One of the earliest documents used in drafting the American Bill of Rights was the English Bill of Rights of 1689, one of the fundamental documents of English constitutional law. The English Bill of Rights differed substantially in form and intent from the American Bill of Rights, because it was intended to address the rights of citizens as represented by Parliament against the Crown. However, some of its basic tenets were adopted and extended by the U.S. Bill of Rights, including:
the right of petition,
an independent judiciary (the Sovereign was forbidden to establish his own courts or to act as a judge himself),
freedom from taxation by royal (executive) prerogative, without agreement by Parliament (legislators),
freedom from a peace-time standing army,
freedom [for Protestants] to bear arms for their defence, as allowed by law,
freedom to elect members of Parliament without interference from the Sovereign,
freedom of speech in Parliament,
freedom from cruel and unusual punishments and excessive bail, and
freedom from fines and forfeitures without trial.
Virginia Declaration of Rights
Main article: Virginia Declaration of Rights
The Virginia Declaration of Rights, drafted by George Mason and well-known to Madison, had already been a strong influence on the American Revolution ("all power is vested in, and consequently derived from, the people ..."; also "a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish [the government]"). It had shaped the drafting of the United States Declaration of Independence a decade before the drafting of the Constitution, proclaiming that "all men are by nature equally free and independent, and have certain inherent rights of which ... [they cannot divest;] namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety." On a practical level, its recommendations of a government with a separation of powers (Articles 5–6) and "frequent, certain, and regular" elections of executives and legislators were incorporated into the United States Constitution — but the bulk of this work addresses the rights of the people and restrictions on the powers of government, and is recognizable in the modern Bill of Rights:
The government should not have the power of suspending or executing laws, "without consent of the representatives of the people,". A legal defendant has the right to be "confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage," and may not be "compelled to give evidence against himself." Individuals should be protected against "cruel and unusual punishments", baseless search and seizure, and be guaranteed a trial by jury. The government should not abridge freedom of the press, or freedom of religion ("all men are equally entitled to the free exercise of religion"). The government should be enjoined against maintaining a standing army, and that a "well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state."
Articles of Confederation
Prior to the acceptance and implementation of the United States Constitution, the original 13 colonies followed the stipulations and agreements set forth in the Articles of Confederation, created by the Second Continental Congress and ratified in 1781. The national government that operated under the Articles of Confederation was too weak however to adequately regulate the various conflicts that arose between the states. The Philadelphia Convention set out to correct weaknesses inherent in the Articles of Confederation that had been apparent even before the American Revolutionary War had been successfully concluded. The newly constituted Federal government included a strong executive branch, a stronger legislative branch and an independent judiciary.
The Bill of Rights enumerates freedoms not explicitly indicated in the main body of the Constitution: freedom of religion, freedom of speech, a free press, free assembly, and free association; the necessity of a well-regulated militia for the security of a free state, the right of the people to keep and bear arms; freedom from unreasonable search and seizure, security in personal effects, freedom from warrants issued without probable cause; indictment by a grand jury for any capital or "infamous crime", guarantee of a speedy, public trial with an impartial jury composed of members of the state or judicial district in which the crime occurred, and prohibition of double jeopardy. In addition, the Bill of Rights reserves for the people any rights not specifically mentioned in the Constitution and reserves all powers not specifically granted to the federal government to the people or the States. Most of these enumerated freedoms under the federal Constitution were later applied to the states by a series of legal decisions using the due process clause of the Fourteenth Amendment, which was ratified in 1868. The Bill was influenced by George Mason's 1776 Virginia Declaration of Rights, the English Bill of Rights 1689, works of the Age of Enlightenment pertaining to natural rights, and earlier English political documents such as Magna Carta (1215).