INTRODUCTION

A Select Committee considered the 39 proposals contained in Madison’s June 8 speech. The Committee dropped Madison’s attempt to attach the prefatory natural rights language found in the existing Preamble to the Constitution, in the Declaration of Independence, and the Virginia Declaration of Rights. The Select Committee, however, left his other proposals pretty much intact.

COLUMN ONE

The House agreed on 12 amendments to the Constitution on August 24 after debating the Select Committee Report. The whole House basically agreed with the Select Committee Report except, thanks to Roger Sherman, Madison’s proposals as altered by the Select Committee were extracted from their location within the body of the Constitution and presented as 17 amendments at the end of the Constitution. For a discussion of the various stages from June 8 through August 24 see the Debates in the First Congress section of the website. Suffice it to note here, that this is the first time, in the American context, that a declaration of rights has been annexed to a constitution rather than being a preface to the constitution or incorporated in the very constitution itself.

COLUMN TWO

The second column shows what the Senate did, and did not do, to the House Report. The most obvious alteration was the reduction, by omission and consolidation, of the number of amendments from 17 to 12.

The most glaring omission is the elimination of House Amendment XIV. This amendment was among Madison’s favorites because it applied the three essential rights  conscience, press, and jury  to the states as well as the nation. At the Constitutional Convention, Madison argued that the major reason for the delegates being there to alter the Articles of Confederation in the first place was to provide a more effective way to control majority faction in the state legislatures. And House Amendment XIV reminds the reader of the consistency in Madison’s project from the Vices all the way through to the First Congress.

The most important consolidation that the Senate made was to combine House Amendments III and IV into Senate Amendment III. The Senate thus put under one roof, as it were, the two religion clauses, the two expression clauses, and the two association clauses. That this amendment eventually emerged as the First Amendment is due to politics and accident rather than deliberation and choice. Nevertheless, this Senate Third Article goes far to express the American contribution to the development of the Bill of Rights.

But there were also less obvious, but still important, Senate alterations to the House Amendments. 1) The Senate further altered the language of Madison’s religion clauses and in the process dropped the Madison claim that the right of conscience was one of the most essential rights. As an aside, it was a 25-year-old Madison who was responsible for the addition of the natural right of individual conscience at the end of the Virginia Declaration of Rights in 1776. The Senate also dropped the Madisonian attempt to accommodate those not inclined to bear arms for religious reasons. The Senators are also responsible for 2) adding the grand jury and the due process clauses to House Amendment VIII, 3) dropping House Amendment XVI reaffirming an attachment to the separation of powers, and 4) rather oddly, adding the following language to XVII, namely, that the powers not granted to the general government are reserved to the powers reserved to the States “or to the people.” Why would a Senate that had eliminated House Amendment VIV, add “or to the people” in House Amendment XVII?

The House, by a 2/3 majority, agreed to 17 Amendments and the Senate, by a 2/3 majority, agreed to 12 Amendments.

COLUMN THREE

A Conference Committee of three House members and three Senators were chosen to iron out the differences between the House version and the Senate version. This Conference Committee Report was then agreed to by the House and the Senate. This signing of the Bill of Rights occurred on September 25, 1789. Column Three captures the compromises each side made to provide a Congressional adoption of amendments that would be sent to the states for ratification.

On the surface it might appear that the Conference Committee simply accepted the Senate additions and subtractions from the House version.

The House conferees, however, did manage to secure alterations to the language of the religion clauses as well as to the original House Amendment IX on the location requirements for establishing impartial juries.

Not as important in practice but very important in theory, is the final language of the First Amendment on the census and representation. The House version reflects Madison’s concern in Federalist 55-58 that the House be large enough to represent a variety of opinions, passions, and interests but not so large that it seemingly have a countenance of more democracy while actually becoming more oligarchic in practice. That’s because as the House acquires more and more members, decision making will have to be delegated to fewer and fewer members. Madison listened to the Antifederalist concern that the size of the House might be too small while hanging on to his deeper concern about the dangers of too large a House. Madison wanted the language to read not less than AND not more than a certain number. The House removed the “more than” language. The Senate removed the “less than” language. The Conference Committee reintroduced the language of BOTH “not less than” AND “not more than.”

COLUMN FOUR

Despite the surface similarity, The Ratification process for the Bill of Rights was actually different than that followed for the ratification of the Constitution two years earlier. To be sure, both ratifications required a 3/4 vote of the states. The ratification of the Constitution actually required the approval of 9/13 and that amounted to 3/4 of the states then existing. The Constitution was ratified by specially elected state ratifying conventions. And the affirmative votes would bind only those so voting. Put differently, if Rhode Island and three other states voted not to ratify, and nine other states voted to ratify, then the Constitution would go into effect among the nine states. Not so with the Bill of Rights. It was up to the state legislatures to ratify the Bill of Rights and the 3/4 affirmative vote was binding on the potentially 1/4 who might not agree.

Between November 20, 1789 (New Jersey) and June 11, 1790 (Rhode Island) nine states ratified 10 or more of the 12 Bill of Rights amendments. But by then, however, Vermont had entered the union. Thus the required number for ratification was now 11/14. Vermont ratified on November 3, 1791 and Virginia was the final state to ratify on December 15, 1791. Massachusetts, Georgia, and Connecticut ratified in 1939 on the 150th anniversary of the signing of the Bill of Rights by the First Congress.

One of the fascinating questions is why did Virginia, the birthplace of the Bill of Rights in 1776, delay two years before ratifying the Bill of Rights? The answer lies in the important distinction that emerged at the Virginia Ratifying Convention in 1788 between amendments to alter the structure and powers of the new government and a Bill of Rights that would restrain that government. This distinction is critical to understanding the political activities of the First Congress. But on September 25, the Bill of Rights Antifederalists prevailed over the Structural Antifederalists.

Nevertheless, the Structural Antifederalists still carried some clout in Virginia. Thus the delay by Virginia in ratifying the Bill of Rights although it is tempting to think of Virginia as the state that brought us the Bill of Rights. Edward Carrington in a letter dated December 20, 1789, confirmed the reasons for the delay: “Somewhat later in the session the subject of the amendments was taken up . They were accepted in the House by a pretty good Majority thus the whole were adopted in the lower house. They went to the Senate in one resolution where they remained long  the resolution at length returned with a proposition to amend by striking out the 3d. 8th. 11th. & 12.” Madison confirmed the delay in a January 4, 1790 letter to Washington: “You will probably have seen by the papers that the contest in the Assembly on the subject of the amendments ended in the loss of them. The House of Delegates got over the objections to the 11 & 12, but the Senate revived them with an addition of the 3 & 8 articles, and by a vote of adherence prevented a ratification.”