During the final week of the Convention, Edmund Randolph clearly felt uneasy about the final draft of the Constitution that emerged from the Committee of Style Report. He called for a second convention and that became a persistent theme of the Antifederalists from Virginia and New York who wanted to return to the structure of the Articles of Confederation. On the other hand, George Mason, author of the Virginia Declaration of Rights, expressed his wish that “the plan had been prefaced with a Bill of Rights [It] would give great quiet to the people” and would be easy to prepare given the presence of state declarations. His motion, supported only by Elbridge Gerry, was deemed unnecessary.
Apparently, Mason left Philadelphia very upset with what had taken place. Writing to Jefferson on October 24, 1787, Madison notes that “Col. Mason left Phila. in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed toward the close of business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.” Madison concludes: “His conduct has given great umbrage to the Count of Fairfax, and particularly to the Town of Alexandria. He is already instructed to promote in the Assembly the calling of a Convention, and will probably be either not deputed to the Convention, or be tied up by his express instructions.”
By the Summer of 1787, with the exception of the omission by the Constitutional Convention, there was an emerging “deliberate sense of the community” that a bill of rights either preface or be inserted within constitutional documents. And that Americans, as Jefferson remarked in the remarkable exchanges with Madison, had become used to a bill of rights and was something to be expected by all lovers of free government. And, however good the work of the Constitution, there was still the need to make the union more perfect.
Opponents of ratification of the Constitution argued that the absence of a bill of rights demonstrated that rights were insecure under the proposed Constitution. They considered the proponents’ arguments to be ingenious at best: how could the Constitution be a bill of rights (an argument proposed by James Wilson and Alexander Hamilton), yet include certain rights, (Hamilton pointed to Article I, Section 9) and then ignore such fundamental rights as freedom of religion, freedom of the press, and trial by jury? How could one grant Congress the power of governing (Article I, Section 8) and constitutional supremacy over state laws, (Article VI) and still argue that the Constitution is a document in which, according to Wilson, in his State House Speech, “everything which is not given, is reserved?” Thus argued the Antifederalist Brutus. And thus also argued the Pennsylvania Minority at the Pennsylvania Ratifying convention.
But lurking under this Antifederalist support for a traditional bill of rights to limit the reach of government were a more strident group of Antifederalists who favored amendment proposals that would alter the power and structure of the new federal government back in the direction of the Articles of Confederation. It is imperative to the unfolding of the political dimension of the Bill of Rights that the distinction between amendments to the Constitution and a bill of rights be kept distinct. The fact that, in the end, the U. S. Bill of Rights appears as 10 Amendments to the Constitution is the result of the politics of the First Congress and the shifting meaning and use of language that took place at the time of the American Founding. See, for example, the shift in the meaning of both republicanism and federalism.
Interestingly, even after the requisite nine states ratified the Constitution, Mason and Gerry became more and more interested in amendments that altered the structure and powers of the new government and less and less interested in limiting its reach by means of a bill of rights. Once the Constitution was ratified, Madison in the First Congress occupied the position formerly held by Mason and Gerry at the Philadelphia Convention.