Bill of Rights in U.S. Constitution
When the American colonists separated from Britain in 1776, most of the states wrote new constitutions to replace their defunct colonial governments. Many, although not all, of these new constitutions were accompanied by declarations or bills of rights. These documents recognized a combination of natural rights and essential civil liberties derived from Anglo-American common law jurisprudence and representative government. They also contained language that stated fundamental principles of republican government. Prior to the adoption of the Massachusetts constitution of 1780, these declarations of rights were not formally incorporated in the actual constitutions. Rather, they were companion documents that reminded Americans what their rights were; their legal authority remained uncertain.
Campaign for a Bill of Rights
When the Federal Convention met in 1787, only a handful of delegates expressed any interest in including a comprehensive list of rights in the new constitution of national government they were drafting. On 12 September 1787, five days before the convention was to adjourn, two of the three delegates still present raised the issue of including a bill of rights in the Constitution; these delegates indicated that they would refuse to sign the completed Constitution without such inclusion. George Mason, one of the two, apparently thought that the convention could simply imitate the influential Virginia Declaration of Rights that he had drafted in 1776. The convention dismissed the idea after perfunctory debate.
Once the Constitution was published, the omission of a bill of rights quickly became a rallying point for its Antifederalist opponents. Their concern deepened after James Wilson, a leading framer and Federalist from Pennsylvania, gave a speech maintaining that the inclusion of a bill of rights would have threatened liberty by implying that the new government possessed powers it had not been granted. The adoption of clauses protecting freedom of press or religion, Wilson asserted, would suggest that Congress had the authority to infringe those rights. In response, the Antifederalists noted that the Constitution did explicitly protect some rights and asked why including a clause prohibiting the suspension of habeas corpus was necessary, for example, if the power to infringe the "great writ" had never been delegated?
Antifederalists did not necessarily regard a bill of rights as a legally enforceable set of claims that individuals could invoke; rather, they thought of it as a statement of principles that would enable the people to judge the legitimacy of acts of government. Without such a document, the people could not determine whether or when government was abusing its power. No one in 1776 would have argued that such declarations created the rights they protected; they merely recognized the existence of rights whose authority was derived from other sources. But by asserting that rights would be insecure if they were not explicitly incorporated in the text of a written constitution, Antifederalists were moving toward the modern positivist conception of law that requires rights and other legal enactments to be grounded upon some explicit act of duly constituted authority. Without a strong textual foundation, rights would eventually be lost. Federalists did not initially take Antifederalist objections seriously, but as the ratification campaign progressed, they began to rethink their position. In states where the two sides were closely balanced, Federalists declared willingness to recommend various lists of amendments for the consideration of the new Congress to be elected after the Constitution was ratified. (Note that these amendments were only recommended, not required; Federalists successfully insisted amendments must follow ratification, not become a condition of it.) Many of the amendments that Antifederalists sought were structural, but others consisted of the kinds of articles that could also be found in the declarations of rights of various states.
Thomas Jefferson, the American minister to France, endorsed the inclusion of a bill of rights. Jefferson let it be known that he hoped that after the necessary nine states had ratified the Constitution, the remaining four would withhold their assent until agreement was reached on the adoption of a bill of rights. Jefferson expressed his support for a bill of rights in letters to James Madison. "A bill of rights is what the people are entitled to against every government on earth," he observed in December 1787. He was equally direct in dismissing the Federalist argument that the enumeration of particular rights would impair the authority of others left unstated. "Half a loaf is better than no bread," he wrote Madison in January 1789. "If we cannot secure all our rights, let us secure what we can."
Madison was not convinced. Like Wilson, he doubted the value of a federal bill of rights, but for other reasons. Madison was strongly committed to the protection of freedom of conscience, rights of property, and basic civil liberties. He thought the real danger to rights came from state governments, not national government. The best way to protect rights, Madison believed, would be to give the national government veto power over state laws, which it could use to guard individuals and minorities against the unjust laws that Madison believed the state legislatures were too prone to pass. The fact that many of the states had adopted declarations of rights only proved how ineffective they were. In Madison's view, such declarations were only "parchment barriers" that could never withstand the popular interests and passions that were the real source of too much state legislation. Madison had felt no qualms when the Federal Convention ignored Mason's plea for a bill of rights, and Antifederalist arguments in favor of a bill of rights left him unconvinced.
Nevertheless, as the leading advocate for the Constitution at the closely divided Virginia ratification convention, Madison found himself in the same position as Federalists elsewhere. To assure ratification, he reluctantly agreed that the convention could recommend amendments to the future federal Congress. In an equally difficult race against James Monroe for election to the first House of Representatives, he had to declare his public support for a bill of rights. Once elected, Madison took this campaign pledge seriously. At the same time, he continued to doubt that a federal bill of rights would do much good—unless it could somehow be extended to apply against the states. In Madison's thinking, its main value would be to quiet lingering Antifederalist reservations about the Constitution. If the First Congress acted quickly, he believed, it could address the lingering reservations of those well-meaning (if misguided) Antifederalists who found the omission of a bill of rights so troubling.
Madison's Proposals
In preparing his amendments, Madison reviewed all the proposals of the state conventions. Many of these amendments were structural, proposing alterations to the institutions of government and the powers these institutions would exercise. Neither Madison nor any of the Federalists who dominated the First Congress intended to consider such recommendations. Indeed, a majority of members in both houses probably believed that considering any amendments in any form was unnecessary. With the Constitution safely ratified and its supporters the clear victors in the first federal elections, they were inclined to deny that any firm bargain had been struck in the course of ratification. The new government had far more urgent matters to take up. The few Antifederalists elected to Congress were not great supporters of amendments. Because they knew the structural changes they desired had no chance of success, they saw little value in debating a bill of rights that would leave the new government in possession of all its powers.
Madison remained committed to his campaign promise, however. Structural amendments were unacceptable, but the addition of new articles protective of rights could still be useful. In drafting his amendments, Madison was also mindful of the defects of the states' declarations of rights. He did not want to draft a traditional bill of rights—supplemental articles or a distinct document standing apart from the main constitutional text. His preference was to insert the new provisions directly into those sections of the existing Constitution where they would be most relevant, principally Article I, Section 9. That section of the Constitution was devoted to limitations on the legislative authority of Congress. In his analyses of state constitutions and republican government more generally, Madison had repeatedly argued that the legislature was the most dangerous branch of government—an "impetuous vortex," as he called it in Federalist No. 48—and accordingly the task of protecting rights first and foremost required imposing limits on the legislative power of government. Moreover, by substituting the mandatory verb "shall" for the hortatory "ought" preferred by the state declarations, Madison further indicated that his articles were to be interpreted as legal commands rather than moral injunctions.
It was not only the legislative power of Congress that Madison wanted to limit, however. He still believed that the greater danger to rights was likely to arise not from the national government but from the individual states. He accordingly included in his original list of amendments another article providing 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 to be inserted in Article I, Section 10, which dealt with prohibitions on the powers of the states. Although this proposal fell short of the federal veto on state laws that he had championed at the Federal Convention, it represented one last effort to enable the national government to become a protector of rights within the individual states.
This article did not survive the eventual scrutiny of the Senate, but most of the other clauses Madison introduced on 8 June formed the foundation of the articles that Congress ultimately endorsed. For Madison, however, the introduction of these amendments was only the first step in an uphill struggle—"the nauseous project of amendments," he called it in August—to get his colleagues to take his proposals seriously. Congress had more pressing business, and neither Federalist nor Antifederalist members felt the same urgency as did Madison. It took the House six weeks to appoint a committee to consider Madison's amendments, and several more weeks passed before the House was ready to take up the committee's report.
The House made two substantial changes in Madison's proposals. In addition to articles protecting specific rights, Madison had also proposed adding language to the preamble to the Constitution. These clauses were more reminiscent of the state declarations of rights; they would have affirmed the basic principles that government derives its authority from the people; that it exists to secure to the people the benefits of their fundamental natural rights; and that the people retain the right "to reform or change their government" whenever it was proved "ad-verse or inadequate" to these ends. On 19 August, the House deleted these provisions, evidently on the grounds that including such general statements in the Constitution was redundant.
On that same day, the House made a second and arguably more momentous change in Madison's proposed amendments. Rather than "interweave" these articles separately into the original text of the Constitution, at the point where they seemed most salient, the House now agreed to treat these proposals as supplemental or additional articles. The impetus for this change came from Roger Sherman of Connecticut, an elder statesman of the Revolution. Sherman had proposed his own version of a bill of rights, much closer in form and substance to the state declarations. Sherman's articles generated little interest, but after two rebuffs, he at last persuaded a majority of the representatives that Congress had no right to tamper with the original Constitution as proposed and ratified. The amendments were to be treated as a postscript. Arguably one effect of this change was to make less clear which institutions of government were deemed most dangerous to rights or most responsible for their enforcement.
On 24 August 1789, the House approved seventeen amendments and submitted these to the Senate. Unlike the House, the upper chamber met behind closed doors, and the records of its debates are largely lost to history. The Senate made a number of editorial changes in the House amendments. It rejected Madison's article protecting freedom of conscience, freedom of speech, and trial by jury against state infringement, and another article affirming the principle of separation of powers. It bundled together the separate House articles on freedom of religion and the freedom of speech and press, and the right of petition, into one article, implying a strong link between freedom of religion and political rights. It also seemingly narrowed the House provision stating that "Congress shall make no law establishing religion" by stating instead that "Congress shall make no laws establishing articles of faith, or a mode of worship," implying that it might "establish" religion in other ways. It made several noteworthy changes in the article protecting "the right of the people, to keep and bear arms." As that article came from the House, it read: "A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person." The Senate deleted this last clause as well as the qualifying definition of the militia as "composed of the body of the People," thereby strongly implying that it would remain in the power of Congress to determine the composition of the militia.
The Senate returned twelve articles to the House, and these then went to a conference committee on which Madison sat for the lower chamber. The committee made one key change in the religion clause of the third article, replacing the Senate's narrow prohibition of laws "establishing articles of faith, or modes of worship," with the broader if more ambiguous phrase, "respecting an establishment of religion." On 28 September 1789, the completed set of amendments was submitted to the state legislatures for ratification.
Ratification and Impact
The first two amendments proposed did not address issues of rights. The first, which failed of ratification, related to the apportionment of representatives in the House. The second, requiring a new election of representatives to occur before congressional pay raises take effect, was also rejected (it eventually became the 27th Amendment, ratified in 1992). The remaining articles became the first ten amendments to the Constitution following their ratification by Virginia in December 1791. The provisions protect the following rights: freedom of religion, speech, press, and assembly and petition (First Amendment); a right "to keep and bear arms," most likely conceived as a reminder that a republic should maintain organized state militias as an alternative to a national standing army (Second Amendment); a now unimportant restriction on quartering soldiers in civilian homes (Third Amendment); a guarantee against unreasonable searches and seizures (Fourth Amendment); essential civil liberties relating primarily to the rights of individuals accused of crimes or otherwise involved in legal proceedings (Fifth, Sixth, and Seventh Amendments); and prohibitions on excessive bail and cruel and unusual punishments (Eighth Amendment). The Ninth Amendment restates the Federalist concern that a positive enumeration of rights carried with it the risk of relegating other rights, potentially of equal value, to an inferior status simply by virtue of their omission; it suggests that the eight previous articles do not establish a comprehensive list of constitutional rights. The Tenth Amendment similarly echoes Wilson's original argument against a bill of rights by suggesting that all powers not vested in the national government by the Constitution remain with the states or the people.
Following its ratification, the Bill of Rights (as it gradually came to be known) had little noticeable effect on the development of the Constitution. An early test of its potential use came in 1798, when Congress adopted the Sedition Act to enable the administration of President John Adams to punish critics of its foreign and domestic policies. Neither the free speech nor free press clauses of the First Amendment nor the Tenth Amendment's affirmation of the limited powers of the national government proved effective against this controversial act. In an important decision of 1833, the Supreme Court held (in Barron v. Baltimore) that the Bill of Rights acted as a restraint only on the national government, not the states; and because the national government played only a minimal role in the lives of most Americans, the original amendments had little practical effect.
A generation later, many of the Republican congressmen who drafted the Fourteenth Amendment in 1866 thought that its critical first section could be read to repudiate the result in Barron, and thereby make the Bill of Rights judicially and legislatively enforceable against the states. That interpretation did not prove persuasive to the Supreme Court in subsequent decades. Only after World War I did the justices gradually began to apply the Bill of Rights against the states, first in the realm of freedom of speech and religion, then more extensively in other areas. Under the so-called incorporation doctrine, the Fourteenth Amendment was reinterpreted to protect the wide array of civil rights recognized in the original amendments against the authority of state and local governments—and by implication, the national government. The climax of this reinterpretation of the meaning and impact of the Bill of Rights came during the 1960s, under Chief Justice Earl Warren, making the original amendments proposed by Madison in 1789 the most controversial elements of the Constitution.
Bibliography
Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 1996.
Bodenhamer, David J., and James W. Ely, Jr., eds. The Bill of Rights in Modern America: After 200 Years. Bloomington: Indiana University Press, 1993.
Cogan, Neil H., ed., The Complete Bill of Rights. New York: Oxford University Press, 1997.
Levy, Leonard. Origins of the Bill of Rights. New Haven, Conn.: Yale University Press, 1999.
Rakove, Jack N. Declaring Rights: A Brief History with Documents. Boston: Bedford Books, 1998.
Rutland, Robert A. The Birth of the Bill of Rights, 1776–1791. Boston: Northeastern University Press, 1983.
—Jack Rakove
