WHAT CHANGES DID THE BILL OF RIGHTS BRING

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This article is written by Garima Harsh, University of Petroleum and Energy Studies, Intern under Legal Vidhiya

Abstract

One of the most morally upright constitutions the world has ever seen is the United States Bill of Rights. The Bill of Rights now refers to the ten initial modifications to the United States Constitution (out of a total of 27 amendments made thus far). The Bill of Rights has a rich historical background and continues to be of utmost significance to the US Constitution today. This paper aims to discuss the wide aspects of THE BILL OF THE RIGHTS also with comparison under the Indian Constitution aspects.

INTRODUCTION

The initial ten amendments to the United States Constitution are now referred to as the Bill of Rights. Previously, they were known as modifications to the Constitution. The American worldview of freedom, individual liberty, little government meddling, and the rule of law is embodied in the Bill of Rights. In 1791, Bill of Rights was ratified as a whole. The link between a citizen of the United States and the ruling government is clearly outlined. Additionally, it protects one’s civil rights, personal freedom, and liberty. Bill of Rights also places restrictions on the authority and arbitrary nature of the authorities in power in order to protect citizens’ individual rights and privacy. Thomas Jefferson, one of the founding fathers and a proponent of the Bill of Rights, provided a succinct definition of the document in the following way: “A Bill of Rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”[1]

THE BILL OF RIGHTS: A BRIEF HISTORY

Bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”
– Thomas Jefferson, December 20, 1787[2]

Delegates from the 13 states met in Philadelphia in the summer of 1787 to draft the Declaration of Independence of the United States, a unique document outlining the country’s system of self-government. The initial version created a structure of balance and checks with a powerful executive branch, a democratically elected legislature, and a federal court. The Constitution was amazing, but it had serious flaws. For starters, it lacked a detailed proclamation or bill of individual rights. It stated what the federal government could accomplish but left out its limitations. Another reason was that not everyone could use it. The “permission of the governed” only applied to affluent white men. In the end, public opinion was deciding. The American people needed strong assurances that the new administration would not violate their recently earned freedoms of speech, press, and religion, as well as their constitutional right to be free from unlawful searches and seizures, after being recently liberated from the oppressive English monarchy. The writers of the Constitution, therefore, paid attention to Thomas Jefferson’s argument that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”[3] James Madison and Thomas Jefferson collaborated to create the American Bill of Rights, which was eventually ratified and formed a part of the Constitution’s first 10 amendments in 1791.

THE BILL OF RIGHTS

The first ten amendments to the United States Constitution, collectively known as the Bill of Rights, were ratified on 15 December 1791, and they are a set of overlapping guarantees of freedoms for individuals and restraints on the powers of the state and federal governments.

The Bill of Rights stems from the Magna Carta (1215), the English Bill of Rights (1689), the colonial struggle against the king and Parliament, and a gradually expanding conception of equality among the American people. George Mason was primarily responsible for Virginia’s Declaration of Rights, which was a major precursor. The safeguards provided in the Bill of Rights have legal effects and are axioms of government.

When the legitimacy of such acts is contested in court, the United States Supreme Court may invalidate any Acts of Congress that clash with them[4]

The main body of the Constitution forbids suspension of the writ of habeas corpus except in cases of invasion or rebellion (Article I, section 9); forbids state or federal bills of attainder; forbids ex post facto laws; mandates that each of the crimes towards the United States be tried by jury in the state where committed (Article III, section 2); restricts the definition, trial, and punishment of treason (Article III, section 3); and forbids titles.[5]

In state conventions convened to ratify the Constitution, popular discontent regarding the restricted assurances of the main body of the document led to expectations and assurances that the initial Congress of the United States fulfilled by presenting to the states 12 amendments. Ten had been approved. (The Twenty-seventh Amendment[6], which was the second of the 12 amendments, was approved in 1992. It mandated that any modification to the level of payment for congressional members take effect only after the succeeding elections in the House of Representatives.) These amendments were restricted to restraints against the federal government because individual states were bound by their own distinct bills of rights. James Madison’s amendment (accepted by the House of Representatives) preserving trial by jury, press freedom, and religion against state violations was not submitted by the Senate. A statute establishing a religion or forbidding its free exercise is prohibited by the First Amendment, and Congress is also prohibited from restricting the right to free speech, the freedom of the press, right to assemble and petition for redress of grievances. The Second Amendment’s guarantee of the right to bear weapons and the Third Amendment’s ban on forcible housing for soldiers in private residences both indicate opposition to standing armies. The Fourth Amendment protects citizens from arbitrary searches and seizures and prevents the issuing of warrants unless they are supported by evidence and targeted at particular people or locations. The Fifth Amendment forbids double jeopardy for a single offense and requires grand jury conviction in prosecutions of significant crimes. It states that no one can be forced to testify against themselves, and it prohibits seizing the life, liberty, or possessions of another without first obtaining a court order, as well as taking private property without just recompense for its public benefit (eminent domain). According to the Sixth Amendment, an accused person has the right to a prompt, public jury trial, information about the charges against them, a confrontation with the prosecution’s witnesses, and legal representation. The right to a jury trial in civil proceedings was explicitly established by the Seventh Amendment. According to the Eighth Amendment, excessive bail, fines, and unusually harsh punishment are all prohibited. Unnumbered leftover rights of the people are protected by the Ninth Amendment, while the Tenth Amendment reserves any powers not specifically granted to the United States to the states or the people. Slavery was outlawed by the Thirteenth Amendment following the American Civil War (1861–65)[7] and the Fourteenth Amendment (1868) proclaimed that all people who are born or naturalized in the United States and subject to its jurisdiction are citizens of that country. It prohibits the states from limiting the rights or immunities of American citizens or from robbing someone of their life, freedom, or possessions without following the required legal procedures. The Supreme Court began using the due process clause in the early 20th century in order to gradually incorporate, or apply against the states, the majority of the Bill of Rights protections, which were previously believed to exclusively apply against the federal government.

Thus, the proper procedure provision finally gave Madison’s rejected 1789 proposal its major components.

The Second Amendment to the United States Constitution was ratified in 1791 as a section of the Bill of Rights and served as a legal restraint on the congressional authority granted by Article I, Section 8 to establish, arm, and control the federal militia. A well-regulated militia being essential to the safety of a free State, and the liberty of individuals to keep and wield arms, must not be infringed, states the Second Amendment. According to St. George Tucker, a law professor at the College of William and Mary and future judge on the U.S. District Court, the Second Amendment was intended by the framers of the Constitution to be a person’s right to keep and bear arms for self-defense. Tucker wrote this in 1803 in his famous book Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia. The Second Amendment not only restrained the power of the federal government, but it also gave state governments what Luther Martin (1744/48-1826) called the “last coup de grace” that would allow them “to resist and confront the general government.”[8] Last but not least, it made every citizen a soldier and every soldier a citizen, thus enshrining the medieval Florentine and Roman constitutional principles of civic and military virtue.[9]

Supreme Court Interpretations

The Second Amendment’s constitutional reach has never been given serious thought by the US Supreme Court before 2008. The Supreme Court ruled in Presser v. Illinois (1886)[10], which was the first case to address the issue, that the Second Amendment forbade states from “prohibit[ing] the people from maintaining and keeping arms, so as to deny the nation of their due resource to safeguard the public security.” The Supreme Court referenced the Second Amendment more than 40 years later in United States v. Schwimmer (1929)[11], holding that “the defense of all was one of the objectives for which the people established and established the Constitution” and that it “enshrines the duty of individuals to protect their country against any foe whenever the necessity arises.” In contrast, the Supreme Court avoided discussing the constitutional limits of the Second Amendment in United States v. Miller (1939), a case involving prosecution in the National Firearms Act (1934)[12], by merely concluding that “possession or employ of an a firearm having a chamber of fewer than eighteen inches in length” was not “any part of the ordinary military equipment” protected by the Second Amendment.[13] The Second Amendment’s protection of the right to carry weapons was unclear for more than 70 years following the United States v. Miller[14] ruling. However, Districts of Columbia v. Heller (2008)[15], whereby the Supreme Court meticulously analyzed the Second Amendment, put an end to this confusion. The Supreme Court ruled that the “central component” of the amendment was self-defense and that the United States District of Columbia’s “prohibition toward providing any legitimate weapons in the residence functional for the sole reason of immediate self-defense” was unconstitutional. Antonin Scalia delivered the court’s 5-4 majority opinion.

It was uncertain whether the Supreme Court would rule that the Constitution’s Second Amendment protections established in the Heller decision were equally relevant to the states because the Heller decision only restricted federal laws restricting the right of self-defense with weapons in the home. When it decided on McDonald v. Chicago in 2010[16], the Supreme Court provided an answer. A 5-4 majority in a plurality judgment determined that the states are entitled to the “right of owning a firearm in the home for the sole purpose of self-defense” under the due process clause of the Fourteenth Amendment. Nevertheless, despite the word “person” being used in that provision, the McDonald ruling did not extend to non-citizens because Justice Clarence Thomas, a member of the majority, declined to formally expand the right that far in his concurring opinion. According to Thomas, “Because this case does not include a claim filed by a noncitizen, I voice no view on the disparity, if any, between my conclusion and the many different opinions with respect to the extent to which Governments may regulate the ownership of firearms by noncitizens.” Thomas’s belief that the Second Amendment to the Constitution should be included into the Fourteenth Amendment’s “privileges or immunities” section, which only acknowledges the rights of “citizens,” further reinforced his decision.

DOES THE INDIAN CONSTITUTION HAS BILL OF RIGHTS AND HOW DIFFERENT IS THE BILL OF RIGHTS FROM FUNDAMENTAL RIGHTS

The founding fathers’ aspirations for the future of society are reflected in the constitutions of the oldest and greatest democracies in the world, with an intense focus on equality and liberty through the progressive understanding of civic rights. In the two nations, the protection of these rights continues to be the fundamental tenet of the Constitution.

Although there are significant distinctions between the fundamental rights and the US Constitution’s Bill of Rights, they are comparable in thought and essence.

While the “Bill of Rights” has been incorporated into US law, India’s Constitution includes “Fundamental Rights.” Additional human rights, not directly stated in the Indian Constitution, are provided by the American Constitution.

Yes, the Indian Constitution has borrowed some of the US Constitution’s Bill of Rights.

Members of the Constituent Assembly consulted other nations’ constitutions while they drafted the Indian Constitution. As a result, it took some provisions from other countries in order to benefit from their experiences. They also took the Fundamental Duties (Part IV A of our Constitution) from Russia, the Directive Principles of State Policies (Part IV of our Constitution) from Ireland, and so forth. One of them, known as Fundamental Rights(Part III), was adapted from the Bill of Rights in the USA. The Bill of Rights does not exist in the USA, which established its Constitution in 1787. The first 10 amendments to the Constitution, which guarantee individual civil rights and privileges like liberty of speech, press, and religion, were incorporated by Americans in 1791. Thus, the Constitution was originally granted status by Americans. While in India, under British rule, the Congress had long demanded these rights due to widespread human rights violations, and many of the members of the Assembly of Constituents who had endured captivity had a favorable opinion of these rights. Second, in order to offer the populace an atmosphere of security and confidence, fundamental rights were required due to the diversity of India, which includes a variety of religions, castes, cultures, and customs.

COMPARISON

The right to keep and bear arms is recognized as an Essential Right under the 2nd Amendment of the United States Constitution. under contrast, it was explicitly prohibited under the Indian Constitution and hadn’t been accorded.
The Fundamental Right of Property, which was originally a part of the Indian Constitution, was later removed by the forty-fourth Constitutional Amendment. The right to ownership is recognized as an essential right in the USA.
The First Amendment of the US Constitution specifically mentions freedom of the press, whereas in India it is inherent in freedom of expression and speech.

CONCLUSION

One of the fundamental characteristics of democracy is the safeguarding of rights by the Constitution. These rights free the inhabitants from the bonds of socioeconomic servitude by enabling and securing their aspirations. The US and India are both strong, inspirational democracies with plenty of room to exchange ideas and reform their own systems, including the rights granted to their citizens.

Relevance of the Bill of Rights in modern times

The most cherished section of the United States Constitution is the Bill of Rights, which is still a very important piece of writing. It is still one of the topics that is most hotly contested. For instance, one of the most important political debates in the US today centers on the Second Amendment, which grants the right to bear arms. Another issue where no one could come to a lasting agreement is the constitutionality and legality of the death sentence under “cruel and unusual punishments.” The Bill of Rights still protects individual freedom and places restrictions on what the government may and cannot do. The Bill of Rights serves to shield people from exploitation by local and state lawmakers in a larger framework.

CONCLUSION

A significant chapter in American history is the Bill of Rights. The understanding and execution of these modifications are equally crucial now as they were when they were first approved, despite the fact that society has changed significantly over the past two centuries.

REFERENCES

https://lehrmaninstitute.org/history/BillofRights.html

https://www.aclu.org/other/bill-rights-brief-history

https://www.mtsu.edu/first-amendment/article/1218/thomas-jefferson#:~:text=Jefferson%20wanted%20Bill%20of%20Rights%20for%20new%20Constitution&text=He%20therefore%20wanted%20the%20new,by%20jury%2C%20and%20habeas%20corpus. https://www.britannica.com/topic/judicial-review

https://www.law.cornell.edu/constitution/articlei

https://www.britannica.com/topic/Twenty-seventh-Amendment

https://oll.libertyfund.org/title/tucker-view-of-the-constitution-of-the-united-states-with-selected-writings

GOP candidates tread cautiously on gun issues in Kentucky, April 14th, 2023 at https://www.britannica.com/news/683775/c2491053c3d516ff1c404893aee22973, https://www.britannica.com/technology/gun-control, https://www.britannica.com/news/683775/4495e4ab951ddf7fb6b16a4a37e58260

https://supreme.justia.com/cases/federal/us/116/252/

https://supreme.justia.com/cases/federal/us/279/644/

https://en.wikipedia.org/wiki/National_Firearms_Act

https://uknowledge.uky.edu/law_facpub/265/