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bill of Rights

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A statement of the privileges, immunities, and authorities to act that may be legally and morally claimed by the citizens of a state within the bounds of reason, truth, and the accepted standards of behaviour.

Written constitutions normally include clauses designed to protect fundamental human rights against encroachment by the state. In France this was the purpose of the Declaration of the Rights of Man of 1789 and the Preamble to the Constitution of 1946, both of which were incorporated in the Constitution of the Fifth Republic of 1958. The first ten amendments to the United States Constitution provide one of the best‐known examples of a bill of rights. The First Amendment, for instance, enshrines the freedom of religion, the right of free speech and of the press, and the right of the people to assemble and to petition the government for the redress of grievances. The Second Amendment concedes the right ‘to keep and bear Arms’ while the Fifth protects individuals against self‐incrimination and requires that no one ‘be deprived of life, liberty or property without due process of law’. Originally, these provisions were added to the Constitution to ensure that the rights of the people were not violated by the federal government, but in the twentieth century the US Supreme Court has drawn on the Fourteenth Amendment, adopted after the Civil War, to apply the bill of rights to the governments of the states. Statutory law cannot alter the provisions of a bill of rights such as those found in the United States, Germany, and France; like the rest of the constitution they are part of the ‘higher law’ not subject to change except by the extraordinary processes of constitutional amendment.

The idea of fundamental, inviolable, human rights is rooted deep in the history of Western civilization. Magna Carta (1215) was, in part, a statement of human rights, including most famously in clause 39 the right to due process: ‘No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.’ But Magna Carta was an accord between King John and his barons rather than constitutional or even statutory law. On the other hand, the Bill of Rights, enacted by Parliament in 1689, was a statute concerned primarily with curtailing royal prerogative and asserting the rights of the legislature while also including some provisions designed to protect individual rights. Subjects were accorded the right to petition the monarch; provided they were Protestants they were allowed to retain arms for their defence and they were granted immunity from excessive bail or fines. However, this was not a bill of rights comparable to those that later emerged in other countries in that it could be overturned by an Act of Parliament. A better precedent was provided by the Charter or Fundamental Laws of West New Jersey (1677). This secured the right to due process and trial by jury and protected religious freedom while specifically excluding the possibility of such rights and privileges being denied by legislative authority.


Subjects: Law

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