On this day in 1791, Virginia ratifies the Bill of Rights, making those ten constitutional amendments the law of the land. The Bill of Rights, of course, includes protections for such things as freedom of speech, the right to a trial by jury, and the right to keep and bear Arms.
Ratification of the Bill of Rights couldn’t have been too surprising. The country had been stewing over the idea for years, ever since the Constitution was first proposed to the states in September 1787.
At the time, anti-Federalists were quick to denounce the proposed document, partly because it lacked a bill of rights. On the other side, pro-Constitution Federalists such as James Madison argued that a bill of rights was unnecessary. The national government created by the Constitution was one of limited powers. It had ONLY the power specifically given to it by the Constitution. Why create a list of things that it cannot do? Creating such a list might cause confusion about the limited nature of the new national government.
Nevertheless, the agitation for a bill of rights continued. Many states ratified the Constitution, but also sent recommendations for amendments to the 1st Congress.
As for James Madison, his position changed over time. At the Constitutional Convention, he seemed unconcerned when a bill of rights was not included in the Constitution. Nevertheless, he was wavering after about a year. In October 1788, he told Jefferson that he generally favored a bill of rights—assuming it did not give the national government new powers by implication—but he “never thought” that omission of these amendments was “a material defect” in the Constitution. Instead, he viewed a bill of rights as a mere “parchment barrier.”
In other words, a bill of rights was simply words on paper. The *real* protection for people’s rights lay in the structure of the Constitution—a structure with separation of powers and other checks and balances.
By June 1789, Madison’s position had evolved still more. By then, he was an active advocate for a bill of rights, and he presented a set of proposed amendments to the Congress. Madison gave a long speech to the House in which he explained his reasons. He still worried that a bill of rights, because it “enumerat[es] particular exceptions to the grant of power,” might cause some to assume that any rights “not singled out, were intended to be assigned into the hands of the General Government.” However, he thought the Congress might write the amendments in such a way as to guard against that problem. And he thought that adoption of a bill of rights might assuage some concerns among the public. If amendments can be adopted that “will not injure the Constitution,” even as satisfaction is given “to the doubting part of our fellow-citizens,” then Madison believed that the effort was worthwhile.
By September 1789, the Congress had approved 12 amendments that it sent to the states. Ten of these were approved as the Bill of Rights that we celebrate today.
What do you think? Was Madison right the first time, in 1787? Or was his new position in 1789 better?
Carol Berkin, A Brilliant Solution: Inventing the American Constitution (2002)
Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention May to September 1787 (1986 reprint)
Kenneth R. Bowling, "A Tub to the Whale": The Founding Fathers and Adoption of the Federal Bill of Rights (Journal of the Early Republic; 1988)
Letter to George Washington from James Madison (Dec. 5, 1789)
Madison’s Speech Proposing Amendments to the Constitution (June 8, 1789) (reprinted HERE)
Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (2010)