Introduction

New Hampshire was the ninth state to ratify (57–47), thus ensuring ratification of the Constitution. Nevertheless, the delegates in Virginia and New York continued the conversation, in part, because they did not know in the early stages that New Hampshire had ratified.

The vote entering the Virginia Ratifying Convention was 84–84. The final vote was 89–79. Five delegates changed their mind because of a promise to consider alterations in the First Congress. The compromise thus reached represents the first time since the Pennsylvania Minority Report that a clear distinction was made between supporting or opposing structural amendments to the proposed Constitution and friendly amendments to include a bill of rights to restrain the powers of Congress. Amendments did not mean support for, or rejection of, a bill of rights. And support for a bill of rights did not mean that one supported structural amendments to the Constitution. That the U.S. Bill of Rights appeared as ten amendments to the original Constitution is the result of the politics of the First Congress (Representative Madison Argues for a Bill of Rights, The House Version, The Senate Version, The Congress sends Twelve Amendments to the States, and Amendments I-X: The Bill of Rights).

James Madison vigorously opposed conditional ratification or calling a second Constitutional Convention. In the end, he voted in favor of adoption of the Constitution with “recommended” alterations to be considered in the First Congress. Representative Madison chose to follow the friendly bill of rights route rather than the unfriendly structural amendment route in the First Congress, even though in June 1787 he still considered a bill of rights to be unnecessary and dangerous.


Source: The Debates in the Several State Conventions on the Adoption of the Federal Constitution . . . 2d ed., with considerable additions. Collected and rev. from contemporary publications, by Jonathan Elliot. Published under the sanction of Congress, 1836, 5 vols. These excerpts are from volume 3, pages 586, 588, 616–617, 662–663; https://goo.gl/JKrMq6. Text in brackets not italicized is from Elliot’s volume. Italicized text in brackets is ours.


Tuesday, June 24, 1788

Mr. Wythe:[1] . . . recurred to the system under consideration [the Articles of Confederation]. He admitted its imperfection, and the propriety of some amendments. But the excellency of many parts of it could not be denied by its warmest opponents. He thought that experience was the best guide, and could alone develop its consequences. Most of the improvements that had been made in the science of government, and other sciences, were the result of experience. . . .

. . . It appeared to him, most clearly, that any amendments which might be thought necessary would be easily obtained after ratification, in the manner proposed by the Constitution, as amendments were desired by all the states, and had already been proposed by the several states. He then proposed that the committee should ratify the Constitution, and that whatsoever amendments might be deemed necessary should be recommended to the consideration of the Congress which should first assemble under the Constitution, to be acted upon according to the mode prescribed therein.

The resolution of ratification proposed by Mr. Wythe was then read by the clerk.[2]

Whereas the powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will, no right, therefore, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, among other essential rights, liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.

Mr. HENRY,[3] after observing that the proposal of ratification was premature, and that the importance of the subject required the most mature deliberation, proceeded thus:

The honorable member must forgive me for declaring my dissent from it [the resolution proposed by Wythe]; because, if I understand it rightly, it admits that the new system is defective, and most capitally; for, immediately after the proposed ratification, there comes a declaration that the paper before you is not intended to violate any of these three great rights—the liberty of religion, liberty of the press, and the trial by jury. What is the inference when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to be retained—religion, freedom of the press, and jury trial. Will not the ratification carry everything, without excepting these three things? Will not all the world pronounce that we intended to give up all the rest? Everything it speaks of, by way of rights, is comprised in these things. Your subsequent amendments only go to these three amendments. . .

[Here Mr. Henry informed the committee that he had a resolution prepared, to refer a declaration of rights, with certain amendments to the most exceptionable parts of the Constitution, to the other states in the confederacy, for their consideration, previous to its ratification. The clerk then read the resolution, the declaration of rights, and amendments . . . .][4]

[Proposed Bill of Rights]

That there be a declaration or bill of rights asserting, and securing from encroachment, the essential and unalienable rights of the people, in some such manner as the following:

1st. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity; among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally invested in, and consequently derived from, the people; that magistrates therefore are their trustees and agents, at all times amenable to them.

3d. That government ought to be instituted for the common benefit, protection, and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

4th. That no man or set of men are entitled to separate or exclusive public emoluments or privileges from the community, but in consideration of public services, which not being descendible, neither ought the offices of magistrate, legislator, or judge, or any other public office, to be hereditary.

5th. That the legislative, executive, and judicial powers of government should be separate and distinct; and, that the members of the two first may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of government, and the laws, shall direct.

6th. That the elections of representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to, the community, ought to have the right of suffrage; and no aid, charge, tax, or fee, can be set, rated, or levied, upon the people without their own consent, or that of their representatives, so elected; nor can they be bound by any law to which they have not, in like manner, assented, for the public good.

7th. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th. That, in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence, and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces;) nor can he be compelled to give evidence against himself.

9th. That no freeman ought to be taken, imprisoned, or disseized[5] of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed, or deprived of his life, liberty, or property, but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy, to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That, in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy, by recourse to the laws, for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely, without sale, completely and without denial, promptly and without delay; and that all establishments or regulations contravening these rights are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th. That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants, therefore, to search suspected places, or seize any freeman, his papers, or property, without information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous, and ought not to be granted.

15th. That the people have a right peaceably to assemble together.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the law directs.

19th. That any person religiously scrupulous of bearing arms ought to be exempted, upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.

[PROPOSED] Amendments to the Constitution

1st. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.

2d. That there shall be one representative for every thirty thousand, according to the enumeration or census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which, that number shall be continued or increased, as Congress shall direct, upon the principles fixed in the Constitution, by apportioning the representatives of each state to some greater number of people, from time to time, as population increases.

3d. When the Congress shall lay direct taxes or excises, they shall immediately inform the executive power of each state, of the quota of such state, according to the census herein directed, which is proposed to be thereby raised; and if the legislature of any state shall pass a law which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected in such state.

4th. That the members of the Senate and House of Representatives shall be ineligible to, and incapable of holding, any civil office under the authority of the United States, during the time for which they shall respectively be elected.

5th. That the journals of the proceedings of the Senate and House of Representatives shall be published at least once in every year. except such parts thereof, relating to treaties, alliances, or military operations, as, in their judgment, require secrecy.

6th. That a regular statement and account of the receipts and expenditures of public money shall be published at least once a year.

7th. That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no treaty ceding, contracting, restraining, or suspending, the territorial rights or claims of the United States, or any of them, or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers, shall be made, but in cases of the most urgent and extreme necessity; nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.

8th. That no navigation law, or law regulating commerce, shall be passed without the consent of two thirds of the members present, in both houses.

9th. That no standing army, or regular troops, shall be raised, or kept up, in time of peace, without the consent of two thirds of the members present, in both houses.

10th. That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

11th. That each state respectively shall have the power to provide for organizing, arming, and disciplining its own militia, when so ever Congress shall omit or neglect to provide for the same. That the militia shall not be subject to martial law, except when in actual service, in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties, and punishments, as shall be directed or inflicted by the laws of its own state.

12th. That the exclusive power of legislation given to Congress over the federal town and its adjacent district, and other places, purchased or to be purchased by Congress of any of the states, shall extend only to such regulations as respect the police and good government thereof.

13th. That no person shall be capable of being President of the United States for more than eight years in any term of sixteen years.

14th. That the judicial power of the United States shall be vested in one Supreme Court, and in such courts of admiralty as Congress may from time to time ordain and establish in any of the different states. The judicial power shall extend to all cases in law and equity arising under treaties made, or which shall be made, under the authority of the United States; to all cases affecting ambassadors, other foreign 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, and between parties claiming lands under the grants of different states. In all cases affecting ambassadors, other foreign ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction; in all other cases before mentioned, the Supreme Court shall have appellate jurisdiction, as to matters of law only, except in cases of equity, and of admiralty, and maritime jurisdiction, in which 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: but the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of the Constitution, except in disputes between states about their territory, disputes between persons claiming lands under, the grants of different states, and suits for debts due to the United States.

15th . That, in criminal prosecutions, no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the jury.

16th. That Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives, or either of them, except when the legislature of any state shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same.

17th. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as inserted merely for greater caution.

18th. That the laws ascertaining the compensation of senators and representatives for their services, be postponed, in their operation, until after the election of representatives immediately Succeeding the passing thereof; that excepted which shall first be passed on the subject.

19th. That some tribunal other than the Senate be provided for trying impeachments of senators.

20th. That the salary of a judge shall not be increased or diminished during his continuance in office, otherwise than by general regulations of salary, which may take place on a revision of the subject at stated periods of not less than seven years, to commence from the time such salaries shall be first ascertained by Congress.

[At this point, Henry reminded the delegates that what the citizens of Virginia wanted was to “be able to sit down in peace and security under their own fig-trees.”[6] Edmund Randolph suggested that Henry was advocating that Virginia secede if the Constitution was adopted without “previous amendments.” Henry denied having said anything of secession. Randolph responded, is it not a secession from the principles of republican government, and “good citizenship” when a minority refuses to “submit to the decision of the majority.”]

. . . Mr. Madison: nothing has excited more admiration in the world than the manner in which free governments have been established in America; for it was the first instance, from the creation of the world to the American revolution, that free inhabitants have been seen deliberating on a form of government, and selecting such of their citizens as possessed their confidence, to determine upon and give effect to it. . . .

. . . Mr. Madison conceived that what defects might be in the Constitution might be removed by the amendatory mode in itself. As to a solemn declaration of our essential rights, he thought it unnecessary and dangerous: unnecessary, because it was evident that the general government had no power but what was given it, and that the delegation alone warranted the exercise of power; dangerous, because an enumeration which is not complete is not safe. . . . He declared that such amendments as seemed, in his judgment, to be without danger, he would readily admit, and that he would be the last to oppose any such amendment as would give satisfaction to any gentleman, unless it were dangerous.

Wednesday, June 25, 1788

[Madison believed that introducing amendments to the Constitution prior to ratifying it would send a confused message to the states that have already ratified and cause “unnecessary delays.” Amendments should be made through the process defined in the Constitution. James Monroe considered it to be more prudent to secure previous (and binding) amendments than subsequent (and recommendatory) amendments. Henry argued that “the proposition of subsequent amendments is only to lull our apprehensions.” Randolph repeated his point that with ratification by eight states, Virginia’s deliberations had become “the single question of Union or no Union.” The need to preserve the Union persuaded Randolph to now ratify the proposed constitution, although he had opposed it at the Constitutional Convention.]

The clerk then read the revision of Wythe’s earlier resolution:

Whereas the powers granted under the proposed Constitution are the gift of the people, and every power not granted thereby remains with them, and at their will,– no right, therefore, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, among other essential rights, liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.

And whereas any imperfections, which may exist in the said Constitution, ought rather to be examined in the mode prescribed therein for obtaining amendments, than by a delay, with a hope of obtaining previous amendments, to bring the Union into danger.

Resolved, That it is the opinion of this committee, that the said Constitution be ratified. But in order to relieve the apprehensions of those who may be solicitous for amendments,–

Resolved, That it is the opinion of this committee, that whatsoever amendments may be deemed necessary, be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof.”

The 1st resolution [that the Constitution be ratified] being read a second time, a motion was made, and the question being put, to amend the same by substituting, in lieu of the said resolution and its preamble, the following resolution,–

Resolved, That, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration.

It passed in the negative: ayes, 80; noes, 88. . . .

And then, the main question being put that the Convention do agree with the committee in the said 1st resolution [that the constitution be ratified], it was resolved in the affirmative—ayes, 89; noes, 79. . . .

Friday, June 27, 1788

. . . Mr. WYTHE reported, from the committee appointed, such amendments to the proposed Constitution of government for the United States [those listed above in this document] as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the 5th article thereof . . .[7]

. . . [T]he main question being put, that this Convention doth concur with the committee in the said amendments, —

It was resolved in the affirmative.

Study Questions

A. What is the difference between an adoption of the Constitution with previous amendments and adoption with subsequent amendments? Do previous amendments open the door to the possibility of secession? How does the discussion over how to adopt the Constitution enhance our understanding of what is and is not a republican and a federal government?

B. How do the amendment and bill of rights proposals compare and contrast with those listed in the New York ratifying document? Is James Madison’s argument against a bill of rights the same as that articulated by James Wilson?

Footnotes

  1. George Wythe (1726–1806) was a law professor who was a teacher and mentor to Thomas Jefferson, John Marshall, and Henry Clay. As one of Virginia’s representatives, he signed the Declaration of Independence and served in the Continental Congress and at the Constitutional Convention.
  2. We have inserted the resolution at this point in the text. In Eliott’s volume they were printed under the proceedings for June 25, 1788.
  3. Patrick Henry (1736–1799) was a lawyer and politician who served in the Continental Congress and twice as Governor of Virginia.
  4. We have inserted the proposed Bill of Rights and the amendments at this point in the text. In Eliott’s volume they were printed under the proceedings for June 27, 1788.
  5. deprived
  6. Micah 4:4, one of the most popular and often quoted Biblical passages during the Revolution and the years following. For example, George Washington quoted it in his Letter to the Hebrew Congregation in Newport, August 21, 1790.
  7. Article V prescribes how the Constitution may be amended.