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The Constitutional Framers and the Bill of Rights

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The First Federal Congress, also known as the 1st Congress of the United States, met in three sessions between March 4, 1789 and March 3, 1791. The first two sessions were held in New York and the final session in Philadelphia. Our interest is in the First Session of the First Congress: March 4, 1789 —- September 29, 1789.

It is fascinating that Representatives James Madison, Roger Sherman, Elbridge Gerry, Nicholas Gilman, Thomas Fitzsimmons, George Clymer, Daniel Carroll, Abraham Baldwin, Hugh Williamson, and Senators Richard Bassett, Pierce Butler, Oliver Ellsworth, W. S. Johnson, George Few, Rufus King, Robert Morris, John Langdon, William Patterson, George Read, and Caleb Strong were all members of the First Congress. So there were 9/59 Framers in the House — eight signers and one non-signer Gerry — and 11/22 Framers in the Senate — ten signers plus one non-signer, but supporter, Ellsworth. Although several Constitutional Framers, Robert Morris in particular, seemed irritated that Madison insisted that the First Congress send amendments to the Constitution to the States for ratification by the end of the First Session, Gerry alone opposed Madison and he did so to the very end. We should add that President George Washington gave his support for Madison’s plan of action in his First Inaugural Address, and George Mason, although not a member of the First Congress was a serious behind-the-scenes obstacle to Madison’s efforts to secure a bill of rights. As usual, Edmund Randolph was unpredictable, this time in the Virginia State Legislature.

At the Constitutional Convention, in mid-September, 1789, Mason and Gerry failed to persuade any of their fellow delegates to preface the Constitution with a bill of rights. “It would give great quiet to the people,” urged Mason. He also thought it would be easy to compile a list given the widespread presence of a prefatory bill of rights at the state level. A few days later, on September 17, 1787, they declined to sign the Constitution citing the absence of a bill of rights among their reasons. Mason’s lead objection read thus: “There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declaration of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of common law.”

Madison recognized what he called Mason’s “ill-humor” in a October 24, 1787 letter to Thomas Jefferson: “Col. Mason left Philadelphia in an exceeding ill humor indeed. A number of little circumstances arising in part from the impatience which prevailed towards the close of the 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.”

In the First Congress, Gerry became more and more a determined Structural Antifederalist and dug in to alter the structure and powers of the new government rather than act as a Limited Antifederalist and try to limit its reach by a bill of rights! And also interesting is that Madison and Sherman, who feuded at the Constitutional Convention over the merits of the Connecticut Compromise, renewed their feud over the Bill of Rights in the First Congress!

It is also worthy of note that the close electoral numbers in the ratifying debates — see the closeness of the ratification votes in Massachusetts, New Hampshire, Virginia, and New York — and the sense of tension and urgency brought about by the close distribution of the ratification votes were absent in the First Congress. There were only 13/59 Antifederalists (four from Virginia) elected to the House and 2/22 (both from Virginia) selected to the Senate.

But there was one very persistent Madison who understood the numbers. Constitutional Framer Hugh Williamson understood the ramifications of the actions of the First Congress. Writing to Madison on July 2, 1789, Williamson remarked: “I verily believe that unless you can persuade Congress seriously to take up & agree to some such Amendments as you have proposed, North Carolina will not confederate.”

To: Samuel Johnson
From: J. Madison
June 21, 1789

“…In the inclosed paper is a copy of a late proposition in Congress on the subject of amending the Constitution.”

This poor Antifederalist Congressional electoral performance is surprising because, as Charlene Bickford has pointed out, “Amendments became the only national issue during the election.” We hazard the following interpretation of the 1789 election. The American voter generally had lost the appetite for amendments that would change the structure and power of the government. Whatever appetite remained for such radical change was concentrated mainly in Massachusetts and Virginia. To the extent that these Antifederalists remained adamant in their rejection of the work of the Philadelphia Convention, the more they would be isolated from “the great difficulty” of governing the nation. To be sure, the specter of a Second Convention still haunted the debate, Mason, Henry, Gerry, and Tucker did their best to convulse the process, but Madison prevailed on the First Congress to adopt friendly alterations to the original Constitution.

The Structural Antifederalists, as distinguished from what we shall call Limitation Antifederalists, were unwilling to settle for what Madison himself — a Prudential Federalist — had dismissed during the ratifying campaign as mere “parchment barriers.” They wanted more than a bill of rights. They wanted a radical return to the Articles of Confederation. And interestingly, what we shall call the Determined Federalists actually agreed with the Structural Antifederalists: what Madison was about to propose to the First Congress concerning a bill of rights was a waste of time, “milk and water” proposals.

The Determined Federalists such as Butler, Langdon, and Morris wanted to get on with the business of setting up the Cabinet Departments, writing a Judiciary Act and, in the third session, creating a national bank. Madison, according to both the Structural Antifederalists and the Determined Federalists, was offering “a tub to the whale.”

The House appointed Madison, Sherman, and Vining to the Conference Committee. The Senate appointed Ellsworth, Carroll, and Patterson to the Conference Committee. So 4/6 members of the Conference Committee were Framers in Philadelphia. They agreed on 12 amendments that they considered to be consistent with the original Constitution they framed.

James Madison wrote to Edmund Pendleton on April 9, 1789: “…The subject of amendments has not yet been touched. From appearances there will be no great difficulty in obtaining reasonable ones. It will depend however entirely on the temper of the Federalists, who predominate as much in both branches, as could be wished.”

William Davie wrote to James Madison  on June 10, 1789: “…You are well acquainted with the political situation of this State, its unhappy attachment to paper money, and that wild skepticism which has prevailed in it since the publication of the Constitution. It has been the uniform cant of the enemies of the Government, that Congress would exert all their influence to prevent the calling of a convention, and would never propose an amendment themselves, or consent to an alteration, that would in any manner diminish their powers.”

George Clymer wrote to Richard Peters on June 8, 1789: “Madison this morning is to make an essay towards amendments — but whether he means merely a tub to the whale, or declarations about the press liberty of conscience &c. or will suffer himself to be so far frightened with the antifederalism of his own state as to attempt to lop off essentials I do not know — I hope however we shall be strong enough to postpone.… Afternoon — Madison’s has proved a tub on a number of Amendments. But Gerry is not content with them alone, and proposes to treat us with all the amendments of all the antifederalists in America.”