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Did the Bill of Rights apply to slaves?

Did the Bill of Rights apply to slaves?



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In the pre-Antebellum particularly during the 1850's did slaves and free blacks have rights? Or even citizenship perhaps?


Its very good question, since Americans in the 1850's were asking the exact some question as well! As it turns out, there was a Supreme Court ruling on the issue in 1857: The Dred Scott case. The answer was "No". Not even free blacks were allowed protection under the Constitution.

The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guarantied by that instrument to the citizen?

It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the constitution, introduce a new member into the political community created by the constitution of the United States. It cannot make him a member of this community by making him a member of its own. And for the same reason it cannot introduce any person, or description of persons, who were not intended to be embraced in this new political family, which the constitution brought into existence, but were intended to be excluded from it.


The U.S. Constitution makes reference to the fact that it represented only "free persons." (See for instance Article 1, Section 2.) This meant that the Bill of Rights did not fully apply to slaves. This idea is further elaborated on in Federalist Paper No. 54, in which slaves were considered a hybrid of persons and property. This was the idea of the Three-Fifths Compromise, under which a slave was considered "three-fifths" of a person.

In theory, it meant that free Blacks did have these rights. In actual practice, free blacks were often conflated with slaves because of their skin color, "accidentally on purpose." Further court cases in the 19th century "clarified" matters by limiting the rights of even free blacks, particularly in the 1850s. It took the 13th, 14th, 15th Amendments, plus the civil rights legislation of the 1960s to finally put an end to this.


No.
The Bill of rights did not apply to free African American men in 1850, much less slaves. The rights of free blacks were not guaranteed by the constitution after the Compromise of 1850 which allowed Freemen to be sent south into slavery simply by swearing out an affidavit they were ones property. This effectively meant that any free black man could become a slave at any point with minimal effort from a single white person.

Slaves absolutely had no access to the protections of the laws as white people did. They could not go to court, make contracts, or own property. They could be whipped, imprisoned without trial, branded, and hanged legally.

Don't take my words for it. Hear Roger B. Taney the 5th chief justice of the supreme courts words:

"Blacks had no rights which the white man was bound to respect."

Taney isn't saying slaves have no rights, he's discussing all black men.

The compromise of 1850 along with the Dread Scott Supreme Court decision meant draconian change and helped radicalize the north in opposition mostly to the South; but also to what the South depended on which was slavery.

The bill of rights(1791) didn't apply to slaves. But parts of the United States Constitution(1787) did. Specifically the Slave Clause, Article IV, Section 2, Clause 3.

US Constitution: Slave Clause, Article IV, Section 2, Clause 3

No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.

The Fugitive Slave Act of 1793 was an Act of the United States Congress to give effect to the Fugitive Slave Clause of the U.S. Constitution.


The are at least two different questions.

  1. Did the Bill of Rights apply to slaves? - No, and never did. "nor be deprived of life, liberty, or property, without due process of law" definitely does not apply to slave, who by definition does not have liberty.

  2. did slaves and free blacks have rights? According to Supreme Court Dred Scott decision of 1857, blacks (slave and free) did not have any rights, so Bill of Rights did not apply to them.

Prior to this decision, free blacks practically could have some rights on some states. However, no matter how extensive these rights where, even in the free states, Bill of Rights did not apply to free blacks - exactly because federal protection was not extended to free blacks, and they were on the mercy of states.

This situation actually was the result of irreconcilable contradiction between two fundamental documents of the country:

Declaration of Independence lists liberty as one of the unalienable rights of all men;

Constitution allows states to deny the right of liberty to some people, designating them as property (slavery).

Declaration of Independence was indispensable as justification of creating the country, and could not be changed retroactively. This left only two possibilities to resolve contradiction:

To amend the Constitution in order to eliminate slavery.

To amend definition of the man in order to exclude those type of persons who could be enslaved.

Supreme court (justice Taney) tried to use the later solution, but it did not work. As LIncoln pointed out, it opened the door for further exclusions, like catholics, or any ethnic minorities. Instead of crushing republicans, it helped them despite the party platform openly ignored Dred Scott decision.

Eventually, it led to Civil war and to resolving contradiction by 13th amendment to Constitution.

UPDATE: What is interesting, 13th amendment did not make Bill of rights applicable to blacks, because Dred Scott decision was in effect. Only 14th amendment overruled Dred Scott decision


All men are created equal

The quotation "all men are created equal" is part of the sentence in the U.S. Declaration of Independence, which Thomas Jefferson penned in 1776 during the beginning of the American Revolution that reads, "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness". The phrase was present in Jefferson's original draft of the declaration. [1] [2] It was thereafter quoted and incorporated into speeches by a wide array of substantial figures in American political and social life in the United States. The final form of the phrase was stylized by Benjamin Franklin. [3] It has been called an "immortal declaration", and "perhaps [the] single phrase" of the American Revolutionary period with the greatest "continuing importance." [4] [5]


The secret history of the Bill of Rights

By Michael Lind
Published June 20, 2013 11:44AM (EDT)

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Is the Bill of Rights — made up by the first 10 amendments to the U.S. Constitution — the foundation of American liberty? So we are told by civil libertarians on the left alarmed by government surveillance programs, and by opponents of gun control on the right. The truth about the Founders and the Bill of Rights, however, is quite at odds with modern civil libertarian mythology.

The term “Founders” is ambiguous. It usually refers to the delegates who drafted today’s federal Constitution in Philadelphia in 1787, but it might as well apply to the members of the state ratifying conventions, who voted to enact it into law. In this case, it doesn’t matter, because a majority of the delegates at the Constitutional Convention rejected proposals by Virginia’s George Mason and others to include a bill of rights in the federal Constitution. The new federal Constitution was then ratified by a majority of the states, even though no bill of rights was included. Neither the drafters nor the ratifiers of the Constitution thought a bill of rights was necessary to protect American liberties.

Why did the authors of the Constitution reject proposals for a bill of rights? The Federalist Papers, written by Alexander Hamilton, James Madison and John Jay to promote ratification of the new Constitution, defends the decision of the framers of the U.S. Constitution to exclude any bill of rights.

In Federalist 84, Hamilton observes that a bill of rights, as a bargain between the people and a separate ruler, is irrelevant in a republic in which the people themselves are the collective sovereign.

It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. …It is evident, therefore, that according to their primitive signification, they [i.e. bills of rights] have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations.

Hamilton also argues that listing some rights in the Constitution might inadvertently endanger other rights, which would be assumed to be unprotected because they were not mentioned:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted and on this very account, would afford a colourable pretext to claim more than were granted.

Hamilton, the founder of the New York Post, did not agree that a bill of rights was necessary to protect freedom of the press:

What signifies a declaration that "the liberty of the press shall be inviolably preserved?" What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion? I hold it to be impracticable and from this, I infer, that its security, whatever fine declarations may be inserted in any constitution respecting it, must altogether depend on public opinion, and on the general spirit of the people and of the government.

Hamilton concluded that the regulation of power by the federal Constitution itself, not a laundry list of specific rights, was the best protection of liberty in the new country:

The truth is, after all the declamation we have heard, that the constitution is itself in every rational sense, and to every useful purpose, a bill of rights.

James Madison, the “father of the Constitution,” shared the skepticism of the majority of the Founders about bills of rights. However, the Anti-Federalists, the opponents of a stronger federal government, were particularly influential in slave states like Madison’s Virginia, where they were inspired by some of his fellow slave owners like Thomas Jefferson, George Mason and Patrick Henry. These men were hardly precursors of the ACLU. Mason and Henry in particular objected to the federal Constitution because it did not sufficiently prevent the federal government from intervening in Southern slavery. Unlike George Washington, the only slave-holding president who freed his own slaves at his death, and a supporter of a strong federal government, Mason and Henry were hypocrites who denounced slavery in the abstract while opposing any government power that might infringe upon their despotic personal power over their own slave “property.”

As a delegate at the Constitutional Convention, George Mason, who authored Virginia’s bill of rights, refused to sign the final product, objected to the federal Constitution because of a lack of a bill of rights — and inadequate safeguards to slavery. As a delegate to Virginia’s ratifying convention, Mason denounced the Constitution for allowing a two-decade continuation of the slave trade (which lowered the value of the slaves that Virginian planters sold to slave owners in other states) and also for doing too little to secure slavery from federal interference — for example, a hypothetical federal tax on slavery that would force emancipation:

As much as I value a union of all the states, I would not admit the Southern States into the Union unless they agree to the discontinuance of this disgraceful trade, because it would bring weakness, and not strength, to the Union. And, though this infamous traffic be continued, we have no security for the property of that kind which we have already. There is no clause in the Constitution to secure it for they may lay such a tax as will amount to manumission [emphasis added]…. Yet they have not secured us the property of the slaves we have already. So that they have "done what they ought not to have done, and have left undone what they ought to have done.”

Another Anti-Federalist opponent of the Constitution Patrick Henry feared that the military power of the federal government might be used to end slavery, something that indeed occurred during the Civil War, when President Lincoln justified the Emancipation Proclamation as a war measure. As Thom Hartman has pointed out, for Southern slave owners like Henry the chief purpose of what became the Second Amendment was to prevent the federal government from interfering with state militias used to repress slaves:

May Congress not say, that every black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general but acts of Assembly passed that every slave who would go to the army should be free.

Ironically, it is to the pressure of the slave-holding oligarchy on Virginia’s federal representatives that we owe the Bill of Rights. To be specific, in running for the first Congress in 1788 James Madison beat his rival James Monroe by only 336 votes out of 2,280. This near-death experience led Madison to do a classic political flip-flop, trying to co-opt his opponents by embracing their cause, the addition of a bill of rights to the Constitution. Pennsylvania’s Sen. Robert Morris sneered that Madison “got frightened in Virginia and wrote a book” — the amendments that became the Bill of Rights.

Madison thought that the states were greater menaces to liberty than the federal government, but his proposal that any federal bill of rights govern the states as well as the federal government died in Congress. (According to today’s judicial doctrine, some but not all of the rights in the first 10 amendments have applied to the states since the passage of the 14th Amendment after the Civil War). Of the 12 amendments drafted by Madison and sent to the states for ratification by Congress, only 10 were initially ratified, becoming today’s Bill of Rights. An 11th, governing pay raises for Congress, was ratified only in 1992 as the 27th amendment, while the 12th, about congressional apportionment, failed to win state ratification.

In introducing his proposed amendments to Congress, Madison acknowledged that his bill of rights was an incoherent philosophical and legal mess:

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government declaring that the legislative, executive, and judicial branches shall be kept separate and distinct.

Madison’s bill of rights was a hodgepodge slapped together hastily to try to conciliate former opponents of the newly ratified federal Constitution. This was a typical case of damage control by a reluctant politician trying to head off a more radical alternative by enacting a watered-down substitute. Madison would have been proud to be remembered as “the Father of the Constitution.” But he would have been appalled to be told that without his Bill of Rights the U.S. would be a tyranny. That was the rhetoric of the Anti-Federalists whom he reluctantly sought to appease.

History has vindicated the skepticism about bills of rights shared by Hamilton and Madison and a majority of the drafters and ratifiers of the U.S. Constitution. Mere paper guarantees of rights have never been enough to secure liberty, in periods when the public is panicked — think of Lincoln’s excessive suspension of habeas corpus during the Civil War, or FDR’s wartime internment of Japanese-Americans. And the American system of checks and balances has repeatedly, if belatedly, worked to check imbalances of power, as it did when Congress reined in “the imperial presidency” in the 1970s.

In the contemporary debate about civil liberties and government surveillance, absolutist civil libertarians routinely claim that “the Founders” viewed the Bill of Rights as essential to American liberty. But paranoid rhetoric about our allegedly tyrannical government is closer to the rhetoric of the Anti-Federalists who denounced the U.S. Constitution than to the thinking of the Constitution’s drafters, ratifiers and supporters. The real Founders thought little of lists of abstract rights, putting their faith instead in checks and balances and accountability through elections. In the spirit of the real Founders, we should be debating what kind of system of congressional and judicial oversight of executive intelligence activity can best balance individual liberty with national security — and we should leave anti-government paranoia to today’s Anti-Federalists.

Michael Lind

Michael Lind is the author of more a dozen books of nonfiction, fiction and poetry. He is a frequent contributor to The New York Times, Politico, The Financial Times, The National Interest, Foreign Policy, Salon, and The International Economy. He has taught at Harvard and Johns Hopkins and has been an editor or staff writer for The New Yorker, Harper’s, The New Republic, and The National Interest.


The city of Baltimore, Maryland initiated a public works project that involved the modification of several streams that emptied into Baltimore Harbor. City construction resulted in large amounts of sediment being deposited into the streams, which then emptied into the harbor near a profitable wharf owned and operated by John Barron. The material settled into the water near the wharf, decreasing the depth of the water to a point where it was nearly impossible for ships to approach it. As it was no longer easily accessible for ships, the business's profitability declined substantially. Barron sued the City of Baltimore for losses, arguing that he was deprived of his property without the due process afforded him by the Fifth Amendment. Barron was awarded $4,500 in compensation by the trial court, but a Maryland appellate court reversed the decision.

The Supreme Court heard arguments on the case on February 8 and 11 and decided on February 16, 1833. [2] It held that the Bill of Rights, such as the Fifth Amendment's guarantee of just compensation for takings of private property for public use, are restrictions on the federal government alone. Writing for a unanimous court, Chief Justice John Marshall held that the first ten "amendments contain no expression indicating an intention to apply them to the State governments. This court cannot so apply them."

To demonstrate that Constitutional limits did not apply to states unless expressly stated, Marshall used the example of Article I, Sections 9 and 10:

The third clause (of Section 9), for example, declares that "no bill of attainder or ex post facto law shall be passed." No language can be more general yet the demonstration is complete that it applies solely to the government of the United States. the succeeding section, the avowed purpose of which is to restrain state legislation. declares that "no state shall pass any bill of attainder or ex post facto law.” This provision, then, of the ninth section, however comprehensive its language, contains no restriction on state legislation.

The case was particularly important in terms of American government because it stated that the Bill of Rights did not restrict the state governments. [3]

The decision was initially ignored by the growing abolitionist movement, some of whom maintained that Congress could constitutionally abolish slavery, under the Bill of Rights. The case was largely unknown in the 1860s during a debate in Congress on the Fourteenth Amendment, Congressman John Bingham had to read part of Marshall's opinion aloud to the Senate. [4]


“An Impenetrable Bulwark” of Liberty

The Bill of Rights established soaring principles that guaranteed the most fundamental rights in very general terms. But from the beginning, real live cases arose that raised difficult questions about how, and even if, the Bill of Rights would be applied. Before the paper rights could become actual rights, someone had to interpret what the language of the Bill of Rights meant in specific situations. Who would be the final arbiter of how the Constitution should be applied?

At first, the answer was unclear. Thomas Jefferson thought that the federal judiciary should have that power James Madison agreed that a system of independent courts would be “an impenetrable bulwark” of liberty. But the Constitution did not make this explicit, and the issue would not be resolved until 1803. That year, for the first time, the U.S. Supreme Court struck down an act of Congress as unconstitutional in a case called Marbury v. Madison. Although the facts of this case were fairly mundane (a dispute over the Secretary of State’s refusal to commission four judges appointed by the Senate), the principle it established – that the Supreme Court had the power to nullify acts of Congress that violated the Constitution – turned out to be the key to the development and protection of most of the rights Americans enjoy today. According to one eminent legal scholar, the independent judiciary was “America’s most distinctive contribution to constitutionalism.”


George Mason and the origins of the Bill of Rights

Portrait of George Mason (Courtesy of Gunston Hall)

One of the documents on display in the Rotunda in the National Archives is the Bill of Rights, the first 10 amendments to the U.S. Constitution. Its serves as a prominent reminder of our right as Americans.

But the document that inspired the Bill of Rights, as well as its main author, George Mason, are lesser known.

Mason’s Virginia Declaration of Rights, completed in June 1776, served as the basis for our nation’s Bill of Rights.

Mason was raised in a wealthy planter family in the Northern Neck region of Virginia. By his early 20s, Mason emerged as one of the wealthiest men of the colony and began a successful career as a businessman, lawyer, and public servant for his colony and, later, his country.

Portrait of Ann Mason (Courtesy of Gunston Hall)

Mason married Ann Eilbeck, the daughter of a wealthy family from Maryland, on April 4, 1750, and they had nine children. To house his large family, Mason hired young English craftsman and indentured servant, William Buckland, to oversee the construction of his new plantation home, Gunston Hall.

Completed in 1758, Gunston Hall became Mason’s second love alongside his wife.

Before writing the Virginia Declaration of Rights, Mason became a member of the Virginia House of Burgesses in 1758 and served on multiple committees pertaining to both regional and local concerns. Despite his colleagues holding him in high esteem, Mason did not attend sessions for most of his term and ended up not seeking reelection in 1761.

While he did not serve in government again until 1775, Mason remained at the center of Virginia politics. Typically at the behest of George Washington, he drafted responses to Great Britain’s various tax acts during the 1760s and 1770s for the House of Burgesses to use to urge colonists to boycott British goods and protests the acts.

Throughout his life, Mason avoided a career in politics in order to invest time in his plantation and family. Particularly after Ann’s death in 1773, he thought his job as a father was more important than dealing with the “useless Members” of the Virginia Convention.

Photograph of Gunston Hall, undated. (National Archives Identifier 57355877)

However, Mason reluctantly agreed to be a part of the Third Virginia Convention in May 1775 as the representative of Fairfax County, replacing his neighbor George Washington, who had become the commander-in-chief of the newly created Continental Army.

While in Richmond for the Convention that July and August, Mason’s primary job was to raise funds for an army to protect Virginia in the event of an invasion by the British Army. While serving at the Convention, Mason was so resistant to serving in government that he tried to resign but was refused. An illness forced him to return to Gunston Hall before the Convention’s end.

It was not until a couple years later in Mason’s public career that he made his most important contribution to the founding of the American republic.

As a member of the Fifth Virginia Convention in May 1776, Mason was part of a committee assigned to write a new constitution for Virginia as well as a declaration of rights.

The opening of Mason’s Declaration of Rights was not only influential in Jefferson’s introduction to the Declaration of Independence, but it also became the basis for the Bill of Rights:

The Virginia Declaration of Rights. Holograph manuscript, May 1776. (Manuscript Division, Library of Congress)

A Declaration of Rights is made by the representatives of the good people of Virginia. . . . That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

The Virginia Declaration of Rights was the first constitutional affirmation by a North American government that citizens have rights that the government cannot infringe upon or take away.

Mason’s belief in the freedoms of speech, of religion, and of assembly became the cornerstone of not only our Bill of Rights but our society’s conception of what having rights means in America.

Visit the National Archives Bill of Rights webpage to learn more about the history of the founding document.

Bill of Rights, September 25, 1789. (National Archives Identifier 14080)


The First Amendment guarantees religious freedom

The First Amendment, one of the more symbolic and litigious of the amendments, guarantees fundamental rights such as freedom of religion, speech, and the press, and the rights to assemble peacefully and to petition the government. The free exercise clause in the First Amendment prohibits the government from restricting religious beliefs and practices, although exceptions have been made in situations in which ceremonial practices threaten an individual&rsquos safety or welfare. The establishment clause of the First Amendment has been interpreted as calling for separation of church and state.

This separation has been observed through various legal precedents and U.S. Supreme Court interpretations of the &ldquowall of separation doctrine,&rdquo which states that government laws may not have as their purpose an intent to aid religion. This doctrine has been further reinforced through a three-part Lemon test, named for the 1971 Supreme Court decision Lemon v. Kurtzman. The Lemon test requires that laws have a secular purpose, that their primary effect neither advances nor inhibits religion, and that they do not foster &ldquoexcessive government entanglement with religion.&rdquo


Did the Bill of Rights apply to slaves? - History

It is a measure of the success of the Constitution's drafters that after the adoption in 1791 of the ten amendments that constitute the Bill of Rights, the original document has been changed only 17 times.

Only six of those amendments have dealt with the structure of government. With the exception of Prohibition and its revocation, the main thrust of the other amendments has been to protect or expand the rights already guaranteed in the Constitution and the Bill of Rights.

Over the years, there have been many proposals to alter the Constitution. These include an 1808 proposal by a Connecticut Senator that the nation choose its president through an annual random drawing from a list of retiring senators to a 1923 proposal for an amendment to guarantee equal rights for women.

If the Constitution has rarely been amended, it is in no small part because its authors made it difficult to tamper with. Amendments must follow one of two routes. Under the one followed by all amendments to date, two-thirds majorities of each house of Congress vote their approval and three quarters of the state legislatures add their ratification. Under the second route, two thirds of the states may vote to call a constitutional convention, whose proposed amendments must be ratified by three-fourths of the state legislatures.

The first ten amendments were added in 1791 and later amendments introduced such far-reaching changes as ending slavery, creating national guarantees of due process and individual rights, granting women the vote, and providing for direct popular election of senators.

In 1793, the Supreme Court angered states by accepting jurisdiction in a case where an individual sued the state of Georgia. To ensure that did not happen again, Congress and the states added the 11th Amendment in 1798.

The 12th Amendment , ratified in 1804, had electors vote separately for president and vice president. Until then, the candidate with the most Electoral College votes became president, and the runner up, vice president.

Slavery generated four amendments. The 13th Amendment , ratified in 1865, abolished slavery. The 14th Amendment was adopted in 1868 to protect the civil rights of former slaves. It granted citizenship to all people born in the United States. Two years later, the 15th Amendment declared that the right to vote shall not be abridged on account of race or previous condition of servitude.

The 16th Amendment (1913) authorized an income tax, which the Supreme Court had declared unconstitutional in 1895.

The 17th Amendment required direct election of senators.

In 1919, the states approved the 18th Amendment , prohibiting the manufacture and sale of alcoholic beverages. In 1933, Congress proposed an amendment to repeal Prohibition. The 21st Amendment was ratified in just 286 days.

The 19th Amendment extended the vote to women.

The 20th Amendment reduced the time between the election of national officials and their assumption of office.

The 22nd Amendment , adopted in 1951, limited presidents to two terms.

The 23rd Amendment , enacted in 1961, allowed residents of the District of Columbia to vote in presidential elections.

The 24th Amendment , ratified in 1964, prohibited a poll tax in federal elections.

The 25th Amendment (1967) provided a system for selecting a new vice president after the death or resignation of a president. It also established a system to deal with the possibility that a president might become disabled.

The 26th Amendment , adopted in 1971, extended the vote to 18 year-olds.

The 27th Amendment , ratified in 1992, prevents Congress from giving itself an immediate pay increase. It says that a change in pay can only go into effect after the next congressional election.


Notes on the Amendments

Each Amendment to the Constitution came about for a reason — to overrule a Supreme Court decision, to force a societal change, or to revise the details of the Constitution. This page will give an overview of how each Amendment came to be.

The process for adopting an amendment is outlined elsewhere, as is the ratification history of each Amendment. A list of failed amendments is also available.

The Bill of Rights (Amendments 1 through 10)
As noted on the Constitutional Convention Topic Page, several delegates to the convention refused to sign the newly drafted constitution because it did not include a bill of rights. Bills of rights were typically parts of the constitutions of the several states of the day (and today), placed there to ensure that certain rights were recognized by the government. Most of the delegates did not feel such a bill was necessary, and other may have been on the fence but were weary from the months of negotiations.

The lack of a bill of rights was one of the main arguments that Anti-Federalists used to try to convince the public to reject the Constitution. But the need for change was all too evident, and it was not rejected. However, some of the states sent suggestions for amendments to the Constitution to add an enumeration of certain rights. The ratification messages of the states included many varying suggestions, which the very first Congress took under consideration in its very first session.

Representative James Madison, who was so instrumental in the creation of the Constitution in the first place, drafted a bill of rights. Though he originally opposed the idea, by the time he ran for a seat in the House, he used the creation of a bill as part of his campaign. He introduced the bill into the House, which debated it at length and approved 17 articles of amendment. The Senate took up the bill and reduced the number to 12, by combining some and rejecting others. The House accepted the Senate's changes, voting on September 24th and 25th, 1789 twelve articles of amendment were sent to the states for ratification.

The first two articles were not accepted by enough states, but the last ten were. We know them today as Amendments 1 through 10. The second article was eventually ratified as the 27th Amendment. The first ten amendments, collectively known as the Bill of Rights, were ratified on December 15, 1791 (811 days). A photographic image of the badly-faded original Bill is available on this site.

11th Amendment
The 11th Amendment came about as a direct result of the Supreme Court decision in Chisholm v Georgia (2 U.S. 419) in 1793 (see the Events Page for details). Congress felt that the Supreme Court had over stepped its bounds, and feared it would do so again unless prohibited by the Constitution. The Chisholm case was decided in 1793, just five years after the adoption of the Constitution. The Amendment was approved by Congress on March 4, 1794, and ratified on February 7, 1795 (340 days). The Amendment limits the jurisdiction of the federal courts to automatically hear cases brought against a state by the citizens of another state. Later interpretations have expanded this to include citizens of the state being sued, as well.

In Hollingsworth v Virginia (3 USC 378 [1798]), the passage and ratification of the 11th was challenged for two reasons. First because the President did not sign the amendment bill, and second because the amendment presented a situation where people had some legal relief before ratification that dried up after, creating an ex post facto situation. The Supreme Court rejected both challenges, setting some important precedent for future amendments.

12th Amendment
The Constitution was written before parties were a player in American politics. When John Adams was chosen for President in the 1796 election, the second-place candidate, Thomas Jefferson, became Vice President — but Adams was a Federalist and Jefferson was a Democratic-Republican. The two clashed several times during Adams's presidency, though Adams's conflicts with Hamilton, a Federalist, too, probably caused Adams more concern.

In the election of 1800, the flaws of the original system became more than apparent. Jefferson and Aaron Burr both got 73 votes in the Electoral College, forcing the House of Representatives to choose. The problem? Both Jefferson and Burr were candidates of the same party, with Burr chosen to be the Vice President some states preferred Burr, and neither was able to get the required majority until the stalemate was ultimately broken.

The result was the 12th Amendment, approved in Congress on December 9, 1803, and ratified on June 15, 1804 (189 days), in time for the new process to be in place for the 1804 election. With the 12th, Electors are directed to vote for a President and for a Vice President rather than for two choices for President.

13th Amendment
Slavery was an institution in America in the 18th and 19th centuries. The Southern states, with their agricultural economies, relied on the slavery system to ensure the cash crops (cotton, hemp, rice, indigo, and tobacco, primarily) were tended and cultivated. Slaves were not unknown in the North, but abolition in the North was completed by the 1830's. In 1808, the Congress prohibited the slave trade, not a year later than allowed in the Constitution. A series of compromises, laws, acts, and bills tried to keep the balance between the slave states and the non-slave states. For a more thorough history of slavery, see the Slavery Topic Page.

South Carolina voted to secede from the United States as a result of Abraham Lincoln's election to the Presidency. Lincoln had, over time, voiced strong objections to slavery, and his incoming administration was viewed as a threat to the right of the states to keep their institutions, particularly that of slavery, the business of the states. More states seceded, eleven in all, forming the Confederate States of America. The secession movement led to the Civil War. In the waning days of the war, which ran from 1861 to 1865, the Congress approved an amendment to abolish slavery in all of the United States. Once the CSA was defeated, approval of the 13th Amendment was quick in the Northern states. By the end of 1865, eight of the eleven Confederate states had also ratified it. Proposed on January 31, 1865, it was ratified on December 6, 1865 (309 days). Eventually, all of the CSA states except Mississippi ratified the 13th after the war Mississippi ratified the amendment in 1995.

14th Amendment
The ratification of the 13th Amendment was a major victory for the North, and it was hoped that with the Emancipation Proclamation and the 13th Amendment, the effects of slavery in the United States would quickly diminish. The original plan to readmit states after acceptance of the 13th was supported by President Andrew Johnson, but the Radical Republicans, as they became known, wanted more than just a return to normalcy. They wanted to keep the power they had attained during the war years. The South did not make it easy for Johnson, however, and the so-called Black Codes started to be passed in Southern states. Congressional inquiries into the Black Codes found them to be a new way of controlling ex-slaves, fraught with violence and cruelty.

The ensuing Reconstruction Acts placed the former CSA states under military rule, and prohibited their congressmen's readmittance to Congress until after several steps had been taken, including the approval of the 14th Amendment. The 14th was designed to ensure that all former slaves were granted automatic United States citizenship, and that they would have all the rights and privileges as any other citizen. The amendment passed Congress on June 13, 1866, and was ratified on July 9, 1868 (757 days).

15th Amendment
The last of the Reconstruction Amendments, the 15th Amendment was designed to close the last loophole in the establishment of civil rights for newly-freed black slaves. It ensured that a person's race, color, or prior history as a slave could not be used to bar that person from voting. Though a noble idea, it had little practical effect for quite some time, as the Southern states found myriad ways to intimidate blacks to keep them from voting. The Congress passed the amendment on February 26, 1869, and it was ratified on February 3, 1870 (342 days).

Though ratification of the 15th Amendment was not a requirement for readmittance of the Confederate states to the Congress, one of the provisions of the Reconstruction Acts required that the states include a provision in their new constitutions that included a near-copy of the text of the 15th. All of the CSA states except Tennessee, which was immune from the Reconstruction Acts, eventually ratified the 15th Amendment.

16th Amendment
In 1895, in the Supreme Court case of Pollock v Farmer's Loan and Trust (157 U.S. 429), the Court disallowed a federal tax on income from real property. The tax was designed to be an indirect tax, which would mean that states need not contribute portions of a whole relative to its census figures. The Court, however, ruled that the tax was a direct tax and subject to apportionment. This was the last in a series of conflicting court decisions dating back to the Civil War. Between 1895 and 1909, when the amendment was passed by Congress, the Court began to back down on its position, as it became clear not only to accountants but to everyone that the solvency of the nation was in jeopardy. In a series of cases, the definition of "direct tax" was modified, bent, twisted, and coaxed to allow more taxation efforts that approached an income tax.

Finally, with the ratification of the 16th Amendment, any doubt was removed. The text of the Amendment makes it clear that though the categories of direct and indirect taxation still exist, any determination that income tax is a direct tax will be irrelevant, because taxes on incomes, from salary or from real estate, are explicitly to be treated as indirect. The Congress passed the Amendment on July 12, 1909, and it was ratified on February 3, 1913 (1,302 days).

17th Amendment
One of the most common critiques of the Framers is that the government that they created was, in many ways, undemocratic. There is little doubt of this, and it is so by design. The Electoral College, by which we choose our President, is one example. The appointment of judges is another. And the selection of Senators not by the people but by the state legislatures, is yet another. The Senatorial selection system eventually became fraught with problems, with consecutive state legislatures sending different Senators to Congress, forcing the Senate to work out who was the qualified candidate, or with the selection system being corrupted by bribery and corruption. In several states, the selection of Senators was left up to the people in referenda, where the legislature approved the people's choice and sent him or her to the Senate. Articles written by early 20th-century muckrakers also provided grist for the popular-election mill.

The 17th Amendment did away with all the ambiguity with a simple premise — the Senators would be chosen by the people, just as Representatives are. Of course, since the candidates now had to cater to hundreds of thousands, or millions, of people instead of just a few hundred, other issues, such as campaign finances, were introduced. The 17th is not a panacea, but it brings government closer to the people. The Amendment was passed by Congress on May 13, 1912, and was ratified on April 8, 1913 (330 days).

18th Amendment
Consumption of alcohol was discouraged by law in many of the states over the first century of the United States under the Constitution. By 1855, 13 of the 31 states had temperance, or alcohol prohibition, laws. The Civil War distracted the public from the temperance movement, but the proliferation of saloons after the Civil War, and the trappings of the saloons (like gambling, prostitution, and public drunkenness) led to the so-called "Women's War" in 1873. Over time, the movement became more organized and the Anti-Saloon League was established in 1893. The ASL's goal was national prohibition, and it set up an office in Washington to that end — it even established its own publishing house in Westerville, Ohio.

The ASL polled candidates on their stand on the temperance question, endorsing candidates with a pro-temperance stance. In the election of 1915, ASL-sponsored candidates swept the elections for Congress, and on December 18, 1917, Congress passed the 18th Amendment. It quickly was adopted by the states, being ratified in just over a year, on January 16, 1919 (394 days).

19th Amendment
Though the Constitution originally made no mention of a woman's right to vote, it was implied by society — women simply did not have the right. The 14th Amendment actually made things worse, by codifying the suffrage right to men only, when its Second Clause punished the denial of suffrage to men (though this still did not officially deny women the right). As early as 1848, groups met to discuss how to further women's rights, and the franchise, it was decided, was the best place to start. But America was not ready, and the suffragists, as they were called, were branded as immoral.

Famous women's rights leaders Susan B. Anthony and Elizabeth Cady Stanton tried to make a stand after the Civil War, to have the language of the 14th Amendment include women, though the issue was thought too volatile by most, and passage of the amendment was thought to be in grave jeopardy if such a provision were included. Anthony later used the 15th Amendment as rationale for voting in a New York election, and though she was tried and fined for voting, the ordeal proved an impetus for the eventual guarantee of voting rights for women. By 1918, about half the states had granted women full or partial voting rights the stature gained by women involved in the temperance movement also helped push the suffragist movement along. The support of women to the war effort convinced many more, even President Woodrow Wilson, who had been staunchly opposed to a federal suffrage amendment. On June 4, 1919, the 19th Amendment was passed by Congress, and it was ratified on August 18, 1920 (441 days).

20th Amendment
The term "Lame Duck" originates in the mid 1700's. It is applied to an elected official who has not been reelected, but still holds office. For example, in the United States today, the President is elected in November, and inaugurated in January of the following year — the time in between if the President was not reelected, is the lame duck period. Early in the political history of the nation, the period between the election and swearing-in of elected officials was a small issue. With slow methods of transportation and the nature of the politician in the 18th century, the lame duck period was almost a necessity. In fact, once the November election was established, it was more than a year before newly elected congressmen met in December.

But from the start, the lame duck period was a problem, most famously illustrated in the Marbury v Madison case, where lame-duck appointments by out-going President John Adams set the stage for a landmark Supreme Court decision with his series of late-night, last-minute appointments. The 20th Amendment cleared up this problem to a degree, by shortening the lame duck period. The Congress is sworn in on January 3 following the election, and the President is sworn in on January 20, rather than the March 4th prescribed in the 12th Amendment. The Amendment also closes a gap in Presidential power by specifying what will happen if a President-elect dies before he is sworn in. The 20th Amendment was passed by Congress on March 2, 1932, and was ratified by the states on January 23, 1933 (327 days).

The 20th reached some notoriety during the impeachment proceedings of President Bill Clinton in 1998 the final House vote was taken after the 1998 elections, and the Senate was not scheduled to hear the case until after the swearing-in of the next Congress in 1999. Arguments that the 20th conceptually required a revote by the new House were fruitless, however.

21st Amendment
It would be a disservice to say that the 18th Amendment was completely ineffective. It would also be a disservice to say that the 18th Amendment caused the lawlessness embodied by people like Al Capone. The 18th Amendment did reduce alcohol consumption in the United States, and it did not cause organized crime. In the Prohibition era, alcohol consumption (measured in gallons of ethanol consumed) dropped to an average of less than a gallon per person per year, down from two and a half gallons in 1915. And organized crime existed before Prohibition, and existed after it, too.

That having been said, the Prohibition era did have a certain sense of lawlessness the very fact that consumption was not eliminated is testimony to that and the fact that organized crime manufactured and distributed the bulk of the illicit alcohol of the 1920's and early 1930's is evidence that gangsters were aided by Prohibition. Enforcement was spotty, with stills and speakeasies popping up in every population center. Over-zealous police and federal agents violated civil rights when searching for and destroying the paraphernalia of alcohol. While most Americans respected the law, were in favor of the law, the shine of "dry" began to wear off, especially as the Great Depression set in.

A movement began to form to repeal the 18th Amendment. Prohibition of alcohol was seen as an affront to personal liberty, pushed on the nation by religious moralists. Alcohol was also seen as a source of revenue for the local and national governments. The effort to elect "wet" legislators was as grand as that to elect "dry" ones almost two decades earlier. The Congress passed the amendment on February 20, 1933 (288 days). It mandated, for the first time, that conventions of the states were to vote on the amendment, rather than the legislatures, feeling that conventions would be more apt to vote to ratify - and they did, quickly — the ratification process was complete on December 5, 1933. The 21st Amendment repealed the 18th, the first time an amendment had been repealed by another.

22nd Amendment
Since the presidency of George Washington, only one thing could be said to be totally consistent — that no President had the job for more than two full terms. Washington had been asked to run for a third term in 1796, but he made it quite clear that he had no intention of doing so that an orderly transition of power was needed to set the Constitution in stone. And so it was for almost 150 years.

Franklin Delano Roosevelt was first elected President in 1932, and re-elected in 1936. When it came time for the Democrats to nominate a candidate for the Presidency in 1940, two things had happened. First, the Republicans had made great gains in Congress in the 1938 elections. And Hitler happened. Europe was in the throes of a great war, with trouble in the Pacific, too. A change away from Roosevelt, who had led the nation through the Great Depression, did not seem wise. He was nominated for an unprecedented third term, and won. It was not a landslide victory, however, and it is debatable that FDR would have had a third term had it not been for the war. When 1944 rolled around, changing leaders in the middle of World War II, which the United States was now fully engaged in, also seemed unwise, and FDR ran for and was elected to, a fourth term.

His life was nearly over, however, and his Vice President, Harry Truman, became President upon FDR's death less than 100 days after his inauguration. Though FDR's leadership was seen by many as a key reason that the U.S. came out of WWII victorious, the Congress was determined, once the war ended, to ensure that Washington's self-imposed two-term limit become the law of the land. Specifically excepting Truman from its provisions, the 22nd Amendment passed Congress on March 21, 1947. After Truman won a second term in 1948, it was ratified on February 27, 1951 (1,439 days). Truman could have run for a third term, but bowed out early before campaigning began.

23rd Amendment
The District of Columbia has been a unique city since its founding in 1800 as the seat of the new government. When first established, it was a town of 5000, and it was assumed that it would be the center of government, and not a population center. But by 1900, over a quarter of a million people lived within its bounds. Since it is a federal district, however, and not a state, the inhabitants not only had no real local government, they had no vote in the federal government either. By 1960, when 760,000 people lived in Washington, D.C., it seemed odd that people from a dozen states, with lower populations, had more voting rights than residents of the District. As citizens, they were required to pay taxes and to serve in the military, but a vote in the Presidential election was available only to the states.

It is important to note that the 23rd Amendment does not make Washington, D.C., a state it just confers upon its citizens the number of electors that it would have if it were a state. It also did not provide full representation in Congress for the District. The Congress passed the amendment on June 17, 1960 the amendment was ratified on March 29, 1961 (285 days).

24th Amendment
One of the last legal vestiges of segregation was the effort to keep the black population from participating in the vote. With most methods for keeping the black vote to a minimum declared unconstitutional, several Southern states found an answer — the poll tax. The poll tax has a long history, and was often used in Europe to raise funds. With a poll tax, in order to vote, a certain tax must be paid. The tax is the same for all, which allowed the generally more affluent white population access to the polls with a minimum of pain, while the generally poorer black population would have trouble justifying trading food on the table for a vote in the ballot box. Worse, different kinds of poll taxes were implemented, some accumulating even if no attempt was made to vote, meaning increasingly higher back-taxes to be paid to gain the vote.

In 1939, Congress began to try to get rid of the poll tax, but history was not behind them. After all, in colonial times and when the Constitution first came into effect, land ownership was often a requirement for suffrage. Though only five states still had a poll tax by the time the amendment passed Congress, Supreme Court rulings made it doubtful that mere legislation would eliminate the tax altogether. Proposed by Congress on August 27, 1962, the 24th Amendment was ratified within a year and a half, on January 23, 1964 (514 days).

25th Amendment
When Dwight Eisenhower was president, he suffered from several medical issues that created a power vacuum. Eisenhower and his Vice President Richard Nixon entered into an agreement that allowed Nixon to become Acting President while Eisenhower was incapacitated. The agreement was between the two men and did not have constitutional authority, but it set a precedent that was followed by the following presidents, John Kennedy and Lyndon Johnson.

Nothing prepared anyone, however, for the national tragedy of the Kennedy assassination. The 1963 assassination shocked the nation in more ways than the obvious. The advancement of medical technology had many hoping that the President could have been saved after being shot. That was not the case, but if he had been, Kennedy could have been in a coma for an extended period of time, perhaps never able to fully function again. The Eisenhower-Nixon agreement set some things in motion, but was extra-constitutional. The Vice President would be the President, but would not be able to fulfill his duties. The resulting power vacuum would cause a constitutional crisis — who has the power of the Presidency?

Less than two years after Kennedy's death, on July 6, 1965, the Congress passed the 25th Amendment, where the line of succession was not only clarified, but what was to be done in the case of presidential disability was addressed. The selection of a Vice President for an empty Vice Presidential seat was also provided for. The states ratified the amendment on February 10, 1967 (584 days). The second clause, dealing with the filling of a vacancy in the Vice Presidency, was used less than six years later when Gerald Ford assumed the Vice Presidency upon the resignation of Spiro Agnew.

26th Amendment
The United States was in the throes of the Vietnam War and protests were underway throughout the nation. Draftees into the armed services were any male over the age of 18. There was a seeming dichotomy, however: these young men were allowed, even forced, to fight and die for their country, but they were unable to vote. The 14th Amendment only guaranteed the vote, in a roundabout way, to those over twenty-one.

The Congress attempted to right this wrong in 1970 by passing an extension to the 1965 Voting Rights Act (which itself is enforcement legislation based on prior suffrage amendments) that gave the vote to all persons 18 or older, in all elections, on all levels. Oregon objected to the 18-year-old limit, as well as other provisions of the 1970 Act (it also objected to a prohibition on literacy tests for the franchise). In Oregon v Mitchell (400 U.S. 112), a sharply divided Supreme Court ruled that the Congress had the power to lower the voting age to 18 for national elections, but not for state and local elections. The case was decided on December 1, 1970. Within months, on March 23, 1971, the Congress passed the text of the 26th Amendment, specifically setting a national voting age, in both state and national elections, to 18. In just 100 days, on July 1, 1971, the amendment was ratified.

Close Up, an organization dedicated to involving youth in government, has produced a PDF pamphlet on the 26th Amendment and history. You can find the pamphlet on their web site.

27th Amendment
The 27th Amendment was originally proposed on September 25, 1789, as an article in the original Bill of Rights. It did not pass the required number of states with the articles we now know as the first ten amendments. It sat, unratified and with no expiration date, in constitutional limbo, for more than 80 years when Ohio ratified it to protest a congressional pay hike no other states followed Ohio's lead, however. Again it languished, for more than 100 years.

In 1978, Wyoming ratified the amendment, but there was again, no follow-up by the remaining states. Then, in the early 1980's, Gregory Watson, an aide to a Texas legislator, took up the proposed amendment's cause. From 1983 to 1992, the requisite number of states ratified the amendment, and it was declared ratified on May 7, 1992 (74,003 days).

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Did the Bill of Rights apply to slaves? - History

On March 6, 1857, in a small room in the Capitol basement, the Supreme Court ruled that Congress had no power to prohibit slavery in the territories.

In 1846, a Missouri slave, Dred Scott, sued for his freedom. Scott argued that while he had been the slave of an army surgeon, he had lived for four years in Illinois, a free state, and Wisconsin, a free territory, and that his residence on free soil had erased his slave status. In 1850 a Missouri court gave Scott his freedom, but two years later, the Missouri Supreme Court reversed this decision and returned Scott to slavery. Scott then appealed to the federal courts.

For five years, the case proceeded through the federal courts. For more than a year, the Court withheld its decision. Many thought that the Court delayed its ruling to ensure a Democratic victory in the 1856 elections. Then, in March 1857, Chief Justice Roger B. Taney announced the Court's decision. By a 7-2 margin, the Court ruled that Dred Scott had no right to sue in federal court, that the Missouri Compromise was unconstitutional, and that Congress had no right to exclude slavery from the territories.

All nine justices rendered separate opinions, but Chief Justice Taney delivered the opinion that expressed the position of the Court's majority. His opinion represented a judicial defense of the most extreme proslavery position.

The chief justice made two sweeping rulings. The first was that Dred Scott had no right to sue in federal court because neither slaves nor free blacks were citizens of the United States. At the time the Constitution was adopted, the chief justice wrote, blacks had been "regarded as beings of an inferior order" with "no rights which the white man was bound to respect."

Second, Taney declared that Congress had no right to exclude slavery from the federal territories since any law excluding slavery property from the territories was a violation of the Fifth Amendment prohibition against the seizure of property without due process of law. For the first time since Marbury v. Madison in 1803, the Court declared an act of Congress unconstitutional.

Newspaper headlines summarized the Court's rulings:

In a single decision, the Court sought to resolve all the major constitutional questions raised by slavery. It declared that the Declaration of Independence and the Bill of Rights were not intended to apply to black Americans. It stated that the Republican Party platform--barring slavery from the western territories--was unconstitutional. And it ruled that Stephen Douglas's doctrine of "popular sovereignty"--which stated that territorial governments had the power to prohibit slavery--was also unconstitutional.

Republicans reacted with scorn. The decision, said the New York Tribune, carried as much moral weight as "the judgment of a majority of those congregated in any Washington barroom." Many Republicans--including an Illinois politician named Abraham Lincoln--regarded the decision as part of a slave power conspiracy to legalize slavery throughout the United States.

The Dred Scott decision was a major political miscalculation. In its ruling, the Supreme Court sought to solve the slavery controversy once and for all. Instead the Court intensified sectional strife, undercut possible compromise solutions to the divisive issue of the expansion of slavery, and weakened the moral authority of the judiciary.


Watch the video: Amerikanische Verfassung u0026 Bill of Rights 1787 u0026 1789 (August 2022).