The Handy Law Answer Book. David L Hudson

      Not necessarily, as many state constitutions were enacted before the 1787 U.S. Constitution. There are some similarities between the various constitutions but there are also distinct differences. For example, the Tennessee Constitution contains eleven articles instead of the seven contained by the U.S. Constitution.

      Another difference between some state constitutions and the federal constitution concerns the number of amendments adopted. Some states have adopted hundreds and hundreds of amendments to their state constitution, as the amending process is much less rigorous than under the federal constitution. For example, the Alabama Constitution of 1901 has been amended approximately 800 times in its history.

      Who determines the meaning of a state constitution?

      A state high court—usually called a supreme court—is the final arbiter of the meaning of a state constitution. The only exception to that rule is that the state constitution cannot provide less protection than the protections offered by the U.S. Constitution.

      

      Why were the first ten amendments—the Bill of Rights—added to the U.S. Constitution?

      The Bill of Rights were added to the Constitution in part because many people wanted them to ensure protection from this new, strong federal government created by the new Constitution. The two leading political parties of the time were the Federalists and the Anti-Federalists. The Federalists generally supported a very strong central government, while the Anti-Federalists showed more concern for the rights of individual state governments. The issue of the Bill of Rights was not a huge issue at the Philadelphia Convention in 1787 when the Constitution was created. Representative George Mason raised the issue, but it was quickly defeated.

      However, the Bill of Rights became a huge political issue during the ratification debates in certain states. Eventually, supporters of the Constitution and ratification in a few states were able to secure ratification of the new Constitution only by promising that there would soon be the addition of a Bill of Rights.

      Who was primarily responsible for proposing the Bill of Rights?

      James Madison, the future fourth president of the United States, is often called the “Father of the Bill of Rights.” In June 1789, he introduced the Bill of Rights in Congress, referring to it as the “great rights of mankind.” Madison initially did not support the Bill of Rights, but he changed his mind in part because of persuasions by his fellow Virginian and friend Thomas Jefferson.

      What did James Madison say in his speech to Congress on June 1789, when he argued for the Bill of Rights?

      Madison made the following speech before Congress concerning the Bill of Rights:

      A statue of James Madison by Walker K. Hancock is on display at Memorial Hall in Washington, DC. Madison is often remembered as the Father of the Bill of Rights (Library of Congress).

      It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

      It has been said, that it is unnecessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular States. It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquillity of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people….

      Having done what I conceived was my duty, in bringing before this House the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support, I shall content myself, for the present, with moving “that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the Legislatures of the States, to become, if ratified by three-fourths thereof, part of the constitution of the United States.” By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the House. I should advocate greater despatch in the business of amendments, if I were not convinced of the absolute necessity there is of pursuing the organization of the Government; because I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the Government.

      Where did James Madison look for possible proposals that eventually became included in the Bill of Rights?

      Madison obtained most of his proposals from proposals in various state constitutions. Madison compiled a list of various proposals from the state constitutions. Many states had a section similar to the eventual bill of rights. Some of these sections were called declarations of rights.

      Isn’t it true that the original Constitution (before the Bill of Rights) was already a bill of rights of sorts?

      There is some credence to the argument that the Constitution as it existed before the Bill of Rights already was a type of bill of rights. For example, the Constitution prohibits Congress or state legislatures from passing bills of attainder or ex post facto laws. Bills of attainders are laws that target a specific group of people, while ex post facto laws are laws that make something a crime after the fact. An ex post facto law makes conduct a crime retroactively.

      Furthermore, the Constitution prohibits Congress from suspending the writ of habeas corpus except in very limited situations, such as war. Another provision of the Constitution prohibits individuals in political office from having to take religious tests to qualify for office. All of these provisions in the body of the Constitution do provide a measure of individual freedom—similar to what the Bill of Rights does.

      Some have said James Madison used the Bill of Rights to save the Constitution. Is there truth to this?

      Yes, James Madison avoided proposed amendments that would have altered the structure of the government and reduced the power of the federal government. Instead, he focused on proposed amendments that would add to individual liberty and garner popular support but would not lessen the power of the federal government.