History of the Bill of Rights

On November 15, 1777 the Articles of Confederation and Perpetual Union was approved by the Continental Congress. This edict (though “perpetual” in name) would last only twelve years, to be replaced by the Constitution after it became heartily apparent that the Articles would ensure America’s doom should they be perpetuated. Purposeful in its design, the Articles of Confederation created a federal government of the United States to oversee the newly created thirteen states but bestowed upon it essentially no authority whatsoever, as all law-making powers were resigned to the states. Instead, the Articles were used as a display of solidarity amongst the colonies as they fought against the impressive might of Great Britain. The Articles, while transient in nature and considered by many in the present and the past to have been a monumental failure, provided a clearer picture to our founders what was necessary to ensure that our infant nation would survive – whether thirteen years old or 250 years old. 

Faded copy of page one of the Articles of Confederation. Held by the National Archives.

On March 1st, 1781 the Articles of Confederation went into effect and were considered for a brief while to be as revolutionary as they were necessary. The Articles established each state as sovereign, independent territories, though they promised to act in accordance with one another through a “league of friendship” to throw off the British yolk. Naturally, the trials and tribulations of fighting a war against the most powerful nation in the world at that time meant that any reservations held about the Articles were moved to the back burner. Success came in 1783 when the Treaty of Paris was signed, with Great Britain officially recognizing the independence of America. 

Treaty of Paris (unfinished) by Benjamin West. Painted in 1783. From left to right: John Jay, John Adams, Benjamin Franklin, Henry Laurens, and William Temple Franklin. Not present are British representative Richard Oswald and his secretary Caleb Whitefoord who both refused to pose. Oswald was reportedly also very ugly.

Within a few years however, the complications of authorizing the Articles to stand as nothing more than a bond of necessity arose, the chief one being that Congress had no power of enforcement. In order for any official business to be conducted in Congress, nine of the thirteen states were required to be present. This doesn’t sound like much of an arduous task, but since the Articles gave Congress very little power, congressional representatives were not inclined not to attend these meetings and instead focused on the political happenings of their home states. It was this continuous lack of Congressmen that the Treaty of Paris remained unsigned for weeks. Another issue with the Articles was that they gave Congress no power to tax the states; understandably wary of oppressive taxation by government after living under the British policy of heavy levies for years, this addition to the Articles was seen as a victory upon their ratification. Debts incurred during the war totaled to 43 million dollars in 1783, and Congress had no way to pay them back, especially not without taxes collected from the states. A third primary issue was that Congress had no authority to regulate commerce – not from state to state nor from state to foreign nation. Congress therefore could not protect trade deals and could not standardize trade.

Political cartoon outlining the problems associated with the Articles of Confederation.

It was from the disaster of the Articles of Confederation that the Bill of Rights emerged. Warrantless agitations and acts of aggression committed by the British government against American colonists in the thirty odd years preceding the beginning of the American Revolution in 1765 led to a chasm of separation unable to be mended. The colonists and founders alike knew that it was “their right,…their duty, to throw off such Government, and to provide new Guards for their future security”. It was from this line in the Declaration of Independence that James Madison, well-known now as the “Father of the Constitution”, took his inspiration in drafting this overarching document. The Bill of Rights, this sacred set of edicts, in actuality is nothing more than the first ten amendments of the Constitution, but in its inception proved to be exactly what the American colonies needed to survive. Unlike the Articles which had been crafted with the intent to label the functions of the government while the states still maintained complete autonomy, making the federal government in effect, useless, the Bill of Rights proposed a very happy medium between the federal government having no power and the states being able to exist independently. 

“Father of the Constitution” and fourth president of the United States, James Madison. Painted in 1816 by John Vanderlyn.

It was apparent to Madison and the other founders that within the Bill of Rights, it was equally as important to have rules that applied to all citizens, regardless of state, as well as the ability for states to govern themselves. The first, second, and third amendments are the responses to British treatment of and rules enacted upon the American colonists during their occupation. The fourth through the eighth amendments are all guarantees of the right of due process before law. For example the fifth amendment allows one to “plead it” to avoid self-incrimination. The ninth and tenth amendments, in contrast to the ones preceding them, are irrevocably tethered to the mistakes as well as the successes within the Articles. The ninth amendment specifies that though every natural right American citizens may possess has not been written down in the Constitution, this does not mean that those rights do not exist. The tenth amendment declares that the federal government has only the powers specified in the Constitution – if a power is not listed, it belongs to the states and the people.

 In these final two amendments can the lingering presence of the Articles be felt. While considered to be a failed doctrine of monumental proportions, the Articles were born of a desire to be independent and thrive in a land dedicated to freedom. American ideals of liberty, security under the law, and the ability to live a joyous life without the interference of an executive body spawned from a place of fear, a place of anger, but also from a place of hope. The Articles were the embodiment of this hope, as they sought to provide Americans with a sense of dignity they had not known before under British rule and gave unto them the decision to live their lives as they saw fit. The failure of the Articles of Confederation was a lesson well-learned, but the significance of their inception is not lost upon us today. 

Written by Katie Costanzo, Ronald Reagan Presidential Library & Museum.

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