Adding a bill of rights to the U.S. Constitution became a serious bone of contention during the ratifying debates, and its subsequent adoption has since become, for many Americans, the most important part of the Constitution. Yet there was no foreshadowing of the looming importance of this question in the Constitutional Convention. The subject of a bill of rights did not even come up in the Convention until September 12, less than a week before the summer-long Convention adjourned. George Mason, who had been the primary author of Virginia’s Declaration of Rights, admitted that he “wished the plan had been prefaced with a bill of rights, and would second a motion, if made for the purpose.” Mason’s idea did win over a few adherents, but the motion lost on a tied vote following a very short and tepid debate. After a grueling summer of divisive wrangling, the delegates were exhausted. They were loath to open up any new business that would detain them in Philadelphia any longer than necessary. That decision would prove fateful during the ratification period.
Pennsylvania was the second state (after Delaware) to ratify the Constitution, but it was the first to encounter any strenuous opposition to it. Several Antifederalists objected that the new Constitution lacked a bill of rights. In response, James Wilson launched into the first and most comprehensive justification for the Convention’s decision to omit one. Wilson urged his opponents to consider how much the American Constitution differed from the British constitution. The proposed Constitution was to be established by “the people of the United States.” In Magna Carta, it is the King who grants liberties to his subjects, but his powers are otherwise presumed to be without limit. In America, it is the people who grant power to the government, but their liberties are otherwise presumed to be without limit. Therefore, a bill of rights was unnecessary in a democratic government, one in which all powers remain in the hands of the people.
In the second place, the United States Constitution differs from both the British constitution and the various state constitutions in being a government of enumerated powers. And “in a government possessed of enumerated powers, [a bill of rights] would be not only unnecessary, but preposterous and dangerous.” The liberties named in a bill of rights (such as the freedom of speech, or the right to a jury trial, etc.) are meant to designate certain powers that government may not exercise (it is forbidden to regulate speech, or try a suspect without the benefit of a jury, etc.). But the brand-new United States government would not be like its predecessors: its powers were already limited by being enumerated. Adding a bill of rights, therefore, would explicitly deny to Congress powers it had never been granted in the first place. Such a proscription made no sense, and, even more ominously, it might open the door to the dangerous doctrine of implied powers in Congress. Therefore, this misguided attempt to further limit the powers of the new national government through a bill of rights would have the perverse effect of implicitly expanding national powers beyond the ones named in the Constitution. Federalists elsewhere also argued that most issues that would be addressed in a bill of rights would primarily be regulated by the states, such as criminal cases and regulation of religion. Since each of the states would continue to be bound by its own bill of rights, a federal bill of rights was unnecessary.
It is unlikely that many of the Antifederalists were persuaded by Wilson’s arguments explaining why a bill of rights was unnecessary and dangerous, and the objections of Pennsylvania’s Antifederalists were repeated throughout many other states. In Virginia, Patrick Henry was the premier champion for a bill of rights. The Constitution had already named some protections for rights, such as habeas corpus; the problem was that the present Constitution 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 other words, Wilson’s argument that no bill of rights was needed because the government was limited to enumerated powers was undermined by the small list of specific rights that were listed in Article I. But the small list that the Constitution provided omitted many of the most important rights enjoyed by Americans. Henry said that 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.
Virginia’s Federalists had tried to argue, like Wilson, that a bill of rights was dangerous or unnecessary in a federal constitution of limited powers. They also defended the small list of rights named in the Constitution, which Henry had accused of being a woefully inadequate bill of rights. Rights such as habeas corpus and jury trials in criminal cases were named exceptions to the new government’s enumerated powers, since the new government would be empowered to prosecute criminal cases. It was unnecessary to explicitly protect the rights of speech and religion, however, because the new government was never granted any power to regulate these subjects. But the demands for a bill of rights from the opposition were too strong for these subtleties. Finally, the Federalists proposed a compromise. They urged that Virginia’s convention should submit a proposal for a bill of rights along with its ratification, to be considered by the First Congress and the rest of the states after the Constitution was in force. By a slim majority, Virginia ratified the Constitution with a list of proposed amendments, among which was a bill of rights modelled after Virginia’s own Declaration of Rights.
While these debates over a bill of rights were raging in the state ratifying conventions, a similar war of words was being waged in the press. The Antifederalist “Centinel” (No. 2) explicitly took on Wilson’s arguments against a bill of rights. This Constitution may be intended to be one of limited powers, he said, but “the lust of power is so universal, that a speculative unascertained rule of construction would be a poor security for the liberties of the people.” Publius responded to the Antifederalist hew and cry in the Federalist Papers by objecting that this dogged insistence that liberties could not be safe without a bill of rights was a wholly new doctrine in America. Madison pointed out in Federalist No. 38 that the Articles of Confederation had contained no bill of rights, and no one had thought their rights any less secure for it. Hamilton pointed out that the people of New York (to whom the Federalist essays were addressed) had no bill of rights in their own state constitution. The greatest protection for rights, he continued, was a reliance on a rule by the people. The whole of the Constitution, Hamilton insisted, was a bill of rights.
While all of this noisy squabbling was taking place publicly—in the state ratifying conventions and in the papers—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 by Henry 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 meant, 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. 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, 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.” There was such a popular demand for the addition of a bill of rights that Madison believed it must be respected in spite of any individual’s personal opinion about the matter. He also hoped that including a bill of rights, even if unnecessary, would tend to reconcile many of the remaining opponents to the new Constitution. Nonetheless, he gave his reasons why he personally didn’t think the question was intrinsically important. His most interesting reason arose from his understanding of the way democracies work. 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: because democratic majorities always ignored them at their convenience.
For each of Madison’s objections to a bill of rights, Jefferson supplied a rebuttal. Jefferson admitted the truth of what Madison had observed about democracies, but he thought Madison’s conclusions were too absolute. He thought that, although a bill of rights may not be “absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious.” More to the point, all the evils that could be anticipated from having a bill of rights were much less fearsome than the evils that might arise from not having one. If the country were without a bill of rights when one was needed, it would face evils that are “permanent, afflicting and irreparable: they are in constant progression from bad to worse.”
In addition to Madison’s supply of reasons against a bill of rights, he had also included in his letter to Jefferson a couple of reasons in their favor, one of which was unique and intriguing: “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 saw the Bill of Rights as a form of civic education; its solemn declarations could be useful for teaching the citizenry the proper relationship between them and their government. In this way it could help shape their character and make tyrannical majorities less likely. This point was repeated when Madison initiated the debates in favor of a bill of rights in the First Congress. He said that, since these rights “have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.” A bill of rights might not always be useful as a weapon against overweening government officials. But even a parchment barrier, if it becomes part of the public consciousness, might make such abuses less likely. What is perhaps most interesting about Madison’s list of the benefits to be expected from a bill of rights was what he left out. He appears to have overlooked the possibility that, if the executive or legislature did abuse its power and violate one of the individual rights traditionally protected by a bill of rights, aggrieved citizens could find redress in the courts. Indeed, Madison had written to Jefferson that, in such cases when the majority of people exercised their will in a tyrannical manner, the popular will could not be controlled by “an appeal to any other force within the community” (emphasis added). It was Jefferson who supplied the missing consideration: “In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.” If the judiciary were made sufficiently independent, thought Jefferson, then its most eminent members would be able to withstand the popular current whenever it abused the rights of some hapless minority. Madison must have been convinced by this argument, because he included it among his reasons for a bill of rights when he proposed his amendments to the First Congress. And Jefferson knew when he wrote his letter that he could relax and enjoy this verbal parry and thrust with his good friend, because Madison had already decided in favor of a bill of rights.