A significant concern of the anti-Federalists – and one which they argued passionately and effectively – was that the Constitution said nothing about individual freedoms. The protection of natural rights and the liberty of all men, so eloquently espoused in the Declaration of Independence, was noticeably absent in the Constitution. While it established a balanced political system and a government of the people, the Constitution said nothing explicit about protecting those whom it was designed to govern. This issue became the greatest ‘sticking point’ during ratification. The Federalists claimed that the protection of rights was inherent in such a system; that the separation of powers would not enable either of the three branches of government to infringe on rights. Alexander Hamilton went further and claimed that a declaration of rights would be a waste of time, since the protection of individual freedoms and rights was best left to common law. Such a system, Hamilton suggested, was far more flexible and adaptable than ascribing rights in the Constitution, where they would be fixed. Nevertheless, many weren’t convinced that their rights would be protected, which shows the suspicions they held about the new political system forged in 1787. If the powers of the three branches of government could be limited by the wording of the Constitution then it could also protect individual rights.

The Constitution was ratified in mid-1788 without any advance or agreement on the matter of rights, yet it continued to create debate and criticism. It was James Madison, responsible for much of the Constitution himself, who was the first notable Federalist to give way on a proposed Bill of Rights. Speaking in June 1789, Madison suggested that while a restructuring of the entire Constitution was too difficult, he was willing to entertain the idea of an amendment: “I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents.” It was Madison who set about drafting a series of proposed amendments. He drew the content from three sources: John Locke’s Two Treatises of Government, the English Bill of Rights (1689) and the more contemporary Virginia Declaration of Rights (June 1776). In consultation with others Madison drafted a series of proposed amendments, tabling these before Congress in June 1789. Congress passed them to the states for ratification, a process that was complete by late 1791.

“The decision not to include a list of individual rights was an error of judgment on the part of the supporters of the Constitution that would have dire consequences. Even as the document was being finalised, several prominent delegates demanded that a second constitutional convention be held to correct what they considered to be serious defects in the [document] they were writing. [But] it had taken extraordinary effort on the part of many individuals to organise this first convention and bring it to a successful conclusion. A second convention could create political instability, even chaos.”
Richard E. Labunski, historian

The Bill of Rights is a series of ten amendments to the Constitution which explicitly protects the legal, civil and human rights of all Americans and visitors to the United States. Among those specifically protected are freedoms of speech, the press, religion, assembly and petition. Governments may not impose on the life, liberty or property of individuals unless the due process of law has been followed. Legally, individuals are protected by the Fourth, Fifth and Sixth Amendments: they have the right to a trial by jury, may not be detained without charge, may not be tried twice for the same crime and have the right not to incriminate themselves when giving testimony. Controversially, the Second Amendment also protects the right to bear arms (in the 1780s considered an important civil safeguard against oppressive governments or standing armies). The Third Amendment prevents the government from quartering soldiers in private homes. As can be seen, many aspects of the Bill of Rights stemmed from grievances and impositions perceived during the 1760s and 1770s.

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