We last left the Bill of Rights back in Episode 362 when Congress approved twelve amendments to the Constitution and sent them off to the states for ratification. Most of the amendments were pretty uncontroversial. They simply restated the rights for which Americans had fought the Revolutionary War and which most states had already adopted in one form or another at the state level.
Federalists, like James Madison, had never really objected to a bill of rights. They mostly saw it as unnecessary since the federal government was one of limited enumerated powers, and the federal government was not given the power to violate any of those rights. When state debates over ratification of the original Constitution raised the issue of a lack of a bill of rights, federalists like Madison did not want to delay ratification over the issue, but promised to add a bill of rights as soon as the new government was established. True to his word, Madison drafted and put through the amendments in the first few months of the first Congress in 1789.
Concerns over Amendments
The next step was to have three-quarters of the states ratify those amendments. At the time, there were eleven states, so nine of them would have to approve the amendments. Congress had approved the proposed amendments just before it left for the end of its first session at the end of September, 1789. President Washington transmitted the proposed amendments to the states on October 2.
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| Patrick Henry |
The first proposed amendment decreed that the House of Representatives would have one representative for every 30,000 people. As the population of the US increased, the Congress would set the size of the House so that it contained at least 200 members but no more than one representative for every 50,000 people. This amendment addressed the concern that had come up at some ratification conventions, that Congress had too much authority to set the size of the House of Representatives to whatever it wanted.
The second proposed amendment ordered that Congress could not alter the compensation of members of the House or Senate until an election had intervened. This addressed the fear that elected officials could get into office, give themselves massive raises, and collect that money before the voters could get rid of them. Under this amendment, Congress would have to propose a raise, then wait for an election before that raise would take effect.
When the state began considering the amendments, the first two hit some opposition. The first amendment, which I’m going to call the apportionment amendment, had been added to assure anti-federalist skeptics that voters could have a pretty close relationship with their representative because representation would be to a relatively small group. If a representative had only 30,000 constituents, and the average household was about six people, that meant there were only about 5000 heads of households per representative.
Opponents argued that the amendment would make the House too large. The House of Representatives had opened with only 59 representatives. The idea of a House with more than 200 members would make deliberation impossible. It would simply be a large mass of people who assembled for votes but who could not work to develop good legislation. Others argued that a large House would allow men of inferior abilities to win office. Rather than appealing to a larger body of voters, they would just have to convince a few friends and neighbors to get elected. Smaller states knew that their guaranteed one seat in the House would see its voting power diluted as larger states got more representatives. There was also the concern over cost. Having a larger Congress meant more tax dollars to pay all of those representatives.
The second proposed amendment, which required an election before a change in Congressional pay could take effect, also had its opposition. The main argument against what I’m going to call the pay amendment, was that the amendment would make Congressional pay more of a political issue. It would mean that many members of Congress would want to keep pay much lower in order to ingratiate themselves with the voters. This would mean that only men of independent wealth would be able to afford to serve in Congress and would result in the interests of poorer working people being diminished. Opponents argued that voters already had the ability to let their views be known about congressional pay without drawing it out as a higher profile issue.
There were also concerns about the other amendments. The protections of free speech might encourage licentiousness. The restriction on cruel and unusual punishments also took some criticism from those who thought criminals deserved what they got, and that this restriction might prevent that.
But the free speech provision, along with the other rights, had largely come from the English Bill of Rights and were well established in British common law. The main one that was not, was the Establishment clause, preventing the federal government from establishing a state religion. But that only applied to the federal governments. States were still free to establish whatever religions they wanted.
States Consider Ratification
Washington sent copies of the proposed amendments to the states in October, 1789. Less than two months later, on November 20th, the first state voted on them. The New Jersey Assembly took up the proposal and with relatively little debate voted to ratify eleven of the twelve amendments. The state rejected only the pay amendment. A month after that, Maryland took up consideration and ratified all twelve amendments.
North Carolina had refused to ratify the original constitution, in part because it lacked a bill of rights. When the second North Carolina Convention ratified the Constitution in November, the ink was barely dry on that work before the North Carolina legislature considered and ratified all twelve amendments in December. It became the third state to ratify the Bill of Rights, even before the US Congress had officially received word that the state had ratified the Constitution and joined the union. South Carolina followed suit a few weeks later, also ratifying all twelve amendments.
Also in January, New Hampshire signed on, approving all the amendments except for the pay amendment. Delaware approved all accept the apportionment amendment. Delaware, of course, was a small state and had only one representative and was unlikely to get another under any measure, so this amendment only gave more power to other states.
So, within three months of the proposal, six states had voted on the amendments and had either voted to adopt at least eleven of them. But as we saw with the Constitution, the earliest states were the easiest.
New York continued the process, approving eleven amendments and rejecting the pay amendment in February. Pennsylvania took up the amendment in March. They were the first to approve only ten amendments. They rejected both the apportionment and the pay amendment.
So, by then, the states were just one more state away from ratifying at least ten of the amendments. In May of 1790, Rhode Island finally joined the union and ratified eleven of the amendments, rejecting the pay amendment. But Rhode Island’s entry into the Union also brought the total number of states to thirteen, meaning that ten states would have to ratify rather than only nine to get the necessary three-fourths vote required. That was it. For another year and a half, no other states took up the ratification.
In November, 1791, Vermont joined the Union and ratified both the Constitution and all twelve amendments. But Vermont’s entry brought the total number of states to fourteen, meaning the required three-fourths rose to eleven states.
Virginia Ratification
One important holdout was Virginia. As I said, Madison had never really thought that a bill of rights was important as he deemed it unnecessary. But to make his constituents happy, he had drafted them and pushed through Congress. Two years after the fact though, Virginia still refused to vote on them.
Virginia had been reluctant to ratify the Constitution at all because it lacked a bill of rights. George Mason had refused to sign on at the Constitutional Convention based on that lack of a bill of rights. Now state leaders were refusing to approve the bill of rights that they had been demanding.
The reason for the reluctance was that many anti-federalist leaders thought that the amendments did not go far enough. They called it a “tub to the whale.” That is a 19th century saying that probably needs an explanation. Obviously a tub of water does little for a whale. By providing a tub to the whale, opponents thought that the proposed amendments were offering a phony and insufficient solution to the very real problem of a dangerously powerful federal government.
Patrick Henry remained an outspoken foe of the new government and had still not given up his dream of holding a second constitutional convention to rewrite some major flaws that he sawn in the first one. Henry believed that if the people ratified the Bill of Rights, it would quash all the political energy toward demanding that second convention.
To people like Henry, the Bill of Rights as proposed was simply a restatement of pretty non-controversial personal liberties. It completely ignored Virginia’s concerns that the federal government had too much power of taxation and the regulation of commerce. These had to be addressed now, or the moment would pass.
The Virginia House of Delegates took up the debate over the Bill of Rights only weeks after receiving them in 1789. Henry, by this time no longer governor but still a member of the legislature, spoke against ratification.
It soon became clear that Virginia’s House was willing to ratify the amendments, but the state Senate was not. Senators not only objected to the apportionment and pay amendments, but also to what we today call the First, Sixth, Ninth, and Tenth Amendments. Their issue was that the wording of these amendments was not as nearly as strong as the proposals they had sent to Congress along with their ratification of the original Constitution. They wanted the language to be stronger.
The problem, of course, was that a ratifying vote was simply an up or down vote. They had no authority to reword the proposals. In the midst of this debate, Henry simply left Richmond and went home. He did not announce his reasons, but it was generally believed that he had become frustrated that the legislature was unwilling to fight for stronger language.
After Henry left Richmond and went home, the legislature voted on a motion to demand that Congress propose new amendments that used the stronger language that Virginia had used in the proposals it had sent from the Constitutional ratifying convention. The vote on this motion was a tie. The Speaker voted against it, thus causing the motion to fail. Henry’s presence would have allowed it to pass.
Even so, the legislature also failed to ratify the amendments. Opponents were successful in getting the legislature to defer the matter to their next session. When the next session came, the legislature did not take up the matter again, but rather dealt with other matters. Finally, in the fall of 1791, the Virginia legislature took up the debate again.
By this time it was clear that there was not going to be a second constitutional convention and that the US Congress was not going to reconsider the wording of its amendments. The choice was to have this bill of rights, or none at all.
Having accepted that fact, the Virginia House of Delegates approved all twelve amendments, nearly unanimously on December 5, 1791. Ten days later, the Senate also ratified all the amendments. This gave the federal government the eleven state ratifications it needed to put into effect the ten amendments that we know as the Bill of Rights.
Other States
Even with the announcement of the ratification of the ten amendments, there were still three states that had not acted. The pay amendment, which had fallen five votes short so far, seemed pretty much dead. The apportionment amendment, which was only two votes away from success, still had a chance of ratification.
Connecticut had considered the amendments in late 1789 shortly after they received the proposals from Congress. The Connecticut House approved eleven of the twelve amendments, rejecting only the pay amendment. The Governor and Senate, supported all twelve. Because the two bodies did not agree, and refused to compromise, the Senate voted to delay action until the following spring.
The legislators took up the question again in May 1790, the house only voted to approve ten amendments while the Senate still wanted all twelve. Once again, they agreed to postpone a final decision until 1791. After Virginia ratified the amendments, making the ten part of the Constitution, Connecticut gave up all further consideration and never bothered to make a final determination.
Georgia had been one of the states that demanded a bill of rights when it ratified the original Constitution. But when it came to ratify a bill of rights, Georgia did not act. During the debate in Congress, Georgia Congressman James Jackson argued that the amendments were unnecessary since the constitution had limited enumerated powers and those powers already denied the federal government any authority to infringe on individual rights. He thought the proposed amendments as a mere restatement of rights would not lead to any actual security. These views seem to be shared by the Georgia legislature, which never took up debate on the amendments.
Massachusetts debated the amendments, but also never came to a final conclusion. In early 1790 when the state legislature came into session, Governor John Hancock encouraged the legislature to ratify the amendments. A month later, the state senate agreed to approve ten of the amendments, rejecting the apportionment and pay amendments. The house also rejected the apportionment and pay amendments.
This rejection of the apportionment amendment is particularly surprising since Massachusetts had demanded that such an amendment be added when it ratified the original constitution. Two years later, the legislature rejected the idea.
The two bodies were not in agreement though, because the House also raised concerns about the twelfth proposed amendment, what eventually became the tenth amendment. This is the one that explicitly reserves unenumerated powers to the states or to the people. Several members raised concerns about the wording, so the House only approved nine amendments, while the Senate approved ten.
Because of this dispute, even though both houses agreed to nine of the amendments, they did not pass a formal bill and notify the federal government of their ratification. As a result of not completing the process, Massachusetts support for the bill of rights was never finalized. When Jefferson announced ratification of the ten amendments, Massachusetts legislators dropped the matter completely. They considered further debate was irrelevant.
Implementation
At the end of December, 1791, President Washington received word that Virginia had become the eleventh state to vote in favor of ratification. That meant that three-fourths of the states had ratified ten of the twelve amendments. They were now part of the Constitution.
A few months later, Secretary of State Jefferson sent announcements to the governors, burying the announcement in a list of other matters.
I have the honor to send you herein enclosed, two copies duly authenticated, of an Act concerning certain fisheries of the United States, and for the regulation and government of the fishermen employed therein; also of an Act to establish the post office and post roads within the United States; also the ratifications by three fourths of the Legislatures of the Several States, of certain articles in addition and amendment of the Constitution of the United States, proposed by Congress to the said Legislatures.
Jefferson’s announcement, almost in passing along with other legislation, gives an indication about how much of a non-event ratification was considered at the time. Supporters of the bill of rights mostly thought of them as an irrelevant restatement of obvious rights. Opponents generally agreed with that, but wanted stronger protections that would actually mean something. Most leaders considered the whole effort as a sop to voters that basically said, yes, we support individual rights and here is a list of some which we like. The actual defense of these liberties would still require that the people and their representatives live up to them.
Next week, the new US army faces its first significant battle, which takes place in Ohio.
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Next Episode 376 Battle of Wabash
Previous Episode 374 Haitian Revolution Begins
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Further Reading
Websites
The Bill of Rights: A Transcription https://www.archives.gov/founding-docs/bill-of-rights-transcript
The Original 12 Amendments? https://archivesfoundation.org/newsletter/10-bor-facts
James Madison's Failed Amendments https://teachinghistory.org/history-content/ask-a-historian/21861
What about the Two Amendments and Three States that Got Away? https://teachingamericanhistory.org/resource/themes/amendments-and-states-that-got-away
When Connecticut Ratified the Bill of Rights in 1939 https://yankeeinstitute.org/2025/03/07/when-connecticut-ratified-the-bill-of-rights-in-1939
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).
Deegan, Paul J. The fights over rights: ratification, the Bill of Rights, Abdo & Daughters, 1987 (borrow only).
Dudley, William The Bill of Rights: Opposing Viewpoints, San Diego: Greenhaven Press, 1994 (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).
Schwartz, Bernard The Great Rights of Mankind: A History of the American Bill of Rights, New York: Oxford Univ. Press, 1977 (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.
Bordewich, Fergus M. The First Congress: How James Madison, George Washington, and a Group of Extraordinary Men Invented the Government, Simon & Schuster, 2016.
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.
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