While all of this noisy squabbling was taking place publicly in the state ratifying conventions and the press, a more erudite and dispassionate debate was taking place in the private correspondence between two close friends, James Madison and Thomas Jefferson.
Jefferson, who was in Paris at the time, had let it be known to more than one correspondent that he believed the absence of a bill of rights was a dangerous omission in the new Constitution (and his sentiments were leaked during the debates in Virginia’s Ratifying Convention). Jefferson wrote that he was thoroughly unconvinced by the arguments from James Wilson, that a bill of rights was unnecessary in a government whose powers were already limited through enumeration. The doctrine of limited powers, he said, was “opposed by strong inferences from the body of the instrument.” He probably meant that he believed, along with Patrick Henry and “Centinel,” that certain clauses in the Constitution seemed to imply that Congress had broader powers than those specifically named in the Constitution.
Furthermore, that implication was strengthened by something else that the Constitution omitted. The Articles of Confederation had declared “in express terms” that each state would retain every power not expressly delegated to the Congress. The new Constitution did not. Jefferson concluded “that a bill of rights is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inferences.”
In his reply, James Madison admitted that he had never believed the omission of a bill of rights was a “material defect” in the Constitution. Nonetheless, he claimed that his “own opinion has always been in favor of a bill of rights, provided it be so framed as not to imply powers not meant to be included in the enumeration.” The only reason that made him “anxious” to add a bill of rights now, however, was because “it is anxiously desired by others.” Nonetheless, he gave four reasons why he did not think the question was intrinsically important. And for each of his four objections Jefferson supplied a rebuttal.
The first reason was the one that had been given already by James Wilson and then repeatedly by many others: “the rights in question are reserved [to the states] by the manner in which the federal powers are granted.” But Madison admitted that the force of that argument held true only “in a certain degree, though not in the extent argued by Mr. Wilson.”
Jefferson answered that while it might truly be possible to frame a constitution that would secure liberties without the need for a bill of rights, the proposed Constitution did not come under that heading. A constitution such as the one proposed, “which leaves some precious articles unnoticed, and raises implications against others,” must be supplemented by a declaration of rights.
Madison had reason to fear that “some of the most essential rights could not be obtained in the requisite latitude.” In other words, there would not be enough popular support to secure some rights to the extent they deserved. He named “the rights of conscience in particular,” and observed that many people in America still wanted to deny public offices to “Jews, Turks, and Infidels.” The public mind was not yet ready to offer guarantees for religious freedom that would be robust enough to satisfy Madison. Jefferson’s answer to this objection was curt and to the point: “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
The third reason Madison gave related to the unique structure of the new government. Whereas others before him had emphasized the Constitution’s democratic government or its enumerated powers as reasons why a bill of rights was unnecessary, Madison focused on its federal structure – the division of power between state and federal governments. The enumerated powers, when combined with “the jealousy of the [state] Governments, afford a security which has not existed n the case of the State Governments, and exists in no other.” The jealous state governments would operate as a check on the abuses of federal power, they would be a better check than any bill of rights ever could. Jefferson admitted that the jealousy of the state governments was “a precious reliance,” but he insisted that “they must have principles furnished them whereon to found their opposition. The declaration of rights will be the text whereby they will try all the acts of the federal government.” A bill of rights might even provide securities for the federal government as well as the states; it could protect the former whenever the states might lodge opposition against the legitimate use of federal powers.
Madison’s fourth and final reason is the most interesting. He claimed that “experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed.” State governments had been guilty of “repeated violations of these parchment barriers.” Bills of rights were ineffectual in American states for a reason, Madison thought: democratic majorities always ignored them at their convenience.
Madison had given a lot of thought to the problem of majority tyranny. The “danger of oppression” in government, he said, always arose from the quarter that held the power. A bill of rights in a monarchy can serve as a standard of legitimate power that the King must be held accountable to, and a call-to-arms in the people if it is ever transgressed. By contrast, “in a popular Government, the political and physical power may be considered as vested in the same hands, that is, in a majority of the people.” As a consequence, in democratic governments, there is no latent and opposing force strong enough to champion the cause of rights whenever they were abused by the visible power. If the majority acts like a tyrant, they cannot be checked “by the dread of an appeal to any other force within the community.”