Sparks Commentary: How did the Virginia Declaration of Rights influence the Bill of Rights?

“That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety … That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”

– George Mason, in the “Virginia Declaration of Rights,” Sections I and II

George Mason actually refused to sign the Constitution of the United States …

George Mason was present at the Constitutional Convention, but he refused to sign the finished document. When the final draft was approved, he said that he “would sooner chop off [his] right hand than put it to the Constitution as it now stands.” Why, you might be wondering? Because the original Constitution didn't have a Bill of Rights; and having authored the Virginia Declaration of Rights earlier on in his career, he knew the importance of a Bill of Rights in a country's constitution.

George Mason, author of the Virginia Declaration of Rights

He wrote the Virginia Declaration of Rights in May 1776 (ratified June 1776)

Specifically, he had authored the “Virginia Declaration of Rights” in May 1776 – a document that was later approved in June 1776. It not only influenced the United States Declaration of Independence (passed in July 1776), but the United States Bill of Rights (which was passed in 1791). It drew upon influences from both American and British history, but it also made some original contributions of its own, as well as some improvements on previous ideas. It was also amended somewhat by Robert C. Nicholas and James Madison.

James Madison

It influenced our federal Bill of Rights in many ways, as I will show with some relevant quotes

The Virginia Declaration of Rights influenced 7 out of the 10 amendments in the United States Bill of Rights (which is 70% of them), and was thus a major influence on our Constitution. This post will show the most influential parts of the Virginia Declaration of Rights, and the parts of the United States Constitution that they influenced as well.

United States Bill of Rights

Freedom of the press is “one of the greatest bulwarks of liberty” (influenced First Amendment)

The Virginia Declaration of Rights said that “the freedom of the press is one of the greatest bulwarks of liberty and can never be restrained but by despotic governments.” (Source: Section XII) This influenced the United States Bill of Rights, which said that Congress shall make no law “abridging the freedom of speech, or of the press” (Source: First Amendment). Incidentally, the Virginia Declaration of Rights is actually the first document in history to codify the freedom of the press, in this country or any other.

Printing press from 1811

A well-regulated militia composed of “the body of the people” (influenced Second Amendment)

The Virginia Declaration of Rights said 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” (Source: Section XIII). This influenced the United States Bill of Rights, which said that “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.” (Source: Second Amendment) It is correct, I might add here, that the Virginia Declaration of Rights did not include a “right to bear arms”; but since the author of the Second Amendment (James Madison) was also one of the people who amended the Virginia Declaration of Rights before it was enacted, we can take its definition of “a well regulated militia” to be Madison's own – namely, that “a well regulated militia [is] composed of the body of the people” (Source: Section XIII). Those who wish to restrict gun rights to the “militia” today might do well to examine this definition of what a militia is from Madison and Mason.

Infantry in the American Revolution

Restrictions on search and seizure, and on general warrants (influenced Fourth Amendment)

The Virginia Declaration of Rights said that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.” (Source: Section X) This influenced the United States Bill of Rights, which said that “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.” (Source: Fourth Amendment)

No compelling man to give evidence against himself, or be deprived of liberty (influenced Fifth Amendment)

The Virginia Declaration of Rights said that “nor can [a man] be compelled to give evidence against himself; that no man be deprived of his liberty except by the law of the land or the judgement of his peers.” (Source: Section VIII) This influenced the United States Bill of Rights, which said that no person 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” (Source: Fifth Amendment) It also may have influenced the Fourteenth Amendment to the Constitution, which said that “nor shall any State deprive any person of life, liberty, or property, without due process of law” (Source: Section 1 of the Amendment).

Right to speedy and fair trial by “impartial jury” (influenced Sixth Amendment)

The Virginia Declaration of Rights said that “in all capital or criminal prosecutions a man hath a right to demand the cause and nature of his accusation 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, without whose unanimous consent he cannot be found guilty” (Source: Section VIII) This influenced the United States Bill of Rights, which said that “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 defense.” (Source: Sixth Amendment)

A scene from “12 Angry Men” (1957), a movie that dramatizes the "trial by jury" system

Right to “trial by jury” in various kinds of lawsuits (influenced Seventh Amendment)

The Virginia Declaration of Rights said that “in controversies respecting property and in suits between man and man, the ancient trial by jury is preferable to any other and ought to be held sacred.” (Source: Section XI) This influenced the United States Bill of Rights, which said that “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 reexamined in any court of the United States, than according to the rules of the common law.” (Source: Seventh Amendment)

No excessive bail or fines, or “cruel and unusual punishments” (influenced Eighth Amendment)

The Virginia Declaration of Rights said that “excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.” (Source: Section IX) This influenced the United States Bill of Rights, which said that “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (Source: Eighth Amendment) With the exception of changing "ought not to be" to "shall not be," this wording is exactly identical.

Free exercise of religion, according to “dictates of conscience” (influenced First Amendment)

The Virginia Declaration of Rights said that “religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.” (Source: Section XVI) This influenced the United States Bill of Rights, which said that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (Source: First Amendment).

Thomas Jefferson

Thomas Jefferson authored the Virginia Statute for Religious Freedom (ratified 1786) …

And although this post is focused primarily on the Virginia Declaration of Rights, one might also note here that there was a Virginia Statute for Religious Freedom, which was ratified in 1786. Written earlier by Thomas Jefferson in 1777, the statute enacted that “no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish enlarge, or affect their civil capacities.” (Source: Virginia Statute on Religious Freedom) This would also influence the First Amendment, which said that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” (Source: First Amendment).

… and said that the rights hereby asserted were “of the natural rights of mankind”

Jefferson noted that “though we well know that this assembly elected by the people for the ordinary purposes of legislation only, have no power to restrain the acts of succeeding assemblies, constituted with powers equal to our own, and that therefore to declare this act to be irrevocable would be of no effect in law; yet we are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right.” (Source: Virginia Statute for Religious Freedom)

Thomas Jefferson

Jefferson mentioned this authorship on his gravestone, where he did not mention his presidency

As you may know, the author Thomas Jefferson later became the 3rd President of the United States; but he did not deem this accomplishment worthy of being mentioned on his gravestone. The things he did see fit to mention there were that he was the “author of the Declaration of American Independence, of the Statute of Virginia for Religious Freedom, and [the] father of the University of Virginia” (see Monticello website for the inscription).

Thomas Jefferson's gravestone at Monticello

Conclusion: The Virginia Declaration of Rights was also a major influence on the Bill of Rights

As noted previously, George Mason (the author of the Virginia Declaration of Rights) refused to sign the Constitution of the United States, because it did not yet contain a Bill of Rights at that time. But he did campaign tirelessly to get a Bill of Rights added into the constitution after it had been ratified, and most of his earlier work was later incorporated by James Madison into the final Bill of Rights. Although it was not an exact copy of George Mason's work by any means, it's fair to say that it drew upon the Declaration in many ways; and that Madison would have been foolish not to draw upon it. (The Virginia Statute for Religious Freedom was also a major influence upon the final Bill of Rights, and so seemed worthy of inclusion here in a post of this kind.)

Footnote to this blog post:

The Virginia Declaration of Rights also said that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety and is most effectually secured against the danger of maladministration; and that, whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter or abolish it, in such manner as shall be judged most conducive to the public weal.” (Source: Section III) This would influence the later United States Declaration of Independence, which was released less than a month after the ratification of the Virginia Declaration of Rights.

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