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 Bill of Rights Table of Contents On June 28, 1787, during the debate at the Constitution at the Constitutional Convention in Philadelphia, Connecticut delegate Roger Sherman asserted: “The question is not what rights naturally belong to men; but how they may be most equally & effectually guarded in Society. And if some give up more than others in order to attain this end, there can be no room for complaint. To do otherwise, to require an equal concession from all, if it would create danger to the rights of some, would be sacrificing the end to the means. The rich man who enters into Society along with the poor man, gives up more than the poor man, yet with an equal vote he is equally safe.” Although c Sherman was a firm proponent of national rights, he did not believe it was necessary to include a bill of rights in the Constitution – even if the American Revolution had been fought because of a long train of abuses of human rights by the British government. Although the delegates to the Constitutional Convention were concerned about rights, they were not the primary focus of their work. They did not consider it necessary to include a list of protected rights in the document they were writing. The Founders were children of the doctrine of natural rights. Robert Allen Rutland wrote: “Bill of rights were the ‘higher law’ of the eighteenth century, and they were created to be an instrument of service for every citizen. Christopher Gadsden reflected a common opinion when he wrote on the subject: ‘For it is essential to a Republic to have its Laws plain and simple, as far as possible, and known to every member of the least attention.’” 1 Rutland wrote that the Declaration of Independence was essentially a statement of rights based on George Mason’s wording of the Virginia Resolves: “The preamble declared that this list of rights was set down for the people of Virginia ‘and their posterity, as the basis and foundation of government.’ All men are created equally free and independent, with certain inherent rights, ‘namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.’ The idea was Locke’s, but the felicitous expression was Mason’s. A comparison of the statement with Jefferson’s wording of the Declaration of Independence suggest that Mason exerted an influence upon the final phraseology of that document.”2 (The Founders were accomplished adapters of the works of others.) One principle argument was that by specifying rights a, a bill of rights might suggest they were the only rights to which citizens were entitled. Benjamin Rush identified the limitations of a Bill of Rights. By specifying rights it risked leaving some out. “Our rights are not yet all known,’ he said. 3 Lance Banning wrote: “Strategy, however, was not the only reason for the framers’ hesitation to support a bill of rights – and plainly not the reason for the Constitutional Convention’s original refusal. Two other thoughts were also much at work. As Madison expressed it in his state convention – before he was obliged to make his promise – a declaration of essential rights was both unnecessary and potentially pernicious. It was unnecessary, he explained, because the Constitution delegated only limited authority to the new central government, whose lawful powers did not extend into the areas that were conventionally protected by a bill of rights. And adding one could prove a danger, he believed, because an effort to enumerate essential rights could not be safe unless it was complete. Any list of rights might inadvertently omit a vital claim, and its omission could become the ground for an insistence that the government could act on matters that were never meant to be included in its province.”4 Madison was more worried about the tyranny of the majority than the tyranny of government. The failure to include a bill of rights in the original Constitution, however, almost doomed its ratification. Historian Richard Brookhiser observed: “The idea of including one had not even been raised in Philadelphia until the last week of the convention, when [George] Mason asked for a committee to draw one up; he thought it would take only ‘a few hours.’ Roger Sherman answered that state bills of rights were still in force, hence a national bill of rights was not necessary; the convention voted not to bother.” 5 It was a last minute effort without broad support. “The most severe opposition to the Constitution did not take definite shape until the eleventh hour, noted Mason biographer Robert A. Rutland. Elbridge “Gerry of Massachusetts, Mason, and Governor [Edmund] Randolph of Virginia made up the trio of dissidents. On September 12 Gerry and Mason started an attack on the failure to include a jury system in the judicial provisions and carried it to the point of moving that a bill of rights covering all such points be appended to the final draft. ‘A general principle’ on jury trials and a few other matters would satisfy them.” 6 Mason, a persistent and indefatigable advocate of a Bill of Rights, declared: “It would give great quiet to the people and with the aid of the State declarations, a bill might be prepared in a few hours.” 7 Constitutional scholar Leonard W. Levy noted that Mason “made no stirring speech for civil liberties in general or any rights in particular. He did not even argue the need for a bill of rights or move the adoption of one, though he offered to second a motion if one were made. Elbridge Gerry of Massachusetts then moved for a committee to prepare a bill of rights, and Mason seconded the motion.” Historian Lance Banning wrote: “By working from the several declarations of the states, he pointed out, the members could prepare a federal bill in very little time, and its addition might permit him to endorse the finished plan. With no significant debate...every delegation present voted no to Mason’s plea.” 8 The delegates could have defanged potential opponents by taking up Gerry’s motion. Instead, their inaction fed eventual opposition to the whole Constitution. Levy wrote that “the usually masterful politicians who had dominated the Convention had blundered by botching constitutional theory and making a serous political error. Their arguments justifying the omission of a bill of rights were impolitic and unconvincing. Mason’s point that a bill of rights would quiet the fears of the people was unanswerable. Alienating him and the many who agreed with him was bad politics and handed to the opposition a stirring cause around which they could muster sentiment against ratification.” 9 Virginia’s delegation was influential. Both Mason and Madison were strongly identified with issues of personal liberty, but Madison took a very different approach from Mason. Historian Jack Rakove wrote: “At the national level of government, Madison believed, a bill of rights would prove redundant or pointless. Solving the problem of rights ranked high among his priorities at Philadelphia, but it never occurred to him that drafting an improved declaration of rights should be part of the enterprise.” 10 For Madison and most of his fellow delegates, it was a question of priorities; constructing a political edifice that could assure the country’s economic growth was the primary goal. Mason thought otherwise and felt an obligation to raise the flag of civil liberties. Historian Robert Allen Rutland wrote that Thomas “Jefferson’s absence conceivably left a responsibility on George Mason’s shoulders, for both were devoted, experienced champions of personal freedom. Madison would have been an able and probably a willing lieutenant, but the two Virginians went their separate ways during the convention. Other delegates with experience in drafting either bills of rights or legislation protecting personal liberties were William Samuel Johnson of Connecticut, and George Read and John Dickinson of Delaware. To none of these could Mason look for support of his proposals for a bill of rights in the last moments of the debate, however, for the overriding topic of the convention was the powers of the federal government – not individual liberty.” 11 Mason was not one to follow the crowd. His behavior, however, was perplexing. By his initiative and his connections, he was influentially positioned. Yet, he waited until the last minute to launch what he must have known was a doomed effort. Indeed, it was a number of last-minute proposals made by three delegates who would all refuse to sign the final document – Mason, Gerry, and Edmund Randolph. Historians Stanley Elkins and Eric McKitrick wrote that “in not making his proposal earlier, Mason left himself open to suspicions of sabotage. A number of his ideas on other matters had been disregarded by the Convention, and he had by this time become disaffected on general grounds.” 12 After nearly four months’ work in the hot Philadelphia summer, the delegates were intent on wrapping up their efforts – not on opening a new and potentially divisive set of issues. Robert Allen Rutland noted that Mason “had given a bill of rights outspoken support and concrete form in Virginia eleven years earlier and had seen his ideas spread. There is no ready answer to explain why Mason delayed mention of a bill of rights until the last days of the Convention.” 13 Mason declined to sign the draft Constitution on September 17. Madison wrote Jefferson that “Mason left Philadelphia in an exceeding ill humour indeed...” A number of little circumstances arising in part from the impatience which prevailed towards the close of the business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.’” 14 After the convention dispersed, Mason wrote a pamphlet called “Objections to this Constitution of Government.” He began: “There is no Declaration of Rights.” Mason wrote that “he would sooner chop off his right hand than put it to the Constitution as it now stands.” 15 That objection would be echoed repeatedly as state ratification efforts continued. Much as Mason was in tune with sentiments in many states, he was out of tune with his fellow convention delegates. Historian Forrest McDonald noted that “the framers...deliberately refrained from putting a bill of rights in the instrument, on the logical grounds that the document established a government of limited, enumerated powers, and thus, as Hamilton put it, that there was no pointing in declaring ‘that things shall not be done which there is no power to do. This argument was criticized by pointing to the prohibitions against granting titles of nobility, against suspension of habeas corpus, and the like. Yet all the constitutional prohibitions were of actions that, as British history had shown, could in fact have been legitimately taken in the absence of a specific denial of the authority.” 16 Alexander Hamilton argued in Federalist No.84: “I go further, and affirm that bills of rights in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”17 George Washington, Mason’s old friend and neighbor who presided over the Constitutional Convention, maintained that Mason’s purpose seemed to be: “To alarm the people.” 18 Their friendship would never be the same. Mason wrote of Washington: “I believe there are few men in whom he placed greater confidence. But it is possible my opposition to the new government [has] altered the case.” 19 Nevertheless, noted Washington in a letter to the Marquis de Lafayette, “there was not a member of the Convention, I believe, who had the least objection to what is contended for by the advocates for a Bill of Rights.” 20 It was rather a case of haste creating the foundation for opposition to the Constitution. Supporters of a bill of rights would not be easily dissuaded. Against a bill of rights, Mason’s colleagues, argued historian Lance Banning mustered “three main reasons, none of which had anything to do with a hostility to civil liberties per se. The first and possibly the most important – certainly to Madison himself – was purely tactical in nature. As Madison would put in after he had won approval from Virginia’s state convention, the friends of the reform were under the necessity, as long as the adoption of the Constitution was in doubt, to stubbornly oppose all efforts that would make a state’s approval contingent on one or another alteration or addition.”21 Jack Rakove wrote: “Federalists took their earliest alarm from the amendments that Richard Henry Lee proposed when Congress debated how to convey the Constitution to the states, and from the published dissent of the minority assemblymen in Pennsylvania. Both had seen Mason’s objections before they acted, but while the assemblymen simply restated his points as rhetorical questions, Lee better indicated the general concerns that Anti-Federalists soon shared. While describing the Constitution as a ‘Social Compact’ and invoking ‘Universal experience’ to mark the value of ‘express declarations and reservations’ of rights against ‘the silent, powerful, and ever active conspiracy of those who govern,’ Lee avoided broad statements of natural rights and first principles. Instead he detailed the specific rights that needed explicit protection: freedom of religious conscience and the press; prohibitions on excessive bail, cruel and unusual punishment, and unreasonable searches and seizures; assurances of free elections, independent judges, and the right to petition; and restrictions on standing armies in peacetime. Lee’s most carefully drafted proposals, however, related to the administration of justice. Lee proposed two sets of changes to the Constitution. First, the declaration of rights he sought should affirm that the right to trial by jury in criminal and civil cases and other common-law protections in criminal prosecutions ‘shall be held sacred.’” 22 Pennsylvania was the first state to take up ratification after the convention concluded its work. At the state convention, James Wilson derided the necessity for a Bill of Rights. Wilson glibly argued: “This distinction being recognized will furnish an answer to those who think the omission of a bill of rights a defect in the proposed Constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence..” 23 Wilson biographer Geoffrey Seed wrote: “Wilson was evidently perfectly sincere in his defense of the lack of a bill of rights, though at one point it may have been made with a mental reservation. His contention was that when the people originally established their governments in accordance with the social contract theory, they gave to their representatives every power they did not expressly withhold; whereas the proposed new Constitution explicitly defined powers to be delegated to the federal government in ‘the positive grant expressed in the instrument of the union,’ and powers not thus given were accordingly relevant to the immediate issue perhaps nevertheless was being left deliberately ambiguous.’” 24 Historian Richard Brookhiser wrote of Wilson’s speech: “The Magna Carta and other English bills of rights were carved, he said, from a background of royal power. But under the Constitution, power ‘remains in the people at large, and by this Constitution they do not part with it.’ There was no reason to guard against the abuse of powers the people had not surrendered.” 25 Historian Jack N. Rakove wrote: “Even in the abbreviated form in which it was published, this ‘long and eloquent speech’ was both sufficiently appealing and problematic to frame the terms of a debate that continued into 1788. Federalists everywhere welcomed Wilson’s statement as a simple, direct, authoritative response to the recurring argument over the necessity of a bill of rights. Yet they also had little choice about this, because the political costs of abandoning it outweighed whatever advantages they might gain by taking another tack – even when the reaction to his speech exposed its vulnerable gaps. If Wilson was correct, Anti-Federalists asked, why did the Constitution elsewhere establish ‘a partial bill of rights’ by affirming the writ of habeas corpus or prohibiting bills of attainder or ex post facto laws? By his own logic, these clauses, too, were ‘superfluous and absurd,’ for where had the Constitution empowered the government to violate the essential rights these provisions secured? Wilson’s speech thus emboldened the opposition as much as it heartened his supporters.” 26 Biographer Geoffrey Seed wrote that Wilson “dismissed unfounded allegations that because the proposed Constitution did not expressly prohibit it, the government could interfere with freedom of the press, observing that as there was nothing in the new system that would enable the government to do so, it would have been futile to forbid it. Even to raise the issue at all might, he argued, be held to imply that some degree of control of the press lay with the government. It is evident that Wilson’s basic attitude toward. government differed markedly from that of his opponents. Government to Wilson was a positive instrument for the people’s well-being, and effective control of it lay with the people themselves; to Antifederalists it was a negative instrument, potentially oppressive, which would act against the people unless curbed by built-in legal safeguards.” 27 Essentially, Mason’s opponents argued that the American situation was very different from that of their previous colonial master. Historian Walter A. McDougall wrote that “the battle for ratification of the Constitution was bound to be fought in large part over the question of whether the federal government’s power were dangerously broad or in fact sharply constrained....The whole point of the Constitution was to delimit the powers of the federal government and uphold state constitutions eight of which already had bills of rights. Hamilton believed bills of rights were needed only in monarchies where the people were not sovereign. Wilson argued the Constitution was positive not natural law, and any attempt to ‘enumerate all the rights of man’ would be to enter an ethereal maze. Charles Cotesworth Pinckney spoke for slaveholders when he noted the danger of naming ‘liberty’ a fundamental right. But at bottom, the convention’s thinking was this: to append a bill of rights would be to admit a priori that the federal government was something Americans needed protection against – and that was the worst impression to give on the eve of the fight for ratification.” 28 Federalists echoed the same theme – that if a power was not granted the federal government, it did not have that power. Jack Rakove wrote: “To prove the absurdity of enumerating rights, Federalists lampooned one of the amendments proposed by the minority in the Pennsylvania convention, which would have affirmed that Americans would retain the ‘liberty to fowl and hunt in seasonable times, and on lands they hold...and in like manner to fish in all navigable waters, and others not private property, without being restrained by Congress. Nearly transported by ‘laughter at this clause,’ Noah Webster proposed a further ‘restriction: – ‘That Congress shall never restrain any inhabitant of America from eating and drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.’” 29 Federalists who supported the Constitution worked hard to justify the omission of a bill of rights and to prevent its omission from dooming ratification. But they understood that the struggle over the bill of rights masked a larger battle. Anti-Federalists used the omission of the bill of rights as a battering ram to advance their objections to the Constitution on other grounds. Historian Gordon S. Wood wrote: “Because the Federalists believed that the frenzied advocacy of a bill of rights by the Anti-Federalists masked a basic desire to dilute the power of the national government, they were determined to resist all efforts to add amendments. Over and over again they said that the old-fashioned idea of an English bill of rights had lost its meaning in America....But in the United States rulers had no pre-existing independent governmental power; all rights and powers belonged to the sovereign people who parceled out bits and pieces sparingly and temporarily to their various delegated agents.”30 As Americans did when they formulated the Declaration of Independence, Americans were primarily borrowers rather than innovators – from the English tradition and from each other. In the mid-17th century, for example, Connecticut, for example, borrowed from Massachusetts’ “Body of Liberties.” The idea of a bill of rights dated to the English Magna Carta in 1215 when English nobles forced King John to accept limitations on his power. It was expanded in the Glorious Revolution of 1689 when Parliament passed An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown. Newly independent Americans revered this heritage. Historian Jack N. Rakove wrote: “The language of rights came naturally to the colonists; it was, they thought, their native tongue. As eighteenth-century writers repeatedly argued, the original English settlers had carried all their rights with them, and passed these rights on to their descendants as a birthright and a patrimony. The belief that Britons and Americans enjoyed unparalleled liberty in the exercise of their rights permeated their political science and even popular culture. But the frequency and enthusiasm with which they celebrated their rights and liberties also gave those terms a flabby imprecision.”31 Rakove wrote: “The realm of rights was not confined to...forms of political expression...The exercise of rights of property was subject to the supervisory authority of the state, which regulated markets, enacted sumptuary laws, granted monopoly privileges, and imposed various forms of takings through forfeiture, eminent domain, and taxation. Other civil rights defined the relation between the state and its subjects through such safeguards against arbitrary power as habeas corpus, rules for search and seizure, and trial by jury, ‘the genuinely crucial right.’ In England and America, freedom of conscience had gained broad and principled recognition, even if the exemptions that dissenters enjoyed varied with the strength of local establishments. Within the public realm, freedom of speech was still regarded more as a privilege of legislators than of citizens, while freedom of the press only prohibited prior restraint from publication, not prosecution for seditious libel.”32 Still, the concept of American rights had a broad foundation laid down during the American Revolution by individual states. Constitutional scholar Leonard W. Levy wrote: “The framing of the first [state] constitutions with bills of rights ranks among America’s foremost achievements, the more remarkable because they were unprecedented and they were realized during wartime. Nevertheless, the phrasing of various rights and the inclusion or omission of particular ones in any given state constitution seems careless.” Jack Rakove wrote: “When it came to mustering citations, they were eclectic, pragmatic, and flexible in choosing among the potential sources of authority for rights... The greater challenge was to explain exactly why they were entitled to the English rights that would bar Parliament from legislating ‘in all cases whatsoever’ or Crown officials from exercising ‘arbitrary’ powers. Far from lacking a sound foundations for their claims, [John Phillip] Reid argues, Americans drew upon no fewer than ten sets of plausible authorities or justifications: (1) their rights as Englishmen; (2) natural law; (3) the emigration contract; (4) the original contract; (5) the original American contract; (6) the emigration purchase; (7) colonial charters; (8) equality with other British subjects, especially with Protestants in Great Britain and Ireland; (9) principles of the British constitution; and (10 principles of the customary American constitution. 33 In 1776 just before passage of the Declaration of Independence, the inventive George Mason had provided the most obvious model what a bill of rights might look like. “The Virginia Declaration of Rights was more than a list of pertinent ideas embodied in clear and forceful phrases,” wrote Mason biographer Robert A. Rutland. “The Declaration gave substance and meaning to the Revolutionary generation’s effort to establish an independent existence as a nation. It was a statement of purpose, of intent, a moral commitment to a set of rules.” Mason had mined the usual sources. Rutland wrote: “John Locke and Algernon Sidney, long since in their graves, were alive once again in his sentences. Infected by their spirit of English liberalism, Mason simply added to abstracts of their writings the specific causes of American concern. He wrote as an English-American, working on behalf of rights that arose from natural law and were assumed to be the birthrights of every free American. Those rights were also anchored deep in English common law and in the history of the American colonies. Certain men in high places now had questioned whether the colonies had become, like delinquent children, too obstreperous to be trusted with them.” Rutland wrote: “Surely Mason was putting into articulate form the ideas held by most of the Virginia patriots. The cogency, clarity, and brevity of them we owe to Mason’s good judgment, but if he had not chosen wisely his words and ideas the Declaration of Rights might never have survived the Convention debate.” 34 State legislatures borrowed and copied from each other as they experimented with codifying the rights they believed they already had. North Carolina and Delaware borrowed from Maryland which borrowed from Pennsylvania. The concept of rights united more radical and more conservative Americans. Robert Allen Rutland wrote of the Massachusetts Bill of rights: “Apart from the exceptionable third article on religion, the declaration represented a collection of provisions from earlier bills of rights rather than an original work. The practice of copying from other bills of rights was convenient. It also indicated that the guaranteed rights of citizens were falling into a stereotyped pattern. Bills of rights were still demanded, but they were no longer a novel piece of business. By 1780 their makers had ceased to break new ground in the enumeration of human rights.” 35 Jack N. Rakove observed: “These early bills of rights were problematic in at least three respects. First, their relation to the actual constitutions were ambiguous. It was not clear whether bills of rights were part of this organic law or merely rhetorical flourishes of principles that deserved to be honored but did not establish legally binding or enforceable rules. Moreover, the marked preference in nearly all the state bills of rights for the monitory verb ought rather than the mandatory shall testifies to their legal ambiguity; taken literally, most of the rights were affirmed in language that was advisory rather than obligatory or prohibitive.” 36 Rutland noted that “the whole catalog of human rights which colonists reviewed during the years preceding Lexington-Concord had been regarded not as common law rights, but as natural rights. As Alexander Hamilton had declared, ‘Civil liberty is only natural liberty, modified and secured by the sanctions of civil society.’ In working out a legal system that encompassed these ideas, the ‘natural rights’ became civil rights, and these civil rights in turn received a constitutional sanction.” Freedoms were clearly interrelated, noted Rutland: “When the printing industry was in its infancy, practically all books were religious works. Without complete freedom of religion, therefore, it was impossible to have a free press.” 37 Not everyone got their rights – even in Revolutionary America, slaves were without rights. Tories, for example, who opposed the Revolution, had limited rights 38 Historian Walter A. McDougall wrote: “That Americans suspended their commitment to human rights under conditions of civil war is hardly surprising. Moreover, there were no reigns of terror, large-scale pogroms, or forced deportations: the Tories left on their own. Americans also ceased the harassment as soon as the war was over and reacted with disgust in the following decade when far milder measures were imposed under the Alien and Sedition Acts. Americans thus passed the test; they did not permit emergency acts of repression to ruin the larger cause. But the fact remains the thirteen states were effectively cleansed of all whites who opposed the hustling republic they meant to establish.” 39 The Founders were alert to the complicated relationship of government and governed. Historian Walter A. McDougall wrote: “Hamilton found in Hume and his critics the clue to effective government: do not pretend human nature to be something it’s not (that is, forget ‘republican virtue’) and do not attempt to suppress human nature. Rather, fashion government so as to encourage individual greed for money, power, and prestige under sturdy legal procedures that do not dictate what people should strive for, but only how they must play the game. Thus did he devise a political counterpart to Adam Smith’s ‘invisible hand.’ Thus did he seek to make corruption creative and – insofar as a reputation for honesty in an asset in business and politics – perhaps gnaw away at corruption over time.” 40 The national model for a bill of rights was outlined in the Northwest Ordinance of 1787. The Northwest legislation stated: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they shall never be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity, shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.” 41 Robert Allen Rutland wrote that “the fact that specific guarantees of personal freedom were included in the act which established the form of government for the territories is important for two reasons. For the first time, civil rights became a factor in national legislation. Secondly, the example of the bill of rights introduced in revolutionary Virginia had run a full course through the Union and was in effect passed on to those states yet to come.” 42 Rights advocates were a diverse lot. As the established Anglican church became disestablished in Virginia, Baptists became a growing political force there. Normally, they were friendly to James Madison: Robert Allen Rutland that Madison “still dismissed all arguments for a bill of rights as so much misguided factionalism. In the Federalist XXXVII he explained that proponents of a bill of rights were unable to agree among themselves on what they desired. Madison strengthened his case by noting that the public demand for a national bill of rights had not been heard prior to 1787.” 43 When the Virginia ratifying convention met in June 1788, Madison had to lay out his arguments. Historian Richard Brookhiser wrote: “Madison addressed the missing bill of rights directly. He deployed one of his favorite arguments – the importance of structure and extended spheres. These were the only effective guardians of freedom. ‘If there were a majority of one sect, a bill of rights would be a poor protection for liberty.’ The ‘multiplicity of sects which pervades America...is the best and only security’ for the right to worship. Madison also suggested that a bill of rights could be dangerous.’ ‘If an enumeration be made of our rights, will it not be implied, that every thing omitted [from the list] is give to the general government?’ His was a subtle argument, but the legal mind and the appetite for power being what they are, it was not a baseless one.” 44 James Madison’s Change of Heart James Madison devoted considerable effort to defending the Constitution – both in the Federalist Papers and at the Virginia ratifying convention in June 1788 – where Mason was an influential opponent though Madison eventually prevailed on an 89-79 vote. America was initially a legislative land. Rakove wrote: “By default, the evisceration of the executive after 1776 made the legislature the active force in government, just at a moment when the demands of the war required lawmakers to mobilize the resources of society to an extent unknown in the colonial past. This shift in the balance of political power and governance made it possible for Americans to cast the problem of rights in a new mold, to reconsider the dominant paradigm they had inherited from the seventeenth century and preserved in their own struggles with imperial authority. The great pioneer in this shift was James Madison.” Madison’s and Thomas Jefferson’s efforts to secure religious liberty in Virginia provided an imperfect model for Madison’s thinking on rights, according to Rakove. He wrote that “religious liberty differed markedly from other civil rights that Americans valued. These other rights were essentially procedural; they assumed that government had the authority to act, but that it had to do so in conformity to the due processes of law that legislatures and courts both followed. In the realm of religion, however, what Madison and Jefferson contested was the capacity of the state to act at all. And they did so not on behalf of the collective right of a people to be free from arbitrary rule, but rather to protect autonomous individuals as the bearers of rights.” 45 Although Madison and Jefferson would argue the issue in important letters they exchanged between 1787 and 1789, their ideas had been developed for years. Jefferson had laid out his rationale for a bill of rights in his “Notes on the State of Virginia” in 1784: “It can never bet too often repeated that the time for fixing every essential rights on a legal basis is while our rules are honest and ourselves united. From the conclusion of this war, we shall be going downhill.” 46 After the Constitution had been finalized, Jefferson wrote Madison about what he disliked in the proposed Constitution “First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal & unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land & not by the law of Nations. To say, as Mr[.] Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved, might do for the Audience to whom it was addressed, but is surely a gratis dictum, opposed by strong inferences from the body of the instrument as well as from the omission of the clause of our present confederation which had declared that in express terms.” Jefferson wrote: “Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.” 47 Madison had been on the front lines of legislative upheaval in the 1780s while Jefferson was watching upheaval in France. Rakove wrote that for Madison: “The crucial departure in his thinking...occurred after 1785, and it involved asking why, in a republic, the purposeful decisions of the legislature posed a greater threat to rights than did capricious acts of the executive. Legislators might sometimes act as ‘rulers,’ pursuing private ambitions in public guise, but far more often they acted in response to the passions and interests of their constituents. And this meant that the problem of rights was no longer to protect the people as a collective whole from government but to defend minorities and individuals against popular majorities acting through government.” 48 Historian Lance Banning wrote: “The best protection for the dearest human rights was not a parchment declaration, Madison believed. It was the institution of a large republic with a governmental structure that would make it harder for an overbearing, interested majority to rule without restraints.” 49 Madison had written to Jefferson: “Repeated violations of these parchment barriers have been committed in every State. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly [sic] to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents. This is a truth of great importance, but not yet sufficiently attended to; and is probably more strongly impressed on my mind by facts, and reflections suggested by them, than on yours which has contemplated abuses of power issuing from a very different quarter.” 50 Opposition to a Bill of Rights was inconsistent since as anti-Federalists pointed out, according to Rakove, “Some rights...were protected in the Constitution, but the list was clearly piecemeal in composition and partial in coverage. None of these provisions invoked the natural rights and first principles that Americans expected a declaration of rights to contain. The omission left the framers open to the charge that they had contrived to deprive the people of their fundamental rights. They thought the charge absurd, but its repetition carried greater conviction as Federalists struggled to justify their oversight.” 51 Political scientist Robert A. Goldwin wrote: “Two purposes are consistently linked and given equal weight in Madison’s argument: first, to reassure those uneasy Americans who needed reassurance, and second, to avoid changing anything in the Constitution. And the terms in which he cast his argument – ‘caution,’ ‘deference,’ ‘concession,’ ‘amity,’ ‘moderation,’ ‘prudence’ – were clearly chosen to invite reconciliation with the opposition, mutual respect, and national unity.” 52 Anti-Federalists were as open to contradictory positions as Federalists were – perhaps more so. Jack Rakove wrote: “By implying that traditional rights and liberties would be rendered insecure if they went undeclared, Anti-Federalists in effect suggested that the existence of these rights depended upon their positive expression. An American bill of rights would thus be something more than a declaration of preexisting rights; for though its adoption could be interpreted as merely verifying the birthright Americans already possessed, its omission would fatally impair their authority. Anti-Federalists sensed that the supremacy clause of a written, popularly ratified constitution would indeed sweep aside all prior claims of rights and authority. The multiple sources for the authority of rights that the colonists had once invoked now seemed obsolete because the Constitution would create its own self-sufficient standard of legality. The arguments that the rights would cease to be rights if they were not explicitly constitutionalized thus rested on venerable concerns, but it also addressed the modernity of the Constitution in forthright terms.” 53 James Madison managed the defeat Patrick Henry over ratification in Virginia, but Henry’s influence over the Virginia legislature was not extinguished. He manipulated the drawing of new congressional district lines so Madison’s district incorporated many anti-Federalist voters. In order to win election to Congress over neighbor James Monroe, Madison was convinced by friends that he would have to support the adoption of a Bill of Rights to the Constitution. “At Philadelphia, Madison had aimed at a federal government even more powerful and concentrated than the one adopted by the Convention,” noted h Historian Marvin Meyers. “After the Virginia ratifying convention, he sensed that the American people had consented to the Constitution on the understanding that it would be substantially amended and strictly construed. The confining amendments proposed by Virginia, Massachusetts, and other divided states; the growing talk of a second convention, sponsored by New York and the Pennsylvania minority; rumblings in his own district: all persuaded Madison to take the lead in securing amendments that would win the loyalty of many who had opposed or grudgingly accepted the Constitution, without undermining the new system of government.” 54 Even after ratification in the summer of 1788, the issue of the missing Bill of Rights would not disappear. Madison understood that a Bill of Rights, even if not necessary, was politically desirable, perhaps even necessary. On October 17, 1788, Madison wrote Thomas Jefferson in Paris regarding the absence of a bill of rights in the new Constitution: “It is true, nevertheless, that not a few, particularly in Virginia, have contended for the proposed alterations from the most honorable and patriotic motives; and that among the advocates for the Constitution there are some who wish for further guards to public liberty and individual rights. As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution. There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety. My own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time, I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I supposed it might be of use, and, if properly executed, could not be of disservice.” I have not viewed it in an important light– Lance Banning wrote that “although he found the arguments against a bill of rights persuasive, Madison did not consider them conclusive. Like Jefferson, he thought that the proponents of a bill of rights were too respectable and far too numerous to be ignored. To ease the anxious minds of men whose judgment he respected – men like Jefferson himself – was an appropriate republican objective.” 56 In a letter to James Madison in September 1789, Jefferson wrote: “It may be said that the succeeding generation exercising in fact the power of repeal, this leaves them as free as if the constitution or law had been expressly limited to 19. years only. In the first place, this objection admits the right, in proposing an equivalent. But the power of repeal is not an equivalent. It might be indeed if every form of government were so perfectly contrived that the will of the majority could always be obtained fairly and without impediment. But this is true of no form. The people cannot assembly themselves; their representation is unequal and vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents; and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.” This principle that the earth belongs to the living and not to the dead is of very extensive application and consequences in every country, and most especially in France. It enters into the resolution of the questions[.] Whether the nation may change the descent of lands holden in tail? Whether they may change the appropriation of lands given antiently to the church, to hospitals, colleges, orders of chivalry, and otherwise in perpetuity? Whether they may abolish the charges and privileges attached on lands, including the whole catalogue ecclesiastical and feudal? It goes to hereditary offices, authorities and jurisdictions; to hereditary orders, distinctions and appellations; to perpetual monopolies in commerce, the arts or sciences; with a long train of et ceteras: and it renders the question of reimbursement a question of generosity and not of right. In all these cases the legislature of the day could authorize such appropriations and establishments for their own time, but no longer; and the present holders, even where they of their ancestors have purchased, are in the case of bona fide purchasers of what the seller had no right to convey. 57 Madison’s influence often came from the fact that he did his homework better than anyone else, and often thought more deeply than everyone else. Jefferson’s letters had a undoubted influence – especially according to Leonard Levy, Jefferson’s letter of March 1789, in which Jefferson wrote that a bill of rights would be of a “legal check which it puts into the hands of judiciary.” 58 Levy noted that Jefferson believed that an independent court could withstand oppressive majority impulses by holding unconstitutional any acts violating a bill of rights.” 59 Madison wrote Jefferson: My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light — Jefferson replied nearly a half-year later from Paris: “Your thoughts on the subject of the declaration of rights in the letter of October the 17th, I have weighed with great satisfaction. Some of them had not occurred to me before, but were acknowledged just in the moment they were presented to my mind.” In the arguments in favor of a declaration of rights, you omit one which has great weight with me; the legal check which it puts into the hands of the judiciary. This is a body, which, if rendered independent, and kept strictly to their own department, merits great confidence for their learning and integrity. In fact, what degree of confidence would be too much, for a body composed of such men as Wythe, Blair, and Pendleton? On characters like these, the "civium ardor prava jubentium" [Editor's Note. "wayward ardor of the ruling citizens."] would make no impression. I am happy to find that, on the whole, you are a friend to this amendment. In the newly elected Congress in 1789, Madison set himself to the task of adding a Bill of Rights to the Constitution. Historians Andrew Burstein and Nancy Isenberg noted “Madison saw to it that Washington’s inaugural address included a statement sympathetic to amendments. Through the mouthpiece of the first president, he urged Congress to show ‘a reverence for the characteristic rights of freemen.’” 62 He did it in his usual workmanlike way – to the aggravation of many allies and opponents in Congress. Political scientist Robert A. Goldwin wrote: “as a congressman from Virginia, he proved to be, in the eyes of his congressional colleagues, the most annoying and disruptive member of the House of Representatives by insisting on proposing amendments to the Constitution in the first few weeks of the first session of the First Congress. This was met with a chorus of complaints that Madison had his priorities all wrong and that it made no sense to consider amendments before there was any experience with the Constitution that might reveal what needed to be amended. In addition, there were urgent matters such as raising revenue and organizing the government that ought not be delayed.” 63 Madison biographer Richard Brookhiser wrote: “Madison had to contend with two sorts of skeptic – those who wanted to do nothing, and those who wanted to undo everything. The do-nothings argued, not unreasonably, that the government was brand-new; how could they fix problems before they arose? Radical amenders were hostile to the government itself; many of Virginia’s forty proposed amendments were structural, altering the power to levy taxes, make treaties, and regulate trade. Madison made it clear that he was interested only in ‘the security of rights,’ not in ‘reconsider[ing] the whole structure of the government.” 64 Taking up his position in Congress, noted biographer Irving Brant, “Madison welcomed the genuine demand for libertarian amendments, which came from friends of the Constitution...At the same time he had never thought the omission a material defect and was anxious to supply it only to satisfy the anxiety of others. Some who raised the issue, he suspected, had the insidious hope of subverting the plan of government altogether because of their hostility to the articles relating to treaties, to paper money, and to contracts. These ‘created more enemies than all the errors in the system positive and negative put together.’” 65 Robert Allen Rutland wrote: “Few congressmen seemed as certain as Madison of the urgency of amending the Constitution.” 66 Historians Stanley Elkins and Eric McKitrick wrote that “it was not the long-term benefits that Madison had primarily in mind in his urgency to get a bill of rights through. He was concerned first of all with legitimacy and acceptance. He knew that a bill of rights would be the most dramatic single gesture of conciliation that could be offered the remaining opponents of the government, and would provide the most convenient possible formulate whereby they might change their minds.” 67 Madison moved the bill of rights to the top of Congress’s agenda. In May, Madison announced his intention to submit a set of amendments to the Constitution. Constitutional scholar Leonard W. Levy wrote: “Madison meant to prove that the new government was a friend of liberty; he also understood that his amendments, if adopted, would thwart the passage of proposals aggrandizing state powers and diminishing national ones. He would not be put off; he was insistent, compelling, unyielding, and, finally, triumphant.” 68 Historian Kevin R. Gutzman wrote: “When May 25 came, Madison, seeing how overwhelmed the House was with more pressing business, moved to delay the discussion by two weeks. Then, on June 8, he introduced his proposals. He recognized the House was still busy, he said. He did not intend an exhaustive discussion. Rather, he wanted to show the people that the subject was being pursued.” 69 Historian John C. Miller wrote: “In the interests of simplicity and uniformity, Madison wished to incorporate the amendments in the main text of the Constitution, but Roger Sherman, a representative from Connecticut, declared that congress had no power to alter the wording or context of a Constitution that had been approved by the people.” 70 Sherman served on the committee that evaluated Madison’s proposals and helped drafted his own Bill of Rights, but “[h]is most lasting contribution to the Bill of Rights” was to have them added at the end of the document, thus setting a precedent for future amendments. Historians Stanley Elkins and Eric McKitrick wrote of the speedy action by Congress: “The need was general, being of a political rather than a legal nature. It involved, as did so much else that was done during that first year, the legitimacy of the government itself, and of the very Constitution under which it functioned.” 71 Lance Banning wrote: “Madison apologized repeatedly for taking time from other business to deliberate a bill of rights, which helps explain why some of his contemporaries thought that he was tepid in his own commitment to the project.” 72 Historian Forrest McDonald wrote: “Madison understood that a bill of rights was not primarily a substantive issue, and fortunately for the Nation, a majority of his colleagues went along with him. He had meticulously studied proposals that had emanated from the various state ratifying conventions. Not counting North Carolina and Rhode Island, which so far had refused to ratify, formal requests for restrictive amendments had come in from five states, and informal requests had come from two others. Because he recognized that the motivation underlying the demand was more political than ideological, Madison disregarded the fact that only three of these states had bills of rights of their own. Instead, he gathered and organized the proposed amendments.” 73 Not all of Madison’s fellow Federalists were impressed by the urgency of Madison’s arguments. Historians Andrew Burstein and Nancy Isenberg wrote: “Federalists chastised him publicly as well as privately, claiming, as one Pennsylvanian wrote, that he was ‘so far frightened with the antifederalism of his own state’ that he had thrown a ‘tub to the whale.’ ‘More than one congressman approved this popular allusion to Jonathan Swift’s satirical tale....Madison, they said, had offered amendments in order to silence opposition, dispensing imaginary pills to cure antifederalists of their fear of the Constitution.” 74 Historian Richard Labunski wrote: “Madison must have been alarmed by the comments of his Federalist colleagues, from whom he had expected more support. He noted with asperity that Jackson was ‘certainly right in his opposition to my motion for going into the committee of the whole, because he is unfriendly to the object I have in contemplation.” He urged his colleagues to begin the debate, reminding the House that states had submitted amendment approved at their ratifying conventions that they wanted considered, and many citizens had supported ratification only because they were told the First Congress would immediately take up amendments.” 75 Historian Kevin R. Gutzman noted: “When Madison had drafted his proposed amendments, he ran them by the president. ‘As far as a momentary consideration has enabled me to judge, I see nothing exceptionable in the proposed amendments,’ Washington responded[.]” 76 Historian Richard Labunski wrote: “Madison drew heavily on the amendments suggested by his state’s ratifying convention and those listed in the Virginia Declaration of Rights. He did not propose amendments that would alter the structure of the Constitution; he believed that the amendments he recommended would be the least objectionable and the most likely to be approved by Congress and the states.” Labunski, however, noted that even the Virginia Declaration “did not include several of the rights that became part of the first ten amendments.” 77 “In framing his amendments Madison winnowed the sheaves of proposals from eight ratifying conventions. He searched state bills of rights. If five states favored a proposition approved by him, well and good. If he disliked a proposition similarly favored, it stayed out,” wrote Irving Brant. “Virtually the full provisions of the first ten amendments, as they went into the constitution, were embodied in his propositions. Nearly all had their counterparts in the twenty libertarian proposals drafted by George Mason for submission to Congress by the Virginia Convention of 1788.” 78 Scholar William Lee Miller wrote that “many of these items have specific causes in American colonial history, or in English History before that. The American colonials, particularly in Boston and New York, had reason to specify the right not to have soldiers quartered in one’s house, as is stated in the third amendment.” 79 The Bill of Rights reflect the people they were meant to protect. Political scientist Robert A. Goldwin wrote: “The people portrayed in the Bill of Rights are religious, tolerant, public spirited, self-sufficient, jealous of their rights and respectful of the rights of others, and responsibly conscious that they are ‘the fountain of all power’ and therefore must use that power with prudent restraint.” 80 Miller wrote that “One great theme was the protection of a realm of the self beyond public claims; another, closely linked to it, was the theme of due process of law. Both of these, looked at negatively, are restraints upon governmental power: ours is a formally self-restraining governmental system a system that contains limitations upon itself, within itself.” 81 Miller wrote that “another great theme of the Bill of Rights [is] the protection of those who are accused of crime from arbitrariness or other unfairness in the processes of justice.” 82 Miller wrote: “The great and fundamental theme postponed until last, however, has much more of a social aspect than these others. The freedoms of belief and thought and speech and press and political agitation are required by, and beneficial to, the society as well as the individual.” 83 Historian Edwin S. Gaustad wrote: “Madison’s turn had arrived to endure the indignity of being revised, amended, excluded, and abbreviated. By the end of July, a small committee of the House had condensed Madison’s language to ‘No religion shall be established by law, nor shall the equal rights of conscience be infringed.’” In August, Samuel Livermore of New Hampshire offered his version: ‘Congress shall make no laws touching religion, or infringing the rights of conscience.’ Then Fisher Ame of Massachusetts amended that to read: ‘Congress hall made no law establishing religion, or to prevent the free exercise thereof or to infringe the rights of conscience.’ This version was then sent to the Senate, which during the first week of September subjected the religion clause to its own process of revising and amending. By 9 September, the Senate had arrived at its approved wording: ‘Congress shall make no law establishing articles of faith or a mode or worship, or prohibiting the free exercise of religion.’ The wording of the two chambers differed sufficiently to require a conference committee, which managed in less than three weeks to agree on the final language: ‘congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.84 Historian Richard Labunski wrote: “The evidence as to how strongly Madison believed in the amendments he was proposing to Congress is not completely clear, and historians have long debated this issue. For instance, in the outline he prepared for his June 8 address, he wrote, ‘Bill of Rights – useful – not essential –.’ But this language does not appear in the text of his address. On the contrary, the primary theme of his presentation was that amendments were of vital importance.” 85 Still, Madison’s goals were carefully limited. Historian Lance Banning wrote: “Madison was clearly right when he observed that it might not be possible to win approval of a bill of rights that would protect some liberties in all the amplitude that he and Jefferson preferred. He was unable to secure the liberties of conscience and the press against the possibility that they could be infringed by local legislation. He was unable, for that matter, even to secure as broad and firm a guarantee of freedom of religion at the federal level as he would have liked.” 86 Madison opened his campaign to amend the Constitution with a speech to the House of Representatives on June 8. Political scientist Robert A. Goldwin wrote: “Madison began a line of argument reassuring the old friends of the Constitution that they could introduce amendments that do not ‘open a door’ for reconsideration of the constitutional structure, while at the same time gaining new friends by opening a different door, for ‘provisions for the security of rights,’ amendments of such a moderate nature that they would be likely to get the approval of the constitutionally mandated two-thirds majority of both houses of Congress and three-fourths of the state legislatures. As an additional substantive bonus, ‘it is possible’ that they ‘may’ even do some good.” 87 In his speech, Madison stated: I am sorry to be accessary to the loss of a single moment of time by the House. If I had been indulged in my motion, and we had gone into a Committee of the whole, I think we might have rose and resumed the consideration of other business before this time; that is, so far as it depended upon what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the Legislatures of the several States, conformably to the fifth article of the constitution. I will state my reasons why I think it proper to propose amendments, and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this House. But I cannot do this, and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe, that if Congress will devote but one day to this subject, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures. It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures some things to be incorporated into the constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community, any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished. Madison then went on to enumerate his proposals. “The amendments which have occurred to me, proper to be recommended by Congress to the State Legislatures, are these: First, That there be prefixed to the constitution a declaration, that all power is originally rested in, and consequently derived from, the people. That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution. Madison concluded: “I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.” These are the points on which I wish to see a revision of the constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentleman will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the Government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow-citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect. Having done what I conceived was my duty, in bringing before this House the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support, I shall content myself, for the present, with moving "that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the Legislatures of the States, to become, if ratified by three-fourths thereof, part of the constitution of the United States." By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the House. I should advocate greater despatch in the business of amendments, if I were not convinced of the absolute necessity there is of pursuing the organization of the Government; because I think we should obtain the confidence of our fellow- citizens, in proportion as we fortify the rights of the people against the encroachments of the Government. 88 Constitutional scholar Leonard W. Levy wrote: “Madison’s speech stirred no immediate support in Congress. Indeed, every speaker who followed him, regardless of party affiliation, either opposed a bill of right or believed that the House should attend to far more important duties. Six weeks later Madison ‘begged’ for a consideration of his amendments, but the House assigned them a special committee instead of debating them.” 89 Historian Richard Labunski wrote: “Madison moved that the House constitute itself as a committee of the whole so it would have the flexibility to discuss his proposals unencumbered by rules of parliamentary debate. He also wanted to be able to make his own detailed case to every member of the House. If the proposal was to go a committee, its report – which Madison could not control – would form the basis of discussion when the amendments returned to the House floor.” There were immediate objections – from both Federalists and anti-Federalists – with delaying other important work to deal with Madison’s motion.” 90 Biographer Richard Brookhiser wrote: “Madison’s handiwork went to a select committee in July, then before the full House for eleven days of debate in August, and finally in late August to the Senate (which met in its own chamber on the second floor of Federal Hall). New York sweltered; the ‘political thermometer,’ wrote one congressman, was equally high. Some politicians, intent on other issues, wondered why they were wasting time on amendments. ‘They were treated contemptuously’ when they were first debated in the Senate, wrote Sen. [William] Maclay. But in the grind of politics, the amendments moved on.” 91 Historian Walter A. McDougall wrote: “The House tabled the report for ten days, but finally took it up on August 13 when enough Federalists awoke to the fact the Antis wanted to block a Bill of Rights, pin the blame on them, and persuade their states to bolt the Union. With the air thus cleared, the Federalist majority quickly debated and passed seventeen amendments, twelve of which survived conference with the Senate.” 92 The debate lasted until August 24. Historians Andrew Burstein and Nancy Isenberg wrote that Madison’s amendments “define the legislative process colloquially referred to in more recent times as ‘making sausage.’ Madison never looked kindly on butchering and was not at all pleased by the Senate’s alterations.” 93 Historians Stanley Elkins and Eric McKitrick wrote: “The result – involving freedom of speech, press, and conscience, trial by jury, security of person and property, and various other rights – was referred to committee, whose report underwent many delays and much debate. On August 24 it was sent to the Senate in the form of seventeen proposed amendments. They came back on September 10 reduced in number to twelve, and by September 25, having been put in final form by a joint conference committee, they were finally approved by both houses. In the subsequent process of ratification, two of the proposed twelve amendments – one concerning the basis of representation and the other the salaries of members of Congress – would be lost by the wayside, and the remaining ten incorporated as the Bill of Rights.” 94 “The Senate’s alterations and deletions sharply tested Madison’s good temper,” noted historian Lance Banning. “Even in the House, the tedious, extended process was a trial. After overcoming the initial opposition to considering a bill at all, Madison was forced to struggle with resentful Federalists, who were determined that the changes would be few and sparsely worded, as well as with the dozen Antifederalists in Congress, who worked repeatedly to add amendments he opposed, then turned to sheer obstructionism and delay.” 95 Historian Kevin R. Gutzman wrote: “Most of the amendment provisions that Madison wanted were included in the twelve proposals that survived the Senate. He was among three representatives appointed to a conference committee to work out the final language with the Senate. It was in the conference committee that the religion clauses received their final, Madisonian forms. The House adopted the committee report on September 24, 1787, by a vote of 37-14. The Senate followed the next day.” 96 Historian Pauline Maier noted that Congress “sent to the states for ratification twelve amendments that were to be listed at the end of the Constitution. Of those twelve, the states accepted ten by December 15, 1791, eliminating one amendment that affected the allocation of representatives and another that required a new election before changes in compensation of Congressmen could go into effect. Those ten amendments became the federal Bill of Rights. And in time that abbreviation of an abbreviation of an abbreviation – that is, the states’ partial ratification of Congress’s reduction of Madison’s watered-down version of the more extensive bills of rights demanded by state ratifying conventions – became another of the nation’s vital documents.’” 97 “According to Madison, the objective of the amendments was to ‘give satisfaction to the doubting part of [his] fellow citizens.’ But the amendments did not satisfy the hard core Anti-Federalists, who wanted to change the Constitution in fundamental respects,” wrote political scientist Walter Berns. “They likened Madison’s amendments to ‘whip-syllabub, froth and full of wind, formed only to please the palate,’ or to ‘a pinch of snuff [securing] rights never in danger.’ But Madison never expected to win them over to his cause; as he told Jefferson, his strategy was to isolate the Anti-Federalist leaders from their followers, the body of the people who needed reassurance that their individual liberties were not threatened by the new Constitution. His conciliatory amendments, carefully crafted to change not one word of the original Constitution, succeeded in doing this.” 98 There is a strong irony in passage and ratification of the Bill of Rights. Political scientist Robert A. Goldwin wrote that “the amendments were brought forward as an attempt to solve problems lingering from the ratification struggle and that the amendments were added as an essential step in completing the making of the Constitution.” 99 Constitutional scholar Leonard W. Levy wrote: “The history of the framing and ratification of the Bill of rights indicates slight passion on the part of anyone to enshrine personal liberties in the fundamental law of the land. We know almost nothing about what the state legislatures thought concerning the meanings of the various amendments, and the press was perfunctory in its reports, if not altogether silent. But for Madison’s persistence the amendments would have died in Congress. Our precious Bill of Rights, at least in its immediate background, resulted from the reluctant necessity of certain Federalists to capitalize on a cause that had been originated, in vain, by the Anti-Federalists for ulterior purposes.” 100 Even more ironic was the tardy response of Virginia where anti-Federalists opposed ratification. Even George Mason initially opposed ratification but he eventually argued for approval, which was given on December 15, 1791. Historian Kevin R. Gutzman wrote: “Virginia’s senators emerged from this process highly dissatisfied. William Grayson judged the twelve proposals ‘good for nothing,’ while Richard Henry Lee scoffed that ‘when the thing done is compared with that desired, nothing can be more unlike.’ Their powerful ally, Patrick Henry, could not prevent the Virginia House of Delegates from ratifying the amendments, though George Mason’s nephew defeated what now are the First and Seventh Amendments in the state senate; they were too weak, he insisted. In conference committee, the house refused to go along with the senate’s action, and so the entire suite of amendments went down to defeat.” Gutzman wrote: “When next the matter came up, the General Assembly approved all twelve proposals. President Washington thus had the pleasure of announcing that Virginia had ratified, and thus that the first ten amendments had been adopted. For his part, Henry said simply that ‘Virginia had been outwitted.” 101 James Madison was clearly the father of the Bill of Rights. Historian Gordon S. Wood wrote: “there is no question that it was Madison’s personal prestige and his dogged persistence that saw the amendments through the Congress. There might have been a federal Constitution without Madison but certainly no Bill of Rights.” 102 Historian Robert Rutland wrote: “The people had spoken; Madison listened and made his pledge. Thus it was that at a most critical stage in our nation’s history public opinion forced some able politicians to revise their views about what Madison called our ‘parchment barriers.” The Bill of Rights was a tribute to Madison’s political vision and leadership – and ability to adjust to political realities. Political scientist Robert A. Goldwin wrote: “Madison was the exemplar of the true democratic leader. Without ignoring the demands of public opinion – in fact, paying close heed to them – he had the ability to discern the difference between the unwise measures they could be persuaded to accept.” 103 Constitutional scholar Leonard W. Levy wrote: “The Framers of the Constitution tended to be skeptical about the value of ‘parchment barriers’ against ‘overbearing majorities,’ as Madison said. He had seen repeated violations of bills of rights in every state. Experience proved the ‘inefficacy of a bill of rights on those occasions when its control is most needed,’ he said.” 104 As much as a vehicle to preserve the rights of American, the Bill of Rights was also a vehicle to preserve the Union. Madison “used the public demand for a bill of rights to thwart all efforts to weaken the Constitution. His proposed amendments resembled sufficiently those the public were most attached to; they won enthusiastic support as soon as they became know, long before they were finally ratified, and so, most important of all, he gained devoted allegiance to the Constitution from ‘the great mass of the people.” 105 Historian John C. Miller wrote: “Some Antifederalists, particularly those who had made the absence of a Bill of Rights the ostensible rather than the actual basis of their opposition to the Constitution, were chagrined to find that the first eight amendments dealt exclusively with the ‘unalienable’ rights of man. All too clearly, they perceived that they had been outmaneuvered by Madison, for, as Hamilton said, the amendments met ‘scarcely any of the important objections which were urged, leaving the structure of the government, and the mass and distribution of its powers where they were.’ Thus, without curtailing the Federal government, Madison had succeeded in depriving the Antifederalists of their most potent weapon against the Constitution. The results were soon manifest: the Bill of Rights helped bring North Carolina into the Union in 1789, and the roster of the original thirteen was completed in June, 1790, when Rhode Island ratified.” 106 Political scientist Robert A. Goldwin observed that “by adding an enumeration of the rights and powers of the people who made the Constitution, and thereby portraying a constitution-making people that would be worthy of the republic they founded, a citizenry that would be fit to sustain it for their posterity, they closed the parenthesis left open by the Framers, won the allegiance of the great mass of the people, and completed thereby, at long last, the making of the Constitution.”107 Historian Gordon S. Wood wrote: “Under the circumstances the state ratified the first ten amendment slowly and without much enthusiasm between 1789 and 1790; several of the original states – Massachusetts, Connecticut, and George – did not even bother. After ratification, most Americans promptly forgot about the first ten amendments to the Constitution. The Bill of Rights remained judicially dormant until the twentieth century.” 108 Dormant, but hardly dead. For Further Reference:
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