What James Madison proposed is mostly what we have today, and mostly in his language.

Madison proposed to weave the amendments into the body of the Constitution, but the House, wisely, made them attachments rather than sprinkled insertions. Questions of form aside, not everything Madison proposed would make it. He proposed to put a 100-word philosophical statement at the beginning of the whole Constitution—a preamble to the preamble—that would have echoed the Declaration of Independence (in somewhat less graceful language), declaring that all power rests in and derives from the people. This idea was dropped early in the debate in the House, more as a matter of a literary than political judgment: it was already clear that “We the people” was an incomparable lead. Madison also proposed an amendment specifying the separation of powers; this one too got dropped in congressional deliberations.

What has become known as Madison’s “lost amendment”—taken out by the Senate on September 7— would have protected the freedom of the press, the equal rights of conscience, and trial by jury in criminal cases “against the states,” as lawyers say, where Madison particularly felt they needed to be protected. This would have anticipated the 14th Amendment and its 20th-century interpretation. Madison’s provision that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person” would have given religiously grounded conscientious objection the status of a constitutional right, and would have created some ingenious jurisprudential argumentation in our own time about what religion is. Even so, what James Madison proposed is mostly what we have today, and mostly in his language—or rather the language he borrowed from the states.

Many of the proposals that came to Madison’s desk, by way of the recommendations of the state ratifying conventions, had been grounded in colonial experience. You have a right to be “secure,” as the Fourth Amendment says, in your person, house, papers, and effects, against unreasonable searches and seizures—like when the British customs agents ripped open your trunks and boxes, and invaded your house or boat to see whether you were smuggling anything. Your premises and effects are not to be invaded without a warrant—and it can’t be some “general” warrant or writ of assistance, like those James Otis spoke against in 1761. It has to be a specific warrant. The American colonials, particularly in Boston and New York, had reason to specify the right (laid down in the Third Amendment) not to have soldiers quartered in one’s house. As for the rights of the accused that are protected in the later articles, today it is mostly criminal lawyers, their clients, and writers of courtroom dramas who focus on them. One can picture a creative writing class requiring each student to outline a movie script derived from a different provision: unreasonable searches and seizures, double jeopardy, excessive bail, cruel and unusual punishment, trial by jury, a speedy trial, indictment by grand jury, a public trial, the right to have a lawyer, the right to be informed of charges and confront accusers. But these were not just plot devices for the first-generation republicans who shaped the American government. They identified with the accused sufficiently to feel deeply about these protections. Many of them knew what it was to be the accused, to be treated unfairly in the courts, to suffer from the high-handedness of the royal administration. (In those days, the people forced these protections on the elite. Now that a giant middle-class democracy has grown on these foundations, the broad populace, across the barriers of class and race, no longer identifies as clearly with the accused. Today, one might almost say, the situation is reversed: the elite forces these protections on the people.)

In the most important provision of the later amendments, the provision that the powers that be may not deprive you of “life, liberty, or property,” Madison made what has proved to be an enormously important choice from the terms that were available. He quarried a phrase from New York’s long and rambling list of recommended amendments: “without due process of law.” That phrase moved the protection up a notch. Now something more than bare-bones legality was required: a process of law, which includes the care and protection afforded by fair and formal procedures, meeting a criterion of “due-ness.” Here as throughout the American Bill of Rights the principle of restraint upon government was introduced within government—again, something the other revolutionaries across the water seemed not very good at.