Andrew Leahey

POLI-105

Bill of Rights Research Paper

was adopted. This was the result of a compromise struck some ten years earlier,

between Federalists and Anti-Federalists. This compromise was known as the

Massachusetts Compromise. It was, in essence, an agreement proposed by John

Hancock that if the Constitutional Convention ratified the existing constitution as-is,

amendments would be made later to attach a bill of rights to the document. The

compromises significance is made clear by Gordon Lloyd, in his internet article

Introduction to the Massachusetts Ratification Convention, where he stated, “the

Massachusetts Compromise secured the victory for the proponents of the

Constitution because roughly ten delegates changed their mind to secure

ratification by a 187-168 vote” (Lloyd). The necessity for this compromise is lays

apparent the divisive atmosphere at the Constitutional Convention.

There had been, for some time, an ongoing debate between the Federalists,

opposed to a Bill of Rights, and the Anti-Federalists on the opposite side. One of the

more vehement Federalists was Alexander Hamilton from New York. In his Federalist

Paper #84, he makes the case that a Bill of Rights is not necessary, as the rights of

citizens are secured through the Constitution itself. He further argues that his home

state of New York does not have any such bill attached to their constitution, and

their citizens are not being oppressed, or their rights taken away. Hamilton goes on

to say that, in the Constitution “the people surrender nothing; and as they retain

every thing they have no need of particular reservations” (Hamilton). Hamilton

makes several references to prior bills of rights from Britain, including the Magna

Carta and the Petition of Right, asserting that such bills are for protecting the people

against a monarch. In a democracy, no such bill of rights is necessary.

direction. He asserts that explicitly taking away rights from the government, that no

one had even considered as a power they might possess, was actually a dangerous

endeavor; “I will not contend that such a provision would confer a regulating power;

but it is evident that it would furnish, to men disposed to usurp, a plausible pretense

for claiming that power” (Hamilton).

On the opposing side were the Anti-Federalists. Men such as Patrick Henry,

Thomas Jefferson, and Robert Yates,opposed to the unchecked power of the new

government , and fearing its ability to infringe upon an individuals rights, published

papers stating their case. In Anti-Federalist #84 an author known as “Brutus”,

thought to be Robert Yates, writes as an example that while the Constitution holds

the individual states accountable to provide the accused with a fair trial by jury,

“are not provisions of this kind as necessary in the general government, as in that

of a particular State? The powers vested in the new Congress extend in many cases

to life; they are authorized to provide for the punishment of a variety of capital

crimes, and no restraint is laid upon them in its exercise” (Brutus).

Perhaps the most vehement Anti-Federalist, was George Mason of Virginia. He

had rallied for, and indeed wrote and had passed, a Bill of Rights for his home state

some fifteen years before the United States would adopt its own. An adamant

supporter of a weak central government, and more power being given to the

individual states, Mason in fact refused to sign any draft of the constitution lacking a

formal Bill of Rights. On September 12, 1787, with his offer to write the bill himself

rejected, Mason stormed out of Philadelphia, refusing to support the Constitution.

Once a strong ally for the ratification of the new constitution, now George Mason

“was one of the leaders in the fight against ratification of the new Constitution. He
composed a three-page list of objections, and … published them in the Pennsylvania

Packet on October 4” (Williams). The Bill of Rights debate had made an enemy of

the constitution out of one of the new nations founding fathers.

Mason argued, perhaps rightfully so, that since the Constitution would give

supreme power to the central federal government, the states individual bills of

rights would be rendered powerless to protect their citizens from any infringement

by the federal government. Before the Constitutional convention, Mason stated that

under the new constitution, the people were not “secure” in their rights. In the

Encyclopedia of American Civil Liberties, Paul Finkelman states that Mason’s chief

fear was that the Senate and the President would have the ability to conspire

together, and pass legislation that would remove the rights of the people, centering

power around themselves (Finkelman, 139). The highest governing body in the land

was the one that was in most need of a strong Bill of Rights protecting its people

from it.

At the Constitutional Convention, it was clear that a compromise had to be

struck if any agreement was to be reached. That compromise came in the form of

the Massachusetts Compromise, masterminded by Samuel Adams and John Hancock

in 1788. It played upon the desire of the Federalist delegates to wrap up the

convention, and get the constitution ratified, while appeasing the Anti-Federalists, in

assuring them that after ratification a Bill of Rights would be worked on, and

amended to the Constitution. Massachusetts was the first state to sign the new

constitution, while making recommendations towards what amendments should be

appended later, and five more states followed suit.

The recommendations having been made, and Constitution of the United

States having been ratified, work was begun on the amendment of a bill of rights.
The amendments were to be specific in nature, aimed directly at certain branches of

government, checking their power and limiting their ability to impose their will upon

the people. In Lowi & Ginsburg’s American Government: Power and Purpose, the

specific limitations on the branches are broken down. In the First Amendment, the

power of Congress is limited, explicitly limiting their ability to overstep their bounds

in the area of free speech, and the freedom of religion. The Second, Third and

Fourth, however, were aimed at the Executive Branch. They were intended to limit

the power of the President, and keep that office from becoming akin to the British

King. The Fifth through Eighth Amendments are aimed at the judicial branch, setting

clear guidelines as to the rights American citizens had to fair trial by jury [37]. The

Ninth Amendment is aimed at all of the branches, and limits their ability to expand

their power; and the Tenth Amendment, likewise aimed, states that any rights not

given to the federal government are reverted back to the states, or the people

themselves.

The individual amendments, having been ratified and made law, were nearly

all written in a way that left at least a portion of the intentions open for debate. A

perfect example of a non-specific phrasing within the Bill of Rights is the Eighth

Amendment. The Eighth Amendment states that excessive bail or fines shall not be

imposed on a citizen, nor shall he or she be made to endure cruel and unusual

punishment. The wording leaves a lot of room for debate. Nowhere in the Bill of

Rights is a definition given for what excessive bail would constitute, nor what

exactly qualifies as cruel and unusual punishment.

What constitutes “cruel and unusual punishment” was exactly what was on

trial in 2002 in the case of Larry Hope, a prisoner from Alabama. Hope was a

prisoner working outdoors, and became disruptive. Prison guards chained Hope to a
metal post, and left him there for a number of hours without a shirt. In addition, the

guards denied him access to a lavatory, and he was given a minimal amount of

water, at one point pouring water on his feet, not permitting him to drink. Hope lost

his case in several lower courts, but on appeal, in Hope v. Pelzer, the U.S. Court of

Appeals for the Eleventh Circuit found that this was, indeed, a violation of Hope’s

Eighth Amendment rights. While a victory for Hope, the court also decided to uphold

the prison guard’s “qualified immunity”, that is, freedom from prosecution for

government employees are carrying out the duties of their position.

In this case, we see that the Bill of Rights and the Eighth Amendment, is still

very much a part of the American justice system. These are still hotly debated

issues, some 200 years after their adoption. In an article for The Humanist in 2007,

Ralph R. Reiland, argues that we have lost sight of the importance of this

amendment. He details the plight of a woman in labor, who having been caught

speeding on the way to the hospital, was given a $1,050 fine. Reiland’s argument is

for the significance of this amendment, the bill of rights, and the need to return to

some semblance of adherence to it.

Brutus. Anti-Federalist #84. New York, 1789. U of Tulsa. 11 Jan. 2009

<http://www.utulsa.edu/‌law/‌classes/‌rice/‌constitutional/‌AntiFederalist/‌

84.htm>.

Finkelman, Paul. Encyclopedia of American Civil Liberties. New York: Taylor & Francis

Group, 2006.

Hamilton, Alexander. Federalist #84. New York, 1788. Avalon Project. Yale Law

School. 11 Jan. 2009 <http://avalon.law.yale.edu/‌18th_century/‌fed84.asp>.

Hope v. Pelzer. No. 01-309. Court of Appeals for the Eleventh Circuit. 27 June 2002.

12 Jan. 2009 <http://supreme.justia.com/‌us/‌536/‌730/‌case.html>.

Lloyd, Gordon. “Introduction to the Massachusetts Ratification Convention.”

TeachingAmericanHistory.org. 12 Jan. 2009

<http://www.teachingamericanhistory.org/‌ratification/‌massachusetts.html>.

Lowi, Theodore J, Benjamin Ginsberg, and Kenneth A Sheepsle. American

Government. Brief Tenth ed. New York: W. W. Norton & Company, 2008.

Mason, George. Virginia Ratifying Convention. Virginia. 4 June 1788. Utulsa.edu. U of

Tulsa. 12 Jan. 2009 <http://www.utulsa.edu/‌law/‌classes/‌rice/‌constitutional/‌

AntiFederalist/‌35.htm>.

Reiland, Ralph R. “The Ignored Amendment.” The Humanist Nov.-Dec. 2007: 4.