We’ve been on the incredible journey toward the birth of a nation. Its beginnings were in the words of the Declaration of Independence, words that projected a vision of a nation for its people. This vision however wasn’t reflected in the first two documents of governance, the Articles of Confederation and the Federal Constitution that followed.
This is best described by B.J. Lossing in his 1848 book, Lives of the Signers of the Declaration of Independence, when comparing the differences, “The former (the Declaration of Independence) was based upon declared right; the foundation of the latter (Articles of Confederation) was asserted power.” Lossing goes on to explain, “The former was based upon a superintending Providence, and the inalienable rights of man; the latter rested upon…,” Lossing then uses this 1839 writing by John Quincy Adams, “… sovereignty of declared power – one ascending for the foundation of human government, to the laws of nature and of nature’s God, written upon the hearts of man – the other resting upon the basis of human institutions, and prescriptive law, and colonial charters.”
What Lossing and Adams were saying was that in their quests to form a new government the framers lost that grand vision laid out in the Declaration of Independence, and instead focused too much on the rules of order and the laws of governess.
Thankfully this was about to change, as the 1st. Congress of the United States began their work on crafting a Bill of Rights.
updated on January 17, 2021
The 1st. Congress of the United States of America begins fulfilling its promise
With the Constitution finally ratified on June 21st 1788, the 1st Congress of the United States came together for the first time in New York City, then the capital of the country, at Federal Hall on March 4th 1789.
The Federalist had faired pretty well with representation in the new congress, having gained the majority of the seats in both the House of Representatives and the Senate. But now they needed to begin working with the Anti-Federalist to fulfill the promise made to gain ratification, and that was to amend the new Constitution to include a bill of rights.
As the 1st. Congress came together to begin the bill of rights debate the big question was, how do you go about amending the document? Articles V gave the Congress the ability to amend, make changes, to the Constitution, but not the form it should be done in.
Enter, again, James Madison
As I presented in Part I, James Madison had been one of the most vocal at the constitutional convention in not seeing a need for a bill of rights in the Constitution, but as the debate went on during the convention, and after Washington and Jefferson had written to him, he began to see the concerns that the Anti-Federalist and States had. He was now willing to work on amending the Constitution with a bill of rights.
Madison, now a congressman, feared that a contentious argument on what form the amendments should take, and what those amendments should be, could drive Congress into calling for a second constitutional convention, and in doing so bring the entire Constitution into question. Still a Federalist he was determined to preserve what he had worked so hard on, and the only way he saw to avoid a Constitution/bill of rights issue was to take the lead in writing those amendments himself.
The Virginia Declaration of Rights
In writing his proposed amendments James Madison again turned to the sources he’d used with the Constitution: the Magna Carta (Great Charter) of 1215, the English Bill of Rights of 1689, as well as other existing state constitutions. But mostly he turned to his own state’s Virginia Declaration of Rights of 1776, that pre-dated the Declaration of Independence by almost a month.
The Virginia Declaration of Rights is one of the most pivotal documents in the early forming of our government and our national vision. Initially drafted by George Mason, who had also proposed adding a bill of rights to the Constitution at the constitutional convention, the Virginia Declaration of Rights was use as seed material not only by Madison, in the Constitution and Bill of Rights, but also Thomas Jefferson when writing the Declaration of Independence.
Here’s an example of what I mean: in Article I of the Virginia Declaration of Rights it states, “That all men are by nature equally free and have certain inherent rights… they cannot, by any compact, derive or divest their posterity; namely, the enjoyment of life and liberty…and pursuing and obtaining happiness and safety.” What Jefferson wrote in the Declaration of Independence was, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, among these are Life, Liberty and the pursuit of Happiness.”
The influences of the Virginia Declaration of Rights is found throughout the Declaration of Independence and the Constitution, but it’s most obvious usage is by Madison in the Bill of Rights. This is very obvious in the Virginia Declaration of Rights’ Articles 12 and 16, which would become part of the first amendment, and its Article 13 that’s in the second amendment, and also Article 9 in the eighth amendment. I’ll be reviewing this in my upcoming posts on the individual ten amendments.
Madison’s first proposed amendments
On June 8, 1789, James Madison presented his nine proposed amendments to the House of Representatives. Two of these proposals read as follows:
“First. That there be a prefixed to the constitution a declaration that all power is originally vested in, and consequently derived from the people.”
And another was his fourth proposed change:
“Fourthly. That article 2nd, section 9, between clauses 3 and 4, be inserted these clauses, to wit, ”The civil rights of none shall be abridged on account of religious belief or worship, nor shall an national religion be established, nor shall the full and equal rights of conscience by in any manner, or in any pretext be infringed…”
As you can see from these two examples that Madison’s original idea was to make the amended changes directly onto the main body of the exciting Constitution itself, in fact rewriting articles and sections themselves. But both the House and the Senate where concerned with amending the Constitution by that method.
Congress’s fear was from the public perception of the amendment process. Although the Senate was closed to the public the House wasn’t, and their concern was that the citizens watching, as Congressman Fisher Ames of Massachusetts put it, “dissection of the constitution” so soon after its implementation could be seen as a sign of instability among the citizenry watching, causing them to lose confidence in the new Constitution, and its government.
It was Congressman Roger Sherman of Connecticut who proposed to the House that the amendments not be made to the existing ratified document, as Madison had proposed, but rather placed separately at the bottom, keeping the original document to, “remain inviolate.” The House also voted to have a preamble added to the beginning of the list of amendments. This preamble was added to explained why these changes were being made, and to what end. Again in hopes of keeping the public’s confidence in their new government (please read my Part Two post on the preamble).
The House debated Madison’s nine amendments for eleven days, in which time they took his original nine, rewriting them into twenty, one sentence paragraphs. They continued to revise and combine those amendments until they finally agreeing on seventeen. Also, the House removed most of Madison’s preamble, feeling that it was to close to the wording of the Declaration of Independence, and added the phases: “freedom of speech, and of the press,” which would finally be incorporated into the first amendment.
On August 24, 1789 the House sent their seventeen proposed amendment to the Senate for their review and revision. The Senate then made twenty-six additional changes of their own, which included the elimination of the rest of Madison’s preamble, and removing the extension of parts of the Bill of Rights to the states as well as to the Federal government. In their process they condensed the House’s seventeen amendments to twelve. These changes were approved by the Senate on September 9, 1789.
On September 21, 1789 the two versions were taken up by the House-Senate Conference Committee that resolved the differences between the two versions. What they presented to Congress were twelve Constitutional Amendments that were then approved in a joint resolution of Congress to be sent to the States for ratification on September 28, 1789.
The Process of ratifying the Bill of Rights
For the twelve articles approved by Congress, under Article V, to become part of the Constitution they had to be ratified by each State’s legislature, according to Article VII of the Constitution. Each one of the twelve had to be separately voted on and ratified by at least three-fourths of the 14 States (Vermont had been added to the Union during the ratification).
Of the twelve amendments that were sent only ten gained the needed states. It was Articles Three through Twelve that received the needed 11 state minim for ratification. These became the first ten amendments to the Constitution, the Bill of Rights.
One of the interesting facts about the Constitution is that it doesn’t set a time limit for ratification to be accomplished, and the 1st. Congress also failed to set a time limit. So, the original Article’s One and Two, that didn’t make the original state ratification, were still considered pending, and open for ratification. So what has happened to those two amendments?
Article Two, which dealt with the pay of Senators and Representatives, when originally presented had only received the approval of seven states. However, in the 1970s, there arose a national protest over Congressional pay raises. Knowing that this original article dealt with that issue, and that there was no time limit for its ratification, a movement was formed to pick up those additional states needed for it to be ratified. This was accomplished in 1992, and became the Twenty-seventh Amendment, 202 years after it was first presented.
As for the original Article One, which deals with the number of Representatives in the House, it missed being ratified by only one state. That article is still pending, and needs only an additional 27 states approval for it to become another amendment to the Constitution.
James Madison fathered the two documents that created our United States government, the Constitution and the Bill of Rights. But he was more influential with one than the other. It’s been stated that without Madison there would have been a Constitution, but without him there wouldn’t have been a Bill of Rights.
With the Bill of Rights added to the Constitution the full vision set forth in the Declaration of Independence was now realized. The government of the United States of America was now more than just laws and procedures, but with guarantees of personal freedoms for its people.
Upcoming Posts on this subject
What other influences may have guided Madison and the others to choose those particular guarantees? What was the original wording presented by Madison, then changed by the House of Representatives, and then the Senate? And did that effect the intent then, or now. The late Justice to the Supreme Court Antonin Scalia stated that the Constitution, “Says what it says;” but does it really?
Please read my other posts on We the People:
Part One: “…In order to form a more perfect Union.”
Part Two: “…in order to prevent misconstruction or abuse of its powers…”
Some of the resources used:
Bill of Rights Institute . “James Madison.” Bill of Rights Institute, Bill of Rights Institute, billofrightsinstitue.org.
Wikipedia. “United States Bill of Rights.” United States Bill of Rights, Wikipedia , 2 July 2018, en.m.wikidia.org/wiki/United_States_Bill_of_Rights.
“The Bill of Rights becomes law.” This Day in History, History, http://www.history.com/this-day-in-history/the-bill-of-rights-becomes-law.
National Archives. “Why a Bill of Rights?” National Archives, Archives.gov, 15 Aug. 2016, http://www.archives.gov/amending-america/explore/why-bill-of-rights-transcript.html.
Greenslade, Bob. “A Re-Write of the Bill of Rights through the Preamble.” Tenth Amendment Center, Tenth Amendment Center, 14 Dec. 2010, tenthamendmentcenter.com/2010/12/14/a-rewrite-of-the-bill-of rights-through-the-preamble.
“Virginia Declaration of Rights.” Wikipedia, Wikipedia, en.m.wikipedia.org/wiki/Virginia_Declaration_of_Rights.
“Anti-Federalism.” Wikipedia, Wikipedia, en.m.wikipedia.org/wiki/Anti-Federalism.
“Bill of Rights.” Bill of Rights Institute, Bill of Rights Institute, http://www.billofrightsinstitute.org/founding-documents/bill-of-rights/.
Lossing, B. J. Lives of the Signers of the Declartion of Independence. WallBuilder Press, 2010.