Bill of Rights
by Gordon Lloyd
|List of Madison’s Proposals|
|Power Vested in the People||♦||♦||♦||♦||♦|
|Life, Liberty, Property, Happiness||♦||♦||♦||♦||♦||♦||♦|
|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||♦||♦||♦||♦||♦||♦||♦|
|Due Process of Law||♦||♦||♦||♦||♦||♦|
|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||♦||♦||♦||♦||♦||♦|
|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.