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The Fate of Madison’s Proposals for the Bill of Rights

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Madison’s 39 proposals are grounded in the decision of the Virginia Ratifying Convention to distinguish between amendments that are unfriendly to the original Constitution and a bill of rights that reinforces the limitations on the reach of the new federal government. Thus it is not surprising, given the rough and tumble of the ratification struggle, to see that Madison includes virtually nothing from the unfriendly Virginia amendment proposals and everything from the friendly bill of rights proposals.

But to say the Madison’s proposals are grounded in the decision of the Virginia Ratifying Convention is NOT to say that what is going on here is “mere politics” in the sense that the articulation of high-minded principles are actually, and simply, the result of immediate self-serving actions and contingent and accidental events.

We need to grasp that what is going on in the Fate of Madison’s Proposals is a mixture of abstract principles meeting live people dealing with their own difficulties and vice versa. Everything that is in the 26 “Guarantees” in the Bill of Rights can be found in Madison’s 39 Proposals but not everything in Madison’s 39 Proposals can be found in the 26 “Guarantees” of the Bill of Rights. To be sure, we need to go beyond Madison’s 39 Proposals to understand the story of the Bill of Rights. But realistically we don’t need to do so, for everything that is in the Bill of Rights is in Madison’s 39 Proposals, which themselves are based primarily on a) the recommendations of the State Ratifying Conventions and b) his trans-Atlantic exchange with Jefferson.

The table below shows how Madison’s 39 proposals became 26 rights in the Bill of Rights. Madison wanted the 39 rights to be incorporated into the original Constitution. The House rejected Madison’s approach to incorporate the Bill of Rights into the various Articles of the original Constitution. Instead, the House Version passed the Bill of Rights in the form of 17 amendments to be placed at the end of the original Constitution. The Senate followed the House Amendment approach and, in the process, reduced the number of Amendments to 12. The Senate rejected Madison’s attempt to impose three essential rights on the state governments as well as the federal government.

The origin of Madison’s 39 Proposals were the result of both high ground and low ground activity. So, too, was the fate of Madison’s proposals. And such high ground and low ground politics is to be expected in a country grounded in the principle of the consent of the governed.

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
Totals 39 36 35 28 27 28 28 28 27 27 26 27 28 28 28 26