Americans have been concerned with their rights for hundreds of years.

The right to practice religion however they wished was one of the primary reasons the fir st settlers came to America from England. The right of representation and self-d etermination was one of the primary reasons the Revolutionary War was fought. Th e right for all persons to be free was one of the reasons the Civil War was foug ht. American history is replete with bills of rights, from the most famous inclu ded in our Constitution, to the Declaration of Rights prompted by the Stamp Act to the Virginia Declaration of Rights written by George Mason for his state. Eve n today we speak of the apparently elusive Patient's Bill of Rights. What is interesting to note is that when the Constitutional Convention finished its work, it did not find it necessary to include a bill of rights in the final version. Several members, notably George Mason, were very disappointed by this d ecision and refused to sign the document over the issue. The argument was that t he Constitution did not give the new federal government the ability to restrict inherent rights, so no list of those rights was necessary. Others worried that i f the rights were listed, they would invariably forget some and the list would e ver be incomplete. Finally, the argument was that the states each had their own constitutions, too, and that rights were best protected at a state level. Of all the issues that the Anti-Federalists gave for rejecting the new constitut ion, the lack of a bill of rights was the most compelling for many people. In th e ratifying documents of five states, requests or demands for a bill of rights w ere included in the text, along with suggested lists (see the ratifying document s of Massachusetts, South Carolina, New Hampshire, Virginia, and New York. Rhode Island also included a list, but they ratified the Constitution after the first Congress approved the Bill of Rights). The Federalists were opposed to adding a bill of rights, expounding on the reaso ns why in Alexander Hamilton's Federalist 84. Among the reasons listed was a lis t of the personal protections the new constitution did contain, such as the proh ibition of ex post facto laws, the inviolate habeas corpus, prohibition of a rel igious test to hold office, and restrictions on a conviction of treason. Federal ist 85 addressed the subject, too, noting that amendment is always a possibility after ratification. It turns out, once the process of ratification was complete , that this was exactly the route taken. The first Congress under the Constitution had a lot to accomplish. It had many n ew powers not available to the Congress under the Articles of Confederation, and every state had interests it wanted to protect. James Madison, seen by many as the father of the Constitution, had won a seat in the House of Representatives, running partly on a platform that included a fight for a bill of rights. This ma y seem odd since Madison was one of those who advocated the omission of such a l ist of rights, but he eventually became convinced of the necessity. Madison tried to get the debate moving, but debate on tariffs and other pressing issues always pushed the debate on a bill of rights to the back burner. Madison finally had enough and on June 8, 1789, he presented his draft of a bill of rig hts to get the discussion moving. From June to September, both houses of Congress debated Madison's list, along wi th the lists presented by the states. Rights were enumerated, removed, modified, tweaked. Eventually, both houses agreed on twelve articles of amendment and sen t them to the states. Two years later, in 1791, the last ten of these original t welve were ratified by the states and they became a part of the Constitution. By custom, the amendments were added to the end of the original document, rather t han inserted in the text, as Madison had envisioned. All ten of the original ame ndments are referred to as The Bill of Rights, though only the first nine pertai n to the people (Amendment 10 pertains to the states, though it mentions the peo ple in parallel).

Bar to Federal Action The Bill of Rights was understood, at its ratification, to be a bar on the actio ns of the federal government. Many people today find this to be an incredible fa ct. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitu tion was originally designed to be: a framework for the federal government. In o ther words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this wa s not an issue, because the state constitutions all had bills of rights, and man y of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill. This point is best illustrated by one of the amendments that Madison proposed in his initial speech: Fifthly, That in article 1st, section 10, between clauses 1 and 2, be insert ed this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases. This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights wou ld apply to the states was still 100 years away. Several cases that came before the Supreme Court in the 19th century attempted to have the Court establish that the Bill should apply to the states, to no avail: In Barron v Baltimore (32 U.S. 243 [1833]), the Court ruled that the Takings Cla use of the 5th Amendment did not apply to the City of Baltimore and the State of Maryland by extension. Succinctly, the Court wrote: "...the fifth amendment mus t be understood as restraining the power of the general government, not as appli cable to the states." In Pervear v Massachusetts (72 U.S. 475 [1866]), the Court was asked to rule on fines imposed upon a liquor dealer by the state. Pervear was licensed by the Uni ted States under the current internal revenue code to keep and sell liquor. He w as fined and sentenced to three months of hard labor for not maintaining a state license for his liquor business. Part to the defense attempted to invoke the 8t h Amendment's Excessive Fines and Cruel and Unusual Punishment clauses. The Cour t, again quite succinctly, said: "Of this proposition it is enough to say that t he article of the Constitution relied upon in support of it does not apply to St ate but to National legislation." As to the Bill of Rights being a bar to federal acts, the Bill took some knocks in the first years of the new nation. The 1798 Alien and Sedition Act, for examp le, made nationals of countries the United States was at war with subject to sum mary arrest, and also made "false, scandalous and malicious" writings about the government a crime, with the burden of proof placed squarely on the shoulders of the defendant rather than the state. Madison and Thomas Jefferson were both ada mantly opposed to the Act, and said that being unconstitutional, states were fre e to ignore (or nullify) the law. The Act, repealed in 1801, was never ruled unc onstitutional. Incorporation One of the greatest changes in the interpretation of the Constitution came with the passage of the 14th Amendment after the conclusion of the Civil War. It was designed to assist newly freed slaves in the transition to freedom and to protec

t them from acts of the Southern states, and also to overturn the decision in th e Dred Scott case that ruled that persons of African descent could not be citize ns of the United States even if they were born in the United States. The amendme nt was successful in this endeavor, legally, if not in reality. But this sentence had and continues to have long-lasting implications on the app lication of the Bill of Rights to the states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any pe rson of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. The "Due Process Clause" has been interpreted as applying the Bill of Rights, wh ich lists the rights (or privileges and immunities) of the citizens, to the stat es. Known as "incorporation," the application of the Bill to the states did not come all at once, nor is incorporation complete. Even today, there are some part s of the Bill which have not been incorporated. The process began unsuccessfully in the late 1800's and continued unsuccessfully right up until the 1930's. In 1 947, however, in Adamson v California (332 U.S. 46 [1947]), the Supreme Court be gan to accept the argument that the 14th Amendment requires the states to follow the protections of the Bill of Rights. Historians both agreed and disagreed wit h the Court's contention that the framers of the 14th Amendment intended incorpo ration since its passage ... but historians do not sit on the Court. Their opini ons were less important than those of the Justices. The process of selectively incorporating the clauses of the Bill of Rights is ag reed to have begun in Twining v. New Jersey (268 U.S. 652 [1925]) which contempl ated the incorporation of some of the aspects of the 8th Amendment - not because they were a part of the Bill of Rights but because they seemed to be fundamenta l to the concept of due process. This process of incorporating parts of the Bill of Rights because of their connection to due process began to run in parallel w ith the selective incorporation doctrine, where parts of the Bill of Rights were ruled to be enforceable on the states by virtue of the 14th Amendments, whether or not due process applied. Thus in the early 1960's, the Establishment Clause, the right to counsel, the ri ghts of free speech, assembly, and petition, and the right against unreasonable searches and seizures were quickly incorporated. Since the early 60's, almost ev ery clause in the Bill of Rights has been incorporated (notable exceptions are t he 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment , and the 7th Amendment).