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CONGRESS CREATES THE BILL OF RIGHTS: COMPLETING THE CONSTITUTION

Center for Legislative Archives

National Archives

National Archives Trust Fund Publication

Foundation for the National Archives

Funding provided by

The Chisholm Foundation

The Dyson Foundation

Humanities Texas

Designed and produced by Research & Design, Ltd., Arlington, Virginia

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Acknowledgments

Congress Creates the Bill of Rights has been many years in the making. Originally conceived by the Center for Legislative Archives outreach staff as a chapter in a much larger print publication on the history of Congress, the advent of eBooks and mobile applications for the educational and general public markets convinced us to use digital media to reach our audiences. The year 2014 marks the 225th anniversary of Congress’s historic achievement in proposing a set of amendments that would become the Bill of Rights. Commemorating this important anniversary compelled us to share this extraordinary story on its own.

The project was started by the previous director of the Center, Michael L. Gillette, who launched a series of successful outreach initiatives using the records of Congress as instructional resources for the nation’s classrooms. The Foundation for the National Archives agreed to support the project, and Lawrence F. O’Brien, III, past president and current board member, was its greatest champion. Archivist of the United States David S. Ferriero had the vision to see this as a project ideal for digital media, and James B. Gardner, Executive for Legislative Archives, Presidential Libraries, and Museum Services provided encouragement and support to bring this to completion. A gift fund account in the National Archives Trust Fund managed the funds for the project’s final stages.

Generous support for the project was provided by The Chisholm Foundation, the Dyson Foundation, and Humanities Texas. All three organizations share a commitment to improving the education and civic literacy of our young citizens and broadening civic knowledge in our communities. We hope we have furthered these noble causes in our work on Congress and the Bill of Rights.

The text for the original print publication, which was adapted for use in this eBook, Congress Creates the Bill of Rights: Completing the Constitution, was reviewed by a number of prominent scholars and congressional experts, including Susan Webb Hammond at American University, Charlene Bangs Bickford and Kenneth R. Bowling at the First Federal Congress Project at George Washington University, Joseph Cooper at Johns Hopkins University, Robert A. Goldwin at the American Enterprise Institute, Jack Zevin at Queens College at the City University of New York, Donald A. Ritchie, the Historian of the U.S. Senate, Kenneth T. Kato at the Office of the Historian of the U.S. House of Representatives, and Elizabeth Rybicki at the Congressional Research Service. Experienced educators also reviewed the text and the pedagogical value of the materials, including three talented public school teachers: Bill Thurlow, at Newport High School in New Hampshire; Mary Lou McLaughin, at Rock Island High School in Illinois; and Veronica L. Savoie at Midland High School in Louisiana. Jennifer F. Nance, a social studies specialist in the Mississippi Department of Education, also reviewed the text and materials.

I have been fortunate to have two collegial and talented collaborators in writing the text for the eBook and mobile app. Charles M. Flanagan, a master teacher for more than thirty years, is now a close colleague who cheerfully wrote draft after draft as we sought to create a rich historical story that would be accessible to students, teachers, and the general public. Anne-Catherine Fallen, our editor at Research & Design, Ltd., carefully revised and refined our drafts to preserve the meter and tone of our voices while improving the content and making the language accessible to our audiences. Kevin Osborn at Research & Design, Ltd., designed the eBook and mobile app, translating our vision for the project into stunning products that are easily navigated, enjoyable to use, and rich in historical documentation and content.

Other National Archives staff contributed to the project as well. Natalie E. Rocchio, the Center’s web and social media expert, reviewed and tested the many iterations of the mobile app while it was in development, and suggested helpful improvements that enhanced it in every version. Darren Cole, from the Office of Innovation, also reviewed the mobile app as we were headed into production and provided guidance to improve it. Michelle Farnsworth, also in the Office of Innovation, created masterful scans of original documents from the National Archives, including beautiful images of the Senate Mark-up to allow users to explore it at almost the pixel-level. Sharon O. Fitzpatrick at the Center did a number of important tasks, including project administration, organizing image files, and reviewing the app. Martha M. Grove, the Center’s exhibit specialist, researched and identified records and images from within and outside the National Archives to help us build a view of the historical context surrounding the work of the First Congress in 1789. Michael J. Hussey, from the Education and Public Programs Division, reviewed all the text in the mobile app and suggested changes to help us clarify and explain some of the more difficult historical concepts and topics to enhance its accessibility.

We hope that students of history of all ages will enjoy reading and exploring the extraordinary story of the First Congress and its role in the creation of the Bill of Rights and will gain a better appreciation for the role of Congress in our nation’s history.

Richard H. Hunt

Director

Center for Legislative Archives

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INTRODUCTION

The National Archives is the nation’s record keeper for the three branches of the federal government. The Center for Legislative Archives is the unit within the National Archives that preserves the official records of the U.S. House of Representatives and the U.S. Senate, as well as the records of other legislative branch entities. Within the half-billion pages of records in the Center’s care, there are some special treasures from the First Congress that show how the ratification of the Constitution necessitated the creation of the Bill of Rights, and how the creation of the Bill of Rights, in turn, completed the Constitution. The remarkable story of the relationship between two of our Charters of Freedom is told in Congress Creates the Bill of Rights: Completing the Constitution.

Congress Creates the Bill of Rights is a project that consists of three elements: this eBook, a mobile application for tablets, and online resources for teachers and students on the Center for Legislative Archives website, http://www.archives.gov/legislative/resources/bill-of-rights.html. Each provides a distinct way of exploring how the First Congress proposed amendments to the Constitution in 1789.

The eBook presents a historic narrative that focuses on James Madison’s leadership role in creating the Bill of Rights. Starting with the crises facing the nation in the 1780s, the narrative traces the call for constitutional amendments from the state ratification conventions, and takes the reader inside Congress as Madison and the First Congress worked to formulate a set of amendments to send to the states.

The mobile app is an interactive learning tool for tablets that situates the user in the proposals, debates, and revisions that shaped the Bill of Rights. Its menu-based organization presents a historic overview, a detailed study of the evolving language of each proposed amendment as it was shaped in the House and the Senate, a close-up look at essential documents, and opportunities for participation and reflection in a vivid, easy-to-navigate format designed for individual or collaborative exploration. A downloadable PDF of the app content is available on the Center for Legislative Archives website as well.

The materials published on the Center for Legislative Archives website present questions, lesson ideas, and supporting resources selected to facilitate learning with the app and eBook. Studying how Congress created the Bill of Rights teaches vital lessons about history, representative government, and the timeless principles of our civic life, and will strengthen students’ understanding of their roles and responsibilities as citizens today.

These three new resources provide teachers with a suite of complementary tools for teaching about the creation of the Bill of Rights. Each presents a distinct view of the First Congress at work. The eBook supplies the narrative history, while the app explores the complex process within Congress that produced the proposed amendments. Together with the educational materials found on the websites of the Center for Legislative Archives and the National Archives, they offer rich historical content and context, compelling primary documents, and innovative educational strategies to engage students and the public in understanding this priceless civic legacy.

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PART 1: CONGRESS SEEKS COMPROMISE ON AMENDMENTS

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The House Proposes Amendments

The small volume of official records left to us by the First Congress is one of the nation’s most precious inheritances. Its pages tell the story of eighty-one members who met in New York City to interpret and implement the Constitution’s provisions for the first time. They translated the untried articles, sections, and clauses into actions and results to establish the institutions of government, create laws to protect the safety and security of the nation, raise and spend funds on necessary government functions, and address the many challenges associated with launching a new form of government never before seen in the world.

Of all the extraordinary achievements of the First Congress, perhaps the most remarkable was the proposal of amendments to change the recently ratified Constitution. To date, in all of our nation’s history, only twenty-seven amendments have been ratified to alter the Constitution created by the founders. The First Congress was responsible for eleven amendments, passing more than 40 percent of all those ratified. In order to understand this amazing output, it is necessary to return to 1789 and study the political environment created by the struggle over ratification of the Constitution. The process in the first session of the First Congress that resulted in the Bill of Rights also showed how political leaders addressed the combined challenges of launching the new government while broadening support for the Constitution among opponents and skeptics.

One document among the few that survived reveals the hard work it took for Congress to create the Bill of Rights. Recorded on two sheets of paper, the Senate Revisions to the House Proposed Amendments to the U.S. Constitution (referred to as the Senate Mark-up), provides meaningful clues and hints to what was being said and done in the First Congress. Properly read and decoded, the printed and handwritten words on the pages demonstrate the work of James Madison and the House of Representatives in proposing amendments and their subsequent revision in the Senate. Moreover, these pages, along with the rest of the documentation left to us from the First Congress and its members, show how representative government—that new experiment created by the founders—changed the course of the nation’s history forever.

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The Senate Mark-up

These four pages recorded on two sheets illustrate the process as seventeen House-proposed amendments (referred to as “Articles”) were revised in the Senate. The brown ink markings, made by the Secretary of the Senate, include cross-outs, combined amendments, and revised language. They record the actions taken in the Senate between August 25 and September 9, 1789. After the Senate passage by a two-thirds vote, a clean copy representing the Senate version of twelve amendments was sent to the House for its consideration on September 14. The Bill of Rights was taking shape, although final congressional passage would not occur until September 25.

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Page 1: Senate Revisions to the House Proposed Amendments to the U.S. Constitution, September 9, 1789, Records of the U.S. Senate (1 of 4 pages)

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Page 2: Senate Revisions to the House Proposed Amendments to the U.S. Constitution, September 9, 1789, Records of the U.S. Senate (2 of 4 pages)

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Page 3: Senate Revisions to the House Proposed Amendments to the U.S. Constitution, September 9, 1789, Records of the U.S. Senate (3 of 4 pages)

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Page 4: Senate Revisions to the House Proposed Amendments to the U.S. Constitution, September 9, 1789, Records of the U.S. Senate (4 of 4 pages)

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PART 2: LEADERS OF THE HOUSE DEBATE

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The House Debate

The House of Representatives debated the Bill of Rights between June 8 and September 24, 1789, when the House voted on its final version of amendments. House debate was shaped by the extreme reluctance, if not the open hostility, of the members towards Madison’s version of amendments. Despite this opposition, Madison’s determination and skill guided the amendments to House approval by a two-thirds vote.

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The Champion of Amendments

James Madison played a critical role as instigator of the discussion on amendments, which many members wished to avoid. He put together a carefully crafted, lawyerly speech that called on the House to “expressly declare the great rights of mankind secured under this Constitution.”

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James Madison (VA)

(1751–1836)

Born in Virginia, Madison trained as a lawyer at Princeton before settling in Orange County, Virginia. He represented the county in Virginia’s revolutionary and legislative bodies. He also represented Virginia in the Confederation Congress and at the Federal Convention. He promoted ratification of the Constitution in the press and as a delegate to the state convention. Madison was the author of the constitutional amendments considered by the House, and the floor leader who directed their passage. He believed that by passing his version of amendments, he could satisfy the public call to protect rights without endangering the Constitution and weakening the federal government.

James Madison by Charles Willson Peale, ca. 1792

Gilcrease Museum, Tulsa, Oklahoma

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Federalist Position on Amendments

When the first Congress convened, the Federalist-dominated House opposed amending the Constitution. Federalists generally believed that a bill of rights was unnecessary in a government of delegated powers. They were suspicious that the Anti-Federalists’ primary motive was to undo critical provisions in the Constitution before the new government could be put into effect.

As the session progressed, Federalists came to realize that Madison’s amendments neither weakened the federal government nor prevented it from fulfilling its national responsibilities. They voted for Madison’s amendments, but without much enthusiasm. Joining Madison as leaders of the debate were Federalists Roger Sherman of Connecticut, Fisher Ames of Massachusetts, and James Jackson of Georgia.

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Roger Sherman (CT)

(1721–1793)

Born in Massachusetts, Sherman settled in New Haven, Connecticut, where he was a publisher, lawyer, merchant, judge, and municipal and state officeholder. Sherman served for many years in both the Continental Congress, where he signed the Declaration of Independence, and the Confederation Congress. He assumed an important role at the Federal Convention and actively supported ratification in both the press and the state convention. Sherman played a critical role in the history of the Bill of Rights when he proposed that the amendments be added to the end of the Constitution rather than written into its text, as Madison had proposed.

Roger Sherman by Ralph Earl, ca. 1775

Yale University Art Gallery

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James Jackson (GA)

(1757–1806)

Born in England, James Jackson immigrated to Savannah, Georgia, where he became a planter and lawyer. He served in the state assembly and was elected as a Federalist to the First Congress. Jackson adamantly opposed amending the Constitution, remarking, “This is not the time for bringing forward amendments.”

James Jackson by Charles B. J. Févret de Saint-Mémin, 1805

National Portrait Gallery, Smithsonian Institution/Art Resource, NY

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Fisher Ames (MA)

(1758–1808)

Ames was a Harvard-educated lawyer from Dedham, Massachusetts, who served in the Massachusetts House of Representatives before being elected as a Federalist to the First Congress. As a member of the Massachusetts convention, he ardently supported ratification. He was opposed to amending the Constitution, noting, “There would be no limits to the time necessary to discuss the subject . . . the session would not be long enough.”

Fisher Ames by James Sharples, ca. 1797

National Portrait Gallery, Smithsonian Institution/Art Resource, NY

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Anti-Federalist Position on Amendments

Anti-Federalists wanted to add amendments to reduce the federal government’s powers. These amendments took two forms: structural amendments that would transfer powers back to the states, and rights-related amendments that would define fundamental freedoms protected from federal government interference.

The Anti-Federalists proposed amendments designed to reduce Congress’s power to tax, replace congressional control of federal elections with state control, eliminate the federal court system, limit the powers of the president, and place restrictions on a standing army. The Anti-Federalists believed that Madison had selected the least useful amendments from those proposed by the states, and they consistently voted against his version of amendments. The leading Anti-Federalists were Aedanus Burke and Thomas Tudor Tucker of South Carolina, and Elbridge Gerry of Massachusetts.

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Aedanus Burke (SC)

(1743–1802)

Burke was born in Ireland and settled in Charleston, South Carolina, where he served as a judge in the state. He voted against ratification in South Carolina’s convention. An advocate of imposing strict limits on federal power, Burke dismissed Madison’s amendments as, “little better than whip-syllabub, frothy and full of wind, formed only to please the palate….”

Aedanus Burke by Max Rosenthal, ca. 1890 (after a 1782 painting by an unknown artist)

Print Collection, Miriam and Ira D. Wallach Division of Art, Prints and Photographs, The New York Public Library, Astor, Lenox, and Tilden Foundations

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Thomas Tudor Tucker (SC)

(1745–1828)

Born in Bermuda, Tucker settled in Charleston, South Carolina. A lawyer, doctor, and planter, he was a delegate to the state legislature and, briefly, to the Confederation Congress. Tudor was the proponent of several amendments to limit federal power, all of which were defeated in the House. He captured the Anti-Federalist view of Madison’s amendments when he complained to a political ally, “You will find our Amendments to the constitution calculated merely to amuse, or rather to deceive.”

Thomas Tudor Tucker by Charles B. J Févret de Saint-Mémin, 1805

National Portrait Gallery, Smithsonian Institution/Art Resource, NY

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Elbridge Gerry (MA)

(1744–1814)

A merchant and office holder, Gerry was born in Marblehead, Massachusetts. A graduate of Harvard College, he later resided in Cambridge, Massachusetts. Gerry attended the Continental Congress, where he signed the Declaration of Independence, and he was also a member of the Confederation Congress. A delegate to the Constitutional Convention, he refused to sign the Constitution and actively protested its ratification at the Massachusetts state convention, which he attended as an unofficial observer. He was among the most active participants in the House debate on amendments and insisted that “all the amendments proposed by the respective states” should be considered, rather than Madison’s limited set of proposals.

Elbridge Gerry by James Barton Longacre, ca. 1820 (after a drawing by John Vanderlyn, 1798)

National Portrait Gallery, Smithsonian Institution/Art Resource, NY

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PART 3: RIGHTS AND THE CREATION OF THE CONSTITUTION (1776–1789)

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Towards a Stable and Effective Government

The U.S. Constitution, the bedrock charter of government for over 200 years, seems timeless. The Constitution was created in a specific time and place, however, and its fundamental character and essential provisions were responses to political conditions in the 1780s. The Constitution would be measured by the ability of the institutions it created to provide stable and effective government; and that process began when the legislative branch convened as the First Federal Congress (1789–1791). Yet one of Congress’s most important acts to affirm the Constitution was to amend it by adding the Bill of Rights. This addition secured broad support for the Constitution and the new federal government, and established a charter of rights that has grown in importance over the last two centuries.

Throughout this extraordinary period, James Madison served as a close observer, critical thinker, and informal “floor leader” in the First Federal Congress. He identified the problems and possibilities of republican government, and proposed visionary and practical solutions to address them. Of all his many contributions to the nation, Madison’s leadership role in the creation of the Bill of Rights was striking, given his expressed skepticism about the value of bills of rights. Madison, however, came to believe that Congress should add rights-related amendments to the Constitution. For his efforts, Madison has properly been credited as the father of the Bill of Rights.

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An Accurate Map of the United States of America, with Part of the Surrounding Provinces agreeable to the Treaty of Peace of 1783, detail

RG 76: Series 8, Map 22, National Archives

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Crisis of the Union

During the mid-1780s the nation experienced a crisis in government that had two separate but related causes. One was the weakness of Congress under the Articles of Confederation (1781–1789), the nation’s first charter of government, which led to a crisis of the Union. The other was the failure of the republican state governments to protect the rights of individuals and minorities, which brought about a crisis of republicanism. Government seemed to be in jeopardy at all levels.

Under the Articles, the state governments were supreme. The greater importance of state governments reflected the accepted, republican ideal that grew out of the American Revolution: republics must be local and governed by legislatures that answered to popular majorities. Republicanism also rested on the belief that a legislative branch responsive to popular will would best protect fundamental rights and freedoms. In this way, the people, through their representatives, would watch out for their own rights. The legislature would shield the people’s liberties from violation by other institutions of government at the state or national level. To further protect rights, seven of the thirteen states adopted declarations or bills of rights in addition to their constitutions.

While states in the 1780s were the seedbed of republican government, the framework of the Confederation Congress was based on different principles. It was an assembly of delegates representing states and it lacked the power to act directly on the people. The Congress had limited authority to conduct war and foreign relations but no power to regulate foreign commerce, to tax, or to implement its laws; it could only request that states comply with its acts.

In the 1780s, Congress found that its many problems included an inability to pay creditors who held the sizeable Revolutionary War debt, and to force states to conform to treaty requirements. Several efforts were made to amend the Articles of Confederation to strengthen Congress, but all failed to meet the constitutional requirement of unanimous state consent. In 1786, members of Congress clashed so bitterly over negotiating a treaty with Spain that the Union nearly collapsed.

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Articles of Confederation, 1781

RG 360: Records of the Continental and Confederation Congresses and the Constitutional Convention, National Archives

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Crisis of Republicanism

While Congress was unable to meet national needs, the states confronted their own crisis of republicanism. When a postwar economic depression developed in 1784, state legislatures responded to public discontent by declaring moratoriums on the payments of taxes. These popular relief measures, however, only deprived the states of the revenues essential to discharge their public responsibilities. The state legislatures also passed restrictive trade legislation in an attempt to shield their citizens from the effects of the depression, but this response meant that the states were effectively declaring economic war on each other. Other popular laws prevented creditors from collecting debts and allowed the states to issue a flood of paper money that kept losing value. These and other inconsistent, contradictory, and poorly drafted state laws convinced many members of Congress that state governments, typically regarded as the guardians of rights won in the American Revolution, now threatened those rights.

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Madison’s Views of the Crises

Beginning his career in national politics in 1780 at age twenty-nine, Madison was elected as one of Virginia’s delegates to the Congress, and in 1784, he returned to Virginia where he was elected to the state legislature. Thus, from both the national and state positions, Madison experienced firsthand the crises of the Union and of republicanism.

In 1786 and 1787, Madison composed a number of political tracts that diagnosed the problems that gripped the new nation. The inspiration for one of his 1786 works—the Memorial and Remonstrance against Religious Assessments—arose during the 1784–1785 meeting of the Virginia Assembly. The Assembly nearly passed an assessment bill that would have taxed Virginia citizens to provide state aid for teachers of Christianity. Madison opposed the bill because he believed that the state should not use public funds to support religion. Furthermore, he saw the bill as a violation of the provision in the Virginia Declaration of Rights of 1776 that specifically declared that citizens were “equally entitled to the free exercise of religion, according to the dictates of conscience.” This particular provision, in fact, had been added on a motion by Madison at the Virginia constitutional convention.

The Declaration of Rights, however, proved of little value and provided no barrier to the supporters of the assessment bill. Madison stopped the bill in the 1784–1785 session by using parliamentary tactics. At the same time, following a common eighteenth-century practice, Madison anonymously penned the Memorial. A group representing a variety of interests then waged a successful public campaign to put pressure on state legislators to withdraw the bill at the Assembly’s next session. In the Memorial, Madison labeled the assessment bill “a dangerous abuse of power” and presented fifteen points of argument against it. To Madison, the near-passage of the assessment bill vividly illustrated both the willingness of state legislatures to disregard bills of rights and the close linkage of religious and civil liberties.

Turning to the problems of the Union, Madison immersed himself in histories of ancient republics and confederacies in an effort to identify the causes of their collapse, before writing a memorandum on the “Vices of the Political System of the United States” in 1787. In this influential work, Madison searched for ways of “rendering the Republican form competent to its purposes” to overcome the forces pulling the nation apart. Madison noted the problems that “directly affect the States collectively” and that were associated with a weak central government in a confederacy of states. These included “encroachments” by the states on central power and “trespasses” by the states on the powers of other states.

Madison, however, focused his attack in “Vices” on the republican state governments as the greatest source of the “evils” that were weakening the political system of the United States. He underscored the variety, inconsistency, and injustice of state laws that were created in a frenzy of legislative activity after the Revolution, noting that state legislatures devoted an extreme amount of time and energy to revoking the poorly drawn laws passed by past representatives. Madison also warned that the greatest threats to individual liberties came from state legislatures. He observed that there was no mechanism, even in those states with their own bills of rights, to restrain popular majorities and their elected representatives “from unjust violations of the rights and interests of the minority, or of individuals.”

The conflicting range of state laws and the fragile nature of declarations of rights, Madison cautioned, fueled a widespread public discontent with government and brought “into question the fundamental principle of republican government, that the majority who rule in such Governments are the safest Guardians both of public Good and of private rights.” If this was true, then the traditional view of republics—that they must be small and locally oriented for the people to have a voice in government—was flawed.

Madison’s novel solution to the problem of governance was “an enlargement of the sphere” of the republic, from one limited to local and state governments, to a federal republic. A carefully constructed, enlarged republic, Madison concluded, would provide more security for private rights than the states. The early and condensed expression of these extraordinary ideas in “Vices” laid the groundwork for Madison’s plans at the Constitutional Convention. They also foreshadowed his classic work, Federalist 10, where Madison more fully described the “republican remedy for the diseases most incident to republican government.” Over this period, Madison was in the process of forming his own revolution of ideas, and had reached what historian Jack Rakove [see Resources] identified as “the crucial passage” in his thinking about individual rights and the power of the federal government. The mark of Madison’s genius may have been his ability to see how the problems of the Union and republicanism were joined.

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A N.W. [north west] view of the state house in Philadelphia taken 1778, detail

Prints and Photographs Division, Library of Congress

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The Constitutional Convention and Individual Rights

With the Union threatened and the republican experiment in danger of failing, the states sent delegates to the federal convention (May–September 1787) to strengthen the Articles of Confederation. With Madison in the lead, the delegates resolved to replace the Articles with a new form of government that would establish republican government on a more stable foundation.

Madison arrived at the convention with a goal of establishing an effective central government. The new government, Madison hoped, would be elected by and answerable to the people rather than remain a servant of the states. The convention, however, rejected Madison’s proposal for direct proportional representation in both chambers of the legislative branch. The House of Representatives would be elected directly by the people, but the other house—the Senate—was to be elected by the state legislatures. An executive with specified powers, elected indirectly, and an appointed judiciary completed the structure of the federal government. When done, the convention had created a federal republic. The central government held exclusive powers and yet shared other powers with the states. This arrangement had no precedent in history, and Madison accurately described it as neither “wholly national” nor “purely federal.”

The convention safeguarded rights by dividing power between state and federal governments, and by further balancing central government powers among legislative, executive, and judicial branches. With government powers properly arranged and safely distributed, individual rights would gain a measure of protection from violation by arbitrary authority. The convention included a few protected rights such as habeas corpus (the right to be brought before a judge or court) within the Constitution, but near the close of the convention the delegates, on a 10 to 0 vote of the states, quickly rejected a resolution to create a committee to prepare a bill of rights. The majority of delegates believed that they had already provided sufficient protections for individual liberties within the Constitution itself.

Madison, however, was deeply concerned that the convention had done nothing to address the problem that arose when popular majorities, rather than authoritative rulers, violated rights. Madison proposed an innovative concept: an absolute, unlimited veto power of the national legislature over all state laws. This extraordinary proposal followed logically from Madison’s assertion that the states were the source of unjust laws that threatened individual rights. It was also consistent with his view of an extended republic where the federal government would act as a “disinterested and dispassionate umpire in disputes between different passions and interests” in the states. In a republic, the legislative branch, which was directly accountable to the people, would use the veto power, although Madison outlined a limited advisory role for the executive and judicial branches. An additional virtue of the national legislature was its distance from local disputes and the diversity of interests represented, which made it better able to judge the fairness of state laws. And, a legislative veto rendered before state laws went into effect would prevent abuse of rights that could only be overturned by later state action.

On four separate occasions during the convention, Madison fought for the legislative veto. He initially received the convention’s assent, but delegates regarded the national legislative veto as an instrument for increasing the power of central government and ultimately voted against it. To Madison, when the convention rejected the legislative veto, it also rejected the most effective means for the national government to prevent state infringement of individual liberties.

George Mason, a fellow delegate from Virginia, shared Madison’s concern for rights, but he feared that a strong federal government would violate rather than protect individual rights. Mason called for the addition of a bill of rights which, he predicted, would “give great quiet” to the people and address concerns that were certain to surface about the extensive powers granted to the central government. When the convention refused to consider a bill of rights, Mason penned his objections on the reverse side of his copy of the second draft of the Constitution. He also refused, with Elbridge Gerry of Massachusetts and Edmund Randolph of Virginia, to sign the Constitution.

Immediately after the convention, Mason revised the notes that he had earlier scribbled and sent them in a letter to George Washington to appeal for his support. Washington, in turn, sent a copy of the letter to Madison and other supporters of the Constitution and urged them to answer Mason’s attacks on the Constitution, which were broader than Mason’s original call for the addition of a bill of rights. Anti-Federalists, those who opposed ratification of the Constitution, also shared Mason’s letter with sympathetic newspaper editors who made it a centerpiece of the Anti-Federalists campaign to defeat the proposed Constitution. Thus, Mason had fired the opening shots in the oncoming struggle for ratification between Federalist proponents and Anti-Federalist opponents of the Constitution.

Anti-Federalists would adopt and amplify Mason’s attack on the Constitution. They focused their objections on the powers and institutions of the new central government. The Anti-Federalists believed the Constitution granted excessive powers to the central government. They proposed structural amendments—changes that would restrict the Federal government’s powers over taxes and commerce, for example—to redefine the relationship between the states and the central government. Anti-Federalists believed they must oppose or fundamentally alter the charter to save republicanism and the legacy of the American Revolution.

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Constitution of the United States, 1787

RG 360: Records of the Continental and Confederation Congresses and the Constitutional Convention, National Archives

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State Ratification Conventions and Amendments

The battle between Federalists and Anti-Federalists over the ratification of the Constitution was fought in thirteen separate state ratification conventions. After quick ratification of the Constitution in five states in December 1787 and January 1788 (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), the future of the Constitution began to turn on the issue of amendments. Anti-Federalists in the critical states of Massachusetts, Virginia, and New York had greater influence over their conventions and demanded the addition of amendments as a condition for their ratification. The Federalists, in turn, opposed amending a charter based on agreements that had taken such huge efforts to produce at the Constitutional Convention. They feared that revisiting controversial topics, which the amendments promised to do, would derail ratification. Federalists also worried that states ratifying conditionally would produce a procedural and legal tangle over differing, and possibly conflicting, state-mandated amendments. How would one identify the true and final version of the Constitution that emerged from such a mix?

The confusion began to clear somewhat in February 1788, when Massachusetts, by a small margin of votes, became the sixth state to ratify. The Massachusetts convention addressed the dilemma of amendments by adding a set of recommended amendments. Federalists at the convention grudgingly accepted amendments rather than risk defeat of the Constitution. Other states followed Massachusetts’s example and proposed additional amendments. Maryland and South Carolina became the seventh and eighth states to ratify. On June 21, 1788, with New Hampshire’s approval, the Constitution was ratified by the required nine states. Critical battles followed in two of the largest states, Virginia and New York, where close votes in the conventions supported ratification and the addition of recommended amendments.

Ratification had been achieved, but only by narrow margins, and the Constitution was now associated with a long list of recommended amendments, many of which, if added, would fundamentally alter the charter. Congressional historians Helen E. Veit, Charlene Bangs Bickford, and Kenneth R. Bowling [see Resources] estimate that majorities and minorities from eight state-ratifying conventions proposed a total of 210 amendments. When duplicate and similar provisions were combined, it still left about one hundred separate amendments that had been proposed. Even more threatening, the Anti-Federalist-controlled convention in New York went one step further by calling for a second constitutional convention to consider and resolve the issue of amendments. The Federalists feared that another convention would turn into an unrestrained attack on the Constitution and undo the work of the first convention. Madison warned that a second constitutional convention would “mutilate the system” created at Philadelphia. Equally threatening for the Union, North Carolina defeated ratification and Rhode Island failed to call a convention. The Union began anew with eleven states and a charter that had been approved but remained under Anti-Federalist assault.

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New York’s Ratification of the Constitution with Proposed Amendments, 1788

RG 11: General Records of the United States Government, National Archives

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Madison Re-examines a Bill of Rights

The difficult struggle over ratification of the Constitution made a deep impression on Madison, who had firsthand experience in two of the fiercest state ratification fights. He had been a delegate to the Virginia ratification convention where he had to overcome determined Anti-Federalist forces led by his longtime rival, Patrick Henry. He also collaborated with John Jay and Alexander Hamilton in writing essays published in newspapers that supported ratification efforts in New York that were later published as The Federalist. The difficulty of securing qualified approval of the Constitution in these two critical states—including New York’s call for a second convention—led Madison to re-evaluate the importance of rights-related amendments.

Madison had begun to realize that the popular demand for a bill of rights could be harnessed in support of the new Constitution. He also recognized that the founding charter of a republic must have the overwhelming allegiance of the people rather than the narrow majorities that supported the Constitution at the ratification conventions.

As the first congressional elections got underway in the fall of 1788, Madison wrote a letter to Thomas Jefferson that revealed both his continued uncertainties about a bill of rights and his first positive thoughts about what a bill of rights might accomplish. He expressed to Jefferson, a fierce advocate of a bill of rights, his conviction that bills of rights were no more than “parchment barriers,” but he also revealed to his friend that, “My own opinion has always been in favor of a bill of rights.” Yet, in the next thought, Madison qualified his support by adding that, “At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.”

Madison referred to “a truth of great importance,” not yet adequately understood. To protect rights from assault, he observed, it was necessary to identify the source of “danger of oppression” in a society by locating where “real power” exists. “In our Governments,” Madison explained, “the real power lies in the majority of the Community.” Government alone will not violate individual rights in acts that are “contrary to the sense of its constituents,” he concluded, but the government, as “the mere instrument of the major number of the constituents,” will respond and pass acts that reflect the popular will. The real problem, then, was how to safely restrain the majority in a system that rested upon majority rule.

For the first time, Madison suggested that a bill of rights might offer a partial answer to that republican dilemma. Written directly into the Constitution, these declarations of “political truths,” he observed, would “acquire by degrees the character of fundamental maxims of free Government.” They would serve as remedies against the “impulses of interest and passion” that had driven popular opinion in dangerous directions and led to abuses of rights. And, Madison ventured, it was conceivable that in the future the national government itself could violate fundamental rights. If “a succession of artful and ambitious rulers” took hold of the government, Madison concluded, then a bill of rights would offer “a good ground for an appeal to the sense of the community.” Madison quickly added, however, that he considered this threat unlikely and that he did not see a “tendency in our governments to danger on that side.”

At the start of the federal elections, Madison, more so than other Federalists, had seen how a bill of rights might become the means to increase support for the Constitution, and, if properly drafted, protect fundamental freedoms and rights from “interested majorities” that threatened them.

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“The Federal Edifice.” Massachusetts Centinel, 1788

Serial and Government Publications Division, Library of Congress

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First Federal Elections

The first federal congressional elections, held in the fall and winter of 1788–1789, occurred as the debate continued over the merits of the new Constitution. Anti-Federalists had lost the fight to amend the Constitution prior to ratification, but they continued to demand amendments, called for another constitutional convention, and raised concerns about the protection of rights under the new system. They confronted, however, a broad public sentiment that favored the replacement of the Articles of Confederation with a more effective government. The Federalists took advantage of the momentum of the successful ratification drive and focused on the benefits that would be derived from the new federal republic. Consequently, the Federalists won a resounding victory in the first congressional elections. Seven states sent all-Federalist delegations, giving them decisive advantages of 49 to 10 in the popularly-elected House, and 20 to 2 in the Senate, whose members were appointed by the states. Virginia was the only state that sent Anti-Federalists to the Senate. Of the ten Anti-Federalists in the House, two each came from Massachusetts and New York, and three each from Virginia and South Carolina.

The issue of amendments to the new Constitution played an important role in Madison’s election to the House of Representatives. The Anti-Federalists’ control of the Virginia Assembly in 1788 deprived Madison of a Senate seat. Patrick Henry, leader of Virginia’s Anti-Federalists, spearheaded an effort in the legislature to draw Madison’s district so that it included the “counties most tainted with antifederalism” and convinced James Monroe, a moderate Anti-Federalist, to run against Madison.

The Anti-Federalists attacked Madison for opposing a bill of rights and attempted to scare the Baptists, a religious minority in his district, by raising questions about Madison’s support for religious liberty. Madison calmed the concerns of his Baptist friends by writing to George Eve, a Baptist minister in his district, and declaring his support for the First Congress to recommend protection of “all essential rights.” This letter, and others that Madison wrote to defend his record on rights, were printed and distributed throughout the United States. Madison successfully defused the Anti-Federalist charges and won the election handily on February 2, 1789.

Madison’s campaign pledge to support a bill of rights did not alter his belief that there were other, more direct and powerful ways to protect individual rights, such as granting Congress power to override state law. His active campaign earned him a comfortable victory but also put him on record in support of amendments. Like Madison, many Federalists promised to support amendments in order to get elected. Americans who sought to amend the Constitution looked to the First Federal Congress to see if Madison and the Federalists would follow through on campaign promises.

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The Federalist: A Collection of Essays, Written in Favour of the New Constitution. 2 vols. New York: J. and A. McLean, 1788.

Rare Book and Special Collections Division, Library of Congress

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PART 4. THE FIRST FEDERAL CONGRESS CREATES THE BILL OF RIGHTS

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The First Congress

The experiment in government under the Constitution began with the meeting of the First Federal Congress in New York City in 1789. On March 4, at eleven o’clock, while bells rang throughout the city to commemorate the moment, the First Congress got off to an unpromising start. Only thirteen representatives (of 59) and eight senators (of 22) were in attendance that day, and the formal convening of the Congress had to be postponed until a quorum was reached in each chamber (a minimum of 30 representatives and 12 senators had to be present).

The problem of achieving a quorum was typical of eighteenth-century assemblies. Elected members were delayed by bad roads and the seasonal hazards of rain-swollen rivers and coastal storms. Some states had not yet held elections and others had not determined the winning candidates when the First Congress convened. Many feared that these delays signaled a lack of interest among members, a problem that had troubled the ineffective Confederation Congress in the 1780s. On April 1, however, the House achieved a quorum. On April 6 the Senate did as well, and the new government was launched. One of its first duties was to meet jointly, count the Electoral College votes, and declare that George Washington and John Adams had been elected president and vice president respectively.

The public was especially interested in the new House of Representatives, the first national assembly of popularly elected representatives ever to meet in America. Within a week of its opening, the new House voted to open its doors to the public, a dramatic act that further captured the public’s attention. People streamed into the House galleries in New York to watch their new government at work, and sometimes noisily distracted the members below. Citizens outside the city followed the debates and activities of Congress in local newspapers. Constituents sought to shape the congressional agenda by sending a steady stream of letters and petitions to their representatives.

Some of the impressive and far-reaching actions that the First Congress took included passing laws to build the structure of the executive and judicial branches, taking steps to address the problem of the national debt, and solving the battle over the permanent location of the “seat of government.” For its accomplishments, the First Congress has been regarded by many historians as the most productive legislative assembly in the nation’s history.

As the people’s branch, the House took the first steps on most issues and assumed a greater share of the workload than the Senate in the First Congress. James Madison quickly emerged as the unofficial floor leader of the House. His natural talents, long experience in government, significant role at the Constitutional Convention, and close relationship with President Washington prepared him to lead the House. The Senate, a small body of twenty-two members elected by the state legislatures, met in sessions closed to the public. It served primarily as a “revisory body,” notes Senate Historian Emeritus Richard A. Baker [see Resources], “responding to initiatives sparked within the House of Representatives.” The Senate, however, did take the lead during the first session on legislation to define the federal judiciary, and it alone had responsibility to rule on the nominations and treaties submitted by the president.

For members of a new government, the representatives and senators had a wealth of experience in public service. Over ninety percent had served in colonial assemblies or state legislatures, and a significant percentage, especially on the Senate side, had also been appointed as delegates to the Continental and Confederation Congress and the Constitutional Convention. Congressional scholar Joel Silbey [see Resources] aptly describes the members of the First Congress as distinguished representatives of “the ruling social and political elites of their day,” which included “lawyers, planters, land speculators, and merchants.”

Lawyers, or those who had read the law at some point in time, were well represented and offered their specialized skills in public speaking and in drafting legislation. There was also a significant percentage of young and unmarried members, who found it easier to devote half or more of each year to the nation’s business while the Congress was in session. Those who were married, however, had to possess the means to support their families at home while they found boarding in New York. As the first session extended to 210 days, many members endured a long absence from loved ones.

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Federal Hall, N.Y. 1789, by Amos Doolittle

Prints and Photographs Division, Library of Congress

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Federal Hall, Wall Street and Trinity Church, New York, in 1789

Prints and Photographs Division, Library of Congress

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Introduction of Amendments

When the First Congress met in 1789, there was a general belief that the ratification process revealed broad, popular sentiment for a bill of rights to be added to the Constitution. Yet the composition of the First Congress made the possibility of favorable action on amendments remote. Federalist supporters of the Constitution firmly controlled Congress and saw no reason to compromise with the handful of Anti-Federalists in attendance. The Federalists were determined not to provide an opportunity to the Anti-Federalists to offer amendments damaging to the Constitution. The Federalist majority continued to believe that amendments to protect rights were an unnecessary and dangerous distraction from the more important task of establishing the new federal government under the Constitution. Though taking the opposite view, the Anti-Federalists recognized that the Federalist-controlled Congress was unlikely to support structural amendments that reorganized and limited central government powers.

By the end of the first session, James Madison was almost single-handedly responsible for bringing about an astonishing reversal of the congressional majority’s position on a bill of rights. Unlike many of his Federalist colleagues, Madison understood that the requirements of constitution-making were more important than simply winning elections. Madison recognized that neither ratification of the Constitution (under ground rules set by the Federalists) nor the decisive majorities won by the Federalists in the first federal elections were sufficient to secure the Constitution. Acceptance of the Constitution required not only a majority but also the overwhelming approval of the nation, which the charter had not obtained when the First Congress commenced. Madison believed that by adding rights-related amendments to the Constitution, the First Congress could help establish that broad acceptance of the new charter.

Madison’s management of a House opposed to amendments revealed his enormous skills as a master legislative strategist. Aware that a two-thirds vote in both the House and Senate was required to propose amendments to the states, Madison drafted amendments and crafted speeches to secure the support of reluctant and doubtful Federalists. Madison could not count on the support of the Anti-Federalists because he fashioned his rights-related amendments to drive a wedge between Anti-Federalist leaders, who favored amendments changing the structure and powers of the new government, and their supporters, who were primarily concerned that the Constitution lacked a bill of rights. Throughout the first session, the persistent Madison tirelessly applied pressure in order to build momentum and to maneuver amendments around threatening legislative detours and obstacles. Constitutional scholar Robert A. Goldwin [see Resources] notes that Madison’s unwavering dedication to his version of amendments made him “the most annoying and disruptive member of the House,” because he forced the issue onto the congressional agenda against the wishes of nearly all the members.

Madison introduced the issue of constitutional amendments in the House on May 4, 1789, by calling for a debate on the subject at the end of the month. His action preceded by a day the move by representatives from Virginia and New York to present their states’ calls for a second convention, which were read and entered into the House Journal. Because the House regarded passage of legislation aimed at providing funding for the new government its highest priority, debate on amendments was postponed twice in May.

Madison persisted, and on June 8 he began the debate over constitutional amendments in a speech that Goldwin notes is “one of the most consequential political orations in American history.” Madison’s remarks began the four-month discussion of the importance of amendments. Madison also took the opportunity to propose his own version of amendments, which were notable on two counts: they captured the substance of the ten amendments that would eventually become the Bill of Rights, and they virtually ignored the Anti-Federalists’ structural amendments. This explains why the Anti-Federalists consistently voted against the proposals that became the Bill of Rights. It also reminds us, as Goldwin observes, “that what Madison kept out of the Bill of Rights was as important as what he put into it.” As the session wore on, Madison’s Federalist colleagues gradually came to recognize the harmless effect of his proposals, and they offered increasing but unenthusiastic support for them.

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James Madison’s Notes for his Speech Introducing the Bill of Rights, June 8, 1789

Manuscript Division, Library of Congress

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Madison’s June 8 Speech

On June 8, Madison introduced a resolution that consisted of nine articles of amendment to the Constitution. In the first article, Madison told the members, he outlined “what may be called a bill of rights.” It actually constituted a declaration of principles to be included in the preamble of the Constitution. Madison’s changes to the preamble never appealed to Federalists, however, and Madison himself admitted to the members, “I never considered this provision so essential to the federal constitution.” The declarations were offered as part of Madison’s appeal to the people harboring suspicions about the Constitution. The heart of what became the Bill of Rights was actually described in Madison’s fourth article, which included protections for individual rights and provisions for freedom of religion, speech, and the press.

Madison also introduced proposals on compensation for members of Congress and on representation and the size of the House, which he admitted were “defective” parts of the Constitution. He also included amendments “with respect to the judiciary powers” to protect Americans from the arbitrary administration of justice, which included protection from “unreasonable searches and seizures,” the right to “a speedy and public trial,” and the right to be tried “by an impartial jury of freeholders of the vicinage.” To reduce concerns about the weakening of state power, Madison included a clause reserving to the states the powers that were not delegated to the federal government. He admitted to the members that the later clause was “superfluous” and “unnecessary,” but he added, “there can be no harm in making such a declaration.” Finally, Madison included an equally inoffensive proposal stating that powers delegated to each of the separate branches of the federal government could not be taken over by the other branches.

Madison proposed two constitutional amendments that no state ratifying conventions had called for. The first required fair compensation to citizens for public use of private property. The second was a revised form of the veto power of the national legislature over state laws that he had advocated at the Constitutional Convention. This proposal added to the restrictions on state powers listed in Article I, Section 10 of the Constitution by declaring that, “no state shall violate the equal right of conscience, freedom of the press, or trial by jury in Criminal cases.” Madison would call this amendment the “most valuable in the whole list” for it determined the meaning and effect of the amendments that became the Bill of Rights.

Without a federal veto over state laws, the limits against government action defined in the Bill of Rights applied only to the federal government and did not protect rights from abuse by state governments. Madison wanted to break through this state barrier with the federal veto and fought vigorously for its inclusion as an amendment. If he succeeded, the veto would establish that both the states and the federal government were responsible for protecting the right of conscience, freedom of the press, and trial by jury. Its adoption would have transformed the meaning of the other rights-related amendments.

Madison concluded his speech with an appeal to his primary audience—his fellow Federalists—who worried that amendments would only weaken the Constitution. Madison carefully explained that his amendments would only “make the constitution better in the opinion of those who are opposed to it, without weakening its frame.” He challenged Federalists to take the broad view and “act the part of wise and liberal men” to support amendments and “obtain the confidence of our fellow citizens.”

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The Opposition Responds

For a speech of such lasting consequence, Madison’s appeal for the discussion of amendments did not have much immediate effect on the House. Federalists and Anti-Federalists criticized Madison’s request to consider amendments as premature and unnecessary. James Jackson, a Federalist from Georgia, bluntly declared Madison’s amendments “improper” and “wrong.” Jackson suggested that they postpone all discussion of amendments until the following year. Roger Sherman, a Connecticut Federalist, also opposed consideration of amendments and urged delay. Sherman maintained that the “only question” before the House was “how to get rid of the subject.”

Elbridge Gerry, Massachusetts Anti-Federalist, also wanted to postpone the consideration of amendments while Congress was organizing the federal government. Unlike Federalist opponents of amendments, however, Gerry wanted all the amendments proposed by the state ratification conventions to receive a full hearing at the earliest possible date after current legislative business had been attended to. Gerry reminded his colleagues that he was “not . . . one of those blind admirers of this system.”

Madison appealed again for the House to consider amendments. He stressed that it was important to address the issue of amendments now, so “that our constituents may see we pay a proper attention to a subject they have much at heart.” During the exchange, Madison had initially offered a motion to refer the subject of amendments to the Committee of the Whole (a committee of the House on which all Representatives serve and which debates and considers bills and resolutions before they are referred to the full House) because “the dignity and peculiarity of the subject” required a full discussion by all the members. But when opponents rose to speak and argued that the topic should not be taken up, Madison “changed his ground” and suggested that his articles of amendment be referred to a select committee. When the House rejected this referral, Madison, somewhat exasperated, submitted his resolution of amendments for consideration so that “the house might do what they thought proper with them.” The House voted to refer them to the Committee of the Whole but failed to set a date for debate. Gerry successfully moved that the amendments proposed by the state ratifying conventions also be considered with Madison’s proposals.

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Referral to the Committee of Eleven

The House ignored Madison’s amendments for six weeks while it considered other business. Then, on July 21, Madison seized “a moment of leisure” in the legislative calendar to insist on a discussion. He “begged the house to indulge him in the further consideration of amendments to the constitution,” and moved again to take up the subject in the Committee of the Whole. When Jackson complained that it was “a mere waste of time” to bring up the subject of amendments again, Fisher Ames, a Massachusetts Federalist, countered with a motion to create a Select Committee of Eleven, with a member from each state. Rhode Island and North Carolina had not yet ratified the Constitution, so their members were not present. The Select Committee offered an alternative forum for the discussion—behind closed doors—of complex, politically controversial subjects, such as amendments to the Constitution. Given Federalist dominance of the House, and Federalist ambivalence toward the subject of constitutional amendments, the Select Committee might also offer a means to terminate House action on amendments. The question of referral to a select committee, the New-York Daily Gazette reported the next day, stirred up “a long argument, in which the whole day was consumed.”

Ames’s motion was eventually adopted on July 21 when the House voted 34 to 15 to create the select Committee of Eleven. The Committee of Eleven was elected by the House and was composed of ten Federalists, including Madison, and one Anti-Federalist, Aedanus Burke of South Carolina. (The other Federalists on the Committee were John Vining of Delaware, Abraham Baldwin of Georgia, Roger Sherman of Connecticut, Nicholas Gilman of New Hampshire, George Clymer of Pennsylvania, Egbert Benson of New York, Benjamin Goodhue of Massachusetts, Elias Boudinot of New Jersey, and George Gale of Maryland.) The House voted to refer Madison’s proposed constitutional amendments and the amendments proposed by the states to the Select Committee. On a later motion, however, the House instructed the Select Committee that it was not bound by the state-proposed amendments and was free “to report what they deemed proper.”

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Committee of Eleven Report

Although there is no record of the discussion within the Committee of Eleven, its report to the House a week later on July 28 showed that Madison’s views had prevailed. The report ignored the state proposals entirely and accepted the substance of Madison’s version of amendments, with some modifications. The reading of the report to the House was the first indication that Madison’s arguments had begun to have some effect on his fellow Federalists, and that constitutional amendments might indeed emerge from the House.

In its report, the Committee of Eleven reformulated Madison’s original nine articles of amendment into nineteen, with only two significant changes. The committee deleted much of Madison’s revised preamble. The other significant change was directed at the expression of the religious freedom clause, probably the most difficult amendment to draft, and one that underwent revision at every stage of the legislative process. It was also one of the most important to Madison. The committee transformed Madison’s expansive language—“the civil rights of none shall be abridged on account of religious belief or worship”—and the prohibition on the establishment of a national religion, to a narrower statement that “No religion shall be established by law, nor shall the equal rights of conscience be infringed.”

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Debate in the Committee of the Whole

On August 13, the House voted to go into the Committee of the Whole to debate the Committee of Eleven’s report. Now that the possibility of passing amendments to the Constitution seemed more likely, the debate in the House became more intense. Speaker Frederick A. Muhlenberg, a Federalist from Pennsylvania, privately acknowledged in a letter to a friend that the “Gentlemen got into a great warmth—more so indeed than ever since our first meeting, so that a frequent call to Order became absolutely necessary.” The unbearable August heat added to the misery of the members and led Muhlenberg to conclude that, “the sooner we close the Session the better.”

Anti-Federalists rebelled against the Federalists’ tight control of the legislative process. Realizing that the Federalists could pass amendments in the House and deny them an opportunity to propose more radical structural amendments, Anti-Federalists Elbridge Gerry of Massachusetts, Aedanus Burke of South Carolina, and Thomas Tudor Tucker of South Carolina tried mightily to resurrect the state-proposed amendments. At one point in the debate, Burke held up copies of the amendments proposed by the states as a visual reminder that the House was ignoring the states’ recommendations. Burke also dismissed Madison’s version of amendments as useless additions that were “frothy and full of wind, formed only to please the palate or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage.” As a small minority, however, the Anti-Federalists could only attempt to delay or obstruct the adoption of the Federalist version of constitutional amendments.

The Federalists, however, were better positioned to make changes to the proposed amendments. On the first day of debate on the report, Connecticut Federalist Roger Sherman attempted to change dramatically what Madison had proposed. Madison’s amendments, and those approved by the Select Committee, inserted the language of the amendments directly into the existing text of the Constitution. Sherman, however, demanded an alternative: append all the amendments to the end of the Constitution. The issue of the proper placement of the amendments generated its own impassioned debate. Sherman argued that inserting them in the original Constitution would be “destructive of the whole fabric.” They could just as well, he continued, “endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles.” Madison countered that adding amendments at the end would breed confusion about the meaning of related clauses; did the authoritative text reside in the original version of the Constitution or in the amendments? The Committee of the Whole maintained Madison’s plan of amending the original text and rejected Sherman’s motion.

The Anti-Federalists shifted strategy abruptly on August 15, when they temporarily abandoned sponsorship of the entire list of state-proposed amendments and focused on adding the people’s right “to instruct their Representatives” to the freedoms of speech and of the press. After Tucker moved to include this additional right, an intense debate erupted in the House that turned on a fundamental dispute over the differences and advantages of representative democracy and direct democracy. The discussion of the people’s right to instruct their representatives was especially poignant, since the Federalists were directly and actively ignoring the instructions sent by some of the state ratification conventions. Madison fought this proposal and all “amendments of a doubtful nature,” which he warned would “run the risk of losing the whole system.” The Federalists united to kill Tucker’s motion on a vote of 41 to 10.

On August 15, the Committee of the Whole also examined and altered the Select Committee’s language on freedom of religion. Sherman, adopting a view held by many of the Federalists, proclaimed that he regarded the religious freedom amendment “altogether unnecessary,” since he maintained that the Constitution gave no powers to the federal government over religion. Sherman suggested that the amendment be eliminated. But Madison reminded the House that “whether the words were necessary or not, . . . they had been required by some of the state conventions” as there were fears that Congress, using the elastic clauses in the Constitution, could interpret its powers to include the right to establish a national religion. Daniel Carroll, a Roman Catholic Federalist from Maryland, added that this article “would tend more toward conciliating the minds of the people to the government than almost any other amendments [he] had heard proposed.”

Federalist Samuel Livermore of New Hampshire, who was no great supporter of amendments and “did not wish them to dwell long on the subject,” made a significant contribution to the phrasing and meaning of the religious freedom clause and the other amendments. Livermore moved to rephrase the article, so that it did not start with the words: “ No religion shall be established by law.” This form and phrasing, he noted, sounded as if they were commenting negatively on the value of religion. He suggested that they focus on restricting congressional power to affect religion. By a vote of 31 to 20, the Committee of the Whole agreed and inserted the words “congress shall make no laws” at the start of the amendment. The religious freedom amendment now read, “congress shall make no laws touching religion, or infringing the rights of conscience.” The other rights-related amendments would follow the same form, so that the heart of the Bill of Rights would focus on the denial of congressional power in prohibited areas.

On August 17, the Committee of the Whole began to accelerate its pace. The Federalists quickly voted down Anti-Federalist motions and adopted the Committee of Eleven’s articles of amendment with little debate. This quick action included approval of Madison’s revised federal veto of state laws. Tucker spoke for the Anti-Federalist opposition and declared that it was better “to leave the state governments to themselves, and not to interfere with them more than we already do.” Madison answered as he always did that “if there was any reason to restrain the government of the United States from infringing upon essential rights, it was equally necessary that they should be secured against the state governments.” With little debate, Madison’s federal veto had been approved.

On August 18, the last day of debate in the Committee of the Whole, Gerry attempted again to bring the state-proposed amendments before it. Tucker supported Gerry’s motion and called for debate, deliberation, and a vote on each of the state-proposed amendments—a process of delay that might prevent the House from finishing its work. The Federalists defeated the motion on a 34 to 16 vote, and reported the articles of amendment to the House.

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Debate in the House

Although Anti-Federalist champions of the state-proposed amendments suffered defeat in the Committee of the Whole, they regrouped for a determined fight in the House. On August 18, Tucker introduced a resolution proposing a new set of seventeen amendments. Tucker’s amendments included only one rights-related amendment—and that was an amendment that would add a religious test as a qualification to hold public office—while the other sixteen articles would weaken the powers of Congress, the presidency, and the federal judiciary. The goal of Tucker’s amendments was simply to transfer central government powers back to the states.

Tucker’s resolution was defeated without a recorded vote, although Speaker Muhlenberg wrote to a friend that it was “negatived by a very large Majority.” Madison grew increasingly impatient with the Anti-Federalists and their tactics of delay. Not one to easily lose his temper, Madison complained to friends how “extremely difficult and fatiguing” and “exceedingly wearisome” the debate had become.

The Anti-Federalists made one final attempt to use amendments to strike at the heart of the new government’s powers. On August 22, Tucker proposed a constitutional amendment restricting Congress’s power to lay direct taxes, effectively returning to the system under the Articles where Congress would issue requisitions to the states. The elimination of the taxing power was the single most important Anti-Federalist goal. Gerry seconded Tucker’s proposal, arguing that Congress’s power to tax would result in “the annihilation of the State governments.”

Jackson answered for the Federalists by pointedly noting that requisitions from the old Confederation Congress “remain uncomplied with to this day.” He also predicted internal chaos and foreign threat if “you divest the United States of the means of protecting the Union, or providing for the existence and continuation of the government.” When Tucker’s proposed amendment was defeated on a 39 to 9 vote, it marked the end of the Anti-Federalists’ efforts to substitute their own amendments for Madison’s proposals.

After successfully deflecting the Anti-Federalist threats to his version of amendments, Madison worked to win sufficient Federalist support in the House to achieve the two-thirds vote required to initiate constitutional amendments. Since many of the amendments had not received a two-thirds majority vote in the Committee of the Whole, Federalists secured two concessions from Madison. Federalists, who already eliminated most of Madison’s additions to the preamble, now simply preserved the original preamble which began with the phrase, “We the people.”

On August 19, Sherman reintroduced his motion to add the amendments “by way of supplement” to the end of the Constitution, which now passed on a two-thirds vote. Sherman’s success on this motion has its own measure of irony, for he was one of the most active opponents of amendments, and he wanted to separate them from the original text of the Constitution because he considered them inferior and unnecessary additions. But, as Goldwin notes, by separating the amendments from the body of the Constitution, Sherman “made it possible to give them a prominence and status that they could not have had had they been dispersed and woven imperceptibly into the original fabric of the Constitution.”

A third significant change was also made in the House, but it was one that Madison heartily supported: a revision of the clause on religious freedom. Although Ames made the motion to alter the language of the clause, contemporaries and historians agree that Madison was most likely its author. This revision restored a broader interpretation and read: “Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.”

The House referred the approved articles to a Committee of Three (consisting of Federalists Egbert Benson of New York, Roger Sherman of Connecticut, and Theodore Sedgwick of Massachusetts) to draft the final version of amendments. On August 24, the Committee reported a joint resolution consisting of seventeen constitutional amendments, which the House passed and sent on to the Senate. Madison could happily boast that, “the substance of the report of the Committee of Eleven has not been much varied.”

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Chambers in the House of Representatives, Federal Hall

Conjectural drawing based on eyewitness descriptions, by William Hindley, ca. 1940

Prints and Photographs Division, Library of Congress

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Senate Revision

There is no record of Senate debate on the constitutional amendments because the Senate met in sessions closed to the public. Federalist Senator William Maclay of Pennsylvania, whose diary so often provides an insider’s view of the First Senate, was ill and absent for most of the debate. Maclay was in attendance, however, on August 25, when the Senate received the House-passed amendments to the Constitution and noted that upon receipt “they were treated contemptuously.” Federalist Senators Ralph Izard of South Carolina, John Langdon of New Hampshire, and Robert Morris of Pennsylvania supported a motion by Izard to postpone debate of the amendments until the second session. Izard had long opposed amending the Constitution and wrote to Thomas Jefferson at the beginning of the session that he hoped “we shall not be wasting time with idle discussion about amendments to the Constitution.” The Senate defeated Izard’s motion, however, and scheduled debate to begin on September 2.

From September 2 to September 9, the full Senate debated the House-passed constitutional amendments. The Senate made twenty-six changes to the House-passed articles of amendment, and most of the Senate revisions remained in the final version of the constitutional amendments. The Senate Revisions to the House Proposed Amendments to the U.S Constitution (referred to as the Senate Mark-up) reveal the Senate’s work. This remarkable document captures the legislative process from the time the proposed articles left the House (August 24) until the Senate finished its work (September 9). The printed text represents the culmination of the work done in the House as it hammered out the proposed amendments from July to August. The handwritten marks in ink—cross-outs, new phrases, agreement with the House versions (“a”), deletion of proposed amendments (“dele”), and the addition of wholly new language for articles (“amendment’)—describe the work done in the Senate in September.

The Senate Mark-up illustrates how the Senate sharpened the language of the amendments, eliminated some articles, and combined clauses to reduce the seventeen House amendments to twelve. It also shows the Senate’s deletion of Madison’s “most valuable amendment”—number fourteen on the House list—as it predictably struck out the federal veto of state laws. Without debate it is impossible to derive motive and explanation, but the members of the Senate were elected by the state legislatures, and it is difficult to imagine how they could defend a vote for a federal veto of state laws.

The Senate also made a significant change to the religious freedom clause, effectively reversing its meaning. On September 9, the Senate changed it to read that “Congress shall make no law establishing articles of faith or a mode of worship,” replacing reference to established churches with a focus on doctrine. According to Madison’s biographer Irving Brant [see Resources], this action “left the way open to financial support of churches and church schools by the federal government” and was supported by senators from the states where there were state-established churches.

When the Senate debates ended, Connecticut Federalist Senator Oliver Ellsworth presented a single resolution, which incorporated all of the Senate’s changes to the House-passed articles of amendment. The Senate passed Ellsworth’s resolution by the required two-thirds majority, and the Senate’s version was then sent back to the House for its consideration. The Senate accomplished this only after defeating attempts by Virginia Senators William Grayson and Richard Henry Lee, the sole Anti-Federalists in the chamber, to add structural amendments proposed by the Virginia ratification convention. Lee wrote to Patrick Henry, the leader of the Anti-Federalists in Virginia, to complain that the amendments created by the First Congress were only a “delusion.” Having failed to curtail federal powers, Lee warned that it would become the responsibility of “the friends of liberty to guard [with] perfect vigilance every right that belongs to the Sta[tes] and to protect against every invasion of them.” The Anti-Federalists remained bitter in defeat.

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Chambers of the Senate, Federal Hall

Conjectural drawing based on eyewitness descriptions, by William Hindley, ca. 1940

Prints and Photographs Division, Library of Congress

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Senate Revisions to the House-passed Amendments to the Constitution, 1789

RG 46: Records of the U.S. Senate, National Archives

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House and Senate Conference Committee

The final steps in congressional action on the amendments, and the final changes in wording of the amendments, came in the last days of September before adjournment of the first session on September 29. On September 14, the Senate version of the amendments was read and ordered printed in the House. On September 19 and 21, the House debated the Senate changes and requested the formation of a House-Senate Conference Committee to find language agreeable to both the House and the Senate.

Madison, Sherman, and John Vining, a Federalist from Delaware and chairman of the Committee of Eleven, represented the House, with Oliver Ellsworth of Connecticut, Charles Carroll of Maryland, and William Paterson of New Jersey representing the Senate. The major change made by the Conference Committee was further revision of the clause on religious freedom. Scholars agree that Madison was responsible for the language in the final version as he restored the establishment clause and the protection for the free exercise of religious beliefs.

The Conference Committee report was delivered to the House on September 23, and the House approved it on September 24. The Senate approved the Conference Committee report on September 25, and twelve amendments were transmitted to the president before they were sent to the state legislatures.

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Ratification of the Bill of Rights

On October 2, 1789, President George Washington sent the proposed amendments to the eleven states in the union and to the two states that had not ratified the Constitution (North Carolina and Rhode Island). Washington did so without signing the amendments and established the precedent, later challenged but upheld by the Supreme Court, that amendments did not require presidential approval. In the two years that followed, the amendments drew surprisingly little press comment or public attention. Except for the first two proposed amendments, the remaining ten quickly gained the approval of nine state legislatures. By the summer of 1790, only one additional state was needed for ratification of these ten amendments. Although the Virginia House of Delegates had approved the amendments in December 1789, it was not until two years later, on December 15, 1791, that the Virginia Senate completed the process. In the interim, North Carolina and Rhode Island had ratified both the Constitution and the ten amendments, as did the new state of Vermont, which also raised the number of states required for ratification. With Virginia’s ratification, the requisite number of states had approved ten amendments, and on March 1, 1792, Secretary of State Thomas Jefferson sent official notification to the states of the ratification of ten amendments—what we refer to as the Bill of Rights.

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Thomas Jefferson. “Tabulation of State Votes on Amendments to the Constitution,” 1789–1791

Thomas Jefferson Papers, Manuscript Division, Library of Congress

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Aftermath

With the ratification of the Bill of Rights, James Madison accomplished his primary goal of protecting the Constitution by broadening support for it and defusing political opposition. Madison’s success meant that the Anti-Federalists had lost their great cause; the campaign of opposition to the Constitution ended. The Anti-Federalists gradually shifted their focus to the proper interpretation of the Constitution, jealously guarding state powers from federal government interference, but they made no further attempts to replace or overhaul the Constitution.

When the adoption of the Bill of Rights closed the constitution-making period, the labels “Federalist” and “Anti-Federalist” were no longer meaningful or practical. A political change began as the defining issues of debate shifted from discussion of the form of government to disputes over policies and interpretation of powers. The new “Federalists,” who would emerge as the decade of the 1790s progressed, were followers of Secretary of the Treasury Alexander Hamilton and supporters of the Washington administration. Madison and Jefferson would lead the Republicans—the opposition political alliance, which began to take shape in the second session of the First Congress in a disagreement over Hamilton’s fiscal policies. Most of the former Anti-Federalists would join Madison and Jefferson, and the strict Anti-Federalist interpretation of the Constitution and suspicions about federal power took on new meaning in the 1790s.

The debate on the Bill of Rights was part of a larger struggle over the relation of the federal government to the state and to citizens, a debate that has become a permanent feature of the nation’s political landscape. In their own time, as the architects of the Bill of Rights understood, the amendments they added to the Constitution had limited, immediate value as a guarantee of liberties. They would not have been surprised when the Supreme Court ruled in Barron v. Baltimore in 1833 that the Bill of Rights did not apply to the states. It was only in the first half of the twentieth century that the courts, using the due-process clause of the Fifth Amendment and the Fourteenth Amendment, began to apply the Bill of Rights to the states. As a result, the Bill of Rights is now closer to Madison’s conception, with the federal government playing a critical role in the protection of individual liberties. It required Madison’s “whole community” of Americans—citizens, the courts, and the Congress—to breathe life into the Bill of Rights and make it the great Charter of Freedom we know today.

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Bill of Rights, 1789

RG 11: General Records of the United States Government, National Archives

The Bill of Rights

The enrolled joint resolution of Congress proposing articles of amendment to the Constitution—the Bill of Rights—is on display in the Rotunda of the National Archives in Washington, D.C., as one of the Charters of Freedom. The joint resolution was signed by Frederick Augustus Muhlenberg, Speaker of the House, and by John Adams, President of the Senate on September 28, 1789. It includes the text of the original twelve articles of amendment proposed by Congress. Of those, ten amendments (numbers three through twelve) comprising the Bill of Rights were ratified by three-fourths of the states by 1791.

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PART 5: RESOURCES

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Websites

The National Archives http://www.archives.gov/

Educational Resources from the National Archives http://www.DocsTeach.org

Educational Resources from the Center for Legislative Archives http://www.archives.gov/legislative/resources/index.html

Educational Resources on the Bill of Rights from the Center for Legislative Archives http://www.archives.gov/legislative/resources/bill-of-rights.html

Official reproductions and books about the Charters of Freedom from the myArchives Store http://www.myarchivesstore.org/documents/charters-of-freedom.html

The First Federal Congress Project http://www.gwu.edu/~ffcp/

Humanities Texas http://www.humanitiestexas.org/

The United States House of Representatives http://www.house.gov/

Educational Resources from The United States House of Representatives http://www.house.gov/content/educate/

The United States Senate http://www.senate.gov/

The United States Senate Art and History Page http://www.senate.gov/pagelayout/art/a_three_sections_with_teasers/art_hist_home.htm

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