Bill of Rights Controversy

Most of the delegates to the constitutional convention held in Philadelphia between May and September of 1787 saw no need to include any guarantees to personal liberty in the form of a Declaration of Rights.   The proposed Constitution already provided several protections:

• Article I, section 9, paragraph 2, prevents suspension of a " Writ of Habeus Corpus".   This is a court order requiring a determination of whether or not a prisoner has been lawfully imprisoned.



• Article I, section 9, paragraph 3, prevents a Bill of Attainder and ex post facto laws.   A "Bill of Attainder" is a law that singles out an individual or group for punishment without a trial.   An "ex post facto" law is one that declares an event illegal after it occurred.



• Article III, section 2, guarantees a trial by jury for crimes.



• Article III, section 3, protects against unreasonable charges of treason.
  
  

Most delegates thought the above protections, together with the guarantees provided by the state constitutions, some of which contained Declarations of Rights, e.g., Virginia's, offered sufficient protection to the people against a tyrannical government.   It is speculative, but the delegates may have thought a declaration of rights would weaken their proposal for a strong central government.   A further reason might have been that a declaration of rights might declare that all men are born free.   Such language would have been embarrassing when much of the property of the southern states consisted of men and women who were born slaves.

George Mason of Virginia proposed a Declaration of Rights at the convention on September 12, 1787, but a clear majority of the delegates would not accept the change.   Therefore, the proposed Constitution was passed to the states for ratification without a special declaration of rights.   However, if the delegates had judged more accurately the reaction against this omission, no doubt they would have included more protections of individual liberties, because their exclusion almost sank the Constitution.