Bill of Rights
“If we can make the Constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.”
James Madison, speech in Congress, June 8, 1789
In the last few days of the 1787 Constitutional Convention, a majority of delegates, including James Madison, rejected George Mason and Elbridge Gerry’s proposal for a Bill of Rights. At the time, Madison was confident that the Constitution did not give the federal government any powers that could endanger individual liberties. Madison thought it was potentially dangerous to list some of the rights of the people, in case these might be interpreted as the only rights of the people.
During the ratification debates, however, Madison realized that many people were unwilling to approve the Constitution unless a Bill of Rights was added. He successfully ran for Congress by pledging to support such a bill, and began advocating for it within four days of George Washington’s inauguration. Madison was aware that some members of Congress were still dissatisfied with the new Constitution and would take advantage of any opportunity to amend it, in order to weaken the federal government in favor of the states. Madison’s concern, however, was that the rights of the people be protected from actions of the states as well as the federal government.
Hundreds of possible amendments had been suggested in state ratifying conventions. Madison examined them and used them to draw up a list of 19 proposals, which a congressional committee reworked into 12 amendments. Madison proposed language, not included in the final version of the Bill of Rights, that presented the amendments in the context of the natural rights of the people, who were the source of the government’s legitimate powers. Madison thought of the amendments as edits or insertions to be made within the text of the original Constitution, rather than a list to be added at the end of the document. Ten of the 12 amendments were ratified by the states to become the Bill of Rights. They affirmed individual rights including freedom of religion, freedom of the press, the right to bear arms, security against unreasonable search and seizure, and the right to trial by jury. (One more of the original 12 amendments was ratified in 1992. It prevented congressional salary raises from going into effect until Congress faced the voters in the next election. The remaining unratified amendment would have changed the ratio for determining the number of representatives based on each state’s population.)
Thanks to Madison’s influence, the people’s rights were secured in the broadest terms possible. The amendments were worded strongly; where state constitutions said that the government “ought not” violate freedom of the press, Madison wrote that the federal government “shall not” violate it. Several rights that Madison included, such as the right to be compensated for private property taken for public use, and security against prosecution for the same offense twice, were mentioned in only one or two states’ bills of rights. Madison even addressed his original reservations by specifying, in what became the Ninth Amendment, that the government’s listing of certain rights was not to be used to deny other rights that the people retained.
"My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. 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 reason than it is anxiously desired by others."
James Madison to Thomas Jefferson, October 17, 1788