Bill of Rights

by Gordon Lloyd

List of Madison’s Proposals
Power Vested in the People          
Life, Liberty, Property, Happiness      
Alter/Abolish/Create Government        
Legislative Compensation            
Civil Rights and Religious Belief                  
No Established Religion/Favored Sect      
Rights of Conscience/Free Exercise      
Freedom of Speech          
Freedom of Press      
Freedom of Assembly          
Freedom of Petition        
Keep and Bear Arms/Militia      
Arms and the Religiously Scrupulous          
Quartering of Troops      
Double Jeopardy                
Due Process of Law        
Takings/Just Compensation                  
No Excessive Bail and Fines        
No Cruel and/or Unusual Punishments        
No Unreasonable Searches/Seizures      
Speedy/Public Trial in Criminal Cases      
Nature of Accusation        
Confrontation of Accusers        
Compulsory Witness        
Assistance of Counsel        
Rights Retained by the People                  
No State & Equal Right of Conscience                  
No State & Freedom of Press                  
No State & Trial by Jury (Criminal)                  
$ Limitation on Appeals            
Common Law and Jury Trial  
(Local) Impartial Jury for All Crimes      
Various Trial “Requisites”      
Grand Jury for Loss of Life or Limb            
Non-Local Trial of Crimes                
Separation of Powers        
Reservation of Non-Delegated Powers

The first column lists the 39 items in Madison’s list. The remaining columns concern the ratifying conventions. We are interested in charting the relationship between the requests and recommendations of the ratifying conventions and what actually proposed on June 8.

I have divided the ratifying conventions into three categories. The first are five conventions: Pennsylvania, Massachusetts, New Hampshire, Virginia and New York. Although the Pennsylvania Minority Report is not part of the official Pennsylvania ratification record, and it was issued as a partisan broadside by discontented Antifederalists, some scholars have leaped to the conclusion that it represents the first draft of the Bill of Rights. Roughly half of Madison’s proposal bears some affinity with the Minority Report, an insufficient number to bear the title of first draft. Massachusetts and New Hampshire are important because the amendment proposal did have a bearing on ratification in those two states. But the proposal had very little bearing on Madison’s bill of rights proposal in the First Congress. The story is far different when we turn to Virginia and New York. Both states proposed amendments AND a bill of rights. I have included the Bill of Rights recommendations. Over 2/3 of Madison’s proposals have a strong affinity with the recommendations from these two states.

The next group is what emerged from the South Carolina and Maryland conventions. The call for a bill of rights from these two conventions was neither strong nor influential on the outcome of the result in these two states. Moreover, only two from South Carolina and less than a third from Maryland made their way into Madison’s list.

The third group consists of North Carolina and Rhode Island. Both lists seem as strong in their affinity with Madison’s list as do the lists of Virginia and New York. But there is a twist in the story. Virginia and New York were “inspirational” rather than “confirmational” since their lists took place before June 8. North Carolina and Rhode Island were “confirmational ” rather than “inspirational,” because they were announced way after June 8 and after the conclusion of the first session of the First Congress.

In conclusion, to the extent that the list of 39 rights that Madison introduced in the First Congress was influenced by the dynamics of the ratification campaign, then it is necessary and sufficient to emphasize the Virginia and New York ratifying conventions. And we need to recognize that there is something uniquely Madison about Madison’s June 8 list, namely, restraints on the state governments with respect to religion, press, and juries. These restraints made their way through the House of Represenatives but were overturned in the Senate.