by Ray Raphael
On September 12, Hugh Williamson moved that the right to a jury trial, already in the working draft for criminal cases, should be extended to civil cases as well. George Mason was not entirely convinced, but the expanding list of protected rights led him to a new idea: why not preface the Constitution with a full “Bill of Rights,” as many of the states had done with their constitutions? “It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours,” he said. Elbridge Gerry, agreeing with Mason, moved that the preparation of a Bill of Rights be assigned to committee.9
Roger Sherman, the only other delegate to address the motion, spoke tersely against it. “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient,” he said—but then he returned quickly to jury trials in civil cases, the item on the floor when Gerry and Mason had interrupted with their motion. That ended the discussion. When the question was called on Gerry’s motion, not a single state voted “ay.” The idea of a bill of rights might have found a warmer reception if offered earlier, but the Committee of Style had just presented its almost-final draft, and delegates thought their work was done. Perhaps it was weariness, not logic, that doomed a bill of rights at the Federal Convention.
The framers’ neglect was a colossal political blunder. Mason had offered a strong argument for a bill of rights—“It would give great quiet to the people”—and the implication was clear: its omission would cause great displeasure. That argument alone should have sufficed. The framers had spent over three months conjuring their plan, purposely shielded from the external input of people “out-of-doors.” They failed to realize that some express mitigation of governmental power would make their plan more palatable to Revolutionary-era Americans who had come to expect such assurances.10
Rebuffed on a bill of rights in the final week of the convention, Mason took his fight to the people. He prepared a list of objections to the proposed Constitution, and its first item charged: “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 Declarations of Rights in the separate States are no security.” From that moment, the absence of constitutional provisions securing treasured rights served as a rallying call for opponents of ratification.11
Seemingly taken by surprise at the spirited response, the Constitution’s supporters conjured a dizzying array of defensive arguments. James Wilson, in his much-publicized speech outside the Pennsylvania State House on October 6 (see chapter 6), opened by drawing a philosophical distinction. When creating state governments, he said, the people had “invested their representatives with every right and authority which they did not in explicit terms reserve,” and that was why they had needed to define the rights they were not giving to their new governments. “In delegating federal powers,” on the other hand, they had made a “positive grant” of specific powers, while reserving all other authority to themselves. Since they had never granted Congress any power over the press, for instance, it would have been “superfluous and absurd” to protect against a power Congress did not have. Indeed, to declare liberty of the press would falsely imply that Congress did have power over the press, a dangerous prospect.12
Federalists loved Wilson’s tidy reasoning and repeated it often, but it failed to address people’s concerns. The new federal government did possess the power to raise a standing army, and unless otherwise prohibited, it might force citizens to quarter that army as the British had only two decades earlier. It did have the power to levy and collect imposts, and unless prohibited, federal agents, without a warrant or warning, could march into a person’s house at any time of night or day in search of smuggled goods, an injustice that had aroused a colonial people in 1761. The federal judiciary did have the power to punish crimes, yet there were no precautions against torture to force confessions, indefinite detention through prohibitive bail, or cruel or unusual punishments. No sophisms about reserved powers versus granted powers spoke to these real-life possiblilites.
Alexander Hamilton, in The Federalist No. 84 (Publius’s next-to-last essay), did his best at damage control. He repeated Wilson’s basic message—“Why declare that things shall not be done, which there is no power to do?”—but to this he added other curious arguments. He listed the rights that the Constitution did protect—writs of habeas corpus, jury trials in criminal cases, prohibitions against ex post facto laws and bills of attainder, the requirement for two witnesses in treason trials—and then padded that list with obscure “rights” that were politically meaningful but seemed of little direct use to ordinary citizens: federal officeholders, if convicted of impeachment, could not be punished without subsequent legal proceedings, and Congress could not grant titles of nobility. Because these “certain immunities” specified “the political privileges” of its citizens, Hamilton concluded, “The Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.” He did not acknowledge that his meager list fell far short of people’s expectations.
Taking the opposite tack, but again revealing more disdain than respect for individual rights, Hamilton proclaimed that specified protections, such as those listed in the state declarations of rights, were mere “aphorisms … which would sound much better in a treatise of ethics than in a constitution of government.” Although he did have a point—those declarations of rights were not judicially enforceable constitutional commands—his dismissive tone probably won few converts. Understandably, The Federalist No. 84 is rarely quoted today by those who praise the founders for their advocacy of rights.13
Similarly, James Madison believed the state declarations of rights were mere “parchment barriers” and of little use. He argued repeatedly that overzealous state legislatures—including the legislature of his own Virginia—had ignored these declarations and enacted intrusive legislation. A national bill of rights would not do much good either, he felt, except perhaps from a political standpoint. Unlike Hamilton and Wilson, though, he was not adamantly opposed to a bill of rights. “I never thought the omission a material defect, nor been anxious to supply it by subsequent amendments, for any other reason than that it is anxiously desired by others,” Madison wrote to Jefferson in the fall of 1788, after Jefferson voiced his support for a bill of rights. “I have not viewed it in an important light,” he stated flatly.14
Except for Jefferson, who was in Paris at the time and did not help write the Constitution, the men most commonly referred to as founders greeted the clamor for a bill of rights with hostility or, at best, indifference. The Constitution took no one’s rights away, they believed. Besides, they had included measures that protected the states in their new plan, and those states, by jealously guarding their own authority, would provide sufficient checks on federal power. The division of powers among the separate branches of the federal government would also protect against abuses, and, ultimately, officials of the new government would be directly or indirectly responsible to the people or to their state legislatures. Wasn’t that enough?
No, it wasn’t. People out-of-doors wanted more, as the Federalists would learn soon enough.
At the close of the Federal Convention, George Mason had issued a sweeping indictment: “It was improper to say to the people, take this or nothing.” The people had no say in writing the proposed Constitution, and the ratification process required a simple up-or-down vote. There was no in-between.15
This stark choice bothered many of the Constitution’s opponents, many of whom acknowledged the defects of the Articles of Confederation and the need to revise or even perhaps to replace them. These critics made various counterproposals: a state could refuse to ratify unless the document were revised by previous amendments; a state would ratify under the condition that certain amendments be adopted; a state could refer the Constitution, together with lists of either previous amendments or conditional amendments, to a second federal convention. The Constitution
’s supporters indignantly rejected these proposals, some invoking the authority and patriotism of the framers, others pointing out the impossibility or undesirability of a second convention, still others questioning the motives of the critics. They insisted the choice must be all or nothing.
A simple up-or-down vote bothered many citizens of Massachusetts, the sixth state to vote on ratification. The Southborough town meeting, when electing its representatives to the state ratification convention, issued these instructions: “It is our opinion that the Federal Constitution, as it now stands ought not to be ratifyed, but under certain limitations and amendments it may be a salutary form of government.” Massachusetts Speaker of the House James Warren, writing as “A Republican Federalist,” objected to the idea that states were supposed to “take this or have none,” without any chance to add, subtract, or alter it. “This may be language adopted to slaves, but not to freemen,” he wrote.16
At the Massachusetts convention, Federalists found themselves just shy of the number of votes required for ratification. After weeks of debate, moderate Federalists approached moderate delegates on the other side with an innovative and ultimately game-changing proposal. They suggested the convention ratify the Constitution but “recommend” nine amendments for future consideration, and in exchange they pledged to work for those amendments’ ratification. This deal procured the votes needed to secure ratification by Massachusetts.
Those nine amendments, it is commonly reported today, were an embryonic “Bill of Rights.” According to one popular website: “The impasse was finally overcome by what is known as the Massachusetts Compromise. The Massachusetts ratifying convention finally got enough Anti-Federalists on board by recommending a number of amendments be adopted by the First Congress under the new constitution. So the Anti-Federalists voted yes, on the promise that a Bill of Rights would be added.”17
These nine amendments, however, were in no way a cohesive “Bill of Rights.” A varied assortment, they resulted from in-house, last-minute scrambling as delegates weighed this complaint or that. One required juries for civil cases, another required grand juries for major criminal cases, and a third reserved to the states powers “not expressly delegated” to the federal government, a stronger version of what would become the Tenth Amendment (see chapter 4). The rest, though, bore no resemblance to protections that would later be enshrined in the Bill of Rights. Some chipped away at the powers of the national government, most critically Congress’s authority to levy direct taxes without first requisitioning the states (see chapter 2). One said “that Congress erect no company with exclusive advantages of commerce.” Another stated that no federal officeholder could accept a “title of nobility … from any king, prince, or foreign state.”18
The Massachusetts example transformed the ratification controversy. Five of the six remaining ratifying conventions to vote in 1788 recommended amendments. (Maryland, the exception, failed to do so only because committee members could not agree on which amendments to recommend.) Each of these states, like Massachusetts, wanted to regulate federal taxation, assign nondelegated powers to the states, and affirm state control over elections. The lists included several other amendments that shifted the balance of power back toward the states. Virginia proposed twenty amendments as well as a detailed “declaration or bill of rights” containing twenty additional items. North Carolina copied Virginia’s lists and then added six additional amendments. New York proposed thirty-two amendments plus twenty-four “principles,” essentially its own declaration of rights that it included in its official ratification, what we might call today a “signing statement.”19
What was to be done with all these amendments and declarations of rights?
In Virginia, Federalists secured ratification with no more than a promise to forward the amendments to Congress and a pledge to support them, but in two other states the Constitution’s opponents were less easily led. The New York convention ratified the Constitution but simultaneously managed to get the convention to send a circular letter to the other states, proposing a second national convention to consider all amendments that had been suggested, including its own. The North Carolina convention declared flatly it would not ratify the Constitution until a national convention was called and had actually met.20
The growing prospect of a second federal convention horrified Federalists. After the Virginia convention, Madison fretted to Washington and Hamilton, “A variety of amendments have been recommended; several of them highly objectionable.” The most worrisome of the lot was the prohibition against direct federal taxation unless states failed to meet their requisitions. This popular amendment, he warned, placed the essence of the Constitution in jeopardy, even after ratification. New York’s official call for a second federal convention sent Madison into a near panic. “Those who opposed the Constitution,” he wrote to Jefferson, would try to load such a convention with “men who will essentially mutilate the system, particularly in the article of taxation, without which in my opinion the system cannot answer the purposes for which it was intended.” He also alerted Washington: “If an early general convention cannot be parried, it is seriously to be feared that the system which has resisted so many direct attacks may be successfully undermined by its enemies.”21
Washington agreed. New York’s circular letter “will be attended with pernicious consequences,” he wrote back to Madison.22
How, then, might friends of the new Constitution prevent a second federal convention?
Madison saw a way. The best defense was a good offense, he reasoned. If Congress seized the initiative and proposed amendments to the Constitution, leaders of the opposition could not “blow the trumpet for a second convention.” Congress could then pick and choose amendments that did not threaten the basic integrity of the Constitution—a bill of rights, yes; a weakening of congressional taxation, no. Despite his previous opposition to a constitutional enumeration of rights, Madison entertained and then embraced this simple political calculus.23
Madison’s scheme meshed well with his own political needs. In the winter following ratification, he faced a tough election battle for a seat in the First Federal Congress. To gain the critical support of persecuted Baptists in his district, who had long supported him because of his battles for separation of church and state, he promised that if elected, he would work to protect “the rights of Conscience in the fullest latitude.” Madison, with Jefferson, was a firm believer in religious liberty—in fact, he had engineered the passage of Virginia’s unique Statute for Religious Freedom in 1786—so he had no difficulty in making this promise. He did need to adjust his dismissive attitude toward a bill of rights, however. To a constituent he wrote, “[I]t is my sincere opinion that the Constitution ought to be revised…. [A]mendments, if pursued with a proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of their liberty.” Madison won the election, prevailing over one of the popular opponents of the Constitution, a man who would later succeed him as president: James Monroe.24
Washington, who faced no opposition in the first presidential election, gave Madison’s plan his blessing. In his inaugural address to Congress on April 30, 1789, which Madison helped him to draft, he addressed the lingering “inquietude” of the Constitution’s opponents and the amendments they had put forward. Swaying from Federalist orthodoxy, he suggested in a most delicate manner that Congress consider proposing some amendments. “It will remain within your judgment,” he said, to decide what amendments to propose, but he did suggest general guidelines: “I assure myself that whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience, a reverence for the characteristic rights of freemen and a regard for the public harmony will sufficiently influence your deliberations on the question how far the former can be impregnably fortified or t
he latter be safely and advantageously promoted.”25
In private communication, Washington ardently opposed only one amendment: “There are scarcely any of the amendments which have been suggested, to which I have much objection, except that which goes to the prevention of direct taxation.” He did not need to say that publicly. He could rest assured that the new Federalist-dominated Congress would not weaken its own power to tax.26
Madison, ostensibly executing the president’s will, set to work and combed through the numerous amendments suggested at state ratifying conventions. In line with Washington’s instructions, he separated those that could be “safely and advantageously promoted” from those that might “endanger the benefits of an united and effective government.” He condensed those he favored and then sent his preliminary draft to Washington for his input. On May 31 Washington responded: “As far as a momentary consideration has enabled me to judge, I see nothing exceptionable in the proposed amendments. Some of them, in my opinion, are importantly necessary; others, though in themselves (in my conception) not very essential, are necessary to quiet the fears of some respectable characters and well meaning men. Upon the whole, therefore, not foreseeing any evil consequences that can result from their adoption, they have my wishes for a favourable reception in both houses.”27
