Bill of Rights
On June 8, 1789, Madison had difficulty persuading the Federalist majority in the House of Representatives to take seriously the issue of amending the Constitution. Some representatives doubted that amendments were needed while others argued that consideration be postponed. Madison insisted that Congress attend to the wishes of “a respectable number of our constituents,” that the representatives “incorporate such amendments in the Constitution as will secure those rights, which they consider as not sufficiently guarded.” Of Madison’s nine amendment proposals, none aimed at altering the structure or powers of the general government. Madison’s plan was to open up the Constitution and insert specific changes where appropriate. For example, he would have attached the theoretical premises of the Declaration of Independence to the Preamble. The longest and most important proposal is the fourth; it actually adds ten additional exceptions to the powers of Congress in Article I, section 9. The list contains seven of the ten amendments adopted subsequently.
Madison defended these “moderate” and “proper” revisions. Madison, in effect, revisits the exchange he had with Jefferson; this time Jefferson’s arguments blend with Madison’s own to form a “conclusive” new defense that is neither wholly Madisonian nor wholly Jeffersonian, but a mixture of both. The new plan envisages “independent tribunals of justice” guarding the declared rights from factious legislative majorities. No longer are bills of rights conceived simply in terms of protecting the people from the abuse of power by the few. The blending is clearest in the fifth proposition. There Madison mixed Jefferson’s notion that “a bill of rights is what the people are entitled to against every government on earth,” with his own concern that the greatest danger to liberty is at the state level. The result is a proposition declaring that “no State shall violate the equal right of the 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.”
The Congressional debate on Madison’s propositions is not without irony. Roger Sherman, arguably Madison’s leading and most persuasive opponent during the structural phase of the 1787 Philadelphia Convention, objected to his attempt to incorporate the revisions “neatly” within the body of the Constitution. If the revisions are added as “supplements,” said Madison, “they will create unfavorable comparison” with the original Constitution. Sherman, however, prevailed. The original work of the framers, he argued, should remain intact. Moreover, Sherman urged his colleagues to reject incorporating the Declaration of Independence into the Preamble: “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.” On the other hand, Sherman proved to be an important ally in defeating the attempts of the South Carolina delegation to introduce amendments that would “change the principles of the Government.” A final irony occurs with the decision of the House to add the bill of rights as a “supplement” to the Constitution: Madison’s fourth proposition that protects three essential rights against the tyrannical conduct of state government emerged as the fourteenth of the seventeen amendments submitted to the Senate for their approval! The Senate rejected this proposal. In the end, Congress submitted twelve amendments to the States for approval. Ten were ratified.
On 21 July, the House sent Madison’s proposals to a select committee. The second entry is the 28 July 1789 Report of the House Select Committee on Amendments. The third entry contains 1) the House debates on the Select Committee Report between 13 and 24 August. These selections show that Madison was ultimately unsuccessful in his attempt to a) “interweave” the proposed amendments into the body of the Constitution and b) 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. And 2) the third entry reproduces the seventeen amendments passed by the House and sent to the Senate. The Senate reduced the number to twelve, and a six-member joint Conference Committee ironed out the remaining differences. The fourth entry thus reproduces the twelve amendments submitted by the Congress to the States for approval following the version found in Charles Tansill, Documents (1063-1065). I have included Tansill’s final footnote summarizing the decisions of the state legislatures and added, in square parentheses, the date, and order in which each state ratified the Bill of Rights. Tansill, following Elliot’s Debates (I: 339-340), includes Kentucky as a non-ratifying state and does not indicate that Vermont was the tenth state to ratify on November 3, 1791. Massachusetts, Connecticut, and Georgia ratified on March 2, 1939 during the sesquicentennial celebrations. The fifth entry reproduces the first ten amendments from Tansill (1066-1067). Bernard Schwartz (V: 983-1204) contains extensive coverage of the House and Senate discussions and decisions. See Linda Grant DePauw, Documentary History of the First Federal Congress, 1789-1791 and Helen Voight, etal., The Documentary Record, for the complete account of the legislative history.