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Recall from Chapter 2 that we came very close to not having any Bill of Rights in the Constitution at all. The Federalists had argued that the Constitution itself was a bill of rights, that individual rights were already protected by many of the state constitutions, and that to list the powers that the national government did not have was dangerous, as it implied that it did have every other power (see The Big Picture: What the Bill of Rights Means to You).

To some extent they were correct in calling the Constitution a bill of rights in itself. Protection of some very specific rights is contained in the text of the document. The national government may not suspend writs of habeas corpus, which means that it cannot fail to bring prisoners, at their request, before a judge and inform the court why they are being held and what evidence exists against them. This provision protects people from being imprisoned solely for political reasons. Both the national and the state governments are forbidden to pass bills of attainder, which are laws that single out a person or group as guilty and impose punishment without trial. Neither can they pass ex post facto laws, which are laws that make an action a crime after the fact, even though it was legal when carried out. States may not impair or negate the obligation of contracts; here the founders obviously had in mind the failings of the Articles of Confederation. And the citizens of each state are entitled to “the privileges and immunities of the several states,” which prevents any state from discriminating against citizens of other states. This provision protects a nonresident’s right to travel freely, conduct business, and have access to state courts while visiting another state.⁹ Of course, nonresidents are discriminated against when they have to pay a higher nonresident tuition to attend a state college or university, but the Supreme Court has ruled that this type of “discrimination” is not a violation of the privileges and immunities clause.

habeas corpus the right of an accused person to be brought before a judge and informed of the charges and evidence against him or her

bills of attainder laws under which specific persons or groups are detained and sentenced without trial

ex post facto laws laws that criminalize an action after it occurs

THE BIG PICTURE: What the Bill of Rights Means to You

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Some Federalists, however, including James Madison, came to agree with such Anti-Federalists as Thomas Jefferson, who wrote, “A bill of rights is what the people are entitled to against every government on earth.”¹⁰ Even though, as the Federalists argued, the national government was limited in principle by popular sovereignty (the concept that ultimate authority rests with the people), it could not hurt to limit it in practice as well. A specific list of the rights held by the people would give the judiciary a more effective check on the other branches.