The first draft of the first amendments to the Constitution of the United States was the work of James Madison, who moved his proposed amendments in an historic speech to the House of Representatives in the first session of the First Congress on June 8, 1789.
Madison’s fellow congressmen were not receptive to the idea of amending the Constitution so soon, especially when they had before them what they considered the more urgent business of getting the new government up and running. But, however reluctantly, with much grumbling and many delays, congressmen did debate the proposed amendments, heatedly and carefully, over several months, editing and revising and then passing twelve amendments by the required two-thirds majority of both houses, and sending them to the state legislatures for ratification on September 24, 1789.
More than two years later, in a letter addressed to the governors dated March 1, 1792, Secretary of State Thomas Jefferson was finally able to inform them that three-fourths of the state legislatures had ratified ten of the twelve amendments. Those ten articles, the Bill of Rights, thus became “valid to all Intents and Purposes, as part of this Constitution.”
The legislative process that resulted in adoption of the Bill of Rights is best understood as a continuation of the controversies that flourished during the many months it took to achieve ratification of the Constitution itself. Events had moved quickly and impressively after the Constitution was ratified. Elections were held for the House of Representatives, and the state legislatures selected their U.S. senators. Presidential electors were chosen, and they in turn elected George Washington as president. All seemed to be running smoothly.
But the ratification process had been bitterly contested, and although the necessary number of states had all ratified unconditionally, the margin of victory in the constitutional conventions had been dangerously close in three key states—19 votes out of 355 in Massachusetts, 10 votes out of 168 in Virginia, and only 3 votes out of 57 in New York. All 3 states had attached to their ratification long lists of amendments they expected to be considered favorably, either by Congress or, preferably, by a new constitutional convention. And in fact, first Virginia and then New York, early in May 1789, submitted applications to Congress to “call a Convention for proposing Amendments,” as provided for in Article V of the Constitution. In short, although the branches of government were established and functioning, the Constitution was not yet safe from determined constitutional efforts to revise it drastically. Conflicts from the ratification struggle persisted, conflicts that had to do primarily with the distribution of powers between the states and the government of the United States under the provisions of the new Constitution.
|THE BILL OF RIGHTS|
|Amendment I—Freedom of religion, press, expression. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.|
|Amendment II—Right to bear arms. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.|
|Amendment III—Quartering of soldiers. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.|
|Amendment IV—Search and seizure. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.|
|Amendment V—Trial and punishment, compensation for takings. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.|
|Amendment VI—Right to speedy trial, confrontation of witnesses. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.|
|Amendment VII—Trial by jury in civil cases. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.|
|Amendment VIII—Cruel and unusual punishment. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.|
|Amendment IX—Construction of Constitution. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.|
|Amendment X—Powers of the states and people. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.|
The several state constitutional conventions had proposed over 100 different amendments, and Madison had the full collection of them before him. Almost all of them fell into one of two categories, those having to do with the federal structure and those dealing with rights. Many of the New York proposals having to do with rights, for example, were adopted by Madison almost unchanged and included in his own proposals—“ that in time of peace no soldier ought to be quartered in any house without the consent of the owner,” “that no person ought to be put twice in jeopardy of life or limb for one and the same offence,” “that excessive bail ought not to be required . . . nor cruel or unusual punishments inflicted,” and several more.
But the numerous structural amendments proposed by several states were almost completely ignored by Madison, and this led to strenuous complaints in the First Congress by the Anti-Federalists, those who had insisted that the Constitution be amended prior to ratification. They complained that “all the important amendments were omitted” from the deliberations in the House, and they insisted that their “solid and substantial amendments” were the ones the people expect. It fell to Representative Thomas Tudor Tucker of South Carolina to present these structural amendments to the House, drawn from many state ratifying conventions. Tucker’s proposed amendments dealt with such matters as the length of terms of office for representatives, senators, and the president; control of congressional elections; congressional powers of taxation; and structure of the federal judiciary. All of these proposals had one aim: to transfer power from the federal government back to the states.
For example, Tucker proposed that “the election of Senators for each State shall be annual.” (Senators in the original Constitution were chosen by their state legislatures for six-year terms.) One-year appointments would mean that a senator would be little more than a messenger and mouthpiece for his state legislature, subject to prompt replacement if he did anything other than what the legislature instructed him to do. The Senate would not be a deliberative body, but a gathering of spokesmen for their respective state legislatures.
Article I, Section 5, of the Constitution provides, “Each House shall be the judge of the elections, returns and qualifications of its own Members.” Tucker proposed to amend it to read, “Each State shall be the judge (according to its own laws) of the election of its Senators and Representatives.”
Tucker also proposed to eliminate most of the federal judiciary. Article I, Section 8, grants Congress the power “to constitute tribunals inferior to the Supreme Court.” Tucker proposed to delete mention of inferior tribunals and substitute “courts of admiralty.” In addition, he proposed the same demolition in Article III, Section 1, striking out the words “inferior courts” and substituting “courts of admiralty,” thus eliminating the presence of federal courts within the states.
As for the presidency, he proposed stripping the president of the title of “commander in chief ” of the armed forces. He proposed instead, “The president shall have power to direct (agreeable to law) the operations of the Army and Navy of the United States.” This would give the Congress, and especially the Senate, an early and continuing control over matters relating to war and peace.
Tucker proposed many more amendments, seventeen in all, but none of them was approved by the members of the House. There was no discussion of them prior to voting them down.
There were two other significant efforts to strengthen state powers. One was to add to “the right of the people peaceably to assemble,” in what is now the First Amendment, the words “to instruct their representatives.” There was much disagreement about whether elected officials would be bound by their instructions, but it seemed clear that the intention was to limit the independence of representatives, making sure that they adhered to focusing on local interests.
Another goal unsuccessfully pursued was to insert the word “expressly” in what is now the Tenth Amendment, to make it read, “The powers not expressly delegated to the United States . . . are reserved to the States respectively, or to the people.” Both sides in Congress understood that this one-word addition was intended severely to limit the powers delegated to the federal government by denying implied powers. Madison argued the impracticality of such a provision, stating that “there must necessarily be admitted powers by implication, unless the constitution descended to recount every minutia.”
Madison won on that issue, but he lost on another that he considered of the greatest importance. One of his proposed amendments would have had a powerful effect on the relations of the state governments and the federal government; it read, “No state shall infringe the right of trial by jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.” This was the only amendment dealing with the actions or laws of states, and seemed aimed at all branches of state government, executive, legislative, and judicial. It was not clear whether it was to be enforced by Congress or the federal judiciary, but it was clear that it was a sweeping provision, corresponding with Madison’s view, expressed in a letter to Jefferson, that action to oversee state legislatures was required “to secure individuals agst. encroachment on their rights.” Madison went on to identify the states as the source of grave danger. “The mutability of the laws of the States is found to be a serious evil. The injustice of them has been so frequent and so flagrant as to alarm the most steadfast friends of Republicanism.” The House had approved this amendment, but the Senate deleted it, for reasons unknown, since the debates of the Senate in those early days were not made public and were not recorded. Madison was said to take this defeat very much to heart, for he considered it “the most valuable amendment on the whole list.”
Adoption of the Bill of Rights was a severe defeat for the Anti-Federalists. They expressed their displeasure by voting against the amendments in every recorded vote, including the final vote in Congress. Passage of the Bill of Rights, additions to the Constitution that did not alter one word of the original text, marked the end of any prospect for the passage of the structural amendments.
But it did not end the controversies over the allocation of powers between the states and the federal government, controversies that have persisted down through the centuries, suggesting that these issues, and these struggles, are inherent, ineradicable characteristics of a federal republic.
Robert A. Goldwin, From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution (Washington, DC: AEI Press, 1997); Bernard Schwartz, ed., The Roots of the Bill of Rights (New York: Chelsea House Publishers, 1971); Herbert J. Storing, “The Constitution and the Bill of Rights,” in Toward a More Perfect Union: Writings of Herbert J. Storing, ed. Joseph Bessette (Washington, DC: AEI Press, 1995); and Helen E. Veit, Kenneth R. Bowling, and Charlene Bangs Bickford, eds., Creating the Bill of Rights: The Documentary Record from the First Federal Congress (Baltimore: Johns Hopkins University Press, 1991).