Introduction

The House and Senate Conference Committee agreed on September 25, 1789 to reconcile the differences between the House and Senate versions. The House members agreed with the Senate changes with one exception: there was a last successful attempt to change the language of the religion clauses. The House appointed James Madison (Virginia), Roger Sherman (Connecticut), and John Vining (Delaware) to the Conference Committee. The Senate appointed Oliver Ellsworth (Connecticut), Charles Carroll (Maryland), and William Paterson (New Jersey). So four of the six members of the Conference Committee were framers in Philadelphia. The House agreed to the reduction of the number of amendments by the Senate from seventeen to twelve in exchange for a concession on the language of the religion clauses. We think it highly unlikely that these four framers would recommend alterations that would conflict with the original Constitution. We also find it fascinating that Madison and Sherman were quarreling over the merits of a large republic and small republic on June 6, 1787 at the Constitutional Convention, and here they are putting the final touches to the religious clauses two and a half years later.

John Beckley, Clerk of the House, introduced the “Articles to be proposed to the legislatures of the several states, as amendments to the Constitution of the United States.” He informed the Senate, that the House of Representatives had receded from its disagreement to the amendments insisted on by the Senate: “Provided that the two articles which by the amendments of the Senate are now proposed to be inserted as the third and eighth articles,” should be amended and combined into one, to read as follows: “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 petition the government for a redress of grievances.”


Source: The Essential Bill of Rights, ed. Gordon Lloyd and Margie Lloyd, (Lanham, MD: University Press of America, 1998), 353355.


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 Senator 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.

Study Questions

A. Are the changes in the religion clauses significant in the final Congress version?

B. What changes took place in the religion clauses over the course of the First Congress? See Representative Madison Argues for a Bill of Rights, The House Version, and The Senate Version.