Guest Essayist: Richard Brookhiser, Author, James Madison
The Philadelphia Convention finished the Constitution and sent it on to Congress and to the states in September 1787. There was no Bill of Rights. George Mason, delegate from Virginia, had suggested adding one at the last minute, but his fellow delegates, who had been in session for three and a half months, wanted to get done and get home. They believed they had designed a structure of government that would prevent despots or overbearing majorities from seizing power; a list of rights struck them as mere ornament. “Whatever fine declarations may be inserted in any constitution,” argued New York delegate Alexander Hamilton, in the Federalist Papers (#84), “the only solid basis of all our rights” was “the general spirit of the people and of the government.”

In the year-long national debate over whether to ratify the Constitution, it became clear, however, that the American people wanted solid protections written into the new fundamental law. Religious minorities, in particular, were alarmed that the Constitution made no specific mention of their right to worship as they wished. James Madison of Virginia, like most of the delegates to the Philadelphia Convention, originally saw no need for a Bill of Rights; it would be, he feared, a “parchment barrier,” adding nothing of substance to the structural safeguards already built into the new system. But under pressure from Baptists in his home state—a minority sect long bullied by their Anglican neighbors—and from his best friend, Thomas Jefferson, who was then serving as a diplomat in Paris, Madison came around. “A bill of rights,” Jefferson wrote him, “is what the people are entitled to against every government on earth.” Madison came to see that rights written down in black and white would become “fundamental maxims of good government.” They would “rouse the attention” of Americans, who would rally to defend them.

So in June 1789, in the First Congress, Madison, who had been elected as a representative from Virginia , took the lead in drafting a set of amendments. He originally wanted to shoehorn his new additions into the body of the Constitution, but most of his colleagues favored adding them at the end. Congress submitted twelve amendments to the states for ratification in September 1789. The first, which regulated the size of congressional districts, fell by the wayside. The second, which concerned congressional pay, was not ratified until 1992, when it became the 27th Amendment. But by December 1791, the remaining ten amendments had been ratified—the Bill of Rights of today. Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.

There had been bills of rights in English and American law for centuries, and the men who drafted the American Bill of Rights drew on these precedents. The right to petition (1st Amendment) and to trial by jury (6th Amendment) went back to Magna Carta (1215). The right to bear arms (2nd Amendment) and the prohibition of excessive bail and fines and of cruel and unusual punishments (8th Amendment) appear in the English Bill of Rights (1689). The Virginia Declaration of Rights (1776) enshrined freedom of the press and free exercise of religion (1st Amendment), and forbade arbitrary search warrants (6th Amendment) and compelling anyone to testify against himself (5th Amendment).

But the Bill of Rights added two brand-new provisions. The 9th amendment protects all “other” rights not specifically mentioned in the Constitution, while the 10th amendment “reserves” powers not assigned to the federal government to the states and to the people. These fortify the structural balance of the Constitution itself. They are a warning to the future: just because we haven’t thought of everything doesn’t mean you can grab for power.

Jefferson, as he often did, found just the right words to describe the impact of the Bill of Rights, which in this case came from his experience as an amateur architect: “a brace the more will often keep up the building which would have fallen” without it.

The Bill of Rights is a worthy addition to the great work that was done in Philadelphia in 1787.

Distinguished author and historian Richard Brookhiser is the author of James Madison; America’s First Dynasty about John Adam’s family; Gentleman Revolutionary, about Gouverneur Morris; and Alexander Hamilton, American.

February 21, 2012 – Essay #2


17 replies
  1. Mag
    Mag says:

    I read this essay to my husband this morning…he fashions himself a bit of a history buff. We both learned something new from this wonderful essay. I did not realize that the 27th amendment was actually proposed to be the original 2nd. We never stop learning which is why we should never stop trying. Thank you so much!

  2. Jay
    Jay says:

    I also did not know the 27th Amendment was considered in the Bill of Rights. Wise it was not ratified since there were a lot of revolutionary war army men who were not yet paid!

  3. Ron
    Ron says:

    Always amazing to me is how well our founders understood so well the construction of a framework for our founding documents hundreds of years before the internet; yet, in the age of the internet, so few of our elected leaders seem to understand this framework and the philosophies behind it.

  4. Susan Craig
    Susan Craig says:

    Jefferson was prescient. I’ve always wondered why the most heated attacks have been directed at the 1st 10 amendments. Now I see that by kicking out the brace weakens the structure so that its fall would be easier.

  5. Marc W. Stauffer
    Marc W. Stauffer says:

    I appreciated Mr. Brookhiser’s reference:”Their distinct position, and the magic number ten—like another famous set of laws—ensured that they would “rouse the attention” of Americans, as Madison put it.”

    It was good that our Founding Fathers drew upon the wisdom they had gained through their studies and life experiences. I believe it is undeniable that their belief in God, their Christian foundations, played a role in how they designed our form of Governance. Many of the scholars they drew from were also heavily influenced by their faith. In his reference to “another famous set of laws”, I believe Mr. Brookshire has pointed out that the 10 commandments, another set of “Bill of Rights” played heavily in the construct of our nations Bill of Rights. If you look at the result and intent of each of The Commandments, you can see the built in protections for the people….the people’s rights. I believe our Founders would have examined them in such a manner.

    The Bill of Rights, as well as the 10 Commandments, certainly “roused the attention” of the people and although controversial at times, they continue to grab people’s attention and rouse them to examination and discussion…..and that is a good thing for the understanding and perpetuation of our form of governance.

    • says:

      Hi Susan! Yes – please give CA and Mr. Brookhiser credit, and encourage people to join us for our study, and to post their thoughts on our blog – thank you!!

  6. Jane Bonvillain
    Jane Bonvillain says:

    I love this: They would “rouse the attention” of Americans, who would rally to defend them. Thank you for “rousing” our attention to our founding documents once again! Also, maybe this will be in another post (or someone has a link), but why was such an early proposed amendment re: congressional pay not ratified until 1992? Cheers!

  7. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Two reasons:

    1) Your first congressmen were generally part-time statesmen who had other enterprises and employment back home. They only came to Washington D.C. for four or five months out of the year and had to make a living the other six months. This meant their pay was not full time and so not under as much scrutiny. Also, some states failed at times to send new senators who then received no pay at all.

    2) The union kept on adding states that put the 3/4ths ratification threshold further off as states all but forgotten to ratify such an old amendment. When adding states to the union slowed then the 2nd article of the Bill of Rights began to gain momentum when a college student doing a research paper pushed to get the 27th Amendment ratified in 1982. Further, some states like California were not of the eastern seaboard politics and acted much like a foreign state due to being disconnected from the rest of the union. These states therefore did not follow the passions of the times like the Reconstruction Era amendments and onward. It was not until the 1960s or so that many states began ratifying amendments like popcorn. When the archivist of the Congress double checked the stats, and some more fanfare came about with a balanced budget amendment cerca 1985 Gramm Rudman Hollings Act, the 27th amendment gained more appeal in the limelight and was ratified.

  8. Tom Julian
    Tom Julian says:

    I am amazed at the deliberation and contemplation even in the midst of individuals wanting to be done and go home. Yet these last two days get me thinking of the combination of ideas, theologies, cultures these personalities had to think through in building this wonderful foundation and the change in personal philosophy and thought, as James Madison’s thought of The Bill of Rights, adding “nothing of substance” to being reminded by his good friend Thomas Jefferson that “The Bill of Rights is what the people are entitled to against every government on earth”.

    Keep em coming Constituting America!!!

  9. Rochelle
    Rochelle says:

    Essay #2 proved to be another teachable moment in American history. Thanks for providing this background and interesting points that shall note for my classes. Like many others, I didn’t know about the 27th Amendment’s origin as detailed above. With this new information, I will adjust the power point presentation I completed today on Article 1 Section 1 with the students to include that the first term of congress held in 1789 was the session that James Madison introduced the amendments. It will make a nice bullet to add about what our representatives did that first session in Congress. Again, thank you for today’s informational essay.

  10. Debbie Bridges
    Debbie Bridges says:

    Learning today of the length of time it took to ratify what would become the 27th amendment led me to check out last years essay on that amendment. Fascinating story! Just goes to show there is always more to learn; an unending process.


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