subjects of unenlightened dictatorships, we are told, lack the rights that make this the land of the free.
What this American set of freedoms has in common is its enshrinement in the Bill of Rights, the first ten amendments to the federal Constitution, ratified in 1791. These principles have not only come to seem as natural as the rights enumerated in the Declaration of Independence; after more than two centuries, they have the authority of Scripture. The ten amendments have almost become the Ten Commandments. Freedom of speech now seems as fundamental as the injunction against murder, and the right to avoid self-incrimination seems as basic to justice as “thou shalt not bear false witness.”
It is surprising to discover that these fundamental rights were so nettlesome to the people charged with framing the Constitution. The arguments over the Bill of Rights were sometimes bitter, beginning with whether the federal government should protect individual rights at all. The framers considered opening the Constitution with a list of natural rights, following the lead of most of the state constitutions, but decided against it. The document they sent to the states for ratification in 1787 had little to say on the subject.
That surprised John Adams, then in England, who wrote to Thomas Jefferson, then in Paris, “What think you of a Declaration of Rights? Should not such a Thing have preceded the Model?” Jefferson agreed: he found much to like about the new plan for a federal government, but he objected to “the omission of a bill of rights.” He wrote to his fellow Virginian, James Madison, the Constitution’s primary author, that “a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no government should refuse, or rest on inference.” Events proved that Adams and Jefferson, from across the Atlantic, were more in tune with popular opinion than the members of the Constitutional Convention. Soon people throughout America were clamoring for a list of individual rights, refusing to base their fundamental freedoms on “inference.” But nearly as many were vocal in their struggle against any such list.
