Documentary History of the Bill of Rights – Constitutional Convention and Early Ratification
- Edmund Randolph’s Objections (September 10, 1787)
Edmund Randolph lists twelve objections he had to signing the Constitution. He would, however, sign with the understanding that “another general Convention” would be called “with full power to adopt or reject the alterations proposed by the State Conventions.”
- George Mason’s Call for a Bill of Rights (September 12, 1787)
The Committee of Style Report was presented on September 10. On September 12, George Mason supported by Elbridge Gerry moved that a committee be created to prepare a prefatory Bill of Rights modeled on “the state declarations.”
- George Mason’s Objections to the Constitution (October 1787)
The first of George Mason’s ten objections to the Constitution begins: “There is no declaration of rights.” In particular, “there is no declaration of any kind for preserving liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in times of peace.” Mason’s position is that a federal bill of rights is both imperative and valuable. He was concerned that Congress may abuse the supremacy clause and the necessary and proper clause. The supremacy clause makes federal laws “paramount to the laws and constitutions of the several states.” Thus, “the declaration of rights, in the separate states, are of no security.” The necessary and proper clause enables Congress to “grant monopolies in trade and commerce, constitute new crimes, inflict unusual and sever punishments, and extend their power as far as they should think proper.”
- State House Speech by James Wilson (October 6, 1787)
James Wilson’s “State House” speech was the first official defense of the Constitution and responds directly to the objections George Mason had expressed during the last month of the Convention. It was published in the Pennsylvania Herald and widely distributed as “an authoritative explanation” of the Constitution. Wilson argued that at the state level, a bill of rights is necessary and salutory because “everything which is not reserved, is given,” but “superfluous and absurd” at the federal level because “everything which is not given, is reserved.” Wilson’s theory of “distinction” was invoked by both supporters and opponents.
- Letter from Richard Henry Lee to Edmund Randolph (October 16, 1787)
This letter from Lee to Randolph contains a list of proposed amendments. Lee originally presented them in one continuous paragraph; to assist the reader, we have broken the paragraph down into fourteen thematic divisions. Lee reiterates Mason’s claim that a bill of rights is necessary and proper and articulates the traditional argument that a bill of rights is needed to protect the people from the tyranny of the few.
- Elbridge Gerry’s Objections to the Constitution (October 18, 1787)
The Antifederalist Elbridge Gerry submits to the Massachusetts Legislature his principal reasons for not signing the Constitution on September 17, 1787 “that there is no adequate provision for a representation of the people; that they have no security for the right of election; that some of the powers of the Legislature are ambiguous, and others indefinite and dangerous, that the Executive is blended with and will have an undue influence over the Legislature; that the judicial department will be oppressive; that treaties of the highest importance may be formed by the President with the advice of two thirds of a quorum of the Senate; and that the system is without the security of a bill of rights.” He urges that the plan be amended before being adopted.
- Brutus II Essay (November 1, 1787)
In the second of sixteen essays that he published in the New York Journal, the prominent New York Antifederalist, Brutus, concurs with the arguments of Mason and Lee. There was no doubt in their minds that the new plan of government separation of powers, bicameralism, and federalism to the contrary notwithstanding concentrated power in the hands of the few. There is also remarkable uniformity to the specific individual rights that need protection: rights of conscience, freedom of the press, freedom of association, no unreasonable searches and seizures, trial by jury in civil cases, and no cruel and unusual punishment.
- Federalist No. 10 (November 22, 1787)
Madison argued that the best security for individual rights is the promotion of an extensive system of opposite and rival interests that, in turn, are filtered into the institutions of government by means of a scheme of representation.
- The Dissent of the Minority of the Convention of Pennsylvania (December 18, 1787)
Even though Pennsylvania voted to ratify the Constitution, the Report issued by the twenty-three Pennsylvania opponents had a considerable impact on the subsequent campaign. The Report proposed two different kinds of amendments. On the one hand, the minority called for amendments that would re-establish the principles of the Articles of Confederation. These were unfriendly to the Constitution. On the other hand, they proposed that a declaration of rights be annexed into the Constitution. What became the first, fourth, fifth, sixth, seventh, and eighth amendments to the Constitution were included in their list.