The Other Founders: A Study of the Origin of the Bill of Rights
and the Antifederalist Contribution to Formulation, Development and Adoption
What role did the Antifederalists have in the founding of America? It is a well-known theory that the Antifederalists contribution to the founding is the addition of the Bill of Rights. However, James Madison is often referred to as the father of the Bill of Rights and it is often argued that the Bill of Rights did not accomplish the goals of the Anti-Federalists as the document presented did not encompass the structural changes they intended. In order to determine the Antifederalists role in the founding, an investigation of the origin and development of the Bill of Rights is necessary. This essay will analyze the history of the Bill of Rights during pre-colonial times and in English history as well as the development of rights which took place during revolutionary times to determine which rights were recognized at the time of ratification and to whom their development can be credited. A further study of the Antifederalist role during the Constitutional Convention of 1787 and the ratification hearings for the Constitution, as well as ratification of the Bill of Rights, is necessary to determine to whom credit should be given for formulation as well as the adoption of the United States Bill of Rights. Thorough analysis will establish that while James Madison is justly credited with playing a large role in the adoption of the Bill of Rights, the development, formulation and adoption of the Bill of Rights can be traced to leading Antifederalists, giving them legitimacy as “The Other Founders.”
Individual liberty was not created by Americans. Nor were they the first to record it in writing. (Conley and Kaminski, p. xi) The origin of human freedom can be traced all the way back to the Bible. Personal rights are especially numerous in England’s common law, the Magna Carta (1215), the Petition of Right (1628) and the Bill of Rights (1689). (Conley and Kaminski, p. xi) The Assize of Clarendon (1166) alludes to a criminal jury and over one hundred years earlier the use of civil juries has been verified. The right to counsel was recognized in the Statute of Merton in 1236. (Rutland, p. 5) Excessive fines and bails were also prohibited by the English as early as 1275 when the First Statute of Westminster provided a penalty to officers for extortion from prisoners. The inclination toward granting freedom from self-incrimination arose in the late 1500’s. (Rutland, p. 8) Due process of law and the prohibition of quartering of troops were enacted by Charles I in 1628. (Rutland, p. 6) A series of common law rights were incorporated in Sir Edward Coke’s Second Institutes in 1642 ensuring due process of law, habeas corpus, prohibition against double jeopardy and the right to be tried in the county where an act was committed (Rutland, p. 10) The Toleration Act and Bill of Rights of 1689 made many religious concessions, however, they only applied to legalization of worship by Protestant nonconformist. This Act also enumerated prohibitions against maintenance of standing armies in times of peace, infliction of cruel and unusual punishments and excessive bails. The act granted the right to petition as well as the right to bear arms. (Rutland, p. 9) Regardless of the wide array of rights asserted by the English common and statutory laws, most rights were limited in scope (Rutland, p. 10)
The development of individual liberties in America ensued after religious toleration was secured. Colonists surpassed all precedents in the areas of freedom of religion, speech and the press. (Rutland, p. 12) Liberty and government among the colonies varied greatly depending on their charters allowing some to make great progress while others were restrained. Compassionate founders in Rhode Island, New Jersey, and particularly Pennsylvania gave colonists substantial rights. However, it was those in...
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