Guest Essayist: Tony Williams


James Madison and the Bill of Rights

On June 8, 1789, a few months after the convening of the First Congress, Representative James Madison arose on the floor and made a speech introducing amendments that would come to be known as the Bill of Rights.  Madison delivered a masterpiece of rhetorical statesmanship that attempted to persuade the Congress to pass a Bill of Rights to protect liberty and produce unity in the new government.

Madison had surprisingly opposed a Bill of Rights when it was introduced at the Constitutional Convention by George Mason and advocated by the Anti-Federalists throughout the ratification debate in the states.  During a long exchange with Thomas Jefferson, then in Paris, Madison privately articulated his reasons for opposing a Bill of Rights.

Most of the Madison’s reasoning was based upon the fact that he believed, along with James Wilson and Alexander Hamilton, that the Founders had created a natural rights republic with enumerated powers in a written constitution.  The rights of mankind were built into the fabric of human nature by God, and government had no powers to alienate an individual’s rights.  He also had witnessed that they were often just “parchment barriers” that overbearing majorities violated in the states.

Although he enumerated several reasons for his opposition, Madison then gave his friend hope when he stated that most important reason in favor of a Bill of Rights was 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 thought the liberties would become engrained in the American character.

When he arose to give the speech on June 8, Madison faced hostility from several Federalists who thought the House of Representatives had more pressing business. Most representatives and senators thought that the Congress had more important work to do setting up the new government or passing tax bills for revenue. Many thought it was a “tub to the whale,” or a distraction, like the empty tub that sailors would use to draw away a whale’s attention. They were forgetting their promise during the ratification debate to add amendments safeguarding liberties while setting up the new government. Madison wanted to ensure that obligation was fulfilled because he knew that failing to do so sure would strengthen the Anti-Federalist push for a second Convention to alter the Constitution and that it would stir up continuing opposition to the new republic.

Madison began his speech by stating that a Bill of Rights would prove to the Anti-Federalists that the Federalists were “as sincerely devoted to liberty and a republican government.”  In an act of reconciliation and magnanimity, he also reached out to the Anti-Federalists because, “We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.”

Madison magnanimously completed his lengthy speech by asserting, “If we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men.”

Even though Madison had been one of the strongest opponents of the Bill of Rights, he became the “Father of the Bill of Rights” as he skillfully guided the amendments through the Congress during the summer of 1789.  He reconciled all the various proposals for amendments from the state ratifying conventions and discarded any that would alter the structure of the Constitution or new government. Keeping the amendments protecting essential liberties, Madison developed a list of nineteen amendments and a preamble. He wanted them to be woven into the text of the Constitution, and sought a key amendment to protect religious freedom, a free press, and a trial by jury against violation by state governments. The attempts to have the amendments inserted into the text and applied to the states lost, but he forged ahead anyway. On August 24, the House sent seventeen amendments to the Senate after voting by more than the required two-thirds margin. By September 14, two-thirds of the Senate approved twelve amendments, removing the limitations on state governments. President Washington sent them to the states endorsing the amendments even if he did not have a formal role in their adoption.

Over the next two years, eleven states ratified the Bill of Rights to meet the three-fourths constitutional threshold including North Carolina and Rhode Island. Virginia became the last state to ratify on December 15, 1791. While we rightfully celebrate the Bill of Rights as essential to our liberties, we should not forget that the Constitution created a limited government that is the best guarantee of individual liberties.

Tony Williams is Senior Teaching Fellow at the Bill of Rights Institute; a Constituting America Fellow; author of Washington and Hamilton: The Alliance that Forged America, and Hamilton: An American Biography.

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