The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Demand for (and Resistance to) the United States Bill of Rights

The Debates at the Constitutional Convention

The Confederation Congress Reacts

According to the Convention’s closing resolution, the newly minted Constitution should be “laid before” the Confederation Congress (the Congress that comprised essentially the entire national government under the Articles of Confederation) so that it might in turn submit it to state conventions for ratification. The Constitution’s Framers had probably assumed that the process in Congress should be only a pro forma vote, and the real decision-making would take place in the state ratifying conventions. Instead, a heated debate ensued among the congressmen. Some of them insisted that the proposed Constitution should be amended by Congress before submitting it to the states.

James Madison described the ominous proceedings taking place in New York in a letter to George Washington:

An attempt was made, in the next place, by [Richard Henry Lee], to amend the act of the Convention before it should go forth from Congress. He proposed a bill of rights, provision for juries in civil cases, and several other things corresponding with the ideas of Col. Mason.

Many in Congress evidently through that the omission of a bill of rights was a serious defect in the proposed Constitution, and it was Congress’ job to supply the defect before the states took up the question.

The Federalists insisted that the Constitution had to be either voted up or down as it was. Richard Henry Lee and others contended that this “all or nothing” approach of the Philadelphia Convention was a high-handed abuse of authority. Such an idea defied common sense and “supposes all wisdom centers in the Convention.” Lee suggested that Congress should propose amendments, and states could consider separately whether to adopt the Constitution with or without the proposed amendments.

Submission of the Unamended Constitution to the States

But the congressmen who had just come from the Convention and their allies fought hard against the suggestion. They responded that, even if amendments were appropriate, the Congress was not the proper place to propose them. The states had authorized the Convention – not Congress – to amend the Articles of Confederation. In the end, it was resolved “unanimously” to submit the unamended Constitution to the states. But that unanimity referred to the question of submission, not to the question of amendments.