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The Politics of the Bill of Rights

By Natalie Bolton

Introduction:

To assist teachers in teaching the founding of the United States government, Professor Gordon Lloyd has created a website in collaboration with the Ashbrook Center at Ashland University on the Bill of Rights. In an effort to assist students in understanding the origins of the Bill of Rights and how the Bill of Rights became the first ten amendments of the U.S. Constitution, two lesson plans have been created that combine content from websites created by Gordon Lloyd that tell the story of the Bill of Rights. Students will review several primary source documents including: the Magna Carta; Petition of Right; English Bill of Rights; Massachusetts Body of Liberties; Pennsylvania Frame of Government; Pennsylvania Charter of Privileges; Declarations and State Constitutions to understand and explain the origins of the Bill of Rights. Students will analyze a primary source, Thomas Jefferson, “Tabulation of State Votes on Amendments to the Constitution,” 1789-1791, Thomas Jefferson Papers, Library of Congress, Madison’s June 8, 1789 speech to Congress, Report of the House Select Committee (July 28, 1789), House Approves Seventeen Amendments (August 24, 1789), First Congress Approves Twelve Amendments (September 25, 1789), and Adoption of the Ten Amendments (December 15, 1791) to explain how the Bill of Rights became the first ten amendments of the U.S. Constitution. The following lesson will explore the politics behind the Bill of Rights by examining Madison’s suggestion of 9 proposals, which included 39 components. He originally proposed to embed the 9 proposals within the Articles of the Constitution but “through politics,” some of the proposals evolved to become the first 10 amendments to the U.S. Constitution or the U.S. Bill of Rights.

The Part 2: The Politics of the Bill of Rights lesson will begin by having students analyze a primary source, Thomas Jefferson, “Tabulation of State Votes on Amendments to the Constitution,” 1789-1791, Thomas Jefferson Papers, Library of Congress. Analyzing this primary source will serve as a hook to allow students to explore how the United States ended up with the rights in the Bill of Rights and how it became a separate document to the U.S. Constitution. Students will complete a series of comparisons and summarize primary source readings to answer the lesson guiding question, “Why does the U.S. Bill of Rights appear as amendments to the U.S. Constitution and what changes in content did the First Congress make to Madison’s June 8th proposals?”

Students will begin their investigation by:

1.   Comparing the First Congress Approves Twelve Amendments

(September25,1789) to the U.S. Bill of Rights

  1. Comparing the Report of the House Select Committee (July 28, 1789), House Approves Seventeen Amendments (August 24, 1789) to the First Congress Approves Twelve Amendments (September 25, 1789).
  2. Summarizing Madison’s June 8, 1789 speech and Congresses to the Report of the House Select Committee (July 28, 1789).

The lesson will conclude by students responding to a document-based essay question aligned with the lesson learning objectives. Students will be asked to write a response to the following:

Using your notes from the three activities on the politics of the Bill of Rights and The Fate of Madison’s Proposals for the Bill of Rights chart:

  1. Explain by citing evidence how the content of Madison’s proposals from June 8, 1789 changed to what we now call the U.S. Bill of Rights.
  2. Explain if it makes more sense for the U.S. Constitution to limit and qualify the rights of the government, as Madison suggested on June 8, 1789 speech, within the Articles of the U.S. Constitution or as a separate document, the U.S. Bill of Rights.

Guiding Question:

Why does the U.S. Bill of Rights appear as amendments to the U.S. Constitution and what changes in content and placement did the first Congress make to Madison’s June 8th proposals?

Learning Objective:

After completing this lesson, students should be able to:

1. Analyze primary source documents related to the creation of the U.S. Bill of Rights.

2. Cite evidence to explain how the location and the content of Madison’s nine proposals presented on June 8th to Congress, to make alterations to the Articles of the Constitution, were altered by Congress and led to the creation of the U.S. Bill of Rights.

Background Information for the Teacher:

James Madison’s Expectation to Ratify the U.S. Constitution Now and Defend Later
During the struggle over the ratification of the U.S. Constitution, James Madison argued that the states should ratify the Constitution unconditionally now and consider amending later in the First Congress with friendly alterations embedded into the original Constitution.

George Washington supported Madison and helped set the tone with the call to include “friendly amendments” with his inauguration speech. However, Washington did not demonstrate a sense of urgency to focus on a Bill of Rights but rather thought the country should focus on setting up a national bank and the judiciary department.

Representative Madison thought the founding had not been completed. Madison introduced 39 necessary proposals in his June 8th speech for the First Congress to consider in order to complete the founding. He asked Congress to rethink the Constitution by placing certain alterations within the Articles of the Constitution in response to sensible arguments of the opposition and the general call for a Bill of Rights. After consultation with Jefferson, and paying attention to the arguments at Virginia and New York ratifying conventions, Madison suggested that friendly alterations should be made to the original document.

On July 21, Madison’s proposals were sent to the House select committee to consider and three months later, the House passed 17 amendments but rejected Madison’s approach to include the amendments within the original constitutional document. They also altered the content and ordering of his proposals. The House debated the report of the select committee between August 13 and 24. The report and these debates showed that Madison was ultimately unsuccessful in his attempt to “interweave” the proposed amendments into the body of the Constitution and to alter the Preamble of the Constitution to incorporate, expressly, the principles of the Declaration of Independence. He was successful, however, in limiting the scope of the amendments to a friendly declaration of rights rather than a wholesale rejection of the structure created by the framers.

Roger Sherman, Madison’s nemesis back at the Constitutional Convention, said that anything that is changed to the original document should occur at the end of the document to show respect to the Founders. It is important to note that State Constitutions created between 1776 and 1780 included a Bill of Rights at the beginning of or were embedded within their state Constitution. The House accepted Sherman’s suggestion and extracted Madison’s proposals made on June 8th within the Articles, altered the content and order of several proposals, and created a new document that contained 17 amendments. These two actions on location and content of the Bill of Rights were the most significant contribution from the House. The Senate would then reduce the number to twelve and alter the content further including a rejection of Madison’s favorite proposal, namely, extending three provisions of the Bill of Rights to the State governments. A six-member joint Conference Committee ironed out the remaining differences of content within the twelve amendments. The states then voted and passed ten amendments to the U.S. Constitution and created the U.S. Bill of Rights.

Below are readings that tell the “politics” of how Madison’s proposed amendments within the Articles of the Constitution on June 8th unfolded and evolved into becoming the first ten amendments to the U.S. Constitution, the U.S. Bill of Rights.

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June 8, 1789 (9 proposals contain 39 component parts)
[Note: This is only the beginning and end of the June 8, 1789 speech. An Editor’s note has been integrated in the middle of the speech to assist teachers in easily seeing Madison’s proposals]

Mr. MADISON.—I am sorry to be accessory to the loss of a single moment of time by the House. If I had been indulged in my motion, and we had gone into a Committee of the Whole, I think we might have rose, and resumed the consideration of other business before this time; that is, so far as it depended on what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the Legislatures of the several States, comfortably to the fifth article of the Constitution.

I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfill the duty, which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this House. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe, that if Congress will devote but one day to this subject, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures. It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this Constitution, may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be engrafted so as to give satisfaction to the doubting part of our fellow-citizens, the friends of the Federal Government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this House, that, notwithstanding the ratification of this system of Government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents and patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this Constitution. The acquiescence which our fellow citizens show under the Government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject. It is to provide those securities for liberty which are required by a part of the community; I allude in a particular manner to those two States who have not thought fit to throw themselves into the bosom of the Confederacy. It is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those States that are not come in, that we have seen prevailing in those States which have embraced the Constitution.   But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the Constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done, while no one advantage arising from the exercise of that power shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose. And in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the Constitution, we must feel for the Constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the Government–for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door were opened, we should be very likely to stop at that point which would be safe to the Government itself. But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents: such as would be likely to meet with the concurrence of two-thirds of both Houses, and the approbation of three-fourths of the State Legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow-citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the Constitution. There have been objections of various kinds made against the Constitution. Some were leveled against its structure, because the President was without a council; because the Senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose, and controls the ordinary powers of the State Governments. I know some respectable characters who opposed this Government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary.

It has been a fortunate thing that the objection to the Government has been made on the ground I stated; because it will be practicable, on that ground, to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution, which is considered as essential to the existence of the Government by those who promoted its adoption.

Taken from: http://teachingamericanhistory.org/bor/madison_17890608/

Madison’s Proposals Integrated into the Constitution

[Editor’s Note. During the debate over the amendments to the Constitution in the First Congress, James Madison proposed that the amendments be incorporated into the text of the Constitution. While the idea was ultimately defeated, below is how Madison’s original proposals would appear if they were incorporated into the Constitution. Gordon Lloyd has enumerated Madison’s list of rights and amendments here and throughout his June 8 speech by a numerical parentheses. Madison is actually proposing far more than nine amendments. Teachers are given the full text of the document here but the lesson activity only asks students to read those sections of the Constitution where propels are made]

We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

First Proposal

  1. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.
  2. 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.
  3. 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.

[Editor’s Note. Madison says: “The first relates to what may be called a bill of rights.” And if “they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights.]

Article. I.
Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. 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, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

Second Proposal

  1. 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 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 amounts 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.”

[Editors Note. In his June 8 Speech Madison says: “If we attend to the discussion of this subject, which has taken place in the State conventions, and even in the opinions of the friends to the Constitution, an alteration here is proper.”]

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Third Proposal

  1. 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.”

[Editors Note. In his June 8 Speech, Madison states; “There is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed.”]

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approves he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited

Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

Fourth Proposal

That in Article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit:

  1. The civil rights of none shall be abridged on account of religious belief or worship,
  2. nor shall any national religion be established,
  3. nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.
  4. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments;
  5. and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.
  6. The people shall not be restrained from peaceably assembling and consulting for their common good;
  7. nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.
  8. 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:
  9. but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.
  10. 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.
  11. No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence;
  12. nor shall be compelled to be a witness against himself;
  13. nor be deprived of life, liberty, or property, without due process of law;
  14. nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.
  15. Excessive bail shall not be required, nor excessive fines imposed,
  16. nor cruel and unusual punishments inflicted.
  17. 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

  1. to a speedy and public trial,
  2. to be informed of the cause and nature of the accusation,
  3. to be confronted with his accusers, and the witnesses against him;
  4. to have a compulsory process for obtaining witnesses in his favor;
  5. and to have the assistance of counsel for his defense.
  6. 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.

[Editor’s Note. Madison spends virtually no time defending or explaining this particular list of restraints against the powers of Congress. There is a sense in which he has provided an explanation in his longish defense of his first proposed revision. It is of interest to note that Madison refers to the State Constitutions as his model and not the various State Ratifying Conventions. The final entry in the list is probably the result of the correspondence between Jefferson and Madison over the merits and demerits of listing rights.]

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Fifth Proposal

That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate

  1. the equal rights of conscience,
  2. or the freedom of the press,
  3. or the trial by jury in criminal cases.

[Editors Note. In his June 8 Speech, Madison notes: “Nothing can give a more sincere proof of the attachment of those who opposed this Constitution to these great and important rights, than to see them join in obtaining the security I have now proposed… the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.” This provision probably owes its origin to Madison’s concern expressed throughout the late 1780s that the state governments are more likely to violate the rights of the citizens than the federal government. See also the exchange of letters between Jefferson and Madison.]

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Control of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Article. II.

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately choose by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner choose the President. But in choosing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chose from them by Ballot the Vice President.

The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—”I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article III.
Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

Sixth Proposal

That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit:

  1. But no appeal to such court shall be allowed where the value in controversy shall not amount to —– dollars:
  2. 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.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Seventh Proposal

That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit:

  1. 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,
  2. with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites;
  3. 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 authorized in some other county of the same State, as near as may be to the seat of the offence.
  4. 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.

[Editor’s Note. Madison states that this provision is to “satisfy the public mind” concerning the apprehended inconvenience of obtaining justice. The “regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the Constitution.]

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Article. IV.
Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labor in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labor, but shall be delivered up on Claim of the Party to whom such Service or Labor may be due.

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Eighth Proposal

That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

  1. 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.
  2. The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.

[Editors Note. In his June 8 Speech, Madison observes: “I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated, should be reserved to the several States.”]

Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

Ninth Proposal

That article 7th, be numbered as article 8th.

Taken from: http://teachingamericanhistory.org/bor/madison-integrated/

June 8, 1789 End of Speech

The first of these amendments, relates to what may be called a bill of rights. I will own that I never considered this provision so essential to the Federal Constitution as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless. I am aware that a great number of the most respectable friends to the Government, and champions for republican liberty, have thought such a provision not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of, perhaps, by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the Constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore, the arguments drawn from that source were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the Crown; the power of the Legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British Constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many States, have thought it necessary to raise barriers against power in all forms and departments of Government, and I am inclined to believe, if once bills of rights are established in all the States as well as the Federal Constitution, we shall find, that, although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency. It may be said, in some instances, they do no more than state the perfect equality of mankind. This, to be sure, is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a Constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact, which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances, they lay down dogmatic maxims with respect to the construction of the Government; declaring, that the Legislative, Executive, and Judicial branches, shall be kept separate and distinct. Perhaps the best way of securing this in practice is, to provide such checks as will prevent the encroachment of the one upon the other.

But, whatever may be the form which the several States have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in particular mode. They point these exceptions sometimes against the abuse of the Executive power, sometimes against the Legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our Government it is, perhaps, less necessary to guard against the abuse in the Executive Department than any other; because it is not the stronger branch of the system, but the weaker. It therefore must be leveled against the Legislative, for it is the most powerful, and most likely to be abused, because it is under the least control. Hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a Government modified like this of the United States, the great danger lies rather in the abuse of the community than in the Legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the Executive or Legislative departments of Government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.

It has been said, by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a Republican Government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say, that this objection lies against such provisions under the State Government, as well as under the General Government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said, that in the Federal Government they are unnecessary, because the powers are enumerated, and it follows, that all that are not granted by the Constitution are retained; that the Constitution is a bill of powers, the great residuum being the rights of the people; and, therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true, the powers of the General Government are circumscribed, they are directed to particular objects; but even if Government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the State Governments under their constitutions may to an indefinite extent; because in the Constitution of the United States, there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the Government of the United States, or in any department or officer thereof; this enables them to fulfill every purpose for which the Government was established. Now, may not laws be considered necessary and proper by Congress, (for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation,) which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the State Legislatures, for fulfilling the more extended objects of those Governments? I will state an instance, which I think in point, and proves that this might be the case. The General Government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the Legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the State Governments had in view? If there was reason for restraining the State Governments from exercising this power, there is like reason for restraining the Federal Government.

It may be said, indeed it has been said, that a bill of rights is not necessary, because the establishment of this Government has not repealed those declarations of rights which are added to the several State constitutions; that those rights of the people which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Beside some States have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.

It has been said that it is unnecessary to load the Constitution with this provision, because it was not found effectual in the constitution of the particular States. It is true, there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. Besides this security, there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty. I conclude, from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the Government, that we should offer something, in the form I have proposed, to be incorporated in the system of Government, as a declaration of the rights of the people.

In the next place, I wish to see that part of the Constitution revised which declares that the number of Representatives shall not exceed one for every thirty thousand persons, and allows one Representative to every State that ranks below that proportion. If we attend to the discussion of this subject, which has taken place in the State conventions, and even in the opinion of the friends to the Constitution, an alteration here is proper. It is the sense of the people of America, that the number of Representatives ought to be increased, but particularly that it should not to be left in the discretion of the Government to diminish them, below that proportion which is certainly in the power of the Legislature, as the Constitution now stands; and they may, as the population of the country increases, increase the House of Representatives to a very unwieldy degree. I confess I always thought this part of the Constitution defective, though not dangerous; and that it ought to be particularly attended to whenever Congress should go into the consideration of amendments.

There are several minor cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the Legislature to ascertain its own emolument, is one to which I allude. I do not believe this is a power which, in the ordinary course of Government, is likely to be abused. Perhaps of all the powers granted, it is the least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand in the public coffers, to take out money to put in their own pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone, therefore, so far as to fix it, that no law varying the compensation, shall operate until there is a change in the Legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish, also, in revising the Constitution, we may throw into that section, which interdicts the abuse of certain powers in the State Legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law,” &c., were wise and proper restrictions in the Constitution. I think there is more danger of those powers being abused by the State Governments than by the Government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should, therefore, wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every Government should be disarmed of powers which trench upon those particular rights. I know, in some of the State constitutions, the power of the Government is controlled by such a declaration; but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this Constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the Supreme Court of the United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal shall be made unless the matter in controversy amounts to a particular sum; this, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped, will quiet and reconcile the minds of the people to that part of the Constitution.

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated, should be reserved to the several States. Perhaps other words may define this more precisely than the whole of the instrument now does. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentleman will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the Government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow-citizens; and if we can make the Constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this House the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support, I shall content myself, for the present, with moving “that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the Legislatures of the States, to become, if ratified by three-fourths thereof, part of the Constitution of the United States.” By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the House. I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the Government; because I think we should obtain the confidence of our fellow-citizens, in proportion as we fortify the rights of the people against the encroachments of the Government.

[Jackson, Elbridge Gerry, Samuel Livermore, Sherman, Thomas Sumter, and Vining debated the merits of sending Madison’s proposals to a select committee.]

Mr. MADISON found himself unfortunate in not satisfying gentlemen with respect to the mode of introducing the business; he thought, from the dignity and the peculiarity of the subject, that it ought to be referred to a Committee of the Whole. He accordingly made that motion first, but finding himself not likely to succeed in that way, he had changed his ground. Fearing again to be discomfited, he would change his mode, and move the propositions he had stated before, and the House might do what they thought proper with them. He accordingly moved the propositions by way of resolutions to be adopted by the House.

[After a brief discussion, “Mr. MADISON’S propositions were ordered to be referred to a Committee of the Whole on the State of the Union.]

Taken from: http://teachingamericanhistory.org/bor/madison_17890608.html

The Bill of Rights in Congress and Its Adoption by the States (July 1789 to December 1791)

Following Madison’s proposal of a Bill of Rights in the First Congress, the House of Representatives and the Senate debated and made many changes to the proposed amendments. Twelve amendments were sent to the states for their approval, ten of which were ratified and became known as the U.S. Bill of Rights.

Use the following readings to assist in understanding how the Bill of Rights developed.

Debates over the Bill of Rights in the House of Representatives during the First Congress (January-August 1789)

This is the complete record of the debates in the House of Representatives that occurred regarding the Bill of Rights. No record is available of the Senate debate.

Report of the House Select Committee

July 28, 1789

On July 21, the House sent Madison’s proposals to a select committee, which produced this report.

MR. VINING, from the Committee of eleven, to whom it was referred to take the subject of AMENDMENTS to the CONSTITUTION of the UNITED STATES, generally into their consideration, and to report thereupon, made a report, which was read, and is as followeth:

In the introductory paragraph before the words, “We the people,” add, “Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.”

ART. I, SEC. 2, PAR. 3—Strike out all between the words, “direct” and “and until such,” and instead thereof insert, “After the first enumeration there shall be one representative for every thirty thousand until the number shall amount to one hundred; after which the proportion shall be so regulated by Congress that the number of Representatives shall never be less than one hundred, nor more than one hundred and seventy-five, but each State shall always have at least one Representative.”

ART. I, SEC. 6—Between the words, “United States,” and “shall in all cases,” strike out “they,” and insert, “But no law varying the compensation shall take effect until an election of Representatives shall have intervened. The members.”

ART. I, SEC. 9—Between PAR. 2 and 3 insert, “No religion shall be established by law, now shall the equal rights of conscience be infringed.”

“The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.”

“A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.”

“No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law.”

“No person shall be subject, except in case of impeachment, to more than one trial or one punishment 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 shall private property be taken for public use without just compensation.”

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

“The right of the people to be secure in their person, houses, papers and effects, shall not be violated by warrants issuing, without probable cause supported by oath or affirmation, and not particularly describing the places to be searched, and the persons or things to be seized.”

“The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

ART. 1, SEC. 10, between the 1st and 2d PAR. insert, “No State shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.”

ART. 3, SEC. 2, add to the 2d PAR. “But no appeal to such court shall be allowed, where the value in controversy shall not amount to one thousand dollars; nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable than according to the rules of common law.”

ART. 3, SEC. 2—Strike out the whole of the 3d paragraph, and insert—”In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

“The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia, when in 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, the right of challenge and other accustomed requisites; and no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment by a Grand Jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same State; and if it be committed in a place not within a State, the indictment and trial may be at such lace or places as the law may have directed.”

“In suits at common law the right of trial by jury shall be preserved.”

“Immediately after ART. 6, the following to be inserted as ART. 7:”

“The powers delegated by this Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or the Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.”

“The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.”

ART. 7 to be made ART. 8.

Taken from: http://teachingamericanhistory.org/bor/houseselect_17890728.html

House Debates Select Committee Report

August 13-24, 1789

The House debated the report of the select committee between August 13 and 24. The report and these debates show that Madison was ultimately unsuccessful in his attempt to “interweave” the proposed amendments into the body of the Constitution and to alter the Preamble of the Constitution to incorporate, expressly, the principles of the Declaration of Independence. He was successful, however, in limiting the scope of the amendments to a declaration of rights.

THURSDAY, AUGUST 13

The House then resolved itself into a Committee of the Whole, Mr. BOUDINOT in the Chair, and took the amendments under consideration. The first article ran thus: “In the introductory paragraph of the Constitution, before the words ‘We the people,’ add ‘Government being intended for the benefit of the people, and the rightful establishment therof being derived from their authority alone.'”

MR. SHERMAN.—I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles, the one contradictory to the other. Its absurdity will be discovered by comparing it with a law. Would any Legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected? When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference.

Besides this, sir, it is questionable whether we have the right to propose amendments in this way. The Constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments. Again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new Constitution, we remove the basis on which we mean to build. For these reasons, I will move to strike out that paragraph and substitute another.

The paragraph proposed was to the following effect:

Resolved, by the Senate and House of Representatives of the United States in Congress assembled, That the following articles be proposed as amendments to the Constitution, and when ratified by three-fourths of the State Legislatures, shall become valid to all intents and purposes, as part of the same.

Under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form.

Mr. MADISON.—Form, sir, is always of less importance than the substance; but on this occasion I admit that form is of some consequence, and it will be well for the House to pursue that which, upon reflection, shall appear to be the most eligible. Now it appears to me, that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case, the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. It will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed.

[Smith, Livermore, Vining, Clymer, Stone, Gerry, Benson, Hartley, Page, and Jackson discuss the relative merits of the two “forms” of amending the Constitution.]

Mr. SHERMAN.—If I had looked upon this question as a mere matter of form, I should not have brought it forward, or troubled the committee with such a lengthy discussion. But, sir, I contend that amendments made in the way proposed by the committee are void. No gentleman ever knew an addition and alteration introduced into an existing law, and that any part of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance, in every case where the two were not incompatible. But if these observations alone should be thought insufficient to support my motion, I would desire gentlemen to consider the authorities upon which the two Constitutions are to stand. The original was established by the people at large, by conventions chosen by them for the express purpose. The preamble to the Constitution declares the act; but will it be a truth in ratifying the next Constitution, which is to be done perhaps by the State Legislatures, and not conventions chosen for the purpose? Will gentlemen say it is “We the people” in this case? Certainly they cannot; for, by the present Constitution, we, nor all the Legislatures in the Union together, do not possess the power of repealing it. All that is granted us by the 5th article is, that whenever we shall think it necessary, we may propose amendments to the Constitution; not that we may propose to repeal the old, and substitute a new one.

Gentlemen say, it would be convenient to have it in one instrument, that people might see the whole at once; for my part, I view no difficulty on this point. The amendments reported are a declaration of rights; the people are secure in them, whether we declare them or not; the last amendment but one provides that the three branches of Government shall each exercise its own rights. This is well secured already; and, in short, I do not see that they lessen the force of any article in the Constitution; if so, there can be little more difficulty in comprehending them whether they are combined in one, or stand distinct instruments.

[Smith, Seney, Vining, Gerry continue to discuss which mode of amending the Constitution should be adopted.]

Mr. SHERMAN.—The gentlemen who oppose the motion say we contend for matter of form; they think it nothing more. Now we say we contend for substance, and therefore cannot agree to amendments in this way. If they are so desirous of having the business completed, they had better sacrifice what they consider but a matter of indifference to gentlemen, to go more unanimously along with them in altering the Constitution.

The question on Mr. SHERMAN’S motion was now put and lost.

FRIDAY, AUGUST 14

[Representatives Smith, Gerry, Tucker, Sumter, Livermore, and Page discuss the merits of the Select Committee’s first amendment proposal that “Government being intended for the benefit of the people, and the rightful establishment therof being derived from their authority alone,” be included in the introductory paragraph.]

Mr. MADISON.—If it be a truth, and so self-evident that it cannot be denied—if it be recognized, as is the fact in many of the State Constitutions—and if it be desired by three important States to be added to this—I think they must collectively offer a strong inducement to the mind desirous of promoting harmony to acquiesce with the report; at least some strong arguments should be brought forward to show the reason why it is improper.

My worthy colleague says the original expression is neat and simple; that loading it with more words may destroy the beauty of the sentence; and others say it is unnecessary, as the paragraph is complete without it. Be it so in their opinion; yet still it appears important in the estimation of three States that this solemn truth should be inserted in the Constitution. For my part, sir, I do not think the association of ideas anywise unnatural; it reads very well in this place; so much so, that I think gentlemen, who admit it should come in somewhere else, will be puzzled to find a better place.

Mr. SHERMAN thought they ought not to come in this place. The people of the United States have given their reasons for doing a certain act. Here we propose to come in and give them a right to do what they did on motives which appeared to them sufficient to warrant their determination; to let them know that they had a right to exercise a natural and inherent privilege, which they have asserted in a solemn ordination and establishment of the Constitution.

Now, if this right is indefeasible, and the people have recognized it in practice, the truth is better asserted than it can be by any words whatever. The words “We the people,” in the original Constitution, are as copious and expressive as possible; any addition will only drag out the sentence without illuminating it; for these reasons it may be hoped the committee will reject the proposed amendment.

The question on the first paragraph of the report was put and carried in the affirmative, twenty-seven to twenty-three.

WEDNESDAY, AUGUST 19

[The Representatives concluded their consideration of the Select Committee report and defeated attempts by Gerry and Tucker to broaden the scope of the amendments to include the structure and powers of the federal government.]

Mr. SHERMAN renewed his motion for adding the amendments to the Constitution by way of supplement.

Hereupon, ensued a debate similar to what took place in the Committee of the Whole, [see THURSDAY, August 13, above] but, on the question, Mr. SHERMAN’S motion was carried by two-thirds of the House; in consequence it was agreed to.

The first proposition of amendment [see FRIDAY, August 14, above] was rejected, because two-thirds of the members present did not support it.

[The House, as the last order of business on Saturday, August 22, directed Representatives Benson, Sherman, and Sedgwick “to arrange” the agreed upon amendments “and make a report thereof.”]

MONDAY, AUGUST 24

Mr. BENSON, from the committee appointed for the purpose, reported an arrangement of the articles of amendment to the Constitution of the United States, as agreed to by the House on Friday last.

Taken from: http://teachingamericanhistory.org/library/document/house-debates-select-committee-report/

House Approves Seventeen Amendments

August 24, 1789

Following the debates in the House, seventeen amendments were approved. The Senate would then reduce the number to twelve, and a six-member joint Conference Committee ironed out the remaining differences.

ARTICLE THE FIRST.

After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons.

ARTICLE THE SECOND.

No law varying the compensation to the members of Congress, shall take effect, until an election of Representatives shall have intervened.

ARTICLE THE THIRD.

Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.

ARTICLE THE FOURTH.

The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.

ARTICLE THE FIFTH.

A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.

ARTICLE THE SIXTH.

No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

ARTICLE THE SEVENTH.

The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ARTICLE THE EIGHTH.

No person shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offence, nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.

ARTICLE THE NINTH.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

ARTICLE THE TENTH.

The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of War or public danger) shall be by an Impartial Jury of the Vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or other ways infamous crime, unless on a presentment or indictment by a Grand Jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same State.

ARTICLE THE ELEVENTH.

No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars, nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable, than according to the rules of common law.

ARTICLE THE TWELFTH.

In suits at common law, the right of trial by Jury shall be preserved.

ARTICLE THE THIRTEENTH.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE THE FOURTEENTH.

No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.

ARTICLE THE FIFTEENTH.

The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE THE SIXTEENTH.

The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.

ARTICLE THE SEVENTEENTH.

The powers not delegated by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively.

Taken from: http://teachingamericanhistory.org/bor/17_amendments.html

First Congress Approves Twelve Amendments

September 25, 1789

Article the first…After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second…No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

Article the third…Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Article the fourth…A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Article the fifth…No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Article the sixth…The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Article the seventh…No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

Article the eighth…In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Article the ninth…In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Article the tenth…Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Article the eleventh…The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Article the twelfth…The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.*

Taken from: http://teachingamericanhistory.org/library/document/first-congress-approves-twelve-amendments/

Adoption of the Ten Amendments

December 15, 1791

ARTICLE I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly, and to petition the Government for a redress of grievances.

ARTICLE II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

ARTICLE III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

ARTICLE IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

ARTICLE V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

ARTICLE VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

ARTICLE VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

ARTICLE VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

ARTICLE IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

ARTICLE X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Taken from: http://teachingamericanhistory.org/bor/adoption/

The Four Stages of Approval of the Bill of Rights in Congress and the States

by Gordon Lloyd and Roger Beckett

The table below illustrates the key ideas from the readings that frame the lesson.

1) How Madison’s proposals moved from not being at the beginning or within the document to the end, and

2) What changes in order and content the First Congress made to Madison’s proposals.

The Four Stages of Approval of the Bill of Rights in Congress and the States

Seventeen Amendments
Passed by the United States House of Representatives
(August 24, 1789)
Twelve Amendments Passed
by the United States Senate
(September 9, 1789)
Twelve Amendments Submitted to the States – following a Senate and House Conference Committee
(September 25, 1789)
Ten Amendments Adopted by the States
(December 15, 1791)
ARTICLE THE FIRST.After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons. ARTICLE THE FIRST.After the first enumeration, required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred; to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons. ARTICLE THE FIRST.After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
ARTICLE THE SECOND.No law varying the compensation to the members of Congress, shall take effect, until an election of Representatives shall have intervened. ARTICLE THE SECOND.No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. ARTICLE THE SECOND.No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened. Note: Later ratified as the XXVII Amendment on May 7, 1992.
ARTICLE THE THIRD.Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed. ARTICLE THE THIRD.Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances. ARTICLE THE THIRD.Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Amendment ICongress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
ARTICLE THE FOURTH.The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed. See Article the Third above.    
ARTICLE THE FIFTH.A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person. ARTICLE THE FOURTH.A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed. ARTICLE THE FOURTH.A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Amendment IIA well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
ARTICLE THE SIXTH.No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. ARTICLE THE FIFTH.No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. ARTICLE THE FIFTH.No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law. Amendment IIINo Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
ARTICLE THE SEVENTH.The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE THE SIXTH.The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. ARTICLE THE SIXTH.The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Amendment IVThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
ARTICLE THE EIGHTH.No person shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offense, nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. ARTICLE THE SEVENTH.No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witnesses against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation. ARTICLE THE SEVENTH.No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. Amendment VNo person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
ARTICLE THE NINTH.In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. ARTICLE THE EIGHTH.In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. ARTICLE THE EIGHTH.In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. Amendment VIIn all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
ARTICLE THE TENTH.The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of War or public danger) shall be by an Impartial Jury of the Vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed [sic] requisites; and no person shall be held to answer for a capital, or otherways [sic] infamous crime, unless on a presentment or indictment by a Grand Jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorized in some other place within the same State. See Article the Seventh above.    
ARTICLE THE ELEVENTH.No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars, nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable, than according to the rules of common law. ARTICLE THE NINTH.In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury shall be preserved, and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. ARTICLE THE NINTH.In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Amendment VIIIn Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
ARTICLE THE TWELFTH.In suits at common law, the right of trial by Jury shall be preserved. See Article the Ninth above.    
ARTICLE THE THIRTEENTH.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE THE TENTH.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. ARTICLE THE TENTH.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment VIIIExcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
ARTICLE THE FOURTEENTH.No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
ARTICLE THE FIFTEENTH.The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people. ARTICLE THE ELEVENTH.The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. ARTICLE THE ELEVENTH.The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment IXThe enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
ARTICLE THE SIXTEENTH.The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.
ARTICLE THE SEVENTEENTH.The powers not delegated by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively. ARTICLE THE TWELFTH.The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ARTICLE THE TWELFTH.The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Amendment XThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)

 

Taken from: http://teachingamericanhistory.org/bor/four-stages/

Approval of the Bill of Rights by the States

  1. New Jersey (November 20, 1789)
  2. Maryland (December 19, 1790)
  3. North Carolina (December 22, 1789)
  4. South Carolina (January 19, 1790)
  5. New Hampshire (January 25, 1790)
  6. Delaware (January 28, 1790)
  7. Pennsylvania (March 10, 1790)
  8. New York (March 27, 1790)
  9. Rhode Island (June 11, 1790)
  10. Vermont (November 3, 1791)
  11. Virginia (December 15, 1791)
  12. Massachusetts (March 2, 1939)
  13. Georgia (March 18, 1939)
  14. Connecticut (April 19, 1939)

 

No returns were made by Massachusetts, Connecticut, or Georgia. Massachusetts was primarily interested in structural changes to the Constitution rather than the power restraint provided in the Bill of Rights, thus these 12 amendments did not address the issues they raised in the Massachusetts ratifying convention. In their ratifying convention, Connecticut and Georgia did not express any need for amendments to the Constitution, thus it is understandable why they did not think it was vital to hold a convention to pass a Bill of Rights that their ratifying convention had deemed unnecessary.

Let’s chat about political arithmetic. I sure wish there were documents available to help us grasp the dynamics of all this. But we don’t have these documents. So let’s start at the end. Massachusetts, Connecticut, and Georgia, it appears, didn’t even bother to chat and deliberate and vote. So here we have three states who don’t think that a bill of rights is important enough to even bother. So, again, in terms of political arithmetic, since three states have, in effect, voted “no” to every one of the 12 Amendments, all the other eleven states must vote yes on every clause for all twelve to pass. (Vermont was added as the 14th state on March 4, 1791.)

Let’s put the political arithmetic a little differently. If only one of the eleven states objects to one of the twelve amendments then that particular amendment would not pass. As the chart shows, this unanimity over all twelve Amendments did not occur and the first and second amendments went down to defeat. Two states voted “no” on the first Amendment, and four states voted “no” on the second amendment. Given the political arithmetic, we know that eleven states voted “yes” on all of the other amendments.

What we do know is that there was an early and a later ratification period. And this “stretch” must have brought a certain anxiety to the advocates of a bill of rights.

Wouldn’t it be great if we could understand why there was an initial surge on behalf of the Bill of Rights and then why we had to wait for a year and a half at the end for the final adoption of the Bill of Rights by Virginia?

Taken from: http://teachingamericanhistory.org/bor/adoption/

Preparing to Teach this Lesson

Prior to teaching this lesson the teacher should cover content related to the Articles of Confederation and its weaknesses. The teacher should familiarize her/himself and students with Madison’s Notes on the Constitutional Convention of 1787. Gordon Lloyd has presented the content of the Constitutional Convention of 1787 as a Four Act Drama. Students and teacher should also be familiar with Ratification of the Constitution, and the Federalist and Antifederalist Debates.

Analyzing primary sources:

If your students lack experience in dealing with primary sources, you might use one or more preliminary exercises to help them develop these skills. The Learning Page at the American Memory Project of the Library of Congress includes a set of such activities. Another useful resource is the Digital Classroom of the National Archives, which features a set of Document Analysis Worksheets. Finally, History Matters offers pages on “Making Sense of Maps” and “Making Sense of Oral History” which give helpful advice to teachers in getting their students to use such sources effectively.

Suggested Activities

Introductory Activity: Analyze Primary Source
Time required for activity: In class activity 20 minutes.

The teacher will open day one of the lesson by sharing that the U.S. Bill of Rights were passed on Dec. 15, 1791 by 11 of the 14 states. The intent of the U.S. Bill of Rights is to limits and qualify the powers of government. Ask students to analyze Thomas Jefferson’s, “Tabulation of State Votes on Amendments to the Constitution,” 1789-1791, Thomas Jefferson Papers, Library of Congress using the think-pair-share graphic organizer.

Teacher will instruct students to record their response in the “think” section of the Think-Pair-Share handout. Students will then share their response with another student. As students share with one another they should write those ideas they had in common in the “pair” section of the hand out and put a (+) by those ideas. Students should then write any ideas they had that were different in this section and put a (-) by those ideas. Students should then write any new ideas that were raised and put a (*) by those ideas. Finally, the students will select one idea to share with the entire class and write it in the “share” portion of the handout. The teacher will then ask each pair to share their final idea with the class. Students should record any new ideas shared by the entire class in the “share” section of the handout.

Depending on student content vocabulary readiness the teacher may need to review vocabulary used in founding documents. One way to review is to use a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling), during reading (guided practice) and after reading (guided practice). For guidance on how to use “word walls” with secondary students please see the U.S. Government lesson plan on the CCSSO Adolescent Literacy Toolkit Social Studies page:

http://programs.ccsso.org/projects/adolescent_literacy_toolkit/resources_for_teachers/10620.php

Lesson Activities:

Time required for activity: In class activity three 45-minute class periods or two 45-minute class periods with homework.

Share with students that they will be completing three different activities to gain an understanding of how the Bill of Rights evolved to become a separate document that comes at the end of the Constitution and contains 10 amendments.
Activity 1: Comparing the content and organization of the First Congress Approves Twelve Amendments (September 25, 1789) to the U.S. Bill of Rights.

Read the First Congress Approves Twelve Amendments (September 25, 1789) to the U.S. Bill of Rights and complete the Venn Diagram handout. To assist students in analyzing the content students may read the content from the website, using the full text handouts on Comparing First Congress Twelve Amendments to Ten Amendments Adopted by the States, or the chart, Stages of Approval of the Bill of Rights in Congress and the States Twelve Amendments to Ten Amendments, that embeds the readings.

Debrief Venn Diagram activity as a class. The teacher can use the look for responses as guidance for suggested answers.

Activity 2: Comparing the House Approves Seventeen Amendments (August 24, 1789) to the First Congress Approves Twelve Amendments (September 25, 1789).

Read the chart, Stages of Approval of the Bill of Rights in Congress and the States Seventeen Amendments to Twelve Amendments and compare the content and organization of the proposed Articles using the Carousel strategy. Please see the Carousel handout for instructions to complete the activity.

Activity 3: Summarizing Madison’s June 8, 1789 speech to Congress to the House Debate Select Committee (August 13-14, 1789).

Have students read and summarize Madison’s June 8, 1789 proposal integrated within the Articles of the U.S. Constitution and House Debate Select Committee (August 13-14, 1789) using the guiding reading handout. Debrief student responses as a whole class discussion. Teacher may wish to make this an independent task, divide proposals across students to read and complete questions, or use a jigsaw strategy (divide students into small groups, students are assigned portions of the reading and become an expert on his/her assigned reading, then share back and “teach” the other group members about his her assigned reading, and take notes as other students share their findings to their assigned readings).
Depending on student content vocabulary readiness the teacher may need to review vocabulary used in English and colonial America documents and State Constitutions. One way to review is to use a word wall. The teacher will tell students that the class will be adding several words to the word wall today. Word walls are a literacy strategy that may be used before reading (explicit teaching and modeling), during reading (guided practice) and after reading (guided practice). For guidance on how to use “word walls” with secondary students please see the U.S. Government lesson plan on the CCSSO Adolescent Literacy Toolkit Social Studies page:

http://programs.ccsso.org/projects/adolescent_literacy_toolkit/resources_for_teachers/10620.php

Assessment:

After completing this lesson, students should individually be able to write a response to the following:
Using your notes from the three activities on the politics of the Bill of Rights and The Fate of Madison’s Proposals for the Bill of Rights chart:

  1. Explain by citing evidence how the content of Madison’s proposals from June 8, 1789 changed.
  2. Explain if it makes more sense for the U.S. Constitution to limit and qualify the rights of the government, as Madison suggested on June 8, 1789 speech, within the Articles of the U.S. Constitution or as a separate document, the U.S. Bill of Rights.

Scoring Criteria:

Credit will be fully rewarded if the response:

  1. thoroughly addresses all aspects of the task by accurately interpreting the documents, plus incorporates outside information related to the documents.
  2. discusses all aspects of the task and supports with accurate facts, examples and details.
  3. weighs the importance, reliability and validity of the evidence.
  4. analyzes conflicting perspectives presented in the documents and weaves the documents into the body of the essay.
  5. includes a strong introduction and conclusion.

Credit will be reduced if the response:

  • does not recognize the reliability, validity, or perspectives of the documents.
  • reiterates the content of the documents with little or no use of outside information.
  • discusses the documents in a descriptive rather than analytic manner.
  • shows little recognition of the tasks, lacked an introduction or conclusion.

Extending the Lesson:
Extension 1: Share the complete version and top ten Wordle word cloud of the U.S. Bill of Rights with students.

Note: Wordle is an electronic application that allows “word clouds” to be generated from text. The clouds give greater prominence to words that appear more frequently in the source text. (Taken from http://www.wordle.net)

The ten most often words used within the U.S. Bill of Rights are listed below in order of use.

  1. States
  2. Amendment
  3. Constitution
  4. United
  5. Law
  6. Right
  7. People
  8. Time
  9. Public
  10. Congress

 

Analyze the Wordle of the U.S. Bill of Rights that shows only the ten most prominent words.

  • Explain if the top ten most frequently used words in the Bill of Rights accurately describe the significance of the U.S. Bill of Rights.

OR

  • If you could only use ten words to describe the significance of the U.S. Bill of Rights what would they be and why?

Extension 2: Using Madison’s June 8, 1789 speech, have students summarize the arguments Madison makes to include the 9 proposals at the beginning and within the text of the U.S. Constitution.

 

Related EDSITEment Lesson Plans:

Selected EDSITEment Websites:

 

Standards Alignment:

      1. NCSS-10

        Civic ideals and practices.

      2. NCSS-5

        Individuals, groups, and institutions.

      3. NCSS-6

        Power, authority, and governance.

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