Carolina Criminal Defense & DUI Lawyer UpdatesThe Debate Over Ratification and the Demand for a Bill of Rights
In the aftermath of the 1787 Constitutional Convention, the proposed United States Constitution went to the states for approval. North Carolina emerged as a critical battleground in this ratification debate. Many North Carolinians were divided between Federalists, who supported the new Constitution as written, and Anti-Federalists, who feared it granted too much unchecked power to a central government.
The absence of a clear list of guaranteed individual rights in the federal Constitution became a focal point. North Carolina’s citizens
had fresh memories of British abuses of power before and during the Revolutionary era. They worried that without explicit protections, such as safeguards against arbitrary searches and seizures or other infringements, a new federal government might oppress the people just as past tyrannies had. This concern for fundamental liberties set the stage for North Carolina’s insistence on a Bill of Rights.
Across the states, calls grew louder for amendments that would secure essential freedoms. In North Carolina, this sentiment was especially strong.
The state had a tradition of asserting individual rights in its own laws; its very first state constitution of 1776 contained a Declaration of Rights enumerating core liberties.
Notably, North Carolina’s 1776 Declaration of Rights explicitly prohibited “General Warrants” that allowed government agents to search homes or seize people without specific cause.
It declared such broad warrants “dangerous to Liberty” and insisted they “ought not to be granted.” This reflected a deep-rooted commitment to the principle that people should be secure from unreasonable searches. a principle at the heart of what would later become the Fourth Amendment.
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By 1788, North Carolinians expected the new federal Constitution to honor the same principle. Their hesitation to ratify the federal Constitution without a Bill of Rights was not a trivial political bargaining point; it was born of a genuine fear that without clear limits, federal authority could trample the hard-won rights of the people.
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North Carolina’s Refusal to Ratify Without a Bill of Rights
When North Carolina convened its first ratification convention in Hillsborough in the summer of 1788, the delegates were not prepared to accept the Constitution outright.
The majority of delegates were Anti-Federalists who argued that a declaration of rights must be attached to the Constitution to restrain the new federal government.
After intense debates lasting eleven days, the North Carolina convention made a remarkable decision. It neither ratified nor outright rejected the Constitution.
Instead, by an overwhelming vote (approximately 184 to 84), the delegates refused to ratify until their concerns were addressed. This outcome has been famously dubbed “the great refusal.”
North Carolina essentially put the Union on hold, withholding its assent to join until amendments protecting individual liberties were guaranteed.
In making this decision, the Hillsborough Convention delegates drafted and adopted a “Declaration of Rights and Amendments” document to accompany the Constitution.
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This document listed the specific rights and freedoms that North Carolina insisted should be safeguarded.
The list was comprehensive, echoing many protections already familiar from state constitutions and English legal tradition.
North Carolina demanded assurances of freedom of speech and religion, the right to jury trials, and other fundamental protections. These demands included clear limits on government power in law enforcement and criminal proceedings.
The North Carolina convention’s message was unmistakable. The new Constitution must be amended to include a Bill of Rights, or North Carolina would remain outside the new federal Union.
At a time when nine states had already ratified and the new government was forming, North Carolina’s defiance exerted significant pressure.
The state stood alongside Rhode Island as one of only two holdouts, signaling that the Union would not truly be whole or politically legitimate without addressing the call for a Bill of Rights.
North Carolina’s Push for Fundamental Liberties in 1788
The set of rights proposed by North Carolina in 1788 was one of the most detailed of any state’s ratification convention.
North Carolina’s Declaration of Rights contained 20 articles affirming fundamental liberties, reflecting many ideals that would soon appear in the U.S. Bill of Rights.
For example, North Carolinians insisted on rights like trial by jury, freedom of the press, the right to assemble and petition, and protections for religious exercise.
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These were not abstract ideals to them but concrete safeguards drawn from their own state traditions and the collective American experience under British rule.
By articulating these rights, North Carolina was effectively blueprinting the additions it wanted to see in the federal Constitution.
The state’s leaders believed that by clearly enumerating such rights, they could prevent any “misconstruction or abuse” of federal power, a phrase that would appear in the eventual Bill of Rights preamble.
Demanding Protection from Unreasonable Searches and the Origins of the Fourth Amendment
Among North Carolina’s proposed amendments, one of the most ardently pressed was the protection against unreasonable searches and seizures.
North Carolina’s Declaration of Rights at the Hillsborough Convention stated that “every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property.”
It further condemned general, nonspecific warrants as oppressive and inadmissible.
The North Carolina proposal declared that any warrant issued must be backed by evidence of legal cause sworn under oath, and that warrants lacking a specific description of the place to be searched or the person to be seized are “dangerous” and “ought not to be granted.”
In essence, North Carolina was insisting that the new federal government explicitly prohibit the kind of broad search powers that tyrants had once used to harass citizens.
This language is a direct precursor to the Fourth Amendment.
In fact, when one compares North Carolina’s 14th proposed right from 1788 to the final text of the Fourth Amendment, the resemblance is unmistakable.
North Carolina’s version included the core elements that the Fourth Amendment would enshrine nationally in 1791. Those being the right of people to be secure in their persons, houses, papers, and effects; freedom from unreasonable searches and seizures; and the requirement that warrants be supported by oath or affirmation and particularly describe the place to be searched and the persons or things to be seized.
This was not merely a local concern but a fundamental principle of liberty that North Carolina helped push to the forefront of the national agenda.
North Carolina’s focus on search-and-seizure protections was influenced by historical context.
During the colonial period and under British rule, general warrants and writs of assistance had allowed officials to search homes and businesses without specific cause, a practice abhorrent to American colonists.
North Carolina’s own colonial history included resistance to such intrusions, and its 1776 state constitution outlawed general warrants for that very reason.
By 1788, North Carolinians understood that if the federal Constitution did not explicitly forbid these practices, nothing would stop a future federal authority from attempting similar acts.
The insistence on this right during the ratification debates demonstrates how North Carolina’s delegation was safeguarding not only their state’s citizens but all Americans.
Our stance ensured that the protection against unreasonable searches and seizures became a non-negotiable element of the emerging national Bill of Rights.
Influence on the Bill of Rights and the Fourth Amendment’s Adoption
North Carolina’s principled stand had a profound influence on the course of American constitutional development.
By refusing to ratify the Constitution without a promise of added protections, North Carolina (along with other states advocating for amendments) forced the first Congress to take up the issue of a Bill of Rights swiftly.
When the new federal government commenced in 1789, one of the first orders of business, thanks in large part to pressure from holdout states, was crafting amendments to satisfy these demands.
James Madison of Virginia, who had initially been ambivalent about a Bill of Rights, took on the task of drafting the amendments in the First Congress.
Critically, Madison did not craft these amendments in a vacuum or based purely on theory.
He drew heavily from the catalogs of proposed rights assembled by the state ratifying conventions, mostly from the more than 200 amendments proposed by the states during ratification debates.
North Carolina’s list was among those Madison considered.
The influence is evident. The amendments Madison introduced included virtually all the rights North Carolina had insisted upon, including the one safeguarding against unreasonable searches and seizures.
The Fourth Amendment, as we know it today, reads:
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.
This language captures the very protections North Carolina enumerated in 1788.
The path from North Carolina’s refusal to ratify in 1788 to the adoption of the Fourth Amendment in 1791 illustrates a clear line of influence.
North Carolina’s resolve helped ensure that the protection against arbitrary search and seizure was cemented into the federal Constitution.
In a broader sense, North Carolina’s action in large measure ensured the protections set forth within Bill of Rights.
As one historical account notes, North Carolina’s heated debate and strong dissent contributed significantly to ensuring that Americans have a Bill of Rights.
The Fourth Amendment became one of those secured rights, in no small part due to North Carolina’s insistence.
It is also notable that when drafting the Bill of Rights in Congress, the framers included a preamble acknowledging that several states had expressed a desire for “further declaratory and restrictive clauses” to prevent abuse of federal power.
This was a direct nod to the influence of the ratification conventions. North Carolina was explicitly one of those states.
In fact, North Carolina’s stance was so firm that President George Washington took the unusual step of sending an official copy of the proposed twelve amendments (the Bill of Rights) to North Carolina even before the state had ratified the Constitution.
This gesture made clear that the new Union earnestly wanted North Carolina (and fellow holdout Rhode Island) to see that their concerns were being addressed.
It was effectively an invitation setting forth, in essence, “Here are the amendments you asked for; now please join us.” The strategy worked.
North Carolina Joins the Union After Ensuring a Bill of Rights
With the promise of a Bill of Rights on the horizon, North Carolina called a second ratification convention in Fayetteville in late 1789.
By this time, the First Congress had already approved twelve amendments and sent them out to the states for ratification.
North Carolina’s delegates, now assured that a federal Bill of Rights would become reality, voted on November 21, 1789, to ratify the United States Constitution.
North Carolina thus became the 12th state of the Union, ending its holdout.
The vote at the Fayetteville Convention (195 in favor to 77 against) reflected a decisive shift, thanks to the inclusion of the rights they demanded, a clear majority now supported joining the Union.
North Carolina had achieved what it wanted. The Constitution would be amended to protect individual liberties.
This outcome was a victory not only for North Carolina but for the cause of liberty in all the states.
By insisting on a Bill of Rights as the price of its ratification, North Carolina helped ensure that every American would soon enjoy the explicit protections of those first ten amendments.
The Fourth Amendment’s safeguards, in particular, can trace a direct lineage to North Carolina’s influence.
The importance North Carolinians placed on the sanctity of one’s home and personal papers, free from unreasonable government intrusion, became embedded in the supreme law of the land.
Lawyers, judges, and citizens to this day benefit from North Carolina’s stance, as the Fourth Amendment remains a cornerstone of American criminal procedure and privacy law.
North Carolina’s commitment to these principles was further demonstrated immediately after it joined the Union.
The state moved quickly to affirm the very amendments it had fought for.
Just one month after statehood, in December 1789, North Carolina’s legislature ratified all of the proposed amendments to the U.S. Constitution.
In doing so, North Carolina formally endorsed the federal Bill of Rights, including the Fourth Amendment, as the law of the land. (Notably, this was nearly two years before the Bill of Rights achieved the required number of state ratifications to come into force in late 1791.)
North Carolina’s early ratification of the amendments was a symbolic and practical reaffirmation of its dedication to individual rights.
The state that had refused to compromise on fundamental liberties was now one of the first to approve the new guarantees of those liberties.
A Lasting Legacy in the Fourth Amendment
North Carolina’s role in the creation of the Bill of Rights, especially its influence on the Fourth Amendment, remains a proud chapter in American legal history.
By standing firm in 1788, North Carolina forced the nation to confront the absence of explicit personal freedoms in the Constitution.
The Fourth Amendment’s protection against unreasonable searches and seizures, in particular, reflects North Carolina’s values and demands.
This safeguard has since become a bedrock of American jurisprudence, protecting citizens from arbitrary government intrusion into their homes and lives. Each time a court suppresses evidence from an unlawful search or upholds the requirement for a warrant based on probable cause, it is, in a sense, echoing the insistence of North Carolina’s founders that such rights be inviolable.
The story of North Carolina and the Fourth Amendment offers a powerful example of how determined advocacy for liberty can shape constitutional law.
The Bill of Rights was not a foregone conclusion but the product of vigorous debate and demands from the states.
North Carolina’s legacy in this process is both specific and broad.
Specifically, the very words and concepts of the Fourth Amendment bear the mark of North Carolina’s 1788 declaration. Broadly, North Carolina’s insistence on a Bill of Rights helped ensure the Constitution would forever be interpreted in light of fundamental individual freedoms.
In the end, North Carolina’s early reluctance to join the Union without a guarantee of rights proved instrumental in giving future generations the protective shield of the Bill of Rights.
The Fourth Amendment stands today as a testament to those North Carolinians who, in the earliest days of the Republic, stood up and declared that security against unreasonable searches. That helped forge a constitutional safeguard that continues to secure the blessings of liberty for us all.
Sources:
constitutingamerica.orgconstitutingamerica.org; docsouth.unc.edu; constitutingamerica.org; northcarolinahistory.org; visitthecapitol.gov; visitthecapitol.gov; judicature.duke.edu; archive.csac.history.wisc.eduarchive.csac.history.wisc.edu; prologue.blogs.archives.gov; northcarolinahistory.org; judicature.duke.edu; prologue.blogs.archives.gov; judicature.duke.edu; prologue.blogs.archives.gov
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