May 20, 2009 – As my last essay explained, the Constitution had been ratified by the required number of states. However to convince enough states to agree to the ratification the Federalists had made a promise to come up with a Bill, enumerating certain rights that were to be considered sacrosanct, rights which the government could not infringe upon.
It cannot be emphasized enough that people were extremely suspicious of any new form of government in which the possibility existed for abuses of power. Therefore, they wanted assurances that this newly established system would not trample upon their rights, and newly gained liberty, as had the British. Although Pennsylvania had been one of the first states to ratify, among the Pennsylvania delegates there were those who voted against ratification, and in their dissent, they stated, “We were prohibited by an express vote of the convention, from taking any question on the separate articles of the plan, and reduced to the necessity of adopting or rejecting in toto. — Tis true the majority permitted us to debate on each article, but restrained us from proposing amendments. — They also determined not to permit us to enter on the minutes our reasons of dissent against any of the articles, nor even on the final question our reasons of dissent against the whole. Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights.”
Even after the ratification Thomas Jefferson had written James Madison, saying, “A bill of rights is what the people are entitled to against every government on earth.” In a letter to Jefferson, dated October 17, 1788, Madison had shown his wariness concerning any kind of Bill of Rights, “… because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. … Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.”
Nevertheless, a promise was a promise. So, on June 8, 1789, when Congress came into session, consideration for of a Bill of Rights was one of the first actions of the new Congress.
Still, there was disagreement among some members of Congress. Several felt that listing specific rights might be grounds for the government to infringe upon those that were not listed. It was felt that all rights inherently belonged to the people, and that any listing of certain rights would imply that these alone were the only rights retained by the people.
Not only was there still a certain amount of disagreement among the members of Congress, overall they faced the daunting task of coming up with a declaration of rights that would satisfy all the states. This was no easy task, as each state had its own ideas of which rights should be included. Not only had certain states contributed their ideas, but Madison had come up with a list of his own, many of which were initially rejected by Congress.
There were even disagreements upon how to go about the business of choosing which rights to incorporate into the declaration. The Representative from Maryland, Mr. William Smith stated that he “…was not inclined to interrupt the measures which the public were so anxiously expecting, by going into a Committee of the Whole at this time. He observed there were two modes of introducing this business to the House. One by appointing a select committee to take into consideration the several amendments proposed by the State Conventions; this he thought the most likely way to shorten the business. The other was, that the gentleman should lay his propositions on the table, for the consideration of the members; that they should be printed, and taken up for discussion at a future day.”
The Representative from Georgia, Mr. James Jackson stated, “I am of opinion we ought not to be in a hurry with respect to altering the Constitution. For my part, I have no idea of speculating in this serious manner on theory. If I agree to alterations in the mode of administering this Government, I shall like to stand on the sure ground of experience, and not be treading air. What experience have we had of the good or bad qualities of this Constitution?”
However, the Representative from Massachusetts, Mr. Benjamin Goodhue, urged immediate consideration as, “I believe it will be proper to attend to the subject earlier; because it is the wish of many of our constituents, that something should be added to the Constitution, to secure in a stronger manner their liberties from the inroads of power.”
In all, there were upwards of ninety suggestions that Congress had to deliberate upon before sending them off to the states for ratification. This made the entire process touchy, as they did not want to alienate any state by eliminating certain rights that they felt were of more importance. Yet it was just inconcievable that Congress would send out ninety amendments to the various states for ratification. So, they were faced with the arduous task of whittling the list down to a workable number.
Even though it was not feasible to consider the initial list in its entirety, there was one theme that appeared consistently in almost all the proposals, that being that the Constitution limited the powers of government, and that all governmental powers originated from the people.
For instance, among the proposals submitted by Massachusetts was, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.
Maryland was more to the point, That Congress shall exercise no power but what is expressly delegated by this Constitution.
Even staunch anti-Federalist George Mason submitted his own list of suggestions, among which we find, That all Power is naturally vested in, and consequently derived from the People; that Magistrates therefore are their Trustees and Agents, and at all Times amenable to them.
Virginia made it clear that, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity..
Even New York, although it has become quite liberal in modern times, went so far as to say, That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States…
After much deliberation, it was agreed upon that the recommendations made by Madison would be considered by a Committee of the Whole. Many of Madison’s proposals were, instead of amendments as we know them now, corrections, or modifications to the body, and wording of the Constitution itself.
When Congress reconvened on 21 July, the discussion continued. Up to now Congress had only considered the proposals made by James Madison. However, Representative Elbridge Gerry of Massachusetts then asked if the House were familiar with the amendments proposed by the state conventions?
Representative John Page, of Virginia declared that any motion to consider these amendments would be out of order until the current business had been concluded.
However, Mr. Gerry pressed the issue, asking gentlemen to consider the situation of the States; seven out of thirteen had thought the Constitution very defective, yet five of them have adopted it with a perfect reliance on Congress for its improvement. Now, what will these States feel if the subject is discussed in a select committee, and their recommendations totally neglected? The indelicacy of treating the application of five States in a manner different from other important subjects, will give no small occasion for disgust, which is a circumstance that this Government ought carefully to avoid.
A compromise of sorts was finally agreed upon. Madisons motion of amendments would be proposed to the various Legislatures of the States, while the various lists recommended by the States themselves would be referred to a committee which would later report to the House in its entirety.
Congress once again reconvened on 13 August as a Committee of the Whole to further consider the proposed amendments. Representative Elias Boudinot, made the first suggestion of adding ’Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone to the Preamble, prior to We the people.
This was immediately objected to by Representative Roger Sherman, from Connecticut. Sherman stated, I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric.
Sherman went on to say, Besides this, sir, it is questionable whether we have the right to propose amendments in this way. The Constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments. Again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new Constitution, we remove the basis on which we mean to build.
Even Madison was agreeable to the idea of incorporating the amendments directly into the Constitution, as he explained, Now it apears to me, that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple, when the amendments are interwoven into those parts to which they naturally belong…
During the course of the debate Representative Michael Stone, of Maryland made a significant point when he stated, It is not a matter of much consequence, with respect to the preservation of the original instrument, whether the amendments are incorporated or made distinct; because the records will always show the original form in which it stood. But in my opinion, we ought to mark its progress with truth in every step we take. If the amendments are incorporated in the body of the work, it will appear, unless we refer to the archives of Congress, that George Washington, and the other worthy characters who composed the convention, signed an instrument which they never had in contemplation.
Finally, on 19 August 1789, Representative Sherman made a motion for adding the amendments to the Constitution by way of supplement, whereupon it was agreed upon by the required two-thirds majority.
During the course of the debates a select committee had been working on eliminating certain suggestions made by the states, in itself a time consuming task. Eventually they got the original ninety suggestions down to 17, which were then sent to the Senate for consideration.
Over the course of the Senates deliberations, another five were eliminated, leaving twelve amendments to be sent to the states for consideration. Over the ratification process, the first two suggestions were not ratified by the required number of State Legislatures, leaving us with the ten we now know as the Bill of Rights.
Now that we know how the Constitution, and the Bill of Rights came about, the next chapter will dig into the meat of the Constitution itself in an attempt to explain how exactly our government is supposed to function.
The Ross Archive on The Federal Observer