The timely history of the Bill of Rights

By Ande Jacobson

Teri Kanefield’s writing is often quite timely, and her latest book is no exception. At a time when individual rights are in peril, Kanefield’s upcoming book, Rebels, Robbers, and Radicals: The Story of the Bill of Rights, tells the story of not only how the Bill of Rights came to be and why it was needed but also how the interpretation of those rights has changed since their initial ratification. The book is due out on 20 May 2025, and it would be a great addition to everyone’s personal library, especially now. This concise volume, clocking in at a slim 224 pages, tells a story every American should know. The Bill of Rights is the collection of the first ten amendments to the Constitution, and in those amendments lie the foundation of our individual rights under the law. The publisher lists this volume as appropriate for young readers ages 10-14, but in reality this book is also an excellent reference for anyone young or old. It’s written at same level that Kanefield used to write her appellate court briefs. She doesn’t talk down to her readers and seeks to inform them through compelling stories about real people from our history to illustrate the critical aspects of each of these amendments. She also incorporates applicable law, explaining terms where unfamiliarity may hinder understanding.

The Preamble and the first ten amendments to the Constitution (copied from my pocket version of the Constitution courtesy of the ACLU) are:

WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessing of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Freedom of religion, speech, and the press: rights of assembly and petition: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Right to bear arms: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Housing of soldiers: No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Search and arrest warrants: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Rights in criminal cases: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Rights to fair trial: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Rights in civil cases: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
Bails, fines, and punishments: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Rights retained by the people: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
Powers retained by the states and the people: 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.

Kanefield breaks her book up into chapters for each of the amendments in the Bill of Rights. In addition, she provides an introduction through a brief preface to set the stage and a prologue describing the overview of how these amendments became the Bill of Rights. She also provides a conclusion from more current times about the gains and losses from the constant challenges of these rights from various factions. Beyond the main text, she provides a summary of the articles of the Constitution, the rest of the twenty-seven amendments, an extensive notes section, and she lists all of her sources in a comprehensive bibliography of the case law and the print and online resources used in her research of the material for the book. The book is also fully indexed making it a ready reference.

The Preface introduces the puzzling paradox surrounding the fact that elite landowning enslavers drafted these individual rights that clearly didn’t apply to everyone at the outset. They only applied to this population subset of male, white, wealthy, landowners, many of whom were enslavers and actively deprived those they owned of their individual freedoms. That exclusivity was quickly challenged and continues to be challenged today. The paradox of course is that many of those who founded this nation based on the concepts of the pursuit of life, liberty, and happiness being essential rights and fleeing being enslaved themselves thought nothing of depriving others of these same rights they held so dear.

The Prologue then gives a quick history of the Constitutional Convention, who the major players were, how it was conducted, and so forth. Kanefield spends some time telling the story of and outlining the arguments presented by the federalists (those who didn’t support a Bill of Rights) and the anti-federalists who thought outlining the people’s rights was essential. The Constitution was initially sent to the states for ratification without the Bill of Rights as the proposal to include them was initially defeated. The primary argument by those in favor of creating a Bill of Rights insisted on its necessity because without it, they feared the federal government would have too much power and would eventually become synonymous with the type of monarchy they fled. After all, the articles of the Constitution defined the federal government’s power without regard for the power remaining with the people. Several states ratified the Constitution with the stipulation that it be amended to include a Bill of Rights outlining the rights the states and the people retained. While Kanefield makes clear that the founders were not in lockstep over a number of big issues facing the fledgling nation, she points out that they recognized the need to lay the foundation for the nation quickly. They then planned to later work on the other issues. Of course the major concession in getting the Declaration of Independence through was allowing slavery to continue, and that continued to be major point of disagreement with the Constitution as well. Kanefield goes on to describe the evolution of the individual rights outlined in the Bill of Rights through later amendments such as the Thirteenth, Fourteenth, and Fifteenth which expanded the interpretation from “WE THE PEOPLE” to “ANY PERSON” after the Civil War. These enabled new opportunities to make challenges in court, although it would take several more amendments to achieve full court recognition of all persons under the law. And beyond the law, it would take far more time for the courts to fully embrace those changes, something that continues to be a challenge today. Under the law, all persons share the same rights, but the enforcement of that law is still unequal, in large part because of deep-rooted societal biases.

In each of the individual amendment chapters, Kanefield paints vivid pictures through historical stories using actual court cases to show how each of the amendments came to be and how they’ve been challenged over the years. In this, she teaches her readers in the same way that law students are instructed eliminating ambiguities through concrete examples rather than using fictional abstractions. She breaks the amendments up into their component clauses, not always in the order listed in the actual amendments but instead in the logical order illustrating their evolution.

This volume is well-worth reading whether encountering the material for the first time as a child, or simply reviewing it later in life. Kanefield captures the nuances and importance of these crucial amendments, and gives all readers a better understanding of what they truly mean.

Reference:
Rebels, Robbers, and Radicals: The Story of the Bill of Rights by Teri Kanefield