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

The Making of the Bill of Rights

The Twelve Amendments that Emerged

Aedanus Burke Critiques the Proposed Amendments

Today, Madison’s proposal for a bill of rights is justly lauded as the rough architectural drawing from which our own Bill of Rights was constructed. At the time, however, it was most conspicuous for what it lacked. There were so many popular amendments missing from the proposal debated by Congress that Aedanus Burke accused the House of trying to pull a fast one. He said it was offering something “like a tub thrown out to a whale” (a decoy meant to keep a whaling ship safe). Madison replied that he believed that the protections for individual rights were the amendments that had received the broadest support. Concerning those which related to more substantial changes in the Constitution, he predicted that “there is little prospect of obtaining the consent of two-thirds of both houses of Congress, and three-fourths of the state legislatures.” He was therefore “a friend to what is attainable.”

Madison Critiqued, Amendments Debated

Madison was also singled out for special criticism. Elbridge Gerry accused him of being overly fond of his own work. Then, in a warning that probably struck terror into the hearts of many an impatient congressman, Gerry suggested that “all the amendments proposed by the respective States” be brought forward for consideration by them. But the House did not take Gerry’s bait. Nor did the Senate, when Richard Henry Lee attempted the same maneuver in that body. Madison had been correct in his political assessment: there was not enough support in either House to convince two-thirds of its members to adopt the more substantial amendments proposed by the states.

The disagreements over the amendments that were actually proposed by Madison – as opposed to the debates over the amendments that some thought should have been proposed – were relatively short and free from partisan squabbles. Part of the amicable and expeditious quality of the debates may have been attributable to the pressing business that Congress was postponing in order to take up the bill of rights. Even more important, however, was the familiarity of the rights themselves. Most members of Congress already accepted the rights that were proposed as being longstanding safeguards of liberty.

The most frequent remaining disagreements were over the specific wording of some of these guarantees. Madison’s proposal went through numerous alterations and abridgments in the House, first in a select committee and then a Committee of the Whole. Beginning on August 19, the House debated the amendments anew sitting formally as the House of Representatives. By this time, Madison was privately calling the whole process “nauseous.”