The Biil Of Right

THE BILL OF RIGHTS consists of the first ten amendments to the Constitution. The traditions that gave shape and substance to the Bill of Rights had English roots, but a unique American experience colored that shape and substance. “We began with freedom,” as Ralph Waldo Emerson wrote in “The Fortune of the Republic.” The first charter of Virginia (1606) contained a provision that the colonists andtheir descendants “shall have and enjoy all Liberties, Franchises, and Immunities ... as if they had been abiding and born, within this our Realm of England.” Later charters of Virginia contained similar clauses, which extended to legal rights of land tenure and inheritance, trial by jury, and little else. But the vague language was repeated in numerous other charters for colonies from NewEngland to the South, and Americans construed it handsomely. As the Continental Congress declared, Americans believed that they were entitled to all the rights of Englishmen, their constitutional system, and their common law. American experience with and interpretations of charters eased the way to written constitutions of fundamental law that contained bills of rights.
Freedom was mainly the productof New World conditions, the English legal inheritance, and skipping a feudal stage. Because of American’s postfeudal beginnings, it was unencumbered by oppressions associated with an ancien régime—a rigid class system dominated by a reactionary and hereditary aristocracy, arbitrary government by despotic kings, and a single established church extirpating dissent. “America was opened,” Emersonwrote, “after the feudal mischief was spent, and so the people made a good start. We began well. No inquisitions here, no kings, no nobles, no dominant church. Here heresy has lost its terrors.” Americans were the freest people, therefore the first colonials to rebel. A free people, as Edmund Burke said, can sniff tyranny in a far-off breeze—even if nonexistent. American “radicals” actually believedthat the Stamp Act reduced Americans to slavery. They resorted to arms in 1775, the Continental Congress believed, not to establish new liberties but to defend old ones. In fact, they did establish many new liberties but convinced themselves that those liberties were old. That was an English custom: marching forward into the future facing backward to the past, while adapting old law to changingvalues. Thus, Magna Carta had come to mean indictment by grand jury, trial by jury, and a cluster of related rights of the criminally accused, and Englishmen believed, or made believe, that it was ever so. The habit crossed the Atlantic.

So did the hyperbolic style of expression by a free people outraged by injustice. Thus, James Madison exclaimed that the “diabolical Hell conceived principle ofpersecution rages” because some Baptist ministers were jailed briefly for unlicensed preaching. By European standards, however, persecution hardly existed in America, not even in the seventeenth century, except on a local and sporadic basis. America never experienced anything like the Inquisition, the fires of Smithfield, the Saint Bartholomew’s Day Massacre, or the deaths of more than fivethousand nonconformist ministers in the jails of Restoration England. Draconian colonial statutes existed but were rarely enforced. Broad libertarian practices were the rule, not the exception.
On any comparative basis, civil liberty flourished in America, a fact that intensified the notoriety of exceptional abridgments, such as the hanging of four Quakers in Massachusetts in 1659 or the 1735prosecution of John Peter Zenger for seditious libel. Although a stunted concept of the meaning and scope of freedom of the press existed in America ufrtil the Jeffersonian reaction to ' the Sedition Act of 1798, an extraordinary degree of freedom of the press existed in America, as it did in England. And nowhere did freedom of religion prosper as in America.
The predominance of the social compact theory...