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Monday, December 12, 2016

A central part of my work as executive director of The Constitutional Sources Project (ConSource) is educating American citizens about the United States Constitution.

When I speak to citizens around the country about the Constitution, and ask them what they view as the most important part of that document, they inevitably cite a provision of the Bill of Rights.


Why is this so? It’s likely because the Bill of Rights articulates our national values and ideals, including: the guarantee of freedom of speech, religion and the press; the right to assemble; the promise of a speedy trial by jury; the protection against double jeopardy and unreasonable search and seizure; and the recognition of the right to bear arms. The Bill of Rights strikes a personal chord, the way the Declaration of Independence does, and the structural provisions of the Constitution do not (at least, not for most).

And, yet, too few Americans know the history of our Bill of Rights. In honor of the 225th anniversary of the ratification of the Bill of Rights, I’m providing here a brief history of the document.

On Sept. 12, 1787, five days prior to the end of what came to be known as the Constitutional Convention, George Mason from Virginia proposed that the delegates preface the new Constitution with a Bill of Rights.

Mason’s proposal was rejected almost unanimously. The prevailing view, as expressed by Roger Sherman of Connecticut, was that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.”

Alexander Hamilton in Federalist 81 explained, “I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” James Madison described bills of rights as “parchment barriers.”

And so the Constitution, signed on Sept. 17, 1787, was submitted to the states for ratification with no Bill of Rights.

But that was clearly not the end of the story.

Mason went on to list the lack of a bill of rights as one of his chief objections to the new Constitution. Thomas Jefferson, writing to James Madison from Paris, said 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.”

Ratification of the new Constitution was not guaranteed. And, while the bill of rights became a rallying call for Antifederalists interested in limiting the reach of the new federal government, there was a more clamorous group who favored amendments that would alter the structure and powers of the new federal government.

For Federalists like James Madison, the latter was unacceptable. Madison understood that the Antifederalists wanted government authority to reside with the state governments, believing that the people’s liberties would be best protected under a decentralized system. It’s important to understand Madison’s decision to draft and push Congress to pass the Bill of Rights in the context of this struggle: Madison’s amendments were intended, in the words of historian Carol Berkin, “to weaken, if not crush, the continuing opposition to the new federal government [that Madison] was instrumental in creating.”

That opposition was real. The ratifying conventions in New York, Virginia, North Carolina, South Carolina, Massachusetts, New Hampshire and Rhode Island all proposed amendments to the Constitution for the First Congress to consider after the Constitution was ratified. The amendments proposed by Massachusetts and, to some extent, New Hampshire focused on altering the structure and powers of the government and only incidentally included or mentioned the need for a bill of rights. Virginia, New York, North Carolina and later Rhode Island, on the other hand, each proposed a prefatory bill of rights, separate from and prior to any proposed structural amendments to the Constitution.

Once the Constitution was adopted, newly elected Representative James Madison urged the First Congress to reject amendments that would change the structure of the Constitution, and instead adopt a bill of rights as suggested by Virginia and New York. By 1788, Madison had come to see the broader value of a Bill of Rights. He wrote to Thomas Jefferson, saying that “the political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.”

Madison proposed to insert his proposed amendments into the text of the Constitution itself. In his first proposal, he intended to expand the Preamble to include principles drawn from the Declaration of Independence. In his second proposal, he moved to change Article I, Section 2, Clause 3, to revise the rules by which Congress could expand its membership. His third proposal, which was to be inserted in Article I, Section 6, Clause 1, was to restrict when members of Congress could vote to raise their salaries. He also recommended that the representatives insert into Article I, Section 9 of the Constitution specific rights limiting the powers of Congress. Seven of these limitations became part of the 10 amendments ratified by the state legislatures in 1791.

Of that list, the language Madison viewed as, perhaps, the most important was this: “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”

Madison also suggested the inclusion of this language in Article I, Section 10: “No State shall violate the equal right of conscience, freedom of the press, or trial by jury.” In addition, he proposed modifications to Article 3, including a guarantee of trials by juries for suits at common law. He also drafted a new Article 7, reading: “The powers delegated by this constitution, and appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.”

Madison’s attempt to incorporate the Bill of Rights into the main body of the Constitution was ultimately rejected by Congress. The House, instead, voted on 17 supplements to the Constitution and sent them to the Senate for consideration. The Senate, in turn, reduced the number to 12, excluding in the process Madison’s restrictions on state government. A conference committee of the House and Senate reconciled the two versions and submitted 12 amendments to the states for ratification.

On December 15, 1791, Virginia became the 10th of 14 states to approve 10 of the 12 amendments, and thus the 10 amendments that came to be known as our Bill of Rights were ratified. Two hundred and two years later, the second of the list of 12 amendments submitted to the states — regarding congressional compensation — was ratified and became the 27th Amendment to the United States Constitution. The first proposed amendment regarding congressional apportionment — was never ratified.

You can explore the legislative history of the Bill of Rights at www.ConSource.org.

Julie Silverbrook is executive director of The Constitutional Sources Project (ConSource.org), a nonprofit organization devoted to increasing understanding, facilitating research, and encouraging discussion of the U.S. Constitution by connecting individuals with the documentary history of its creation, ratification and amendment. Julie holds a J.D. from William & Mary Law School. In 2015, she and venture capitalist Chuck Stetson founded the National Constitutional Literacy Campaign.


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