Last week we covered the priority bill of the first Senate. This week, look at the main focus of the House of Representatives during its first session: amending the Constitution to include a bill of rights.
Advocates for a Bill of Rights
By far, the biggest complaint following the Constitution was that the proposed Constitution did not have a bill of rights. A majority of state ratifying conventions focused on this point and demanded that one be added. Massachusetts, New Hampshire, Virginia, and New York, all explicitly called for a bill of rights. The federalists in those states could only fight to make them suggestions rather than mandatory in order to get the Constitution ratified. North Carolina and Rhode Island still refused to ratify the Constitution, at least in part due to the lack of a bill of rights. Pennsylvania, which had ratified early and unconditionally, held a second convention before the ratification process was complete in other states. That group also called for a bill of rights.
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| James Madison |
The English Bill set out some basic principles that had become foundational to what most leaders thought was necessary for a free society. It rejected the idea that the king could suspend or ignore laws passed by Parliament. It also barred the king from levying taxes without the approval of Parliament. This was the basis for the colonial complaint of taxation without representation.
The English Bill also guaranteed the right of free speech and to petition the government. It barred the king from keeping a standing army in time of peace without Parliament’s approval. It guaranteed Englishmen, at least Protestants, the right to keep arms. It also required jury trials for most cases, banned excessive bail or fines, cruel and unusual punishments, and fines or forfeitures before a trial.
The colonists had used this as the basis for justifying their Declaration of Independence. These were the sorts of inalienable rights that the king had violated. Americans wanted to establish that these rights had to be protected above all else. All states had some statutory or constitutional guarantee for the projections of rights. Most of these were created in 1776, when the states declared independence, and some were based on rights that were already written into their colonial charters.
The Articles of Confederation did not have a bill of rights. This was because the authority under the Articles was so limited, that it was thought to be unnecessary. But when the Confederation Congress established the Northwest Territory, it built a bill of rights into the Northwest Ordinance.
Opposition
Many of the leading federalists, including Alexander Hamilton, James Madison, James Wilson, and Oliver Ellsworth opposed a bill of rights. Much of the concern had more to do with strategy than any opposition to the principles in such a bill. They did not want any changes to slow up the ratification of the Constitution. They also did not want to see a second constitutional convention that might go well beyond adding a bill of rights, and undo many of the other provisions established at the first convention.
But even beyond those strategic considerations, leading federalists argued that creating one was a bad idea. For starters, they argued that the US Constitution was the same as the Articles of Confederation, in that it only gave the federal government certain enumerated powers. Unlike states that had all sorts of potential powers (what we call today general police powers) the federal government could only act in those areas that the Constitution specified.
So, for example, there was no worry that Congress could pass a law infringing on the freedom of speech or press because there was no enumerated power in the Constitution that allowed Congress to have that power. Hamilton wrote in one of the federalist papers: "why declare things shall not be done, which there is no power to do?"
The Federalists also argued that there was an affirmative danger in listing a specific bill of rights. By defining those rights, they were concerned that they might inadvertently leave some right off of the list, leading to the implication that the government might infringe on that overlooked right. Some also argued that since the Constitution did nothing to repeal the various rights protected by state constitutions, that that the people still had those protections.
Beyond that, men like Madison believed that simply writing down certain rights was essentially meaningless. He called them “parchment barriers.” A majority in what he called “popular hysteria” might approve of taking away some of those rights. That had already happened at times at the state level. Simply having a right on paper, that the government did not recognize, and that the voters did not care about, was essentially meaningless. The protection of rights comes from the demands of the people and the obedience of government to those demands.
Madison’s Conversion
James Madison had been a leading opponent of a bill of rights at both the Constitutional Convention and during the ratification conventions, mostly for the same reasons most federalists opposed them. They were an unnecessary distraction from creating and implementing the new Federal Constitution.
However, by the time Madison had taken his seat in Congress, he had changed his views on this topic. Patrick Henry and other anti-federalists in Virginia saw Madison as dangerous. They tried to keep him out of the federal government completely, first denying him an appointment as Senator, then drawing congressional districts to put his home in a strongly anti-federalist district.
When Madison entered the election contest against James Monroe for a seat in the House of Representatives, he knew that his voters were not happy with his federalist tendencies and were inclined to vote against a representative who would push for a stronger federal government. So, Madison did what any politician fighting for political survival would do. He flip-flopped.
Ok, maybe I sound a bit cynical in saying that. We generally think of a flip-flop at completely changing one’s view on an issue of principle. As I said before, Madison never objected to the fundamental principles that a bill of rights would protect. He simply saw it as an unnecessary distraction. With the ratification process behind them, a bill of rights would not impede the implementation of the constitution. In fact, if he could introduce a bill of rights on his own terms, it might take away some of the political pressure to hold that second constitutional convention.
Even as late as August of 1788, Madison was still pushing the federalist line that a bill of rights taken up by the first Congress would be a distraction. Madison called for having a few years without a bill so that there would be some experience as to exactly what rights should be protected.
But as the election heated up, Madison changed that view. In a letter in the fall of 1788, Madison candidly admitted, in a letter to Thomas Jefferson, that he was fine with a bill of rights, if it was done properly, but that he mostly favored it to satisfy others.
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
Jefferson strongly encouraged Madison to support the bill of rights, not only out of political expediency but because such “parchment protections” as Madison called them did make a difference. While Jefferson conceded that popular governments might still violate those rights in some cases, writing out those rights would help to protect them. In particular, it would give the judiciary more ammunition to protect those rights against the popular will. So, while Madison still believed a bill of rights to be mostly about satisfying others, he did decide to make it a priority.
Madison made his new views public with a letter written on January 2, 1789, to a local Baptist Minister, George Eve, Madison wrote in part:
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 for ratification, the most satisfactory 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.
To further his point, Madison wrote another letter to Thomas Mann Randolph a couple of weeks later, which he knew would be published in the newspapers a few days before the election. In it, Madison reiterated his willingness to amend the Constitution.
The report, which, I have reason to believe is most injurious, charges me, with being a strenuous advocate for the perfection of the Constitution as it stands, and an inflexible opponent to the change of a single letter. The truth, on the contrary is, that I have ever thought it might be improved in several points, although I never could see the dangers which alarmed many; and what is more, was an unsuccessful advocate in the General Convention, which framed the instrument, for several of the very amendments, since recommended by this, and other States.
He Continued:
It is particularly, my opinion, that the clearest, and strongest provision ought to be made, for all those essential rights, which have been thought in danger, such as the rights of conscience, the freedom of the press, trials by jury, exemption from general warrants, &c.
He also argued in favor of amendments rather than a second convention. In this point, he argued that it would be a much faster and easier way to get these changes into the Constitution. In short, Madison not only supported a Bill of Rights, he made it a top priority and promised voters that he would personally initiate these proposed amendments right away when he got to Congress.
Madison’s motives were not simply to win the election. He had also come to realize that so many people had demanded a bill of rights, that it was probably inevitable. By leading the fight to create the bill, Madison could make sure it was done the way he wanted, and could also be done in a way that avoided that dreaded second constitutional convention.
First Draft
After winning his seat in Congress, Madison focused on producing a draft bill of rights. I use the word focus cautiously, because Madison was doing a host of other things at this same time, including writing President Washington’s inaugural address, helping to get the President’s residency set up in New York and many other things.
Despite his other work, Madison had promised his constituents to make the bill of rights a priority. He got to work researching what should go into it. Madison relied heavily on the Virginia Declaration of Rights, written largely by George Mason in 1776, although others, including Madison himself, had played a role in drafting their final version. Madison also went back to the Magna Carta, the English Bill of Rights, and the works of philosopher John Locke.
Madison also tried to use more contemporary sources. He reviewed all the state constitutions of see what those documents considered to be the most important protections. He also consulted all of the proposals drafted by the various state ratifying conventions. Of particular concern to him were the proposals made by the voters of Virginia.
The various conventions, along with reports from minority committees in states that did not formally propose amendments, totaled over 200 changes to the Constitution. Many of these were duplicative. Even after removing all the duplicate requests, Madison came up with a list of about seventy five distinct amendments.
Although Madison consulted a great many documents while drafting his proposed amendments, he did not seem to consult with many people during his process. He had corresponded with Thomas Jefferson and others about whether to add a bill of rights. He also showed his final proposal to George Washington before submitting it to Congress. But he did not seem to work with anyone else as he drafted the specific proposals that he planned to introduce into Congress.
Madison, of course, expected that once he introduced his proposals, that Congress would tear into them and make plenty of changes. This was the same thing that happened when he introduced his Virginia Plan at the Constitutional Convention. But by presenting a completed proposal, Madison would at least control where the debate began, and hopefully prevent it from moving too far afield.
His goal was to draft a comprehensive list of all the major concerns raised by the states and on which there was a general consensus. He wanted the focus to be on an expression of protected rights. Madison did not want the debate over amendments to veer into a discussion of substantive changes to the Constitution itself. He viewed this more as an addition or supplement to the original document, not an effort to rewrite the whole thing.
Madison still saw this effort as substantively meaningless. He already believed that the Constitution, as written, did not give the federal government the power to infringe on the basic liberties of the people. This was an effort to keep his constituents happy and to satisfy anti-federalist complaints that the new Constitution did not protect these rights.
As a result, he simply compiled a list of various rights that people had. He did not make any effort to create a system for the federal government to protect those rights or any sort of enforcement mechanisms or procedures for the people to use when the government overstepped its bounds. Madison noted states had all provided for different protections. For example, five states had established religions or permitted them. Five also did not provide for protection of rights of assembly, petition, the right to council, or trial by jury in civil cases. Two states did not say anything about a free press. Four states had no restrictions on things like excessive fines or bail, self-incrimination, or the need for search warrants. The majority of states had no problem with ex post facto law or double jeopardy,. Most did not require grand juries. Only a couple explicitly provided for freedom of speech or a prohibition on double jeopardy.
Madison’s main focus was to make sure that the federal government would not infare on these rights. He made very few changes to ensure states would protect the people from state infringements of their rights. Indeed, if Madison had tried to empower the federal government with power to prevent states from interfering with the rights of the people, that would have led to a backlash from anti-federalists about allowing the federal government to interfere with state powers. Each state would continue to have full authority to establish its own rights. Madison’s amendments primarily sought to ensure that the federal government would not infringe on his list of rights.
Madison believed that the best way to preserve these rights was for the people to be on the watch at all times for a government that might infringe on them. Beyond that, the separation of powers that was spelled out in the original Constitution that would prevent fleeting majorities who might elect someone who would run roughshod over their rights, from having sufficient power to put those violations of rights into effect.
In his final proposal to Congress, Madison did add a few substantive restrictions. He added a rule that would increase the size of the House of Representatives so that there would be one representative for every 30,000 voters. There had been a push for this rule at the convention, and several states, including Virginia, had demanded such a rule at their ratifying conventions.
Madison also added a rule that members of Congress could not increase their own compensation prior to an intervening election. In other words, members of congress could not get into office, give themselves a big raise, and collect before the voters could say anything about it. The voters would have a say in their reelection before any pay raise went into effect.
Madison did not carefully number his changes, so you can count them differently. Most people will say there are about 15-20 amendments in his initial proposal. Among the rights protected are:
- freedom of religion, free speech and free press.
- the right to assemble and to petition government,
- the right to keep and bear arms,
- the right not to have soldiers quartered in people’s homes,
- protections against double jeopardy, self-incrimination,
- the right to due process,
- protection of private property,
- prohibitions on excessive bail or fines
- Prohibition of cruel and unusual punishments
- Protections of searches without probable cause or specific warrants
- The right to a speedy criminal trial where the accused is informed of the charges and has a right to confront accusers and bring witnesses
Recalling his concern that a list of rights might allow people to claim that the list is finite, Madison also added a clause that his list should not be construed to diminish other rights not mentioned. Madison did put a few restrictions on states. He added a clause that no state could violate the rights of conscience, freedom of the press, or trial by jury in criminal cases.
He also proposed rules that would prevent appeals to federal court if the value was below a certain amount, or that appellate courts could reevaluate the facts of a case decided by jury. He also added rules for grand juries in capital crimes, and that jury verdicts had to be unanimous, and that trials had to be local. Finally, Madison added an explicit rule that the legislative, executive, and judicial branches could not try to exercise the powers of the other branches and that any powers not delegated by the Constitution nor prohibited to the states, continued to belong to the states.
This was the set of proposals that Madison brought to Congress in the summer of 1789.
Next week, we’ll discuss what Congress did with these proposals.
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Next Episode 361 The Bill of Rights (coming soon)
Previous Episode 359 George Washington's Inaugural
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Further Reading
Websites
“James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0218
“James Madison to George Eve, 2 January 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0297
“Thomas Jefferson to James Madison, 15 March 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Jefferson/01-14-02-0410
“James Madison to Thomas Mann Randolph, 13 January 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-11-02-0304
James Madison’s Proposed Amendments to the Constitution, June 8, 1787 https://www.archives.gov/files/legislative/resources/education/bill-of-rights/images/madison.pdf
Congress Creates the Bill of Rights, Part I: https://www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_I.pdf
Madison’s Consistency on the Bill of Rights: https://nationalaffairs.com/publications/detail/madisons-consistency-on-the-bill-of-rights
Madison and Jefferson Discuss the Bill of Rights: https://teachingamericanhistory.org/blog/madison-and-jefferson-discuss-the-bill-of-rights
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
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 (Author), 2023. https://www.amazon.com/dp/B0CM4VDKV5?&linkCode=ll1&tag=amrevpodcast-20&linkId=38c4724d376e3b606217e5b77fce507b&language=en_US&ref_=as_li_ss_tl
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.
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