Adoption of Bill of Rights
The Constitution of 1787 did not contain a bill of rights, although it did have some protections for some civil liberties. The original Constitution prohibited ex post facto laws and bills of attainder, preserved the right of a jury trial in criminal cases, and banned religious tests for officeholding. The document gave life tenure to judges, which insulated them from being removed for decisions that displeased the president or other officeholders. The document provided for free speech for members of Congress but otherwise did not protect rights of expression, such as freedom of speech, press, assembly, or petition.
The lack of a bill of rights was not an oversight. On August 20, 1787, Charles Pinckney of South Carolina ‘‘submitted sundry propositions’’ to the Convention that were sent to the Committee on Detail. While some of Pinckney’s propositions ultimately were included in the body of the Constitution, the committee ignored his proposals for a guarantee of freedom of the press and for a protection against quartering troops in private homes. On September 12, the Convention rejected Massachusetts delegate Elbridge Gerry’s proposal that the right to a jury in civil cases be guaranteed by the Constitution. Virginia’s George Mason then suggested that the entire Constitution be ‘‘prefaced with a Bill of Rights.’’ He thought that ‘‘with the aid of the State declarations, a bill might be prepared in a few hours.’’ Roger Sherman of Connecticut argued that this was unnecessary because the Constitution did not repeal the state bills of rights. Mason replied that federal laws would be ‘‘paramount to State Bills of Rights.’’ This argument, however correct, had little effect on the Convention, which defeated Mason’s motion with all states voting no.
The next day Gerry failed to get the Convention to guarantee juries for civil trials. Pinckney then joined Gerry in proposing that the Constitution have a provision that ‘‘the liberty of the Press should be inviolably observed.’’ Roger Sherman again argued against specific protections for liberty on the ground that under a government of limited powers they were unnecessary because ‘‘[t]he power of Congress does not extend to the Press.’’ By a vote of five states for and six against, the Convention then defeated the motion to protect ‘‘the liberty of the Press.’’
On Saturday, September 15, 1787, the penultimate day of the Convention, George Mason expressed his reservations about the Constitution, noting, ‘‘There is no Declaration of Rights, and the laws of the general government being paramount to the laws and Constitution of the several States, the Declaration of Rights in the separate States are no security.’’ Mason complained that under this Constitution, ‘‘the people’’ were not ‘‘secured even the enjoyment of the benefit of the common law.’’
Mason feared that the Senate and the president would combine ‘‘to accomplish what usurpations they pleased upon the rights and liberties of the people,’’ while the federal judiciary would ‘‘absorb and destroy the judiciaries of the several States.’’ He thought the expansive powers of Congress threatened the ‘‘security’’ of ‘‘the people for their rights.’’ Without a bill of rights, all this was possible. He complained, ‘‘There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes; nor against the danger of standing armies in time of peace.’’ For these reasons, Mason refused to put his signature to the new Constitution.
Another Virginian, Edmund Randolph, also refused to sign. He proposed a second Convention to consider amendments, including a bill of rights. Elbridge Gerry listed a number of problems with the Constitution, including the dangers posed by the aristocratic nature of the Senate and the centralizing tendencies of the commerce power. But, he could ‘‘get over all these’’ defects ‘‘if the rights of the Citizens were not rendered insecure’’ by the virtually unlimited power of Congress under the necessary and proper clause and the lack of a guarantee of jury trials in civil cases.
Throughout the next nine months, as the states debated the new constitution, the opponents of ratification—known as the Anti-Federalists—railed against the lack of a bill of rights in the new constitution. Many Anti-Federalists, such as Patrick Henry and Richard Henry Lee, used the bill of rights as a stalking horse for their desire to detail the entire constitution. They wanted a second convention to rewrite the entire document. Other Anti-Federalists were more sincere in their opposition. James Madison called them ‘‘honest anti-federalists,’’ because they were not opposed to a new stronger government, but only feared that such a government would become tyrannical without a bill of rights.
Madison and other Federalists scoffed at such fears. They opposed the addition of a bill of rights, asserting that it was (1) unnecessary, (2) redundant, (3) useless, (4) actually dangerous to the liberties of the people, (5) that its presence would violate the principles of republican government embodied in the Constitution, or some combination of these.
They argued that the Constitution created a government of limited powers and thus Congress could not do anything that it was not specifically empowered to do. Personal liberty, they argued, would be protected by the states. Congress could not create a national religion or suppress freedom of the press, they argued, because it lacked the power to do so. Thus, in the Convention, Pennsylvania’s James Wilson asserted that one purpose of the states was ‘‘to preserve the rights of individuals.’’ Oliver Ellsworth of Connecticut explained that he looked to the state governments ‘‘for the preservation of his rights.’’ Roger Sherman argued that ‘‘the State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.’’ He believed that the national legislature might ‘‘be safely trusted’’ not to interfere with the liberties of the people.
Federalists also argued that the main body of the Constitution already had some protections of liberty, such as bans on ex post facto laws or religious tests for officeholding. Thus, combined with the notion of a limited government, a bill of rights was redundant. But, Madison also argued that a Bill of Rights was useless. In a letter to Thomas Jefferson (who was in France at the time), Madison explained that there was no bill of rights 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.’’ He noted that in Virginia he had ‘‘seen the bill of rights violated in every instance where it has been opposed to a popular current.’’ He warned that ‘‘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.’’ No bill of rights was better, in Madison’s mind, than one that might be ignored.
Federalists also feared that a bill of rights would be dangerous to the liberties of the people because any rights not protected would be given up. James Wilson asked who would ‘‘be bold enough to undertake to enumerate all the rights of the people?’’ He thought no one could, but warned that ‘‘if the enumeration is not complete, everything not expressly mentioned will be presumed to be purposely omitted.’’ Thus, he believed a bill of rights ‘‘not only unnecessary, but improper.’’ Alexander Hamilton made a similar point when arguing that a bill of rights was ‘‘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.’’
Finally, some Federalists argued that under a republican government a bill of rights was unnecessary. Oliver Ellsworth, a future chief justice of the United States, argued that a bill of rights was something that the people wrested from the king; thus, in America a bill of rights was ‘‘insignificant since government is considered as originating from the people, and all the power government now has is a grant from the people.’’ Similarly, James Wilson argued that ‘‘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.’’ North Carolina’s James Iredell maintained that in England a bill of rights was necessary because of the Crown’s ‘‘usurpations’’ of the people’s liberties. But, under the new Constitution, the people delegated power to the national government, and thus such usurpations by the national government were impossible.
The Federalists won the debate over the Constitution, and by July eleven states had ratified the document. However, five states recommended that the new government amend the new Constitution in various ways, including adding protections for civil liberties. During the ratification struggle in Virginia, James Madison argued that a bill of rights was unnecessary and sincerely believed that most of the leading Anti- Federalists were not truly interested in a bill of rights, but rather simply wanted to derail the Constitution. At the Virginia convention, he was willing to compromise by supporting the idea that the convention could recommend amendments, but only after the convention had ratified the Constitution. Madison still did not believe a bill of rights was needed, but he did believe that some amendment protecting civil liberties, if carefully framed, might not harm the Constitution. He also realized that some Virginians— especially the Baptists who were a significant force in his part of the state—supported the new form of government but nevertheless sincerely wanted a bill of rights as well.
After ratification, when campaigning for a seat in the First Congress, Madison once again considered the issue of a bill of rights. Madison discussed this in a letter to Rev. George Eve, an influential Baptist leader in his district. Madison freely admitted his disagreement with Eve in that he did not see in the Constitution ‘‘those serious dangers which have alarmed many respectable Citizens’’ including Eve. Thus, he told Eve that until the Constitution was ratified, he had been unwilling to support any calls for amendments, because he believed they were ‘‘calculated to throw the States into dangerous contentions, and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution.’’ However, with the Constitution ratified he was willing to support ‘‘amendments, if pursued with a proper moderation and in a proper mode’’ because under such circumstances they would ‘‘be not only safe, but may well serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty.’’ Madison told Eve that ‘‘nder this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend to the States . . . provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants, &c.’’
After his letter to Eve, Madison publicly declared that he would work for amendments if elected to Congress. This public support for amendments swayed the Baptists and helped secure Madison’s election to Congress. Once in Congress, Madison urged the House to support a bill of rights. He still did not think one was necessary, but he told the House he was ‘‘bound in honor and in duty’’ to bring the amendments forward. His plan was to ‘‘advocate them until they shall be finally adopted or rejected by a constitutional majority of this House.’’
The Federalist leaders of the House did not want to be bothered with amendments, as they were busy creating a national government. But Madison argued that postponement would play into the hands of those extreme Anti-Federalists who had predicted that the new national government would create a tyranny. He argued that ‘‘if we continue to postpone from time to time, and refuse to let the subject come into view, it may well occasion suspicions, which, though not well founded, may tend to inflame or prejudice the public mind against our decisions.’’ Madison feared that the ‘‘very respectable number of our constituents’’ who had asked for amendments might conclude that Congress was ‘‘not sincere in our desire to incorporate such amendments in the constitution as will secure those rights, which they consider as not sufficiently guarded.’’ Although about to propose amendments, Madison was still not advocating them for their substance. Rather, he argued he had a moral obligation to present them and that it would be politically expedient for Congress to accept them. When Connecticut’s Roger Sherman proposed delaying any discussion of amendments, Madison argued that it was important to consider amendments to prove to the Anti-Federalists that the supporters of the Constitution were also ‘‘sincerely devoted to liberty and a Republican Government’’ and not attempting to ‘‘lay the foundation of an aristocracy or despotism.’’ He reminded the House of those who had ‘‘apprehensions’’ that the new government wished to ‘‘deprive them of the liberty for which they valiantly fought and honorably bled.’’ He believed that many who had opposed the Constitution were now ready ‘‘to join their support to the cause of Federalism, if they were satisfied on this one point.’’ Furthermore, he reminded the House that North Carolina and Rhode Island had not yet ratified the Constitution, but that amendments might lure them into the union.
In proposing the amendments, Madison showed little passion. He told the House that he had ‘‘never considered’’ a bill of rights ‘‘so essential to the federal constitution’’ that it would have been allowed to impede ratification. But, with the Constitution ratified, Madison was willing to concede ‘‘that in a certain form and to a certain extent, such a provision was neither improper nor altogether useless.’’ The amendments he proposed were unlikely to displease the hard-line Anti-Federalists, and in fact they did not. He proposed only amendments that were universally accepted, such as a protection of freedom of speech and freedom of worship. He noted that they were ‘‘limited to points which are important in the eyes of many and can be objectionable in those of none.’’ Proudly he noted that ‘‘the structure & stamina of the Govt. are as little touched as possible.’’
Madison initially proposed that the amendments refer to specific provisions in the Constitution. So, for example, limitations on establishing religion or infringing on a free press would be inserted in Article I, Section 9 of the Constitution, which set out limits on congressional power. Fortunately, Roger Sherman prevailed upon Madison to reorganize his proposals as a series of numbered amendments that resembled the state bills of rights. This was a significant change, because it made the amendments into a coherent document as a ‘‘bill of rights.’’
Congress debated Madison’s proposed amendments for much of the summer. Most of Madison’s speeches were along the lines of his opening remarks. He wanted the amendments to eliminate the discord between those who feared the Constitution and those who supported it. But on one issue Madison became somewhat passionate. His proposed amendments had not only limited the federal government. He also proposed limits on the state governments. Two brief speeches showed that Madison remained more committed to limiting the powers of the states than to limiting the power of the national government. Thus, he passionately supported a proposal that would have prohibited the states from infringing ‘‘the equal right of conscience . . . freedom of speech or the press, . . . [and] the right of trial by jury in criminal cases.’’ Madison thought this was ‘‘the most valuable amendment in the whole list.’’ Although the House approved this clause, the Senate did not, and thus these rights would not become applicable to the states until after the adoption of the Fourteenth Amendment and its modern development, starting with Gitlow v. New York (1925). Similarly, Madison strongly opposed adding the word ‘‘expressly’’ to what became the Tenth Amendment. Madison thought that this would give the states too much power.
On September 24, 1789, the House and Senate agreed on twelve amendments to the Constitution. They were then sent to the states for ratification. The first two dealt with the size of the House and congressional salaries. Neither was ratified at the time. The amendment on salaries would have prevented Congress from raising its salary during any current term. Over the years, a number of states ratified this amendment, and in 1992, over two centuries after it was proposed, three-fourths of the states had ratified it and it was added to the Constitution as the Twenty-Seventh Amendment.
Nine states quickly ratified amendments three through twelve. Two states, Georgia and Connecticut, rejected the amendments, accepting the Federalist argument that they were unnecessary. Massachusetts apparently ratified the amendments, but never sent the ratification on to Congress. Before the amendments could be added to the Constitution, however, Vermont was admitted to the Union. Thus, with fourteen states, the amendments needed eleven ratifications. Vermont quickly ratified the amendments, but Virginia held out. The Anti-Federalists in the state, led by Patrick Henry, did not want the Bill of Rights ratified because they were holding out for a second convention, which would undo the Constitution and create a weaker national government. Henry understood that once a bill of rights was ratified, most opposition to the Constitution would disappear. On this point he was correct. On December 15, 1791, Virginia finally ratified the Bill of Rights. With this ratification, Anti-Federalism disappeared along with most opposition to the Constitution. Henry would in fact soon join the emerging Federalist Party and support the stronger national government. Madison would be remembered as the father of the Bill of Rights, albeit a clearly reluctant one. He never thought the nation needed a bill of rights, but in the end the document proved to be his greatest legacy and his most important contribution to American history.
References and Further Reading
- Amar, Akhil. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998
- Cogan, Neil H. The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins. New York: Oxford University Press, 1997
- Finkelman, Paul, James Madison and the Bill of Rights: A Reluctant Paternity, Supreme Court Review 1990 (1991): 301–47
- Rutland, Robert A. The Birth of the Bill of Rights, 1776– 1791. Chapel Hill: University of North Carolina Press, 1955
- Veit, Helen E., Kenneth R. Bowling, and Charlene Bangs Bickford. Creating the Bill of Rights: The Documentary Record of the First Federal Congress. Baltimore: Johns Hopkins University Press, 1991.