Eight Myths About the Bill of Rights That Civics Classes Keep Repeating

Pop quiz. How many amendments did Congress send to the states in 1789? If you said ten, you have plenty of company, and you are wrong. Which court case held that the Bill of Rights did not apply to the states? If you drew a blank, so would most of the country, which is a shame, because that case governed American liberty for most of the nineteenth century.

The Bill of Rights is the most revered part of the Constitution and one of the least understood. Civics classes treat it as a single tablet handed down in 1787, binding on every government in the land from day one, opposed only by men who wanted tyranny. Not one of those claims survives the documents. Below are eight common myths, each stated, tested against the record, and given a verdict. The truth turns out to be more interesting, and it teaches a better lesson about how liberty is actually protected.

Myth 1: The Bill of Rights was part of the original Constitution

The claim. The Bill of Rights was written at the Philadelphia convention along with the rest of the Constitution, and the two were adopted together.

The record. The Constitution was signed on September 17, 1787, and contained no bill of rights. Near the end of the convention, George Mason proposed adding one; the state delegations voted it down without a single state in favor. The document went to the states without it, and ratification became effective when New Hampshire became the ninth state on June 21, 1788. The new government began operating in 1789. The Bill of Rights was proposed by the First Congress later that year and ratified on December 15, 1791, more than four years after the convention adjourned.

That does not mean the original Constitution ignored liberty. It protected the writ of habeas corpus except in rebellion or invasion, banned bills of attainder and ex post facto laws, guaranteed a jury in federal criminal trials, defined treason narrowly, and forbade religious tests for federal office. Those protections predated the amendments.

Verdict: False. The Bill of Rights came second, added to a Constitution already in force.

Myth 2: Those who opposed a bill of rights were enemies of liberty

The claim. The Federalists resisted a bill of rights because they wanted a powerful central government unchecked by protections for the people.

The record. The leading Federalist argument against a bill of rights was itself a liberty argument. James Wilson made it in a public speech in Philadelphia on October 6, 1787, and Alexander Hamilton made it in Federalist 84. The national government, they said, had only the powers the Constitution listed. A bill of rights would declare exceptions to powers that had never been granted, and that could imply the government held every power not excepted. Hamilton put the point sharply:

For why declare that things shall not be done which there is no power to do?

His worry was that a list of protected rights would become a list of the only protected rights, and that everything outside it would be treated as fair game. That fear was taken seriously enough that the Ninth Amendment was written to answer it. For the full argument, see Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous.

The Anti-Federalists who demanded a bill of rights, like Mason and the writers who called themselves Brutus and the Federal Farmer, were also lovers of liberty. The debate was between two camps who both wanted limited government and disagreed about the best way to secure it.

Verdict: False. Both sides argued from liberty. The Federalists simply trusted enumerated powers more than lists.

Myth 3: Madison championed a bill of rights from the start

The claim. James Madison, the "father of the Bill of Rights", always believed in it and fought for it from the beginning.

The record. Madison began as a skeptic. He doubted that written declarations would restrain determined majorities, and in Federalist 48 he warned against trusting to "parchment barriers". In a letter to Thomas Jefferson on October 17, 1788, he wrote that his opinion had always favored a bill of rights if it were framed so as not to imply powers the government did not have, but that he had never thought the omission a material defect.

What changed? Politics and principle together. Madison ran for the First Congress in Virginia against James Monroe, in a district where many voters wanted amendments, and he pledged to support them. He also came to see that a bill of rights could win over the Constitution's doubters, head off calls for a second convention that might unravel the whole document, and serve as a teaching instrument that would, over time, shape public opinion. On June 8, 1789, he introduced his proposed amendments in the House. He wanted them woven into the body of the Constitution at the relevant places; Roger Sherman and others insisted they be added at the end as a separate list, and that is the form we have. The fuller story is in Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach.

Verdict: Mostly false. Madison became the Bill of Rights' champion, but only after he had doubted it, and his conversion was a careful judgment, not a lifelong cause.

Myth 4: Congress sent ten amendments to the states

The claim. Congress proposed ten amendments, and the states ratified all ten.

The record. On September 25, 1789, Congress sent twelve amendments to the states. The first dealt with the apportionment of the House as its membership grew. The second barred any change in congressional pay from taking effect until after the next House election. Neither won enough states by 1791. The remaining ten, originally numbered three through twelve, were ratified and became the first ten amendments.

The story does not end there. The pay amendment, the original second, sat in limbo for two centuries, was revived by a ratification campaign in the 1980s, and was declared ratified in 1992 as the Twenty-seventh Amendment. So the Bill of Rights' leftover sibling is the newest part of the Constitution. The arithmetic of that 202-year journey is in Twenty-Seven Amendments Out of Over Eleven Thousand Proposals, by the Numbers.

That also means our First Amendment was, in the original proposal, the third. Freedom of speech did not come "first" because the Framers ranked it first. It came first because the two amendments ahead of it failed.

Verdict: False. Congress sent twelve; ten were ratified in 1791, and one more in 1992.

Myth 5: Every state ratified the Bill of Rights right away

The claim. The states, eager for protection of their rights, ratified the amendments promptly and unanimously.

The record. Ratification required three-fourths of the states. With Vermont admitted as the fourteenth state in March 1791, eleven were needed, and Virginia supplied the eleventh on December 15, 1791. But three of the original thirteen states, Massachusetts, Connecticut and Georgia, did not ratify the Bill of Rights at all in that era. They did so only in 1939, as a symbolic act marking the 150th anniversary of the amendments' proposal.

Why did they hold out? The reasons varied: some Federalists thought the amendments unnecessary, some Anti-Federalists thought they did not go far enough, and in Massachusetts the legislature's action was never completed and formally sent. Whatever the reasons, the picture of instant unanimity is wrong.

Verdict: False. Ten of the original thirteen ratified by 1791, and three waited 148 years.

Myth 6: The Bill of Rights bound the states from the start

The claim. From 1791 on, the Bill of Rights protected Americans against their state and local governments as well as against Washington.

The record. This is the most consequential myth, and the Supreme Court answered it directly. In Barron v. Baltimore in 1833, a wharf owner named John Barron sued the city of Baltimore, arguing that the city's street works had silted up the water around his wharf and destroyed its value, and that the Fifth Amendment's Takings Clause required compensation. Chief Justice John Marshall, writing for a unanimous Court, held that the Bill of Rights limited only the national government. It did not apply to the states.

Madison had tried to prevent exactly that. Among his proposals in 1789 was one forbidding any state to violate the equal rights of conscience, the freedom of the press or trial by jury in criminal cases. He considered it among the most valuable of his amendments. The House passed it; the Senate struck it out.

So for most of the nineteenth century, a state could establish a church (Massachusetts kept a tax-supported establishment until 1833), restrict speech or deny a jury without violating the federal Bill of Rights. The protections against the states came from state constitutions, which varied widely. It took the Fourteenth Amendment, ratified in 1868, and a long series of Supreme Court decisions in the twentieth century to apply most of the Bill of Rights against the states, one right at a time, as How the Bill of Rights Came to Bind the States, One Right at a Time explains.

Verdict: False. The Bill of Rights bound only the national government until the Fourteenth Amendment and the incorporation cases.

Myth 7: The Bill of Rights grants us our rights

The claim. Americans have free speech, free exercise of religion, the right to bear arms and the rest because the Bill of Rights gave them those rights.

The record. Read the text. Nearly every guarantee is phrased as a limit on government, not a grant to the people. "Congress shall make no law." "Shall not be infringed." "Shall not be violated." The rights are assumed to exist already; the amendments forbid the government to touch them.

The resolution Congress passed in 1789, sending the amendments to the states, explained their purpose in its own preamble: several state conventions had expressed a desire, "in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added". Declaratory: declaring rights that already exist. Restrictive: restricting the government. Not a word about granting.

And the Ninth Amendment seals it: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." Retained. The people had the rights first. The Declaration of Independence had already said where they come from: the Creator, with governments instituted to secure them.

Verdict: False. The Bill of Rights recognizes and secures rights; it does not create them.

Myth 8: Today every right in the Bill of Rights applies against the states

The claim. Since the incorporation cases, the entire Bill of Rights binds state governments exactly as it binds Washington.

The record. Most of it does, but not all. The Supreme Court has applied nearly every provision of the first eight amendments against the states through the Fourteenth Amendment's Due Process Clause. The Second Amendment was applied in McDonald v. City of Chicago in 2010. The Excessive Fines Clause of the Eighth Amendment was applied in Timbs v. Indiana in 2019.

But a few provisions remain unincorporated. The Fifth Amendment's requirement of a grand jury indictment for serious crimes does not bind the states; the Court so held in Hurtado v. California in 1884, and many states charge felonies by a prosecutor's information instead. The Seventh Amendment's guarantee of a civil jury does not bind state courts. The Third Amendment's ban on quartering soldiers in homes has never been squarely applied to the states by the Supreme Court, largely because no state has tried it.

Verdict: Mostly true, but not entirely. A handful of guarantees still bind only the federal government.

What the myths have in common

Every one of these myths flattens a story about structure and argument into a story about a sacred list. The real history shows that the Bill of Rights was a second thought added to a structural design, that its critics feared it would shrink liberty rather than expand it, that it took a civil war and a new amendment to make it bind the states, and that its words assume our rights exist before any government does.

That is a better lesson than the myth. A list of rights is only as strong as the structure behind it and the citizens who know what it says. For the larger argument, see Structure Protects Minorities Before the Bill of Rights Ever Does.

The case in brief

1. The Bill of Rights was added in 1791 to a Constitution signed in 1787, which already protected habeas corpus, criminal juries and freedom from religious tests.
2. Its Federalist critics argued from liberty, fearing a list would imply unlisted rights were unprotected, and the Ninth Amendment answered them.
3. Congress sent twelve amendments in 1789, ten were ratified in 1791, one more in 1992, and three states did not ratify until 1939.
4. Barron v. Baltimore held in 1833 that the Bill of Rights bound only the national government, and the Fourteenth Amendment and the incorporation cases changed that, nearly but not entirely.
5. The amendments declare and restrict; they secure rights the people already hold rather than granting them.

What you can do: read the Bill of Rights on the site's Constitution page, then take the site's civics test with someone who has not read it lately and compare answers.