Bill of Rights

Table of Contents

The Background
The Opposition Rallies
James Madison’s Change of Heart
Introduction to Congress
Madison's Speech
Enactment and Ratification
Aftermath

The Background

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

The Opposition Rallies

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–
1. Because I conceive that in a certain degree, though not in the extent argued by Mr. Wilson, the rights in question are reserved by the manner in which the federal powers are granted.
2. Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition, would be narrowed much more than they are likely ever to be by an assumed power. One of the objections in New England was, that the Constitution, by prohibiting religious tests, opened a door for Jews, Turks, and infidels.
3. Because the limited powers of the federal Government, and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.
4. Because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.

In Virginia, I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of conscience, it is well known that a religious establishment would have taken place in that State, if the Legislative majority had found, as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place, and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created.

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 chiefly 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. Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful and interested party than by a powerful and interested prince. The difference, so far as it relates to the superiority of republics over monarchies, lies in the less degree of probability that interest may prompt abuses of power in the former than in the latter; and in the security in the former against an oppression of more than the smaller part of the Society, whereas, in the latter, it may be extended in a manner to the whole.

The difference, so far as it relates to the point in question – the efficacy of a bill of rights in controuling abuses of power – lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect as a standard for trying the validity of public acts, and a signal for rousing and uniting the superior force of the community; whereas, in a popular Government, the political and physical power may be considered as vested in the same hands, that is, in a majority of the people, and, consequently, the tyrannical will of the Sovereign is not to be controuled by the dread of an appeal to any other force within the community.

What use, then, it may be asked, can a bill of rights serve in popular Governments? I answer, the two following, which, though less essential than in other Governments, sufficiently recommend the precaution: 1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion. 2. Although it be generally true, as above stated, that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be a good ground for an appeal to the sense of the community. Perhaps, too, there may be a certain degree of danger that a succession of artful and ambitious rulers may, by gradual and well-timed advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard against it, especially when the precaution can do no injury.

At the same time I must own that I see no danger in our Governments to danger on that side. It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark, as usually understood, does not appear to me well founded. Power, when it has attained a certain degree of energy and independence, goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it, in my opinion, applicable to the existing Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience. Supposing a bill of rights to be proper, the articles which ought to compose it admit of much discussion. I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions, however strongly marked on paper, will never be regarded when opposed to the decided sense of the public; and after repeated violations, in extraordinary cases will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Habeas Corpus be dictated by the alarm, no written prohibitions on earth would prevent the measure. Should an army in time of peace be gradually established in our neighborhood by Britain or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety. The best security against these evils is to remove the pretext for them. ⁵⁵

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 —
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted.

2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.
3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.
4. because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of h rights violated in every instance where it has been opposed to a popular current. ... 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 chiefly 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. ... Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. ... The difference so far as it relates to the point in question — the efficacy of a bill of rights in controuling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community.

What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following ...
1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.
2. Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well times advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our Governments to danger on that side.
It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark as usually understood does not appear to me to be well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and ... is ... applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which defines these extremes should be so inaccurately defined by experience. In October, 1788, 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 —
1. because I conceive that in a certain degree ... the rights in question are reserved by the manner in which the federal powers are granted.
2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.
3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.
4. because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of h rights violated in every instance where it has been opposed to a popular current. ... 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 chiefly 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.... Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. ... The difference so far as it relates to the point in question — the efficacy of a bill of rights in controuling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community.

What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following ...
1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.
2. Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well times advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard agst it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our Governments to danger on that side.

It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark as usually understood does not appear to me to be well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and ... is ... applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which defines these extremes should be so inaccurately defined by experience.

Supposing a bill of rights to be proper ... I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. ... The best security agst these evils is to remove the pretext for them. ⁶⁰

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.

The declaration of rights is, like all other human blessings, alloyed with some inconveniences, and not accomplishing fully its object. But the good of this instance vastly overweighs the evil. I cannot refrain from making short answers to the objections which your letter states to have raised. That the rights in question are reserved by the manner in which the federal powers are granted. Answer. A constitutive act may, certainly, be so formed, as to need no declaration of rights. The act itself has the force of a declaration, as far as it goes; and if it goes to all material points, nothing more is wanting. In the draught of a constitution which I had once a thought of proposing in Virginia, and printed afterwards, I endeavored to reach all the great objects of public liberty, and did not mean to add a declaration of rights. Probably the object was imperfectly executed; but the deficiencies would have been supplied by others, in the course of discussion. But in a constitutive act which leaves some precious articles unnoticed, and raises implications against others, a declaration of rights becomes necessary, by way of supplement. This is the case of our new federal Constitution. This instrument forms us into one State, as to certain objects, and gives us a legislative and executive body for these objects. It should, therefore, guard us against their abuses of power, within the field submitted to them. A positive declaration of some essential rights could not be obtained in the requisite latitude. Answer. Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.

The limited powers of the federal government, and jealousy of the subordinate governments, afford a security which exists in no other instance. Answer. The first member of this seems resolvable into the first objection before stated. The jealousy of the subordinate governments is a precious reliance. But observe that those governments are only agents. They must have principles furnished them, whereon to found their opposition. The declaration of rights will be the text, whereby they will try all the acts of the federal government. In this view, it is necessary to the federal government also; as by the same text they may try the opposition of the subordinate governments.

Experience proves the inefficacy of a bill of rights. True. But though it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious. A brace the more will often keep up the building which would have fallen, with that brace the less. There is a remarkable difference between the characters of the inconveniencies which attend a declaration of rights, and those which attend the want of it. The inconveniences of the declaration are, that it may cramp government in its useful exertions. But the evil of this is short-lived, moderate and reparable. The inconveniencies of the want of a declaration are permanent, afflicting and irreparable. They are in constant progression from bad to worse. The executive, in our governments, is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for many years. That of the executive will come in its turn; but it will be at a remote period. I know there are some among us, who would now establish a monarchy. But they are inconsiderable in number and weight of character.

The rising race are all republicans. We were educated in royalism; no wonder if some of us retain that idolatry still. Our young people are educated in republicanism; an apostacy from that to royalism, is unprecedented and impossible. I am much pleased with the prospect that a declaration of rights will be added; and hope it will be done in that way which will not endanger the whole frame of the government, or any essential part of it. ⁶¹

Introduction to Congress

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's Speech

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.

It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is honorable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes and expressly declare the great rights of mankind secured under this constitution. The acceptance which our fellow-citizens show under the Government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject. It is to provide those securities for liberty which are required by a part of the community: I allude in a particular manner to those two States [North Carolina and Rhode Island] that have not thought fit to throw themselves into the bosom of the Confederacy. It is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those States which have not come in, that we have seen prevailing in those States which have embraced the constitution.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done, while no one advantage arising from the exercise of that power shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose. And in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a reconsideration of the whole structure of the Government — for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door were opened, we should be very likely to stop at that point which would be safe to the Government itself. But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents: such as would be likely to meet with the concurrence of two-thirds of both Houses, and the approbation of three-fourths of the State Legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow-citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution. There have been objections of various kinds made against the constitution. Some were levelled against its structure because the President was without a council; because the Senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State Governments. I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary.

It is a fortunate thing that the objection to the Government has been made on the ground I stated, because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the Government by those who promoted its adoption.

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.

Secondly, That in article 1st, section 2, clause 3, these words be struck out, to wit:

“The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;" and that in place thereof be inserted these words, to wit: "After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to —, after which the proportion shall be so regulated by Congress, that the number shall never be less than —, nor more than —, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto."

Thirdly, That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: "But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives."

Fourthly, That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly, That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit:

But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly, That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly, That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial nor the executive exercise the powers vested in the legislative or judicial, nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.

Ninthly, That article 7th be numbered as article 8th.

The first of these amendments relates to what may be called a bill of rights. I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the Government, and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper; nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of, perhaps, by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore, the arguments drawn from that source were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, come in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the federal constitution, we shall find that although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances, they do no more than state the perfect equality of mankind. This, to be sure, is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring that the legislative, executive, and judicial branches shall be kept separate and distinct. Perhaps the best way of securing this in practice is, to provide such checks as will prevent the encroachment of the one upon the other. But whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But it is not found in either the executive or legislative departments of Government, but in the body of the people, operating by the majority against the minority.

It may be thought that all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.

It has been said, by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say, that this objection lies against such provisions under the State Governments, as well as under the General Government: and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the constitution are retained; that the constitution is a call of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent; because in the constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the Government was established. Now, may not laws be considered necessary and proper by Congress, for it is for them to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary nor proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments. I will state an instance, which I think in point, and proves that this might be the case. The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government. It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Besides, some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow, by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution. It has been said, that it is unnecessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular States. It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people's liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquillity of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.

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

Enactment and Ratification

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

Aftermath

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:

1. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 79.
2. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 36.
3. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 329.
4. Lance Banning, Jefferson & Madison: Three Conversations from the Founding, pp. 7-8.
5. Richard Brookhiser, James Madison, p. 70.
6. Robert A. Rutland, George Mason: Reluctant Statesman, p. 89.
7. Irving Brant, The Fourth President: A Life of James Madison, p. 193.
8. Lance Banning, Jefferson & Madison: Three Conversations from the Founding, p. 4.
9. Leonard W. Levy, Origins of the Bill of Rights, pp. 13, 30.
10. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 316.
11. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 107.
12. Stanley Elkins & Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800, p. 59.
13. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 119.
14. (Letter from James Madison to Thomas Jefferson, October 24, 1787).
15. (George Mason,“Objections to this Constitution of Government,” September 1787).
16. Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution, p. 269.
17. (Alexander Hamilton, Federalist No. 84, 1788)
18. Stanley Elkins & Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800, p. 59.
19. Willard Sterne Randall, George Washington: A Life, p. 434.
20. (Letter from George Washington to Marquis de Lafayette, April 28, 1788)
21. Lance Banning, Jefferson & Madison: Three Conversations from the Founding, p. 6.
22. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, pp. 318-319.
23. (Speech of James Wilson at Pennsylvania Ratification Convention, October 6, 1787).
24. Geoffrey Seed,James Wilson, p. 88.
25. Richard Brookhiser, James Madison, p. 70.
26. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 144.
27. Geoffrey Seed, James Wilson, p. 89.
28. Walter A. McDougall, Freedom Just Around the Corner: A New American History,, 1585-1828, pp. 303-304.
29. Jack N. Rakove,Original Meanings: Politics and Ideas in the Making of the Constitution, p. 330.
30. Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, p. 66.
31. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 290.
32. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, pp. 291-292.
33. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 293.
34. Robert A. Rutland, George Mason: Reluctant Statesman, pp. 108, 57, 59.
35. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 74.
36. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 306.
37. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791,pp. 42-43, 7.
38. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 81.
39. Walter A. McDougall, Freedom Just Around the Corner: A New American History,, 1585-1828, p. 265.
40. Walter A. McDougall, Freedom Just Around the Corner: A New American History,, 1585-1828, p. 285.
41. (Northwest Ordinance, 1787).
42. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, pp. 104-105.
43. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, pp. 151-152.
44. Richard Brookhiser, James Madison, p. 73.
45. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 312.
46. Willard Sterne Randall, Thomas Jefferson: A Life, p. 357.
47. (Letter from Thomas Jefferson to James Madison, December 20, 1787).
48. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 313.
49. Lance Banning, Jefferson & Madison: Three Conversations from the Founding, p. 10.
50. (Letter from James Madison to Thomas Jefferson, October 17, 1788).
51. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, p. 318.
52. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. 80.
53. Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution, pp. 324-325
54. Marvin Meyers, editor, The Mind of the Founder: Sources of the Political Thought of James Madison, p. 160.
55. (Letter from James Madison to Thomas Jefferson, October 17, 1788).
56. Lance Banning, The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic, p. 284.
57. (Letter from Thomas Jefferson to James Madison, September 6, 1789).
58. (Letter from Thomas Jefferson to James Madison, March 15, 1789).
59. Leonard W. Levy, Origins of the Bill of Rights, p. 33.
60. (Letter from James Madison to Thomas Jefferson, October 17, 1788)
61. (Letter from Thomas Jefferson to James Madison, March 15, 1789).
62. Andrew Burstein and Nancy Isenberg, Madison and Jefferson, p. 197.
63. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. 7.
64. Richard Brookhiser, James Madison, p. 80.
65. Irving Brant, The Fourth President: a Life of James Madison, p. 222.
66. Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, p. 293.
67. Stanley Elkins & Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800, p. 62.
68. Leonard W. Levy, Origins of the Bill of Rights, p. 35
69. Kevin R. Gutzman, James Madison and the Making of America, p. 248.
70. John C. Miller, The Federalist Era, p. 23.
71. Stanley Elkins & Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800, p. 59.
72. Lance Banning, The Sacred Fire of Liberty, James Madison & the Founding of the Federal Republic, p. 285.
73. Forrest McDonald, The Presidency of George Washington, pp. 34-35.
74. Andrew Burstein and Nancy Isenberg, Madison and Jefferson, p. 198.
75. Richard Labunski, James Madison and the Struggle for the Bill of Rights, p. 196.
76. Kevin R. Gutzman, James Madison and the Making of America, p. 248.
77. Richard Labunski, James Madison and the Struggle for the Bill of Rights, pp. 199-200.
78. Irving Brant, The Fourth President: A Life of James Madison, p. 231.
79. William Lee Miller, The Business of May Next: James Madison & the Founding, p. 263.
80. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. 183.
81. William Lee Miller, The Business of May Next: James Madison & the Founding, p. 265.
82. William Lee Miller, The Business of May Next: James Madison & the Founding, p. 265.
83. William Lee Miller, The Business of May Next: James Madison & the Founding, p. 269.
84. Edwin S. Gaustad, Sworn on the Altar of God: A Religious Biography of Thomas Jefferson, p. 85.
85. Richard Labunski, James Madison and the Struggle for the Bill of Rights, p. 192.
86. Lance Banning, Jefferson & Madison: Three Conversations from the Founding, pp. 18-19.
87. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. 80.
88. (James Madison, Speech to House of Representatives, June 8, 1789).
89. Leonard W. Levy, Origins of the Bill of Rights, p. 37.
90. Richard Labunski, James Madison and the Struggle for the Bill of Rights, p. 194-195.
91. Richard Brookhiser, James Madison, p. 81.
92. Walter A. McDougall, Freedom Just Around the Corner: A New American History,, 1585-1828, p. 340.
93. Andrew Burstein and Nancy Isenberg, Madison and Jefferson, p. 198.
94. Stanley Elkins & Eric McKitrick, The Age of Federalism: The Early American Republic, 1788-1800, p. 61.
95. Lance Banning, The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic, p. 289.
96. Kevin R. Gutzman, James Madison and the Making of America, p. 255.
97. Pauline Maier, From Resistance to Revolution: Colonial Radicals and the Development of American Opposition to Britain, 1765-1776, p. CHECK NOT ONLINE after 80
98. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. xii (Walter Berns, Forward).
99. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. 5.
100. Leonard W. Levy, Origins of the Bill of Rights, p. 43.
101. Kevin R. Gutzman, James Madison and the Making of America, p. 255.
102. Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, p. 69.
103. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, 96, p. 101.
104. Leonard W. Levy, Origins of the Bill of Rights, p. 22
105. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, pp. 100-101.
106. John C. Miller, The Federalist Era, p. 24.
107. Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, p. 184.
108. Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789-1815, p. 72.