Last week we covered the conversion of James Madison from his opposition to a bill of rights to its main author. We left off with Madison preparing a proposed bill of rights to introduce into Congress. I also published a bonus episode mid-week where I read Madison’s complete list of proposed changes, in full, word for word.
House Reception
Although Madison worked on the exact wording of his proposed amendments on his own. He expected that there would be changes, but did not expect much controversy over passing something. After all, these were fundamental principles of a free government that were pretty much accepted as consensus.
Madison continued to keep the topic in mind when he wrote the House of Representative’s reply to the President’s inaugural address, when he wrote "The question [of constitutional amendments] will receive all the attention demanded by its importance; and will, we trust be decided, under the influence of all the considerations to which you allude."
On May 4, 1789, less than a week after President Washington’s inaugural speech, Madison made a motion in the House of Representatives to debate amendments to the Constitution. He did not give any specifics. In fact, this motion was rushed because Madison became aware of another motion being prepared by the anti-federalists.
The following day, Congressman Theodorick Bland, presented a petition from the Virginia legislature calling for a second constitutional convention. Specifically, the petition called for a convention that would have "full power to take into their consideration the defects of this Constitution that have been suggested by the state Conventions, and report such amendments thereto." The day after that, Congressman John Laurence of New York presented a similar proposal from the New York legislature, also requesting a second convention.
This is what Madison was trying to avoid. It would reopen the Constitution to any number of changes before they even had an opportunity to see how the existing Constitution really worked. He supported efforts to table the proposals, but then doubled down on his work to complete a proposed set of Amendments.
While Madison was battling with the anti-federalists to prevent a second constitutional convention, he also found himself in conflict with most federalists who did not want to consider any changes at all, not a convention, no amendments. They argued that there were too many other things to deal with in this session. They were still busy creating all the new executive departments, creating a judicial system, developing rules, implementing a revenue system to begin getting some money for the government, creating trade regulations, establishing naturalization laws, patent laws, copyright laws, organizing the first census, and a range of other issues.
Besides, federalists believed that simply writing down rights did not really matter. The people had to fight for such things. As one federalist put it “It seems to be agreed on all hands that paper declarations of rights are triffling things and no real security to liberty. In general they are a subject of ridicule.” The federalist majority in Congress wanted to focus on more important issues before getting around to making any changes to the Constitution. The federalist majority in the House table the petitions calling for a second constitutional convention and took no immediate action on them. But neither were they in any hurry to consider amendments that might put off such a convention.
The position taken by the federalists had been the same as that Madison himself had taken before his election forced him to make amendments a priority. Other federalist representatives were not feeling this same pressure. Aside from his own immediate constituent pressure, Madison was concerned that if the federalists in congress put off any action for too long, that states would begin calling for a convention on their own. Under the Constitution, the states had the authority to call their own state conventions without Congress. If two-thirds of the states called for a second convention, it would happen whether Congress wanted it or not.
Proposed Amendments
It took Madison just over a month from when he introduced the idea of presenting amendments until he actually presented them on June 8. These are the amendments that we discussed at the end of last week and which I read in full in the bonus episode a few days ago, so I won’t repeat them again.
After introducing his amendments, Madison then moved to bring the house into a committee of the whole to discuss them. Several federalist representatives objected. They argued that the House was busy with too many other things. Until the House got the government organized and into full operation, it was irresponsible to dedicate so much time to changing the Constitution.
Many members also wanted to wait on the idea of making changes until they saw how the current version worked. One member compared the Constitution to a ship in drydock about to put to sea for the first time. It would be irresponsible to break down and rebuild the ship before the builders even put it to sea, where they could make a determination as to how it fared. Another member moved that consideration be postponed until the next session in March 1790.
Madison argued that they should not wait. The House should at least start consideration. So many people had called for these changes and the House needed to prove that it would address these concerns. He also noted that these amendments might finally convince North Carolina and Rhode Island to join the union. He noted that they were not making any fundamental changes to the Constitution. Rather, they were simply adding in protections for certain rights that people wanted and which had been entirely ignored in the original Constitution. He also raised the concern that the states might form a second convention if the House delayed too long.
While the House spent the day debating over whether it should debate the amendments, it did nothing regarding the consideration of Madison’s specific proposals. Madison’s draft proposal was entered into the record. Congress then went on with other business and did not bring up the matter again.
Six weeks later, on July 21, Madison called for reconsideration and moved that the Committee of the Whole debate his amendments. Once again, the majority argued they were busy with other things. Once again, they spent the entire day arguing over procedure. Madison wanted the Committee of the Whole to consider the amendments. Instead, the majority overruled him and voted to form a select committee of eleven members, one from each state. Another reason for sending it to a smaller committee was so members could discuss them without the public watching the full debate.
The committee would spend a week debating and discussing Madison’s amendments before making a report back to the House.
Committee Changes
The Select Committee did not keep any notes of its meetings, but we can tell from the final report what changes they made. The Committee did not make any real substantive changes to Madison’s proposal but they did change the wording a great deal. For starters, they removed Madison’s changes to the Preamble which said that the people had the “right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.” Committee members accepted that was self-evident, but saw no need to stress to the public that they would invite more changes.
The committee also made a bunch of other wording changes to the various amendments, but kept did not really add, abolish or change any of the fundamental principles that Madison had put forward. They limited the growth of the House to 175 members. They added a limit of at least $1000 before cases could be appealed to federal court. But basically they didn’t change much of substance.
Shortly after the committee completed its work, Madison sent a copy of the committee report to a friend who was still serving in the Virginia assembly. In his cover letter, he simply noted vaguely an equivocally “[Some] of the changes are perhaps for the better, others for the worse.”
House Debate
Although the committee completed its work quickly, the full house waited several more weeks before giving any time to discuss the report. Finally, on August 13, the House entered into a Committee of the Whole to consider the amendments. For the next eleven days, this was the main issue under consideration.
Many of the federalists continued to argue that consideration of amendments was premature and should be delayed. A few anti-federalists argued that these changes did not go nearly far enough.
One important stylistic change that came out of the House debate came from Connecticut Representative Roger Sherman. He argued that the original Constitution should not be changed. Rather, any amendments should simply be added to the end of the document. The original Constitution should remain unchanged, and that additions or changes should always just show up as additions or changes at the end of the document. Several other members agreed. They believed that over time, amendments would just make the document longer and longer, and that the original wording would just get lost among so many other changes.
Madison strongly opposed this idea. He believed that the Constitution should read as a single coherent document. Adding changes to the end would mean that parts of the original would remain in place, even though they had become irrelevant and void due to later amendments. He also argued that the amendments were just as valid as the original and that they should not keep the original in some unchangeable form as if it had become some untouchable masterpiece with the changes made separately. The argument over whether amendments should be incorporated or added to the end of the Constitution went on for days.
There were also lots of procedural debates. For example, one member objected on the grounds that the committee report should be approved by a two-thirds majority since the House had to approve the final amendments by two-thirds. The house voted down this idea and allowed committee reports to be reported by a majority.
The House also debated changes to the preamble. Madison and the committee wanted to change the beginning “We the People...” to “Government being intended for the benefit of the people...”. This was one of many changes to the preamble. After lengthy debate, the House eventually approved many of these changes.
After eleven days of debate the House came up with seventeen proposed amendments:
The first amendment guaranteed one representative for every 30,000 people, until the total number reached 100. After that, there would have to be one representative for at least every 40,000. When the Congress reached two hundred representatives, there could be one for each 50,000 people.
The second amendment carried on the idea that memes of congress could not alter their compensation until an election took place.
The third amendment barred establishment or religion, prohibiting its free exercise. It also barred infringement on the rights of conscience.
The fourth amendment guaranteed freedom of speech, the press, assembly, and petition for a redress of grievances.
The fifth amendment noted the importance of a well regulated militia and barred any infringement on the people’s right to keep and bear arms. It also protected those who had a religious objection to bearing arms from being compelled to provide military service.
The sixth amendment barred the housing of soldiers in private homes.
The seventh amendment protected against unreasonable searches and seizures.
The eight amendment protected people from more than one trial or punishment for the same offense, other than impeachment. It also protected against self-incrimination or deprivation of life, liberty or property without due process, or that property could be taken without just compensation.
The ninth amendment guaranteed accused criminals the right to a speedy and public trial, to be informed of the charges, to be confronted with witnesses, to have the power to obtain witnesses on their behalf, and to have the assistance of counsel.
The tenth amendment guaranteed trial by jury for all but impeachment or military prosecutions.
The eleventh amendment allowed no appeal to the Supreme court if the value was less than $1000. It also protected that any finding of fact by a jury could not be reconsidered by appellate courts.
The twelfth amendment protected jury trials for most civil suits.
The thirteenth amendment barred excessive bail or fine, as well as cruel and unusual punishment.
The fourteenth amendment prevented states from denying jury trials, the rights of conscience, as well as freedom of speech or the press.
The fifteenth amendment assured that the enumerated rights should not be construed to deny other unenumerated rights.
The sixteenth amendment required that each of the three branches of government could never try to exercise the power of the other two branches.
The seventeenth amendment noted that any powers not delegated by the constitution or prohibited to the states, remained with the states.
By this time, even Madison was getting sick of discussing these amendments. In sending a progress report to a friend in late August, Madison referred to the “nauseous project of amendments.” He noted the importance of getting done, but you could tell he was sick of debating all the details.
At least with the agreement of the 17 amendments, the work in the House was done. There is no detailed final vote, but presumably a two-thirds majority favored the amendments, which then headed over to the Senate for approval.
Senate Debate
If the federalists in the House were reluctant to consider amendments, the Senators were even worse. We have less details in the Senate since debate was closed to the public, and the official record does not record debate. When the amendments arrived in the Senate. The first thing they did was move to postpone consideration until the next session. The majority, however, rejected postponement.
The anti-federalist Senator William Maclay noted that his fellow Pennsylvania Senator Robert Morris considered all of this a waste of time. Morris said the house was “playing with Amendments.” In a letter to a friend, Morris commented that they were only going through all these because Madison was afraid of losing his next election. He wrote “Poor Madison got so Cursedly frightened in Virginia, that I believe he has dreamed of amendments ever since." Morris referred to the "Nonsense they call Amendments," and that this whole effort was doomed to failure.
The anti-federalists also considered postponing or killing the amendments. Patrick Henry wrote to several members of Congress noting that if the amendment process died in Congress, it would spur on his hope to hold that second continental convention.
Virginia Senator Richard Henry Lee did not share Henry’s gambling attitude. Lee was an anti- federalist. He believed these amendments did not go far enough, but that something was better than nothing. As he put it “if we cannot gain the whole loaf, we shall at least have some bread.”
Unfortunately, Senator Maclay, who was our best note taker for senate debate, was out sick for most of the debates on the amendments. We do know that the Senate did take up the debate and considered twenty amendments of their own. These included a ban on direct taxation by the federal government, larger super majorities for treaties or standing armies, and other changes. Most, if not all of these had been proposed and rejected at the Constitutional Convention.
In the end, the Senate did not add any new amendments. In fact, they dumped all the changes to the preamble and reduced the House’s seventeen amendments to just twelve. Some of this was by combining several amendments. For example the freedom of religion, speech, press, assembly, and petition got rolled into a single amendment.
But it did remove a few amendments completely. One of the biggest changes was the amendment which prohibited states from infringing on free speech, free press and jury trials. This would have given the federal government more power over state governments. Senators, who were appointed by state legislatures, wanted no part of that.
They also took out the amendment about the branches of government getting involved in the powers of other branches. The senators considered that redundant. They also removed the limit on appeals to federal courts on small dollar amounts. The Judiciary Act already covered that point.
Joint Committee
With the Senate’s change complete, both houses appointed members to a joint committee on September 21, to iron out the differences between the House and Senate versions. Remember, Congress wanted to adjourn by the end of the month, only a week and a half away. They had to act quickly.
The House delegation generally accepted most of the Senate changes, including the reduction from seventeen amendments to twelve. The joint committee changed some of the changes that the Senate made to the establishment clause. The Senate version said “Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion,” The committee changed that back to the house version: “Congress shall make no law establishing religion or prohibiting the free exercise thereof”. The Senate also took out language about the right to a jury in criminal trials, which the committee added back again.
Other than those and a couple of minor grammatical changes, the Senate version was pretty much accepted. The committee reported its work back to both the House and Senate in just four days.
On September 24, the House, which was busy trying to finish up about a dozen other laws that day, approved the committee report by a vote of 37-14. The following day, the Senate also voted in favor by a two-thirds majority, but did not record its vote.
Since amendments did not need to go to the President, the work was complete. The amendments went off to the states for ratification.
Next week, the new government is forced to focus on foreign policy as the French Revolution begins.
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Next Episode 363 The French Revolution
Previous Episode 361 Bill of Rights - First Draft
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Further Reading
Websites
RUMBLE, WILFRID E. “JAMES MADISON ON THE VALUE OF BILLS OF RIGHTS.” Nomos, vol. 20, 1979, pp. 122–62. JSTOR, http://www.jstor.org/stable/24219130
Leibiger, Stuart. “James Madison and Amendments to the Constitution, 1787-1789: ‘Parchment Barriers.’” The Journal of Southern History, vol. 59, no. 3, 1993, pp. 441–68. JSTOR, https://doi.org/10.2307/2210003
Gerber, Scott D. “Roger Sherman and the Bill of Rights.” Polity, vol. 28, no. 4, 1996, pp. 521–40. JSTOR, https://doi.org/10.2307/3235344
“George Washington to James Madison, 31 May 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-02-02-0305
“James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218
Madison submits his Bill of Rights to Congress, June 8, 1789: https://founders.archives.gov/documents/Madison/01-12-02-0126
James Madison’s Proposed Amendments to the Constitution, June 8, 1789: https://www.archives.gov/files/legislative/resources/education/bill-of-rights/images/madison.pdf
Committee of Eleven report on Amendments to the Constitution, July 28, 1789: https://www.loc.gov/resource/rbc0001.2021madison38252/?st=pdf
The House Version of the Bill of Rights: https://teachingamericanhistory.org/document/the-house-version
“James Madison to Wilson Cary Nicholas, 2 August 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-12-02-0208
“James Madison to Richard Peters, 19 August 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-12-02-0230
Senate Version of the Bill of Rights: https://teachingamericanhistory.org/document/the-senate-version
Congress Creates a Bill of Rights https://www.archives.gov/legislative/resources/bill-of-rights
Congress Creates the Bill of Rights, Part IIA: https://www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_IIA.pdf
.Congress Creates the Bill of Rights, Part IIB: https://www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_IIB.pdf
Finkelman, Paul. “James Madison and the Bill of Rights: A Reluctant Paternity.” The Supreme Court Review, vol. 1990, 1990, pp. 301–47. JSTOR, http://www.jstor.org/stable/3109663
Zink, James R. “James Wilson versus the Bill of Rights: Progress, Popular Sovereignty, and the Idea of the U.S. Constitution.” Political Research Quarterly, vol. 67, no. 2, 2014, pp. 253–65. JSTOR, http://www.jstor.org/stable/24371781
Gerber, Scott D. “Roger Sherman and the Bill of Rights.” Polity, vol. 28, no. 4, 1996, pp. 521–40. JSTOR, https://doi.org/10.2307/3235344
Free eBooks
(from archive.org unless noted)
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Conley, Patrick T. and John Kaminski (eds) The Bill of Rights and the States, Madison, WI: Madison House Publishers, 1992 (borrow only)
Dudley, William The Bill of Rights: Opposing Viewpoints, San Diego: Greenhaven Press, 1994 (borrow only).
Schwartz, Bernard The Great Rights of Mankind: A History of the American Bill of Rights, New York: Oxford Univ. Press, 1977 (borrow only)
Rutland, Robert The Birth of the Bill of Rights, 1776-1791, Northeastern Univ. Press, 1955 (borrow only).
Schwartz, Bernard Roots of the Bill of Rights, Vol. 5. New York: Chelsea House Publishers, 1971 (borrow only).
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
The Bill of Rights: With Writings that Formed its Foundation, Applewood Books, 2008.
Congress Creates the Bill of Rights: The Complete Proceedings, The National Archives, 2023.
De Pauw, Linda Grant (ed) Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791: Senate Legislative Journal (Volume 1), Johns Hopkins Univ. Press, 1972.
DeRose, Chris Founding Rivals: Madison vs. Monroe, The Bill of Rights, and The Election that Saved a Nation, Regnery History, 2011.
Godwin, Robert A. From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, AEI Press, 1997.
Labunski, Richard James Madison and the Struggle for the Bill of Rights, Oxford Univ. Press, 2006.
Levy, Leonard W. Origins of the Bill of Rights, Yale Univ. Press, 1999.
Smith, Craig To Form a More Perfect Union: The Ratification of the Constitution and the Bill of Rights, 1787-1791, Univ. Press of America, 1993.
Veit, Helen E. (et. al) (eds) Creating the Bill of Rights: The Documentary Record from the First Federal Congress, Johns Hopkins Univ. Press, 1991.
* As an Amazon Associate I earn from qualifying purchases.
