James Madison’s Speech that Set the Stage for the Bill of Rights

On June 8 1789, the “Father of the Constitution” James Madison rose on the floor of Congress to propose a series of significant amendments, setting the stage for what would become the Bill of Rights. 

FROM SKEPTIC TO ADVOCATE

The occasion marked somewhat of a strong departure from his previous attitude. Madison initially viewed a Bill of Rights as unnecessary, and worried that including one could imply the government had power over all others not listed. 

Circumstances had changed since then. 

The Anti-federalists insisted that without a bill of rights, there was nothing to stop the federal government from encroaching on certain rights. This demand persisted throughout various ratifying conventions, including the Virginia Ratifying Convention which had included Madison.

Speaking on June 8, Madison remarked with candor that “I never considered this provision so essential to the Federal Constitution as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless.”

Madison further noted that public demand necessitated its inclusion: “It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them.”

He said further:

“There is a great body of the people falling under this description, who at present feel much inclined to join their support to the cause of Federalism, if they were satisfied on this one point. We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this Constitution. The acquiescence which our fellow-citizens show under the Government, calls upon us for a like return of moderation.”

At the same time, Madison was strongly influenced by Thomas Jefferson who, although he hadn’t been present at the Constitutional Convention and was still in France at the time, wrote to Madison in a letter that “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”

OBJECTIONS ANSWERED

One widespread objection raised by Federalists was that including specific rights could imply other rights not listed did not exist. Madison stated that while it “is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.”

One of the guardrails against that was Madison’s proposal for what became Ninth Amendment, which stated the existence of enumerated rights “shall not be construed to deny or disparage others retained by the people.”

Another Federalist objection was that a bill of rights was unnecessary because the federal government’s powers were “few and defined,” as Madison himself put it in Federalist 45. 

However, he told Congress that “I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed.”

Another objection was that a bill of rights was merely a “paper barrier,” that couldn’t self-enforce. To that argument, he said “I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defence; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.”

He further acknowledged that, regardless of these objections, the Anti-federalists had convinced enough people the Constitution lacked sufficient safeguards.

“I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provisions against the encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power; nor ought we to consider them safe, while a great number of our fellow-citizens think these securities necessary.”

PREVENTING A SECOND CONVENTION

Madison warned that failing to address these demands would likely result in a second constitutional convention, which would have potentially undermined the new Union.

I should be unwilling to see a door opened for a reconsideration of the whole structure of the Government-for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door were opened, we should be very likely to stop at that point which would be safe to the Government itself.

For those among Congress who felt no need to rush the issue, Madison said delay could destroy public trust in the new government.

“If we continue to postpone from time to time, and refuse to let the subject come into view, it may occasion suspicions, which, though not well founded, may tend to inflame or prejudice the public mind against our decisions,” he said. “They may think we are not sincere in our desire to incorporate such amendments in the Constitution as will secure those rights, which they consider as not sufficiently guarded.”

At the time, North Carolina and Rhode Island had not yet ratified the U.S. Constitution and were effectively separate countries. Madison believed that adoption of the amendments would persuade them to join the new Union.

“It is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those States which have not come in, that we have seen prevailing in those States which have embraced the Constitution.”

STRUCTURAL AMENDMENT

One of Madison’s amendments –  proposed as a new Article VII – was intended to settle any reservations skeptics had of the Constitution and the new powers granted to the federal government.

This would have included two key structural principles in the body of the Constitution: first an explicit separation of powers between the executive, the legislature, and the judiciary. Second, an express reservation of all powers not delegated to the federal government.

Madison described both as “dogmatic maxims,” and argued that putting them directly into the Constitution would reassure the public and clarify the limits of federal power.

“I suppose the people would be gratified with the amendment, as it was admitted that the powers ought to be separate and distinct; it might also tend to an explanation of some doubts that might arise respecting the construction of the Constitution.”

Ultimately, Congress didn’t adopt the separation of powers provision, but did pass Madison’s reserved powers proposal, a direct precursor to the Tenth Amendment:

“The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.”

This was critical to many states and was seen as a “line in the sand,” because it made explicit what was otherwise assumed; whether or not the enumerated powers granted to the federal government were limited in scope and nature, or whether other authority could be construed from them. 

The Tenth Amendment made it clear that all powers not delegated were retained by the states or the people.

THE SUBSTANCE OF THE BILL OF RIGHTS

Speaking on his proposed amendments, Madison remarked that “I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow-citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the Constitution.”

Before listing the specific rights, Madison opened with a power declaration that all government powers are derived from the people and they reserve the unalienable right to reform or change their government “whenever it be found adverse or inadequate to the purposes of its institution.”

He also proposed “that there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.”

Madison’s proposed amendments set clear limits on federal power. Rather than declare individual rights as was done in the Declaration of Independence, the amendments acted as restrictions on the federal government from interfering with rights such as:

• religious liberty
• freedom of speech and the press
• the right to bear arms
• due process

While the Ninth Amendment and other proposed amendments were adopted by Congress, among the ones not to be included was a provision stating that “no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” 

This would have, unlike others, imposed restrictions on the power of states rather than the federal government. 

THE PEOPLE SET THE TERMS

Madison’s speech reflected not so much his change in attitude toward a bill of rights as an acknowledgement of the overwhelming pressure from the states and their peoples respectively. They were not content to have implicit guarantees, or give explicit powers to a new central government without drawing clear lines: making explicit certain rights, and reserving powers to the states and the people.

The Bill of Rights also made it clear that, unlike the federal government’s authority, the rights of the people were not limited to just those declared in the document.

These amendments were included after a long, arduous struggle in which states and the public refused to trust vague promises of their new government. They insisted on unambiguous language that protected rights and restrained the central government. They fought so hard on the issue that Madison and other advocates for the Constitution were compelled to concede. 

 

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