Bill of Rights (United States)

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On September 12, 1787, the only major task of the constitutional convention of 1787 was to adopt, engross, and sign the finished document reported by the Committee on Style. The weary delegates, after a hot summer's work in Philadelphia, were eager to return home. At that point george mason remarked that he "wished the plan had been prefaced by a Bill of Rights," because it would quiet public fears. Mason made no stirring speech for civil liberties; he did not even argue the need for a bill of rights or move the adoption of one, though he offered to second a motion if one were made. elbridge gerry moved for a committee to prepare a bill, Mason seconded, and without debate the delegates, voting by states, defeated the motion 10–0. A motion to endorse freedom of the press was also defeated, after roger sherman declared, "It is unnecessary. The power of Congress does not extend to the Press."

Not a delegate to the convention opposed a bill of rights in principle. The overwhelming majority believed "It is unnecessary." Although they were recommending a strong national government that could regulate individuals directly, Congress could exercise only enumerated powers or powers necessary to carry out those enumerated. A bill of rights would restrain national powers, but, as Hamilton asked, "Why declare that things shall not be done which there is no power to do?" Congress had no power to regulate the press or religion.

Civil liberties, supporters of the Constitution believed, faced danger from the possibility of repressive state action, but that was a matter to be guarded against by state bills of rights. Some states had none, and no state had a comprehensive list of guarantees. That fact provided the supporters of ratification with another argument: if a bill were framed omitting some rights, the omissions might justify their infringement. The great virginia declaration of rights had omitted the freedoms of speech, assembly, and petition; the right to the writ of habeas corpus; the right to grand jury proceedings; the right to counsel; and freedom from double jeopardy, bills of attainder, and ex post facto laws. Twelve states, including Vermont, had framed constitutions, and the only right secured by all was trial by jury in criminal cases; although all protected religious liberty, too, five either permitted or provided for establishments of religion. Two passed over a free press guarantee. Four neglected to ban excessive fines, excessive bail, compulsory self-incrimination, and general search warrants. Five ignored protections for the rights of assembly, petition, counsel, and trial by jury in civil cases. Seven omitted a prohibition on ex post facto laws. Nine failed to provide for grand jury proceedings, and nine failed to condemn bills of attainder. Ten said nothing about freedom of speech, while eleven were silent on double jeopardy. Omissions in a national bill of rights raised dangers that would be avoided if the Constitution simply left the rights of Americans uncatalogued. The Framers also tended to be skeptical about the value of "parchment barriers" against "overbearing majorities," as james madison said. As realists they understood that the constitutional protection of rights would mean little during times of popular hysteria or war; any framer could cite examples of gross abridgments of civil liberties in states that had bills of rights.

The lack of a bill of rights proved to be the strongest argument of the opponents of ratification. The usually masterful politicians who dominated the Constitutional Convention had made a serious political error. Their arguments against including a bill of rights were neither politic nor convincing. A bill of rights could do no harm, and, as thomas jefferson pointed out in letters persuading Madison to switch positions, might do some good. Moreover, the contention that listing some rights might jeopardize others not mentioned was inconsistent and easily answered. The inconsistency derived from the fact that the Constitution as proposed included some rights: no religious test for office; jury trials in criminal cases; the writ of habeas corpus; a tight definition of treason; and bans on ex post facto laws and bills of attainder. The argument that to include some rights would exclude others boomeranged; every right excluded seemed in jeopardy. Enumerated powers could be abused; the power to tax, opponents argued, might be used against the press or religion. Moreover, the argument that a bill of rights was unnecessary could not possibly apply to the rights of the criminally accused or to personal liberties of a procedural nature. The new national government would act directly on the people and be buttressed by an undefined executive power and a national judiciary to enforce laws made by Congress; and Congress had the authority to define crimes and prescribe penalties for violations of its laws. patrick henry contended that the proposed Constitution empowered the United States to torture citizens into confessing their violations of congressional enactments.

Mason's point that a bill of rights would quiet the fears of the people was unanswerable. Alienating him and his followers was bad politics and blunderingly handed them a stirring cause around which they could muster opposition to ratification. No rational argument—and the lack of a bill of rights created an extremely emotional issue not amenable to rational argument—could possibly allay the fears generated by demagogues like Henry and principled opponents like Mason.

In Pennsylvania, the second state to ratify, the minority demanded a comprehensive bill of rights. Massachusetts, the sixth state to ratify, was the first to do so with recommended amendments, although only two—jury trial in civil suits and grand jury indictment—belonged in a bill of rights. But Massachusetts led the way toward recommended amendments, and the last four states to ratify recommended comprehensive bills of rights. Every right that became part of the ten amendments known as the Bill of Rights was included in state recommendations, with the exception of just compensation for property taken.

Some Federalists—above all Madison, whose political position in Virginia deteriorated because of his opposition to a bill of rights—finally realized that statecraft and political expediency dictated a switch in position. In states where ratification was in doubt, especially New York, Virginia, and North Carolina, Federalists pledged themselves to subsequent amendments to protect civil liberties, as soon as the new government went into operation.

In the first Congress, Representative Madison sought to fulfill his pledge. His accomplishment in the face of opposition and apathy entitles him to be remembered as "father of the Bill of Rights" even more than as "father of the Constitution." Many Federalists thought that the house had more important tasks, like the passage of tonnage duties. The opposition party, which had capitalized on the lack of a bill of rights in the Constitution, hoped for either a second convention or amendments that would cripple the substantive powers of the government. They had used the bill of rights issue as a smokescreen for objections to the Constitution's provisions on direct taxes, the judicial power, and the commerce power; these objections could not be dramatically popularized, and now the Anti-Federalists sought to scuttle Madison's proposals. They began by stalling, then tried to annex amendments aggrandizing state powers, and finally depreciated the importance of the very protections of individual liberty that they had formerly demanded. Madison meant to prove that the new government was a friend of liberty, and he understood that his amendments, if adopted, would make extremely difficult the passage of genuinely Anti-Federalist proposals. He would not be put off; he was insistent, compelling, unyielding, and, finally, triumphant.

On June 8, 1789, he made his long masterful speech before an apathetic House, introducing amendments culled mainly from state constitutions and state ratification proposals. All power, he argued, is subject to abuse and should be guarded against by constitutional provisions securing "the great rights of mankind." The government had only limited powers, but it might, unless prohibited, use general warrants in the enforcement of its revenue laws. In Great Britain, bills of rights merely erected barriers against the powers of the crown, leaving the powers of Parliament "altogether indefinite," and in Great Britain, the constitution left unguarded the "choicest" rights of the press and of conscience. The great objective he had in mind, Madison declared, was to limit the powers of government, thus preventing legislative as well as executive abuse, and above all preventing abuses of power by "the body of the people, operating by the majority against the minority." Mere "paper barriers" might fail, but they raised a standard that might educate the majority against acts to which they might be inclined. To the argument that a bill or rights was not necessary because the states constitutionally protected freedom, Madison had two responses. One was that some states had no bills of rights, others "very defective ones." The states constituted a greater danger to liberty than the new national government. The other was that the Constitution should, therefore, include an amendment that "No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." This, Madison declared, was "the most valuable amendment in the whole list." To the contention that an enumeration of rights would disparage those not in the list, Madison replied that the danger could be guarded against by adopting a proposal of his composition that became the ninth amendment. If his amendments were "incorporated" into the constitution, Madison said, using another argument borrowed from Jefferson, "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution.…"

Supporters of Madison informed him that Anti-Federalists did not really want a bill of rights and that his proposals "confounded the Anties exceedingly.…" Madison's proposals went to a select committee, of which he was a member, though its chairman, John Vining of Delaware, thought the House had "more important business." The committee added freedom of speech to the recommended prohibitions on the states, made some stylistic changes, and urged the amendments, which the House adopted. Madison, however, had proposed to "incorporate" the amendments within the text of the Constitution at appropriate points. He did not, that is, recommend their adoption as a separate "bill of rights." Members objected that to incorporate the amendments would give the impression that the Framers of the Constitution had signed a document that included provisions not of their composition. Another argument for lumping the amendments together was that the matter of form was so "trifling" that the House should not squander its time debating the placement of the various amendments. Indeed, Aedanus Burke of South Carolina, an Anti-Federalist, thought the amendments were "not those solid and substantial amendments which the people expect; they are little better than whip-syllabub, frothy and full of wind … it will be better to drop the subject." Men of Burke's views in the Senate managed to kill the proposed restrictions on the states, and the Senate sought to cripple the clause against establishments of religion. A conference committee of the two houses, which included Madison, accepted the Senate's joining together several amendments but agreed to Madison's phrasing of the proposal that became the first amendment. The House accepted the conference report on September 24, 1789, the Senate a day later. Virginia's senators, William Grayson and richard henry lee, both Anti-Federalists, opposed the amendments because they left "the great points of the Judiciary, direct taxation, &c to stand as they are.…" Lee informed Patrick Henry that they had erred in their strategy of accepting ratification on the promise of subsequent amendments. Grayson reported to Henry that the amendments adopted by the Senate "are good for nothing.…"

Within six months of the time the amendments, or Bill of Rights, were submitted to the states for approval, nine states ratified. Connecticut and Georgia refused to ratify on the ground that the Bill of Rights was unnecessary; they belatedly ratified on the sesquicentennial anniversary of the ratification of the Constitution in 1939. (Massachusetts ratified in 1939, too, although both houses of its legislature in 1790 had adopted most of the amendments, but they had failed to send official notice of ratification.) The admission of Vermont to the union in 1791 made necessary ratification by eleven states. Vermont's ratification of the amendments in November 1791 made Virginia's approval indispensable as the eleventh state. The battle there was stalled in the state senate, where the Anti-Federalists were in control. They first sought to sabotage the Bill of Rights and then, having failed in their chief objective to abolish the power of Congress to enact direct taxes, they irresolutely acquiesced two years later. Virginia finally ratified on December 15, 1791, making the Bill of Rights part of the Constitution.

The history of the framing and ratification of the Bill of Rights is sparse. We know almost nothing about what the state legislatures thought concerning the meanings of the various amendments, and the press was perfunctory in its reports, if not altogether silent. But for Madison's persistence the amendments would have died in Congress. Our precious Bill of Rights was in the main the result of the political necessity for certain reluctant Federalists to make their own a cause that had been originated, in vain, by the Anti-Federalists to vote down the Constitution. The party that had first opposed a Bill of Rights inadvertently wound up with the responsibility for its framing and ratification, while the party that had first professed to want it discovered too late that it was not only embarrassing but politically disastrous for ulterior party purposes.

Leonard W. Levy


Brant, Irving 1965 The Bill of Rights: Its Origin and Meanings. Indianapolis: Bobbs-Merrill.

Dumbauld, Edward 1957 The Bill of Rights and What It Means Today. Norman: University of Oklahoma Press.

Rutland, Robert A. 1955 The Birth of the Bill of Rights, 1776–1791. Chapel Hill: University of North Carolina Press.

Schwartz, Bernard 1977 The Great Rights of Mankind: A History of the American Bill of Rights. New York: Oxford University Press.