During the final week of the Convention, Edmund Randolph clearly felt uneasy about the final draft of the Constitution that emerged from the Committee of Style Report. He called for a second convention and that became a persistent theme of the Antifederalists from Virginia and New York who wanted to return to the structure of the Articles of Confederation. On the other hand, George Mason, author of the Virginia Declaration of Rights, expressed his wish that “the plan had been prefaced with a Bill of Rights [It] would give great quiet to the people” and would be easy to prepare given the presence of state declarations. His motion, supported only by Elbridge Gerry, was deemed unnecessary.
Apparently, Mason left Philadelphia very upset with what had taken place. Writing to Jefferson on October 24, 1787, Madison notes that “Col. Mason left Phila. in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed toward the close of business, conspired to whet his acrimony. He returned to Virginia with a fixed disposition to prevent the adoption of the plan if possible. He considers the want of a Bill of Rights as a fatal objection.” Madison concludes: “His conduct has given great umbrage to the Count of Fairfax, and particularly to the Town of Alexandria. He is already instructed to promote in the Assembly the calling of a Convention, and will probably be either not deputed to the Convention, or be tied up by his express instructions.”
By the Summer of 1787, with the exception of the omission by the Constitutional Convention, there was an emerging “deliberate sense of the community” that a bill of rights either preface or be inserted within constitutional documents. And that Americans, as Jefferson remarked in the remarkable exchanges with Madison, had become used to a bill of rights and was something to be expected by all lovers of free government. And, however good the work of the Constitution, there was still the need to make the union more perfect.
Opponents of ratification of the Constitution argued that the absence of a bill of rights demonstrated that rights were insecure under the proposed Constitution. They considered the proponents’ arguments to be ingenious at best: how could the Constitution be a bill of rights (an argument proposed by James Wilson and Alexander Hamilton), yet include certain rights, (Hamilton pointed to Article I, Section 9) and then ignore such fundamental rights as freedom of religion, freedom of the press, and trial by jury? How could one grant Congress the power of governing (Article I, Section 8) and constitutional supremacy over state laws, (Article VI) and still argue that the Constitution is a document in which, according to Wilson, in his State House Speech, “everything which is not given, is reserved?” Thus argued the Antifederalist Brutus. And thus also argued the Pennsylvania Minority at the Pennsylvania Ratifying convention.
But lurking under this Antifederalist support for a traditional bill of rights to limit the reach of government were a more strident group of Antifederalists who favored amendment proposals that would alter the power and structure of the new federal government back in the direction of the Articles of Confederation. It is imperative to the unfolding of the political dimension of the Bill of Rights that the distinction between amendments to the Constitution and a bill of rights be kept distinct. The fact that, in the end, the U. S. Bill of Rights appears as 10 Amendments to the Constitution is the result of the politics of the First Congress and the shifting meaning and use of language that took place at the time of the American Founding. See, for example, the shift in the meaning of both republicanism and federalism.
Interestingly, even after the requisite nine states ratified the Constitution, Mason and Gerry became more and more interested in amendments that altered the structure and powers of the new government and less and less interested in limiting its reach by means of a bill of rights. Once the Constitution was ratified, Madison in the First Congress occupied the position formerly held by Mason and Gerry at the Philadelphia Convention.
A. Constitutional Convention and the Early Federalist/Antifederalist Exchange (September 1787 to December 1787)
- 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 in power.
- 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, stating “…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 his mind 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, says Brutus, to the specific individual rights that need protection: right 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.
B. Proposing a Bill of Rights and Later Ratification (January 1788 to July 1788)
- 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.” Federalist 84 was 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 (December 1787 to July 1788)
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.”