The American story of the origin and politics of the Bill of Rights involves a conceptual shift of immense consequences: what began in the 13th century as a protection of the few against the one, had become in America by 1791 the protection of the few against a tyrannical legislative majority! And with this conceptual shift, there was also a potential institutional shift away from the legislative branch as the enforcer of rights of the people to the courts as the primary guardians of individual rights. This was one of Thomas Jefferson’s main contributions to the conversation with James Madison, who asked Jefferson who would enforce these paper rights against the majority in his letter to Jefferson in October of 1788. Jefferson also concurred with Madison that the Legislative and not the Executive branch was the most dangerous branch in his letters to James Madison in December 1787 and July 1788. Madison came to recognize that a bill of rights could be more than a “mere parchment” barrier when elected officials overstepped their boundaries (See Representative Madison Argues for a Bill of Rights).

There are no extant documents that record the discussions over the adoption of the Bill of Rights. Secretary of State Jefferson’s Tabulation of the State Votes on Amendments to the Constitution, 1789–91, reads thus: New Jersey (November 20, 1789); Maryland (December 19, 1789); North Carolina (December 22, 1789); South Carolina (January 19, 1790); New Hampshire (January 25, 1790); Delaware (January 28, 1790); Pennsylvania (March 10, 1790); New York (March 27, 1790); Rhode Island (June 11, 1790); Vermont (November 3, 1791); Virginia (December 15, 1791).

Massachusetts, Georgia, and Connecticut did not ratify the first ten amendments at the time they were proposed (but did ratify them in 1939 in commemoration of the 150th anniversary of the adoption of the Bill of Rights by the First Congress). Since three states abstained, all the other eleven states needed to  vote yes on every clause for all twelve to pass. Vermont was added as the fourteenth state on March 4, 1791, thus changing the number of states needed to ratify from nine to eleven. If only one of the eleven states objected to one of the twelve amendments then that particular amendment would not passed.

Unanimity over all twelve Amendments did not occur. The first and second amendments went down to defeat. We can conclude that eleven states voted “yes” on all of the other amendments. Thus, the Third Amendment became the First Amendment.

Writing to George Washington on December 5, 1789, Madison explained the “great difficulty” in securing early ratification in Virginia: “The difficulty started against the amendments is really unlucky, and the more to be regretted as it springs from a friend to the Constitution.” Representative John Dawson confirms why Virginia did not ratify earlier in a letter to Madison on December 17, 1789: “The amendments recommended by Congress were taken up and all of them passed our House. . . . The Senate amended the resolution by postponing the consideration of the 3d, 11th, & 12th, until the next session of assembly. . . . We adhered, and so did they. A conference took place, and both houses remained obstinate, consequently the whole resolution was lost, and none of the amendments will be adopted by this assembly.”