American Revolution Podcast

Sunday, August 24, 2025

ARP363 The French Revolution

As we go through the events taking place in America in 1789, it is important to remember how an important event in Europe also impacted America. The French Revolution began in 1789. I’m not going to go into detail about the French Revolution since this podcast is about the US. But it is a fascinating topic and there are several really good podcasts that cover it if you are interested. My focus, however, will be on how the French Revolution impacted the United States.

Crisis in France

France had been America’s closest ally. I think it’s fair to say that The French Army and Navy, along with French funding, kept the American Revolution going in its final years. The US owed not only a debt of gratitude to France, but also a large money debt from all the loans that France had provided during the war.

Storming the Bastille

When we talk about money, the amounts can get very confusing. Not only has the value of the US dollar changed greatly over time, but the French livre no longer even exists. I’ve read others, with far more expertise than I have, try to make sense of the relative values of this currency, but I’ll admit it’s all still very confusing to me. I’m going to try to speak in terms of US dollars, and I’m talking about dollars from this era, not inflation adjusted. But just keep in mind that most of these numbers are estimates or educated guesses. I’m using an estimate of about 5 French livres to 1 US dollar when I make my comparisons. This seems to be a rough consensus of comparative value at the time.

When Alexander Hamilton completed his calculations of US public debt in 1790, he estimated that the total Federal debt was just over $77 million. Most of that was owed to Americans for their contributions to the Revolutionary War, and paying back all those Continental dollars that Congress had issued. But a substantial amount, nearly $12 million, was due to foreigners. About $2 million was owed to Dutch investors, and probably about $10 million to France. Some of this included interest, so I can’t say exactly how much was lent in the first place.

For comparison’s sake, the entire Federal budget in 1790 was just over $500,000, and about 10% of that was paid interest on foreign debts.

I’ve seen estimates that claim France spent nearly $250 million on the American Revolution. But that amount is far more than the amount given in aid or loans. Those are the total costs of the war with Britain. Many French officials had been reluctant to get involved in the Revolutionary War because of the potential costs. They were still recovering from the costs of the Seven Years War. With all this debt, France was on the verge of bankruptcy. It didn’t help that the US could not repay its debts, but even if it did, the total French debt was overwhelming for the King and his ministers.

France was a large and wealthy country, but government mismanagement, not only due to foreign wars, but also many other costs, had caused French public debt to react roughly $1 billion by 1789. Interest on the debt alone was roughly $60 million. That was more than half of the total government revenues.

The French government had already raised taxes to nearly unbearable levels. To make matters worse, a poor harvest in 1788 caused food prices to go through the roof. People simply could not afford to feed their families.

In times like these, when things got bad, it forced people to look for a reason for their suffering. The commoners, who felt unfairly burdened by taxes, paid more attention to the tax exemptions given to the nobles and the clergy, known in France as the First Estate and the Second Estate. These two groups controlled most of the land, and were doing quite well. Yet they contributed almost nothing to government expenditures. For the commoners, also known as the Third Estate, this was becoming increasingly unacceptable. Riots began breaking out all over France.

In August of 1788, the royal treasury was empty. The treasury suspended payments of all government debts. The minister of finance resigned. His replacement Swiss bank Jacques Necker told officials that there was no way to get the finances in order unless the nobles and clergy started kicking in some taxes.

To move this process forward, the government called for a meeting of the Estates General in the spring of 1789. This was an opportunity for representatives of the three estates to come together to set policy: the nobles, the clergy, and the commoners. It had been nearly two hundred years since the last Estates General had met back in 1614. It was being revived to deal with the national emergency.

When the Estates General met in May, they began fighting over all sorts of things, including how to conduct votes. The elected commoners, who by the way were mostly lawyers, bankers and wealthy merchants, not peasants, began to complain about the clergy and nobility having too much power. They ended up demanding a new constitution for France which would give the common people more power in government. Many of the clergy representatives, who were parish priests, and some of the more liberal nobility, sided with the commoners in demanding more radical changes.

The government, realizing this was getting out of control, tried to shut down things, but the Assembly refused to disband. By July, they had renamed themselves the National Constituent Assembly, and began drafting a new constitution.

On July 11, the king dismissed Necker, the liberal finance minister who started all of this mess. That dismissal led to riots in Paris. Three days later, on July 14, rioters stormed the Bastille prison in Paris, killing the guards and administrators and seizing the gunpowder inside. A few days later, the king restored Necker, but by then it was too late.

Over the course of the summer, the government attempted to implement reforms as the people continued to riot. In late August, the Assembly adopts the Declaration of the Rights of Man and of the Citizen, drafted largely by the Marquis de Lafayette. Reformers move toward the goal of establishing a constitutional monarchy based on the principles of rule by the people and protecting human rights.

American Reaction

All of this unfolded during the spring and summer of 1789, just as the United States was implementing its new federal government. George Washington was kept well informed of events. He and the Marquis de Lafayette kept up a frequent correspondence in the years leading up to the French Revolution.

Lafayette had become a hero in France after the American Revolution and emerged as one of the leading reformers in the early years of the French Revolution. In hopes of restoring order, the King had appointed Lafayette as the Commander of the National Guard. Lafayette spoke with optimism about the reforms taking place in France. And was overjoyed to share this with his old friend at Mount Vernon.

Similarly, the American minister to France, Thomas Jefferson, viewed the events taking place in France with great joy. He personally attended the estates General in May. He helped Lafayette draft his Declaration of the Rights of Man and the Citizen. The document sets forth many of the same ideas found in the Declaration of Independence and the Virginia Declaration of Rights.

Jefferson wrote letters back to America informing Americans of the progress. Most of his detailed letters went to John Jay, who was still handling foreign affairs under his authority from the Confederation Congress. Jay, of course, relayed this information to President Washington.

Thomas Jefferson, still in France until September of 1789 was an enthusiastic supporter of the revolution. He regularly corresponded with Lafayette, who was a leading figure in the revolution at the time. France appeared to be evolving into a constitutional monarchy, where the King of France would be limited by certain constitutional principles, similar to those that inspired the American Revolution.

Even in the colonial era, British colonists in America had celebrated Britain’s constitutional monarchy, where the king had very minimal political power and the government was run on Whig principles that protected basic rights from arbitrary rule. The American Revolutionary War was about the British government failing to observe those traditional constitutional principles that were important to any free society

During this colonial era, they contrasted the basic protections of the British common law and a constitutional monarchy, with the evils in France. There the king was seen as an absolute ruler who guaranteed no rights to the people.

We can argue that this view might have been a bit skewed, but it was the conventional wisdom at the time. The Americans overlooked their distaste for the French government during the Revolutionary War since they were just happy for the foreign aid. After the war, France remained the closest ally of the United States despite the fact that many Americans still believed that the French government still denied certain basic rights to their own people.

When the French Revolution began, many people saw this as an opportunity to implement the principles of constitutional monarchy that would ensure the liberties of the people of France. That’s what reformers like Lafayette were pushing, and that’s initially what seemed to be happening. The King of France was negotiating with the reformers for a government that would leave him in power but would restrict his authority, much like the King in Britain. In short, the French revolution appeared to move America’s closest ally toward government reform that would make that government much closer to what all Americans believed was a fair and just government.

Lafayette, at the time, saw himself as the French Washington. He would help establish a new government based on liberty, and could then withdraw into retirement himself, having established a new government for France. Around this time, he wrote to a friend:

My situation is truly extraordinary. Here I am at the center of a great adventure and the only thing I really want is to get out of it, free from all reproach at having indulged any thoughts of personal ambition, and, having put everything to rights, to withdraw into obscurity at a quarter of my fortune which was mine when I came into the world.

Jefferson was also optimistic, but still saw concerns. There were divisions among the reformer factions. There were also factions who wanted to restore the king to his former power, and those who were pushing the duc d’Orléans into a position of power. He saw Lafayette as the key to keeping the reformer factions together, and keeping the monarchist factions at bay. Lafayette controlled an army of 50,000, larger than any army ever commanded by Washington, and could lead that force to maintain stability while ensuring the reformers continued in power.

Jefferson also viewed with concern the economic condition of the people, which could cause the process of enlightenment reform to be pushed aside over a full civil war. In his final report to John Jay before leaving France, Jefferson noted that “civil war is much talked of and expected.”

Jefferson listed three possible problems that could lead to a full blown civil war in France. One was the lack of bread. The common people in Paris were unable to get enough bread to feed themselves, despite there being plenty of grain to make it. The incompetence of the reformers running Paris was the problem, and they could not seem to get their act together. A second problem was the government’s bankruptcy. Many people in a whole range of jobs relied on public funds to make a living. The inability to maintain these government jobs would create a huge class of disaffected Parisians. A third concern was the king leaving the country. King Louis was concerned about how things were going, and was essentially being held as a prisoner. He predicted that the revolution could turn much darker and very much would have liked to have taken his family to Austria, where Queen Marie Antoinette’s brother was emperor. Jefferson and the French reformers shared the concern that if the king left, it would sow chaos within the country and the factions would go to war with each other to fill that vacuum.

Despite these concerns, Jefferson reported

Upon the whole I do not see it as yet probable that any actual commotion will take place. And if it does take place I have strong confidence that the patriotic party will hold together, and their party in the nation be what I have described it.

Washington, and most Americans viewed the early reports of the revolution with the same enthusiasm as Jefferson. It was seen as a transfer of the principles of liberty and self-government that had fueled the American Revolution, making their way to Europe. Even so, men like Washington knew that such reforms never came easily.

Gouverneur Morris was also in Paris at this time. He was a private citizen, working with Robert Morris on business ventures between the US and France. In this role he was able to mix with the powerful and wealthy groups in Paris, hearing their gossip. Morris was less optimistic than Jefferson. He saw the Orléans faction as making an effort to fan the flames of chaos in hopes of benefitting from it. Lafayette aside, most of the leaders in Paris were less concerned about reforming government and much more interested in enriching themselves personally through the ongoing instability.

Morris also hoped Lafayette would step up to control events. He suggested to Lafayette that he take a position as the governor of the region that controlled Paris. Lafayette, preferring Washington’s example during the American Revolution, maintained that he would control the military and leave civil affairs to others.

By October, Washington had received most details from the first summer of the French Revolution. In a letter to Gouverneur Morris on October 13 Washington expressed his pleasure at the events so far, but a concern for the future:

The revolution which has been effected in France is of so wonderful a nature that the mind can hardly realise the fact—If it ends as our last accounts to the first of August predict that nation will be the most powerful and happy in Europe; but I fear though it has gone triumphantly through the first paroxysm, it is not the last it has to encounter before matters are finally settled. In a word the revolution is of too great magnitude to be effected in so short a space, and with the loss of so little blood.

So, by the end of 1789, many Americans were still very happy about the events in France. Those with more experience still saw the possibility of the reforms drifting into chaos and civil war, but that had not happened yet.

No Ambassadors

During this critical period, Jefferson left his post as Ambassador to France. No one replaced him in that role. Jefferson’s assistant, William Short who was appointed as charge d'affaires, became the head of the American delegation in France after Jefferson left. It would be several years before the US would send a new ambassador to France.

At the same time, the French Ambassador to the US was proving increasingly ineffective. The Comte de Moustier had come to America in 1787. He was a French aristocrat who, after his arrival, reported back his doubts about America’s capacity to govern itself.

His mission seemed to be more focused on encouraging more commercial relations between the US and France. He even visited Mount Vernon in 1788 to discuss trade issues with Washington, who was at the time a private citizen, but was expected to become the first president. But Americans were not happy with him. Madison, in a letter to Jefferson in 1788 wrote “Moustier proves a most unlucky appointment. He is unsocial, proud and niggardly and betrays a sort of fastidiousness toward this country.”

Moustier had a twenty year record as a diplomat and seemed suited for the role when he received it. But Moustier was not a revolutionary and remained a royalist as the revolution back home began to unfold. Jefferson called on officials in France to remove him.

Reformers in Paris wanted to recall him, but did not feel politically powerful enough to do so without good cause, beyond ideology, and without having another position where they could move him. As a result, reformers in France essentially told Washington and other Americans to ignore Moustier until they could find a replacement.

Moustier ended up leaving America in October of 1789, returning to France. Neither France nor the US had an Ambassador in the other’s country by the end of the year. I want to stress that this was not the result of countries recalling ambassadors because of some diplomatic rift. It just sort of happened. Jefferson was returning to become Secretary of State, and Washington saw no need to replace him for the next few years. Moustier returned to France, primarily because he was not on the same page politically as the reformers in the new government and really could not represent the new France to the US. The French government was too conflicted with its own factions to get around to appointing a new ambassador.

As 1789 came to an end, everyone seemed to be waiting to see what happened next with the French Revolution.

Next week, we’ll take a look at a more domestic foreign policy, as President Washington goes on tour, and the US finally convinces North Carolina to join the Union.

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Next Episode 364 North Carolina Joins the Union (coming soon)

Previous Episode 362 Debating the Bill of Rights

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Sunday, August 17, 2025

ARP362 Debating the Bill of Rights

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.

Even so, Madison had tried to lay the groundwork for the amendments by putting language into George Washington’s inaugural address, which he wrote for the President. Washington, of course, wanted to defer the issue to Congress. His address only said that congress should consider the amendments that they consider expedient. He did not suggest any particular amendments, but said he would leave that up to Congress.

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.

- - -

Next Episode 363 The French Revolution

Previous Episode 361 Bill of Rights - First Draft

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Thursday, August 14, 2025

ARP361b Madison's Draft Bill of Rights

James Madison proposed nine changes to the Constitution on June 8, 1789. Under his proposal, the changes would be inserted into the original Constitution, with some deletions as well. Below is the full text:

First. That there be prefixed to the constitution a declaration—That all power is originally vested 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 amount 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 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 authorised 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.

* * *

To view the details of his proposal in Context, go to: https://founders.archives.gov/documents/Madison/01-12-02-0126

Sunday, August 10, 2025

ARP361 Bill of Rights: First Draft

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.

James Madison

The concept of a bill of rights had become an ancient bulwark of freedom in English history. The Magna Carta of 1215 limited the king’s power in certain ways that were designed to establish a rule of law, and rejected the idea of an absolute ruler who could do whatever he wanted. This notion found its way into the English Bill of Rights in 1689, following the Glorious Revolution in England.

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.

- - -

Next Episode 362 Debating the Bill of Rights

Previous Episode 360 Judiciary Act of 1789

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American Revolution Podcast

Sunday, August 24, 2025

ARP363 The French Revolution

Crisis in France

American Reaction

No Ambassadors

Signup for the AmRev Podcast Mail List

Further Reading

Websites

Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Vovelle, Michel The Fall of the French Monarchy, 1787-1792, Cambridge Univ. Press, 1984.

Sunday, August 17, 2025

ARP362 Debating the Bill of Rights

House Reception

Proposed Amendments

Committee Changes

House Debate

Senate Debate

Joint Committee

Signup for the AmRev Podcast Mail List

Further Reading

Websites

Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Thursday, August 14, 2025

ARP361b Madison's Draft Bill of Rights

Sunday, August 10, 2025

ARP361 Bill of Rights: First Draft

Advocates for a Bill of Rights

Opposition

Madison’s Conversion

First Draft

Signup for the AmRev Podcast Mail List

Further Reading

Websites

Free eBooks
(from archive.org unless noted)

Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Sunday, August 24, 2025

ARP363 The French Revolution

Crisis in France

American Reaction

No Ambassadors

Signup for the AmRev Podcast Mail List

Further Reading

Websites

Books Worth Buying(links to Amazon.com unless otherwise noted)*

Vovelle, Michel The Fall of the French Monarchy, 1787-1792, Cambridge Univ. Press, 1984.

Sunday, August 17, 2025

ARP362 Debating the Bill of Rights

House Reception

Proposed Amendments

Committee Changes

House Debate

Senate Debate

Joint Committee

Signup for the AmRev Podcast Mail List

Further Reading

Websites

Books Worth Buying(links to Amazon.com unless otherwise noted)*

Thursday, August 14, 2025

ARP361b Madison's Draft Bill of Rights

Sunday, August 10, 2025

ARP361 Bill of Rights: First Draft

Advocates for a Bill of Rights

Opposition

Madison’s Conversion

First Draft

Signup for the AmRev Podcast Mail List

Further Reading

Websites

Free eBooks(from archive.org unless noted)

Books Worth Buying(links to Amazon.com unless otherwise noted)*

Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Books Worth Buying
(links to Amazon.com unless otherwise noted)*

Free eBooks
(from archive.org unless noted)

Books Worth Buying
(links to Amazon.com unless otherwise noted)*