Bill of Rights
[tah-anchor name=”convention”][/tah-anchor]Constitutional Convention and Early Ratification
- Edmund Randolph’s Objections (September 10, 1787)
Edmund Randolph lists twelve objections he had to signing the Constitution. He would, however, sign with the understanding that “another general Convention” would be called “with full power to adopt or reject the alterations proposed by the State Conventions.”
- George Mason’s Call for a Bill of Rights (September 12, 1787)
The Committee of Style Report was presented on September 10. On September 12, George Mason supported by Elbridge Gerry moved that a committee be created to prepare a prefatory Bill of Rights modeled on “the state declarations.”
- George Mason’s Objections to the Constitution (October 1787)
The first of George Mason’s ten objections to the Constitution begins: “There is no declaration of rights.” In particular, “there is no declaration of any kind for preserving liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in times of peace.” Mason’s position is that a federal bill of rights is both imperative and valuable. He was concerned that Congress may abuse the supremacy clause and the necessary and proper clause. The supremacy clause makes federal laws “paramount to the laws and constitutions of the several states.” Thus, “the declaration of rights, in the separate states, are of no security.” The necessary and proper clause enables Congress to “grant monopolies in trade and commerce, constitute new crimes, inflict unusual and sever punishments, and extend their power as far as they should think proper.”
- State House Speech by James Wilson (October 6, 1787)
James Wilson’s “State House” speech was the first official defense of the Constitution and responds directly to the objections George Mason had expressed during the last month of the Convention. It was published in the Pennsylvania Herald and widely distributed as “an authoritative explanation” of the Constitution. Wilson argued that at the state level, a bill of rights is necessary and salutory because “everything which is not reserved, is given,” but “superfluous and absurd” at the federal level because “everything which is not given, is reserved.” Wilson’s theory of “distinction” was invoked by both supporters and opponents.
- Letter from Richard Henry Lee to Edmund Randolph (October 16, 1787)
This letter from Lee to Randolph contains a list of proposed amendments. Lee originally presented them in one continuous paragraph; to assist the reader, we have broken the paragraph down into fourteen thematic divisions. Lee reiterates Mason’s claim that a bill of rights is necessary and proper and articulates the traditional argument that a bill of rights is needed to protect the people from the tyranny of the few.
- Elbridge Gerry’s Objections to the Constitution (October 18, 1787)
The Antifederalist Elbridge Gerry submits to the Massachusetts Legislature his principal reasons for not signing the Constitution on September 17, 1787 “that there is no adequate provision for a representation of the people; that they have no security for the right of election; that some of the powers of the Legislature are ambiguous, and others indefinite and dangerous, that the Executive is blended with and will have an undue influence over the Legislature; that the judicial department will be oppressive; that treaties of the highest importance may be formed by the President with the advice of two thirds of a quorum of the Senate; and that the system is without the security of a bill of rights.” He urges that the plan be amended before being adopted.
- Brutus II Essay (November 1, 1787)
In the second of sixteen essays that he published in the New York Journal, the prominent New York Antifederalist, Brutus, concurs with the arguments of Mason and Lee. There was no doubt in their minds that the new plan of government separation of powers, bicameralism, and federalism to the contrary notwithstanding concentrated power in the hands of the few. There is also remarkable uniformity to the specific individual rights that need protection: rights of conscience, freedom of the press, freedom of association, no unreasonable searches and seizures, trial by jury in civil cases, and no cruel and unusual punishment.
- Federalist No. 10 (November 22, 1787)
Madison argued that the best security for individual rights is the promotion of an extensive system of opposite and rival interests that, in turn, are filtered into the institutions of government by means of a scheme of representation.
- The Dissent of the Minority of the Convention of Pennsylvania (December 18, 1787)
Even though Pennsylvania voted to ratify the Constitution, the Report issued by the twenty-three Pennsylvania opponents had a considerable impact on the subsequent campaign. The Report proposed two different kinds of amendments. On the one hand, the minority called for amendments that would re-establish the principles of the Articles of Confederation. These were unfriendly to the Constitution. On the other hand, they proposed that a declaration of rights be annexed into the Constitution. What became the first, fourth, fifth, sixth, seventh, and eighth amendments to the Constitution were included in their list.
[tah-anchor name=”ratification”][/tah-anchor]Ratification of the Constitution
- Federalist No. 37 (January 11, 1788)
This is the first of 15 essays by Madison on the “great difficulties” facing the Founders in Philadelphia. Madison informs his readers that “a faultless plan was not to be expected.” He reminds his readers that “experience has instructed us that no skill in the science of government has yet been able to discriminate and define with sufficient certainty, its three great provinces the legislative, executive, and judiciary.”
- Federalist No. 51 (February 6, 1788)
This is the last of 15 essays by Madison on the “great difficulties” facing the Founders in Philadelphia. Madison argues that “in a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects.” Madison’s larger argument is that, although difficult, government must be structured so that each branch can check and balance each other thus securing political freedom.
- Amendments Proposed during the Massachusetts Ratifying Convention (February 6, 1788)
- Amendments Proposed during the South Carolina Ratifying Convention (May 23, 1788)
- Amendments Proposed during the New Hampshire Ratifying Convention (June 21, 1788)
- Bill of Rights and Amendments Proposed during the Virginia Ratifying Convention (June 25, 1788)
- Federalist No. 84 (July 16, 1788)
Another distinction to which Federalists appealed was the difference between a monarchy and a republic. In Federalist No. 84, Alexander Hamilton remarks that “bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince.” No. 84 was the last of the Federalist essays to be published in The New York Packet but the first to deal directly with the Bill of Rights controversy.
- Bill of Rights and Amendments Proposed during the New York Ratifying Convention (July 26, 1788)
- The Madison-Jefferson Exchange on Ratification and the Bill of Rights, Part I
The correspondence between Madison in the United States and Jefferson in Paris is a critical part of the story of the adoption of the Bill of Rights. Madison summarized the political problem that was to be solved by the Constitution: “To prevent instability and injustice in the legislation of the States.” What Madison was able to achieve, he explained, was the creation of an extended republic that would secure the civil and religious rights of individuals from the danger of majority faction. Jefferson responded favorably, but was troubled by James Wilson’s argument that a bill of rights was unnecessary. He reminded Madison that “a bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inference.”
- The following states ratified the Constitution and proposed amendments following Madison’s introduction of the Bill of Rights in the First Congress:
[tah-anchor name=”madison”][/tah-anchor]James Madison
- The Madison-Jefferson Exchange on Ratification and the Bill of Rights, Part II
With the ratification of the Constitution, Madison promoted the adoption of a bill of rights and the rejection of amendments that would radically alter the new government’s structure and power. He did so for both theoretical and prudential reasons. Madison distanced himself from the argument that a bill of rights may be dangerous as well as unnecessary. The danger of listing rights was overcome by declaring that the enumeration “of certain rights, shall not be construed to deny or disparage others retained by the people.” The prudential reasons included conciliating “honorable and patriotic” opponents who wanted to “revise” the Constitution by including a bill of rights and defeating the call for a second convention that would “abolish” the Constitution. He saw the First Congress as the “proper mode” to accomplish the objective of revision. Jefferson agreed that a declaration of rights should be added in a “way which will not endanger the whole frame of the government, or any essential part of it.” He informs Madison that these parchment rights could be protected by an independent judiciary.
- Excerpt from Washington’s Inaugural Address on the Bill of Rights (April 30, 1789)
In his first Inaugural Address, George Washington addressed only two particular issues: his compensation, which he declined, and Congress’ “exercise of the occasional power delegated by the first article of the Constitution,” the power to amend the Constitution. He asked that, “whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, a reverence for the characteristic rights of freemen will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.”
- Madison’s Speech Proposing Amendments to the Constitution (June 8, 1789)
In this speech, 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.”
- Madison’s Proposals Integrated into the Constitution
by Gordon Lloyd
[tah-anchor name=”congress”][/tah-anchor]First Congress
- 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.
- House Debates Select Committee Report (edited)
(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.
- Debates over the Bill of Rights in the House of Representatives during the First Congress
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.
- 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.
- First Congress Approves Twelve Amendments (September 25, 1789)
- Adoption of the Ten Amendments (December 15, 1791)