The history of the Bill of Rights runs from medieval English charters through colonial declarations to a political bargain struck during the Constitution’s ratification, and it ends on December 15, 1791, when Virginia became the tenth state to ratify the ten amendments that now open the U.S. Constitution.
Older Roots in English and Colonial Law
The idea of writing down limits on government power did not begin in Philadelphia. In 1215, English barons forced King John to accept the Magna Carta, whose Chapter 39 promised that no free man would be seized or stripped of his property except “by the law of the land.” A 1354 statute of Edward III restated that guarantee using the phrase “due process of law” for the first time.1Library of Congress. Magna Carta: Muse and Mentor – Due Process of Law
Nearly five centuries later, after Parliament deposed King James II, the English Bill of Rights of 1689 added sharper protections: a ban on cruel and unusual punishments, a right to petition, and a bar on excessive bail.2Avalon Project. English Bill of Rights 1689 It also blocked the Crown from levying taxes or keeping a standing army without Parliament’s consent.3UK Parliament. Bill of Rights 1689 American colonists grew up inside this legal tradition, and when they later accused the Crown of abusing them, they already had the vocabulary to say why.
Colonial governments carried the tradition forward. The Massachusetts Body of Liberties of 1641 guaranteed due process, equal treatment, and protection against forced self-incrimination. The closest ancestor of the federal amendments, though, was Virginia’s Declaration of Rights, drafted by George Mason and adopted in June 1776. Mason declared that all men are “by nature equally free and independent” and hold inherent rights to life, liberty, and the pursuit of property and happiness, and he wrote in guarantees of press freedom and free religious exercise.4National Archives. The Virginia Declaration of Rights Jefferson drew on it for the Declaration of Independence. Madison would use it as a working template.
Why the Original Constitution Had No Bill of Rights
When delegates finished the Constitution in 1787, it organized a federal government but said almost nothing about individual rights. That silence was deliberate. Alexander Hamilton argued in Federalist No. 84 that because the Constitution granted the federal government only specific, enumerated powers, a list of protections against powers it did not have was unnecessary. He also warned that enumerating some rights could imply that any rights left off the list did not exist.
Anti-Federalists rejected the reasoning. They pointed to the Necessary and Proper Clause as a route by which Congress could grow far beyond its listed powers. Patrick Henry called it a “sweeping clause,” and George Mason warned it would let the legislature “extend their powers as far as they shall think proper.”5Constitution Annotated. ArtI.S8.C18.2 Historical Background on Necessary and Proper Clause Without written protections, they argued, a centralized government would eventually turn tyrannical no matter how it had been designed.
The argument had teeth. Virginia, Massachusetts, and New York signaled they would refuse ratification unless a bill of rights was promised. Federalists needed those states, so they struck a bargain: ratify now, and the First Congress would take up amendments immediately. The deadlock broke.
Madison Drafts the Amendments
James Madison took the promise on himself. In the First Congress in 1789 he told the House he considered himself “bound in honor and in duty” to deliver amendments quickly.6United States Senate. Congress Submits the First Constitutional Amendments to the States He worked from more than 200 proposals sent up by the state ratifying conventions and boiled them into a manageable set.7National Archives. The First Amendments to the U.S. Constitution He focused on protections with broad backing and set the more divisive ideas aside to protect the fragile new government.
The House passed a joint resolution containing seventeen amendments. The Senate consolidated related items and dropped articles that lacked support, cutting the list to twelve. On September 25, 1789, Congress sent all twelve to the state legislatures for ratification.8National Archives. The Bill of Rights: How Did it Happen?
Madison also answered Hamilton’s warning directly. The Ninth Amendment states that listing certain rights does not mean the people lack others not mentioned.9Congress.gov. U.S. Constitution – Ninth Amendment The Tenth reserves powers not granted to the federal government to the states or the people. Together they were the safety net against the exact danger Hamilton had described.
The substance of the ten amendments drew heavily on the older traditions. The Eighth Amendment’s ban on cruel and unusual punishments tracks the English Bill of Rights of 1689 almost word for word.2Avalon Project. English Bill of Rights 1689 The Fifth Amendment’s due process guarantee runs back to the Magna Carta.10National Archives. The Bill of Rights: A Transcription What was new was gathering these guarantees into a single instrument, attached to a written national constitution, backed by the force of supreme law.
Ratification in 1791
Ratification required approval by three-fourths of the state legislatures.11Congress.gov. Overview of Ratification of a Proposed Amendment The amendments protecting individual liberties moved through the states without much drama. Two of the twelve stalled. The original first article, a formula for sizing the House of Representatives, never gained enough support and remains unratified.6United States Senate. Congress Submits the First Constitutional Amendments to the States The original second article, on congressional pay, sat dormant for two centuries before finally being ratified in 1992 as the Twenty-Seventh Amendment.
The other ten faced no such delays. On December 15, 1791, Virginia became the state that pushed ratification past the three-fourths threshold, and the ten amendments became part of the Constitution.8National Archives. The Bill of Rights: How Did it Happen?
How the Bill of Rights Came to Bind the States
For the first several decades, the Bill of Rights had a limit most people today would find surprising: it restrained only the federal government. States could enact laws that would have violated the First, Fourth, or Fifth Amendment if Congress had passed them. In 1833, the Supreme Court made this explicit in Barron v. Baltimore, holding that the Fifth Amendment’s protection against uncompensated takings applied only to the federal government and “is not applicable to the legislation of the States.”12Justia. Barron v. Mayor and City Council of Baltimore
The Fourteenth Amendment, ratified in 1868 after the Civil War, opened the door to a different result. Its Due Process Clause forbids states from depriving any person of “life, liberty, or property, without due process of law.” Over the following century and a half, the Supreme Court used that clause to apply nearly every protection in the Bill of Rights to state and local governments in a process called incorporation.13Constitution Annotated. Amdt14.S1.4.1 Overview of Incorporation of the Bill of Rights
It happened one right at a time. Free speech was incorporated in 1925, press freedom in 1931, the right to counsel in 1963. The Second Amendment was not incorporated against states and cities until McDonald v. City of Chicago in 2010.14Justia. McDonald v. City of Chicago The Eighth Amendment’s ban on excessive fines was incorporated in 2019 in Timbs v. Indiana.15Supreme Court of the United States. Timbs v. Indiana With narrow exceptions, the Bill of Rights now binds every level of government in the country.
Madison had tried to reach that result directly in 1789. He proposed an amendment expressly barring states from violating freedom of conscience, speech, and jury trial rights, and the Senate struck it. Getting there instead took a civil war, a new constitutional amendment, and more than a century of litigation.