I rediscovered the essay below just now. It is one of my all-time favorite examples of good student work. Read it to see how it’s done!
Comparing the English and US Bills of Rights
by Alex Johnson
One of the most famous documents in British history was ratified on December 16, 1689. The Bill of Rights defined the rights of parliament, the judiciary, and the average British subject against the monarch, representing the culmination of a century of struggle against royal absolutism. So powerful a symbol did the Bill of Rights become that it sparked the American revolution in the 1760s, as the colonists felt that their rights, guaranteed in the Bill, were being denied. The colonists were successful in founding a new nation, but very quickly adopted their own Bill of Rights, the first ten amendments to their constitution (ratified in 1791). The American Bill of Rights, however, was no mere plagiarism of the earlier British one, but went even further in guaranteeing individual rights against the power of the state. In this fact we see the influence of the Enlightenment, which was deeply concerned with such questions and was largely a phenomenon of the eighteenth century.
The seventeenth century had witnessed an epic struggle between the forces of the king and of parliament in Britain. At issue were two competing political philosophies: a modern one in which the king, as God’s representative on earth, had the right to rule absolutely, and an older one in which new laws, especially new taxes, could only be enacted after consultation with the “community of the realm.” Religion made the situation worse: the Stuart monarchs tended to be “high” Anglican, tolerant of Catholic ritual, and even friendly with actual Catholics, while Parliament contained a substantial number of “Puritans” who viewed such things with horror and who wished to eliminate them from English public life. After a vicious civil war in the 1640s, Parliamentarians executed King Charles I in 1649, but they ultimately proved unable to rule the country themselves, so Charles’s son Charles II was restored to the throne in 1660. An uneasy truce prevailed between court and parliament throughout his reign, but when Charles’s brother James ascended the throne in 1685 conflict broke out once again. Not only was James a Catholic, he had the same sort of absolutist pretensions that had gotten his father executed. He provoked enough opposition that he fled London, and Parliament invited his Protestant daughter Mary and her Protestant husband William of Orange, prince of the Netherlands, to become queen and king of Great Britain. In return, William and Mary agreed to the Bill of Rights, which placed firm checks on their own power.
What were those checks? First and foremost, Parliament. The king was not allowed to abrogate, or even suspend, laws passed by Parliament. He was not allowed to collect taxes without consent of Parliament. Election of members of Parliament was to be free, as was speech within Parliament – the king could not stack Parliament with his supporters, nor prosecute people for saying things in Parliament that he happened to dislike. (Presumably all these things had been happening under the Stuart monarchs.) For good measure, Parliaments had to be convened frequently and the king was not allowed to keep a standing army without consent of Parliament (standing armies were favorite tools of absolutist oppression on the European continent – and since England was an island, there was no real need for one anyway).
The judiciary was also set up as a check on the monarch’s power. The third item in the Bill of Rights reads “the commission for erecting the late Court of Commissioners for Ecclesiastical Causes, and all other commissions and courts of like nature, are illegal and pernicious.” The Court of Commissioners was an invention of James II aimed at procuring judicial decisions he wanted; the judges were his appointees, and carried out his will. Such a device was another tool of absolutism that the English would have none of; courts were to be free of such interference, and in addition “jurors ought to be duly impanelled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders.” The right to trial by a jury of one’s peers (i.e., not a royal judge) was guaranteed by Magna Carta in 1215; the Bill of Rights upheld this right, even for the charge of high treason.
The powers given to the legislative and judicial branches of English government in the Bill of Rights established a “balance of powers” so favored by Montesquieu and the other French philosophes. The Bill of Rights, however, did not stop there. It went even further and guaranteed rights to all British subjects, or at least Protestant subjects. All subjects were allowed to petition the king without suffering prosecution for doing so; they were to be free from excessive bail, excessive fines, and cruel and unusual punishments; and they were not to suffer fines or forfeitures until actually convicted of an offense (a version of the doctrine of “innocent until proven guilty”). One can easily see how the British people would have desired these rules, which made illegal the various means by which would-be absolutists could impose their will on the citizenry. Finally, all Protestant subjects were granted the right to “have arms for their defense suitable to their conditions and as allowed by law.” Again, the right to bear arms was seen as a bulwark against tyranny (the king was not allowed to keep a standing army, but the citizenry was allowed to arm itself), although it is interesting that this right was not absolute: since Catholics were potential subversives, their right to bear arms was not guaranteed; furthermore, an idea existed that arms were suitable to one’s “condition” – presumably the upper classes were allowed to have better arms than their social inferiors, forestalling any attempts at a peasant revolution – and that the right could be further curtailed by other laws. Weapons, of course, can be used for good or ill; the authors of the Bill recognized that weapons could not just be used in defense of liberty, but against it too.
Just over one hundred years later and an ocean away, the citizens of the newly formed United States of America adopted a constitution and a Bill of Rights of their own. They had just concluded a successful rebellion against Great Britain, which had started as a result of the earlier Bill of Rights: after the Seven Years’ War (1756-63), Britain had begun levying taxes on the colonists, who sent no representatives to Parliament, a clear violation of the principle of “no taxation without representation.” Britain insisted, however, that the colonists were “virtually” represented in Parliament, and continued levying taxes; eventually armed conflict broke out, and the colonists declared their independence on July 4, 1776. In the document, Thomas Jefferson wrote that:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.
The ideas in this passage are mostly derived from John Locke’s Second Treatise of Government (1689), but had become common over the course of the eighteenth century: sovereignty resides with the people, governments rule by the consent of the people, and whenever governments abandon this trust they have forfeited their right to exist. This is rather more radical than the British Bill of Rights, which took the legitimacy (and sovereignty) of the king for granted, and merely placed checks on his power. Now, the Americans declared, they were not claiming their traditional rights as English subjects, but natural rights as human beings.
Such a shift is seen in the U.S. Bill of Rights, the first ten amendments to the constitution (which was composed in 1787 and ratified the following year, with the Bill of Rights following in 1791). The U.S. Bill of Rights is somewhat different from its English counterpart, in that the powers of the various branches of government were defined (and balanced) in the constitution itself, leaving only the rights of the citizenry against the state to be enumerated in the Bill. But what rights they were! The people enjoyed all the rights they had previously under the English Bill of Rights: they were to be free from excessive bail, excessive fines, cruel and unusual punishments, free to petition the government for redress of grievances, free to be tried by jury, and free from legal punishment until conviction (Article V: “no one shall… be deprived of life, liberty, or property, without due process of law”). But the people were also guaranteed freedom of speech, of the press, of peaceable assembly, and of religious conviction (with the government prohibited from establishing a state church) (Article I). All people were allowed to bear arms, and to be free from soldiers being quartered in their homes (Articles II and III). They were to be free from unreasonable search and seizure, and their property could not be expropriated arbitrarily (Article IV). When put on trial, a person could not be compelled to testify against himself, and if acquitted could not be tried again for the same crime (the “double jeopardy” rule) (Article V). A defendant was to have the right to a speedy and public trial, to know the charges against him, to cross-examine any witness against him, to bring witnesses of his own, and to have legal counsel (Article VI). For good measure, the US Bill of Rights states explicitly that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” (Article IX) and “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (Article X).
The most striking thing about this new set of rights is how much more comprehensive it is. The property of citizens, for instance, was inviolate. Whereas the English Bill of Rights merely prohibits forfeiture before conviction, the American Bill guarantees that citizens shall be secure in their persons, houses, papers, and effects, meaning that except for probable cause, state authorities require a legal (and specific) search warrant before they can go poking around in these things. Furthermore, private property could only be taken for public use after the person losing it was compensated for it. Even though Jefferson had changed Locke’s “Life, Liberty and Property” to “Life, Liberty and the Pursuit of Happiness,” it is quite clear that the American colonists had thoroughly absorbed the Enlightenment idea that liberty and property went hand in hand.
The concern with the rights of a criminal defendant is also a novelty in the US Bill of Rights. The English Bill of Rights ensured that the courts would not become creatures of the king, guaranteed the ancient right to trial by jury, and emphasized that people were innocent until proven guilty. But the Americans seemed to be aware that all government, whether royal or not, and whether executive or judicial, had the power to oppress, and attempted to prevent that from happening. In addition to jury trial and presumed innocence, therefore, they made sure that Americans can henceforth “plead the fifth” (since a defendant should not be obliged to help the state make its case against himself), that they cannot be held in detention indefinitely, that they cannot not be repeatedly tried for the same crime – the state has one chance to make its case, and that is it; it cannot harass people by repeatedly prosecuting them. Court proceedings are to be transparent: knowledge of the charges against one, and the ability to answer them, are important steps toward preventing the sort of judicial tyranny satirized so brilliantly by Franz Kafka.
Perhaps the biggest difference is in the respective Bills’ attitudes towards religion. The English Bill of Rights is very much a document of the seventeenth century, with its identification of Protestantism with liberty (in another section, the Bill of Rights prohibited the inheriting of the crown by Catholics). In America, however, the Enlightenment idea that religion itself was the problem is apparent: no church whatsoever was to be established in America, and all citizens, not merely Protestants, were allowed to keep and bear arms. The state was not forbidden from expressing religious sentiments (“In God We Trust,” for instance), but it was explicitly forbidden from favoring one religion over another. All citizens were free to believe what they wished, and they did not need to belong to a state church in order to enjoy certain privileges, as the English did.
Many more such observations could be made about the respective Bills of Rights, but from this brief survey the influence of the Enlightenment on the American one is clear. Of course, many of these rights have been eroded in recent years (“no-knock” raids, detention without trial for terror suspects, confiscation of large sums of cash on the automatic suspicion that it is drug money, etc.), as the power of the federal government has grown beyond the wildest dreams of the founders. On the whole, however, these rights still prevail, more than two hundred years after they were first composed, proving the enduring influence of the Enlightenment on American politics.