Bill of Rights day—December 15—commemorates the day in 1791 when the first ten amendments to the Constitution, the Bill of Rights, were ratified. To celebrate Bill of Rights Day, we offer below a condensed version of the introduction to the Bill of Rights core document volume, available, as are all the document volumes, in the TAH bookstore. Our late colleague, Gordon Lloyd, edited the volume and wrote the introduction. References to documents in parentheses are the documents in the Bill of Rights volume.
***
Americans were concerned about rights, especially religious rights, long before the adoption of the Bill of Rights. Unlike the Constitution written by the delegates to the 1787 convention, all the state constitutions written during the Revolution established three particular rights: the right of conscience, or free exercise of religion; the right to have one’s case heard by a local impartial jury; and the due process rights of the common law. In addition, seven states attached a prefatory declaration of rights to their frameworks of government: Virginia (June 1776), Delaware (September 1776), Pennsylvania (September 1776), Maryland (November 1776), North Carolina (December 1776), Massachusetts (March 1780), and New Hampshire (June 1784). There was a remarkable uniformity among the seven states with regard to the kinds of civil and criminal rights they sought to secure. The four states that decided not to preface their constitutions with a declaration of rights (New Jersey, July 1776; Georgia, February 1777; New York, April 1777; and South Carolina, March 1778), nevertheless incorporated individual rights in their constitutions (e.g., The New Jersey Constitution).
The issue of a Bill of Rights arose as the Constitutional Convention drew to a close. To explain his decision not to sign the Constitution, George Mason distributed to his fellow delegates a list of ten objections to the document they had agreed upon. The list began: “There is no declaration of rights”. In particular, “there is no declaration of any kind for preserving liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in times of peace.” Mason thought the addition of a federal bill of rights to the Constitution not merely worthwhile; he considered it imperative. He was concerned that Congress might abuse the supremacy and the necessary and proper clauses of the Constitution (Articles 6 and 1, section 8, respectively). The supremacy clause made federal laws “paramount to the laws and constitutions of the several states.” Thus, “the declaration of rights, in the separate states, are of no security.” The necessary and proper clause enabled Congress to “grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they should think proper.”
Throughout the nine-month ratification campaign, proponents of the Constitution defended the absence of a bill of rights. James Wilson’s State House Speech, delivered in Philadelphia three weeks after the Constitutional Convention adjourned, articulated what came to be known as the Federalist position: a bill of rights would be unnecessary and dangerous. Wilson argued that at the state level, a bill of rights was necessary and salutary because “everything which is not reserved” to the people, “is given” to the government; but that it was “superfluous and absurd” at the federal level because “everything which is not given, is reserved.” Wilson’s speech became the foil for the Antifederalist opposition literature in the fall of 1787. Near the end of the ratification campaign, Federalist 84 repeated Wilson’s insistence that a republican form of government had no need for a bill or rights, because such bills “are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.”
By early January 1788, the ratifying conventions in Delaware (voting 30-0), Pennsylvania (46-23), New Jersey (38-0), Georgia (26-0), and Connecticut (128-40) had ratified the Constitution. The Report issued by the twenty-three Pennsylvania opponents had a considerable impact on the subsequent campaign. The Report proposed two different kinds of amendments. One set, if adopted, would have re-established the principles of the Articles of Confederation. The other set proposed that a declaration of rights be annexed to the Constitution. The report outlined rights that were later incorporated into the Constitution as its first, fourth, fifth, sixth, seventh, and eighth amendments.
The fate of the Constitution was determined in the Massachusetts, New Hampshire, Virginia, and New York ratifying conventions in the first half of 1788. Antifederalist literature in the Fall of 1787 had had an adverse effect on the campaign for ratification. A compromise – “ratify now, amend later” – was needed in each of these four states to secure ratification. In Massachusetts, ten delegates switched their votes and a 187-168 majority ratified the Constitution. A switch of five votes ensured ratification in New Hampshire (57-47), and Virginia (89-79). In New York, the Antifederalists outnumbered the Federalists by a margin of 46-19 going into the convention. In the end, the Constitution was ratified by a vote of 30-27.
There were two different kinds of recommendations made by both the opponents and friends of the Constitution. Some called for an alteration in the very structure and powers of the new federal government. Others sought to protect the rights of individuals with respect to the federal government. All nine of Massachusetts’s recommendations are of the first kind. New Hampshire was the first to add a brief declaration of the rights of citizens to the list of amendments. In Virginia and New York, the two kinds of amendments were explicitly separated.
With the ratification of the Constitution, James Madison (1751-1836), who had done so much to bring it into existence, supported the adoption of a bill of rights, while objecting to amendments that would radically alter the new government’s structure and power. He did so for reasons of both principle and prudence. Wilson had argued that any list of rights might be seen as definitive, thus limiting the rights of citizens rather than protecting them. Madison proposed a new principle: the enumeration “of certain rights, shall not be construed to deny or disparage others retained by the people.” This eventually became the Ninth Amendment. From a prudential point of view, Madison wished to conciliate “honorable and patriotic” opponents who wanted to “revise” the Constitution to include a bill of rights. Revising the Constitution would entail calling a second convention that might “abolish” the Constitutional framework that had been so carefully negotiated during the summer of 1787. Madison’s underlying purpose in making his arguments was to prevent a second Constitutional Convention.
In his first Inaugural Address (April 30, 1789), George Washington spoke of only two particular legislative issues facing the new Congress: the question of his compensation, which he declined, and Congress’ “exercise of the occasional power delegated by the fifth article of the Constitution,” the power to amend the Constitution. He asked that “whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, a reverence for the characteristic rights of freemen will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.” Madison took Washington’s point. He needed to propose a bill of rights that did not alter the work the Constitutional Convention had accomplished. Figuring out how to do that became Madison’s challenge in the First Congress.
The House of Representatives’ debate on Madison’s proposed amendments is not without irony. Madison thought that his bill-of-right additions might be “neatly” incorporated within the body of the Constitution. Roger Sherman, arguably Madison’s leading and most persuasive opponent during the 1787 Philadelphia Convention, objected to this. The original work of the framers, he argued, should remain intact. Sherman’s view prevailed.
The Senate reduced the number of proposed amendments from 17 to 12. In doing so, the Senate narrowed Madison’s House-backed proposal to protect freedom of conscience and the press at both the state and national levels, restricting it to the national level only. The Senate also combined the protection of conscience and the press into one amendment. The Senate version was adopted, with slight revision, by the whole Congress and submitted as twelve amendments to the States for approval. Ten were ratified by three-fourths of the state legislatures and became the Bill of Rights.
The Bill of Rights was adopted through a process that included both discussion of principle and political negotiation. It did not just fall from the sky in one whole and intelligible form. True, the Bill of Rights incorporated much of the English common law and the colonial due process tradition, but it also shed much of this tradition’s feudal and monarchical features. It also showed that between 1776 and 1791 Americans had developed their own, broader understanding of rights. By supporting freedom of conscience, free speech, and enhanced rights of due process of law, Americans appealed beyond their traditions to their own distinctly American ideas.
