I have worked rather loosely with the last topic of this session: English antecedents to the Constitution and the Bill of Rights. I am going to talk about English antecedents to the Bill of Rights, but I also want to expand this topic to look at the Constitution and the Bill of Rights as progressions, modifications, and Americanizations of English liberties. My thesis is that in the Constitution and the Bill of Rights that we codified some English liberties from English antecedents, expanded and modified others, and in general gave English liberties a particular form and flavor.
I want to begin in this session with the ending: the Bill of Rights becoming a part of the Constitution. How did the Bill of Rights become a part of the Constitution.
The Formation of the Bill of Rights as the First response to public opinion
 
The Federalists (including James Madison) really did not believe that Bill of Rights was necessary and indeed was dangerous. Madison, James Wilson and Hamilton argued that a bill of rights was not necessary because the government created was one of enumerated not implied powers. The government had no power over these rights and thus would not violate them. Also, the Federalists argued that it was dangerous to list the rights that were protected against violation by the government because any such list would be incomplete and the government could be led to assume power over areas where it had none.
 
Sometimes the Anti-Federalists are said to be the champions of the Bill of Rights, but they really were not worried so much about the protections for civil liberties as for "amendments" that would protect the powers of the state governments and prevent the Executive, Congress, and the Judiciary from extending their powers.
 
The leadership during the ratification struggle, then, did not so much care about the Bill of Rights as they cared about the Constitution, either insuring its acceptance or rejection. The public, however, was deeply committed to provisions in the Constitution protecting an array of individual rights. Initially, the Anti-federalists used public fears that the Constitution contained no Bill of Rights to excite opposition to the Constitution. But after the VA and NY had ratified, Madisn pushed for a bill of rights to insure that the Constitution was instituted and that a second constitutional convention was not called.
 
But why did the people want a Bill of Rights so much? Why did this issue become such an important one in the ratification struggle? The answer to that question is that their expectations represented the culmination of several centuries of evolution in the rights - first of Englishmen and then of Americans.  In asking for a bill of rights they were asking for protections that their history had taught them that they needed and deserved. To understand their expectations - especially why they had these expectations - and the rights that were eventually included in the Constitution and the Bill of Rights we have to go back to a series of documents that perserved liberties from the 13th century on: Americans drew inspiration from and looked to two English documents in particular (the Magna Carta and the English Bill of Rights), they looked and t colonial charters (which of course are also "English antecedents"), and the state bills of rights to shape the substance and form of the Bill of Rights.
 
These are the English Antecedents to Constitution and the Bill of Rights
 
1. Magna Carta ("The Great Charter") - First passed in 1215, the Magna Carta is the most significant of the documents in early English history that contributed to the historical process that established constitutional rights and the rule of law. The Magna Carta originally arose as a means of settling disputes between Pope Innocent III, King John, and his barons about the extent of monarchial authority and the obligations owed to nobles. King John was a weak and disrespected King whose right to the throne was contested. Acting against King John, his barons took London by force and forced King John to sign the agreement that eventually became known as Magna Carta. Section 61 of this Magna Carta - known as the "security clause" - established a committee of 25 barons who were given the power to meet and overrule the King and to seize his castles and takes his possessions.
 
After signing this document under duress, King John immediately recanted and plunged the nation into Civil War. But he then promptly died. His nine year old son was the heir to the throne and Henry III's regents had him resign the Magna Carta with section 61 ommitted. Magna Carta was actually signed in 1216, 1217, and 1225.
 
If you read Magna Carta today - especially if you do not have a solid understanding of English history - you will be perplexed by its significance. it is mostly a combination of feudal rights and obligations, specifying liberties for English Barons, not ordinary Englishmen. But it also contains a series of judicial rights that allowed for a fixed court, held that fines should be proportionate to the offense, and that people should be tried by their peers. In general, Magna Carta required that the King respect certain legal procedures and accept that the will of the King could be bound by law. Magna Carta thus represents a prominent step toward limited, constitutional monarchy and the rule of law over the rule of men. Magna Carta became retrospectively important to later generations of Englishmen and Americans as a charter of liberty.
 
2. English Bill of Rights - A second important document in the evolution of liberty toward the understanding set forth in the Bill of Rights is the English Bill of Rights. The English Bill of Rights was the culmination of the Glorious Revolution that led to the ascendancy of William and Mary to the throne. William of Orange landed with his army in England on 5 November1688. After defeating James II, William was offered the throne with Mary in April 1689. They agreed to the Declaration of Right, which was the English Bill of Rights, as a condition of accepting the throne.
 
The English Bill of Rights is a basic document of English liberties and English constitutional law. It provides for a long list of positive rights that citizens ought to have and it requires that actions of the Crown receive the consent of the governed as represented in Parliament. It was thus a list of specific individual rights and a statement about the collective rights of Englishmen as represented in their Parliament.
 
The English Bill of Rights possessed certain immutable civil and political rights. The King was forbidden from establishing his own courts or acting as a judge himself. Freedoms from taxation without agreement by Parliament. Freedom to petition the King. Freedom from a standing army in a time of peace unless Parliament agreed. Freedom for Protestants to have arms for defense. Freedom of Speech in Parliament - not questioned outside of parliament for what they said inside it. (Article I, Section 6 of the Constitution: "They shall in all cases except treason, felony, and breach of the peace be priviledged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech and debate in either House, they shall not be questioned in any other place." Freedom from cruel and unusual punishments and excessive bail. Freedom from fines and forteitures without trial.
 
3. Colonial Charters: A final English antecedent to the Bill of Rights was the colonial charters that Americans fashioned as they settled the new world. Some examples include "the Massachusetts Body of Liberties"
 
4. The most important antecedent to the Bill of Rights was the state Bills of rights - especially George Mason's Virginia Declaration of Rights- that were passed  following indepedence. The call for Independence on July 4th, 1776 led all but two of the states to write new constitutions. Connecticut and Rhode Island simply adopted their colonial charters as their form of government, eliminating the monarchial references. When they wrote these constitutions, almost all of the states These documents contained essentially all of rights that were eventually contained in the Bill of Rights.
 
5. The recommendatory amendments of the state ratifying Conventions.
 
My point then is that if you want your students to understand the form and substance of the Bill of Rights and why ordinary Americans could not think of a constitution without one, then you need to march them through some of the foundational documents that establish English liberties and in their colonial and revolutionary experience. When you have finished with that take them to the Constitution and the Bill of Rights and examine the liberties protected in each to show them the codifications, modifications, and expansions of English liberties.
 
6. The United States Constitution
 
a) Treason - Considered in Article III, Section 3 (I and II) of the Constitution: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. (II) "The Congress shall have the Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except durng the Life of the Person attained."
 
Notice three things here. First, treason is given a very strict and difficult to prove definition. It consists only of actually levying war and giving aid and comfort to the enemy. Parliament in England until 19th century used treason as a broad catch all accusation. To prove treason in the US, you must have two witnesses to the same overt act. Second, the Constitution guarantees a public trial to those accussed of treason. In England, Parliament - not the Courts- had often tried Englishmen for treason and put them to death. Third, Article III barred the federal government from imposing any corruption of blood in treason cases. The property of the child or the family could not be taken as a result of the actions of the father. In the United States, no child could be punished for the sins of the father. In England until 1834, "a feudalistic treason rule allowed the Crown to lawfully seize a traitor's homestead from the family." (Amar, America's Constitution: A Biography. 242-245.)
 
b) The Writ of Habeas Corpus
 
Article I, Section 9 (Under prohibitions against Congressional Power):  "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The Writ of Habeas Corpus is one of the most important constitutional guarantees and a legacy of English common law traditions. Habeas Corpus means literally, "you have the body." A writ of habeas corpus makes the government explain why it is holding someone. What Article I, Section 9 this means is as, Akhil Reed Amar put it, "in the absence of any extreme circumstnance, courts would remain open to hear all challenges to the lawfulness of executive detention."
 
The power to suspend the writ of habeas corpus lies in Congress, but what if Congress is not in session. Can a President do this. Lincoln of course did it and argued that it was constitutional because it was necessary. Taney rejected Lincoln's contention (in a ruling that he made alone) and Lincoln ignored Taney's ruling.
 
c) Prohibitions against  Bills of Attainder, Ex Post Facto Laws, Titles of Nobility
 
Under both sections 9 and 10 of Article I, Congress and the states are prohibited from issuing Bills of Attainder, Ex Post Facto Law, and granting any titles of nobility. A Bill of Attainder is when a legislature names a particular individual and pronounces him or her guilty of a capital crime. Parliament had done this often. Most infamously, they had issued a bill of attainder calling for the death of Thomas Wentworth, the Earl of Stafford, an influential crown adviser in 1641.
 
Ex Post Facto Laws are "retroactive statutes making conduct that was innocent when committed, criminally punishable." This was possible under English common law at the time of the drafting of the Constitution, not in the United States.
 
Neither a state nor the national government can confure a title of nobility under the Constitution. Obviously, England with a King has a noble with a title. Republican character of the Constitution.

Prohibition Against Religious Test Oaths in Article VI
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.
d) Slavery in the United States Constitution

1. 1808 Slave Trade Provision
2. Fugitive Slave Clause
3 3-5 fifths clause. Population is determined and then representatives are apportioned among the states according to the percentage of the population that a state has. Under the original Constitution, men, women, children, and .60 of slaves were counted for each state for purposes of apportioning representatives.  There was a synergy between the slave trade provision and the 3-5 clause. Because of the three-fifths clause, states had an incentive to increase the number of slaves in the state and thus to increase their representation in Congress.
 
7. The Bill of Rights
 
Some generalizations.
 
a) Roughly half of the rights protected in the Bill of Rights are rights of the accused. Americans may complain that "the criminal goes free because the constantable blundered," but the Bill of Rights is set up to make sure that the constable is restrained.
 
b) Many of these rights are legacies of British practices during the American Revolution. The third amendment ban on the quartering of troops was enacted because the British had quartered troops. A warrant was required specifying the persons and place to be searched  because the British had engaged in general warrant searches or writs of assistance.
 
c) Some of the rights protected in the Bill of Rights clearly have the status of natural rights, some do not. The rights to freedom of speech, press, and religion are among the natural rights protected. A jury trial in civil or even criminal cases is not easily established as a natural right.
 
d) The 9th amendment addressed the Federalists concerns that unenumerated rights would not be protected.
 
Some Generalizations:
 
1. The American Constitutional system codified a great deal of English liberty. Constitutional liberty might well be first thought as a product of English inheritance, but Americans made the inheritance grow and the English Antecedents to the Bill of Rights differ in a number of ways from the Bill of Rights:
 
1. The Magna Charta and the English Bill of Rights were concessions demanded - and won - from a sovereign (The King). The Bill of Rights recognizes rights as autonomous spheres of power that the state cannot invade.
 
2. The adoption of the Bill of Rights was the culmination of the recognition of natural rights - rights that have their authority in nature. Several of the rights recognized in the Bill of Rights, particularly the rights to freedom of speech, the press, and especially the right to freedom of religion were recognized as natural rights by the Founders. In contrast, the "rights" protected in English antecedents such as the Magna Charta and the English Bill of Rights are pledges that the King has made to recognize certain privileges of his subjects. No presumption is made that these rights adhere in individuals as a result of the authority of nature or their nature as humans. The British Constitutional System rests more in the common law and positive law traditions than the natural law and natural rights traditions adopted by Americans.
 
3. The rights recognized in the Bill of Rights are strict prohibitiions against state interference. The rights recommended in the English Bill of Rights, Magna Charta, colonial charters, and the state bills of rights often take the form of recommendations. 
 
4. The Bill of Rights - the 1st ten amendments to the Constitution - and the Constitution illustrate the secularization of constitutions in the United States from the colonial period to the 18th century. The specifically Christian character of the colonial charters and the Christian character of the liberties protected in those documents and the crimes punished can be sharply contrasted with the secular character of the Bill of Rights and the Constitution.