In the Virginia Convention, eloquent defenders of the Constitution, such as James Madison and John Marshall, went head-to-head against equally formidable detractors, such as George Mason and Patrick Henry. The ultimate outcome of this contest was by no means certain for either side. And once again the issue turned on whether the Constitution should be amended before it was adopted, and particularly whether it required a bill of rights.
James Wilson and others had tried to explain why a bill of rights was not necessary in a government of limited powers. Patrick Henry offered that, in fact, “there is a bill of rights in” the Constitution already. What he had in mind was Article I, Section 9 of the Constitution, which listed several limitations on the powers of Congress. Some of these limitations – such as restricting congressional powers to suspend habeas corpus or to pass ex-post facto laws – were instituted for the same reason bills of rights were adopted: to protect the individual rights of citizens. However, these limitations did not go far enough.
Henry argued further that because Article I, Section 9 placed specific limitations on the powers of Congress they might be assumed to have any power not designated there expressly. He said: “The fair implication is, that they can do every thing they are not forbidden to do.” Henry’s main quarrel was not with the specific limitations that Section 9 included, however. The problem was that it did not go far enough: “The restraints in this congressional bill of rights are so feeble and few, that it would have been infinitely better to have said nothing about it.” In order to safeguard the most important liberties of the people, this Constitution required a real bill of rights.
Edmund Randolph countered that the limitations on congressional powers named in Article I, Section 9 were not general limitations on powers, and therefore were not subject to the misconstructions that Patrick Henry had feared. Every express restriction on Congress in that section was aimed at curbing some power that was already granted elsewhere in the Constitution. For instance, “by virtue of the power given to Congress to regulate courts, they could suspend the write of habeas corpus.” The clause that allows the suspension of habeas corpus only in certain restricted cases “is therefore an exception to that power.” It was wrong, therefore, to claim that the Constitution already had a bill of rights or that adding one would not subject the Constitution to all the dangers that were feared.
The defenders of the proposed Constitution spoke in vain, at least as far as Henry was concerned. His own mind would “not be quieted” without a bill of rights, and he hoped his fellow delegates would agree to “see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right, secured, before they agree to that paper.” Indeed, Henry could see only one solution to the perceived defect in the Constitution. Virginia’s Ratifying Convention must draft a bill of rights and other necessary amendments, and Virginia’s ratification must be made conditional on the passage of those amendments.
Henry’s opponents objected that “previous” or conditional amendments would be the same thing as a rejection of the Constitution. Virginia could not unilaterally change the Constitution in any way that would be binding on the other states. It would be better to accept the Constitution as it stood and change any defects, such as they were, after it was adopted.