The State Ratifying Conventions and Their Impact on James Madison’s Proposals in the First Congress

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Proposed Amendments and Bill of Rights from State Ratifying Conventions
Power Vested in the People
Life, Liberty, Property, Happiness
Alter/Abolish/Create Government
Representation/Census/Taxation
Legislative Compensation
Civil Rights and Religious Belief
No Established Religion/Favored Sect
Rights of Conscience/Free Exercise
Freedom of Speech
Freedom of Press
Freedom of Assembly
Freedom of Petition
Keep and Bear Arms/Militia
Arms and the Religiously Scrupulous
Quartering of Troops
Double Jeopardy
Self-Incrimination
Due Process of Law
Takings/Just Compensation
No Excessive Bail and Fines
No Cruel and/or Unusual Punishments
No Unreasonable Searches/Seizures
Speedy/Public Trial in Criminal Cases
Nature of Accusation
Confrontation of Accusers
Compulsory Witness
Assistance of Counsel
Rights Retained by the People
No State & Equal Right of Conscience
No State & Freedom of Press
No State & Trial by Jury (Criminal)
$ Limitation on Appeals
Common Law and Jury Trial
(Local) Impartial Jury for All Crimes
Various Trial “Requisites”
Grand Jury for Loss of Life or Limb
Non-Local Trial of Crimes
Separation of Powers
Reservation of Non-Delegated Powers
Totals 5 6 9 3 27 2 28 3 29 2 27

The first column contains the 39 items on Madison’s June 8 list. The remaining columns contain the recommendations agreed to by seven state ratifying conventions after deliberation and a formal vote. We are interested in charting the relationship between the recommendations put forward by the ratifying conventions and what Madison actually proposed on June 8.

List of Madison’s Proposals Pennsylvania Minority Report, December 18, 1787 Maryland Ratifying Convention, April 26, 1788 Harrisburg Proceedings, September 3, 1788
Power Vested in the People
Life, Liberty, Property, Happiness
Alter/Abolish/Create Government
Representation/Census/Taxation
Legislative Compensation
Civil Rights and Religious Belief
No Established Religion/Favored Sect
Rights of Conscience/Free Exercise
Freedom of Speech
Freedom of Press
Freedom of Assembly
Freedom of Petition
Keep and Bear Arms/Militia
Arms and the Religiously Scrupulous
Quartering of Troops
Double Jeopardy
Self-Incrimination
Due Process of Law
Takings/Just Compensation
No Excessive Bail and Fines
No Cruel and/or Unusual Punishments
No Unreasonable Searches/Seizures
Speedy/Public Trial in Criminal Cases
Nature of Accusation
Confrontation of Accusers
Compulsory Witness
Assistance of Counsel
Rights Retained by the People
No State & Equal Right of Conscience
No State & Freedom of Press
No State & Trial by Jury (Criminal)
$ Limitation on Appeals
Common Law and Jury Trial
(Local) Impartial Jury for All Crimes
Various Trial “Requisites”
Grand Jury for Loss of Life or Limb
Non-Local Trial of Crimes
Separation of Powers
Reservation of Non-Delegated Powers
Totals 20 8 2

We have excluded the list of suggested rights that appeared at the Pennsylvania and Maryland ratifying conventions from what we shall call the official list of seven because these two ratifying conventions did not officially agree to a list of recommendations to be issued to the First Congress. Nevertheless these suggestions from discontented Antifederalists have been placed at the side so that the reader can grasp the extent to which the issue of the absence of a bill of rights was a concern at 9/13 of the state ratifying conventions, the exact ratio needed for the ratification of the Constitution. And only 1/2 and 1/5 of the list generated by the discontented Antifederalists in Pennsylvania and Maryland made it onto Madison’s list.

The Pennsylvania Minority Report is important because of its surprising Antifederalist prudence. It gives some apparent credibility to the claim: “If it weren’t for the Antifederalists there would be no Bill of Rights.” The Maryland Ratifying Convention is important for its attempt to secure what it calls the British tradition. The Harrisburg Proceedings are important not for its content but because its main point is to call for a second Convention to amend the work of the Framers. This meeting no doubt encouraged Madison in his efforts to have the first Congress do the amending under his guidance and supervision.

Massachusetts and New Hampshire are important because these proposals did have a strong bearing on ratification in these two states, but were not vital for what finally appeared on Madison’s list of 39 rights. 5/39 from Massachusetts and 9/39 from New Hampshire are hardly influential numbers. The same is true from South Carolina where only 6/39 appears on Madison’s list. But, again, these three states were vital for the ratification of the Constitution.

The story is far different when we turn to Virginia and New York. Over 2/3 of Madison’s June 8 proposals have a strong affinity with the recommendations from these two states. Moreover, there is an even stronger correlation between the list generated by these two state ratifying conventions and the final United States Bill of Rights passed by Congress and the state legislatures.

The third group consists of North Carolina and Rhode Island. Both lists seem as strong in their affinity with Madison’s list as do the lists of Virginia and New York. But there is a twist in the story. Virginia and New York were “inspirational” rather than “confirmational” since their lists took place before June 8. North Carolina and Rhode Island were “confirmational” rather than “inspirational,” because they were announced way after June 8 and after the conclusion of the first session of the First Congress.

In conclusion, to the extent that the list of 39 rights that Madison introduced in the First Congress was influenced by the dynamics of the ratification campaign, then it is necessary and sufficient to emphasize the Virginia and New York ratifying conventions. And we need to recognize that there is something uniquely Madison about Madison’s June 8 list, namely, restraints on the state governments with respect to religion, press, and juries. These restraints made their way through the House of Represenatives but were overturned in the Senate. It is also worth noting that another inspirational impact on Madison’s list comes from George Mason’s Virginia Declaration of Rights and Jefferson’s Declaration of Independence. Also influential were the exchange of letters between Madison and Jefferson over the need for, and the content of, a Bill of Rights.

Contents

Introduction

Introductions, the documentary history of each amendment, and major themes about the adoption of the Bill of Rights.

From Political Liberty to Social Freedom

Using artwork, see how the idea of rights has changed throughout American history.

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Documentary Origins and Politics of the Bill of Rights

Interactive chart showing the origins of each of the rights in the Bill of Rights.

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