Intro.4 Bill of Rights

On September 12, five days before the Convention adjourned, Mason and Gerry raised the question of adding a bill of rights to the Constitution. Mason said: 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. But the motion of Gerry and Mason to appoint a committee for the purpose of drafting a bill of rights was rejected. 1 Again, on September 14, Pinckney and Gerry sought to add a provision that the liberty of the Press should be inviolably observed—. But after Sherman observed that such a declaration was unnecessary, because [t]he power of Congress does not extend to the Press, this suggestion too was rejected. 2 It cannot be known accurately why the Convention opposed these suggestions. Perhaps the lateness of the Convention, perhaps the desire not to present more opportunity for controversy when the document was forwarded to the states, perhaps the belief, asserted by the defenders of the Constitution when the absence of a bill of rights became critical, that no bill was needed because Congress was delegated none of the powers which such a declaration would deny, perhaps all these contributed to the rejection. 3

In any event, the opponents of ratification soon made the absence of a bill of rights a major argument, 4 and some friends of the document, such as Jefferson, 5 strongly urged amendment to include a declaration of rights. 6 Several state conventions ratified while urging that the new Congress to be convened propose such amendments, 124 amendments in all being put forward by these states. 7 Although some dispute has occurred with regard to the obligation of the first Congress to propose amendments, Madison at least had no doubts 8 and introduced a series of proposals, 9 which he had difficulty claiming the interest of the rest of Congress in considering. At length, the House of Representatives adopted 17 proposals; the Senate rejected two and reduced the remainder to twelve, which were accepted by the House and sent on to the states 10 where ten were ratified and the other two did not receive the requisite number of concurring states. 11


  1.  Jump to essay-1 2 The Records of the Federal Convention of 1787, at 587–88 (Max Farrand ed., 1937).
  2.  Jump to essay-2 Id. at 617–18.
  3.  Jump to essay-3The argument most used by proponents of the Constitution was that inasmuch as Congress was delegated no power to do those things which a bill of rights would proscribe no bill of rights was necessary and that it might be dangerous because it would contain exceptions to powers not granted and might therefore afford a basis for claiming more than was granted. The Federalist No. 84, at 555–67 (Alexander Hamilton) (Modern Library ed., 1937).
  4.  Jump to essay-4Substantial excerpts from the debate in the country and in the ratifying conventions are set out in 1 The Bill of Rights: A Documentary History 435–620 (B. Schwartz ed., 1971); 2 id. at 627–980 . The earlier portions of volume 1 trace the origins of the various guarantees back to the Magna Carta.
  5.  Jump to essay-5In a letter to Madison, Jefferson indicated what he did not like about the proposed Constitution. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of the fact triable by the laws of the land and not by the law of Nations. . . . Let me add 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. 12 The Papers of Thomas Jefferson 438, 440 (J. Boyd ed., 1958). He suggested that nine States should ratify and four withhold ratification until amendments adding a bill of rights were adopted. Id. at 557, 570, 583 . Jefferson still later endorsed the plan put forward by Massachusetts to ratify and propose amendments. 14 id. at 649 .
  6.  Jump to essay-6Thus, George Washington observed in letters that a ratified Constitution could be amended but that making such amendments conditions for ratification was ill-advised. 11 The Writings of George Washington 249 (W. Ford ed., 1891).
  7.  Jump to essay-7 2 The Bill of Rights: A Documentary History 627–980 (B. Schwartz ed., 1971). See also H. Ames, The Proposed Amendments to the Constitution 19 (1896).
  8.  Jump to essay-8Madison began as a doubter, writing Jefferson that while [m]y own opinion has always been in favor of a bill of rights, still I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment. . . . 5 The Writings of James Madison 269 (G. Hunt ed., 1904). His reasons were four. (1) The Federal Government was not granted the powers to do what a bill of rights would proscribe. (2) There was reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power. (3) A greater security was afforded by the jealousy of the States of the national government. (4) [E]xperience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. . . . Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the government is the mere instrument of the major number of the Constituents. . . . Wherever there is a interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. Id. at 272–73 . Jefferson's response acknowledged the potency of Madison's reservations and attempted to answer them, in the course of which he called Madison's attention to an argument in favor not considered by Madison which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent, and kept strictly to their own department merits great confidence for their learning and integrity. 14 The Papers of Thomas Jefferson 659 (J. Boyd ed., 1958). Madison was to assert this point when he introduced his proposals for a bill of rights in the House of Representatives. 1 Annals of Cong. 439 (June 8, 1789).

    In any event, following ratification, Madison in his successful campaign for a seat in the House firmly endorsed the proposal of a bill of rights. [I]t is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants & c. 5 The Writings of James Madison 319 (G. Hunt ed., 1904).

  9.  Jump to essay-9 1 Annals of Cong. 424–50 (June 8, 1789). The proposals as introduced are at pp. 433-36. The Members of the House were indisposed to moving on the proposals.
  10.  Jump to essay-10Debate in the House began on July 21, 1789, and final passage was had on August 24, 1789. 1 Annals of Cong. 660–779. The Senate considered the proposals from September 2 to September 9, but no journal was kept. The final version compromised between the House and Senate was adopted September 24 and 25. See 2 The Bill of Rights: A Documentary History 983–1167 (B. Schwartz ed., 1971).
  11.  Jump to essay-11The two not ratified dealt with the ratio of population to representatives and with compensation of Members of Congress. Herman V. Ames, The Proposed Amendments to the Constitution of the United States During the First Century of Its History 184, 185 (1896). The latter proposal was deemed ratified in 1992 as the 27th Amendment.