JAMES MADISON and the Struggle for the Bill of Rights

By Richard E. Labunski, History Prof. at the University of Kentucky

Summary for Bill of Rights Anniversary, December 15, 2014

James Madison guided the Constitution preparation process, convincing certain key members of the Convention to participate, namely, Adams and Washington.  Madison had help from others.

  The Philadelphia Convention was held in the summer of 1787 in Philadelphia, finishing a draft made public in The Pennsylvania Packet and Daily Advertiser on September 19, 1787. Washington was been selected to chair the sessions, but only spoke twice during the summer, although he guided the process in private conversations.  Next came the ratification process.

   Madison did not want a Bill of Rights primarily because the enumerated powers doctrine was so clear to him that he was initially not concerned with the Federal government doing things that were not listed in writing.  But many other people wanted an enumerated list of individual rights in the Constitution. 

   Madison, John Jay and Alexander Hamilton began writing the Federalist Papers.  They were in New York attending the Congress and these papers were intended to persuade New Yorkers  to vote for ratification of the Constitution.  Madison received letters from friends in Virginia that indicated ratification was in trouble in Virginia, so Madison went home.

   Madison knew it would not be enough for the Constitution to be ratified by only nine states. New York and Virginia contained almost one third of the residents of the country. George Mason was against the Constitution even though he served as a member of the Convention that wrote it.  If Virginia did not ratify then no Virginian would be eligible for election to the Federal offices. 

    In those days the vote for delegate to conventions and state office were conducted by the County Sheriffs in Virginia.  At the time of the election, the electors came to the voting place, rose and announced who they voted for and when the Sheriff closed the election, the winner was announced.  Closing time was at the discretion of the Sheriff. There was no room for voter fraud with such transparency.

  From all of the arguments, Madison came to the view that the ratification should not come about without a Bill of Rights.  Thomas Jefferson, who was minister to France, was in Paris and wrote several people about adopting the Bill of Rights as part of ratification.

  The arguments continued and a second constitutional convention was considered by Virginians. After the passage of eight months from the adoption of the Constitution eight states had already ratified and only one more was needed while Virginia was arguing about what to do.  Madison became neutral on the Bill of Rights and had not understood why there was so much opposition without an enumeration of rights of citizens and states until he heard these arguments.

  The Virginia convention convened June 2, 1788. After rejecting one amendment, the Virginia Convention adopted 89 to 79 a motion with amendments recommended but not required, as a condition of Virginia’s assent to ratification on June 25.  A few days later the George Wythe Committee submitted 40 proposed amendments and the delegates approved the report without recording the vote.  So Virginia became the ninth state to ratify the Constitution.  The new government was formed.  Everyone involved was called to New York.

  Now what about the Bill of Rights? 

  The new House got a quorum on April 1, 1789.  Finally the Senate was organized. The House allowed visitors.  The Senate did not.  Madison spent time assisting Washington establish the functioning departments of government. He was described as “prime minister.”  Washington’s inaugural speech gave deference to the House and Senate on amendments to the Constitution on April 30.  On May 4, 1789 Madison made a short speech in the House putting the members on notice that on the fourth Monday of the month, he would introduce his package of amendments.

   On May 25, 1789, a scheduled discussion of the amendments was postponed because of other business.  Madison could wait no longer. On June 8, Madison began a discussion at length. Three other members, one from Georgia and two from South Carolina, objected as the discussion would take time from other business. Then others objected as well.  Rep. James Jackson, of South Carolina, moved to postpone discussion until March of the next year.  Later, this motion was withdrawn when Madison agreed that his proposal would be referred to a select committee that would report to the full House in a few weeks.  Madison had the floor and spent several hours trying to persuade the House to have the discussion now.   Hearing the sentiments allowed Madison to propose that if a single day were devoted to the discussion to satisfy those voters who expect something to be done, he would confine his list to those amendments considered intrinsically proper because they are wished for by a respectable number of citizens.

   During his June 8 discussion, Madison proposed a new preamble to the Constitution and nineteen amendments divided into nine articles. This move was not expected.  Madison wanted the amendments incorporated and not added at the end.  Roger Sherman opposed the insertion idea. Throughout the summer, others agreed with Madison to the insertion.  Drafting committees showed how complicated and unappealing the insertion would be. Gerry of Massachusetts sided with Madison about the need to show some effort to adopt amendments or states like Virginia and New York may call for a second constitutional convention.  Gerry proposed that July 1 be designated to review the amendments.

  Madison’s amendments began to appear in the newspapers after the June 8 discussion in the House.  After further exchanges, July 21 was selected to further discuss the amendments, and the House voted 34 to 15 to send the amendments to a select committee of eleven members, one from each state.  It took only a week to make a report to the House.  Then the House tabled the report.

  Madison asked for debate and after one more postponement, August 12 arrived.  For eleven days members of the House debated.  Madison was losing the argument about placement of the amendments.  Elias Boudinot was presiding over the Committee of the Whole when someone asked if the amendments had to be recommended to the House by a 2/3^rd vote.  Boudinot ruled that only a majority vote was necessary and his decision was upheld by a vote of the members.

    The report from the Committee of the Whole was voted on by the House on September 24, 1789 and the Senate voted on September 25 to approve.  Twelve amendments were adopted by Congress and submitted to the states. 

  Some states took little time – New Jersey was first to ratify the amendments. A month later Maryland ratified all 12 amendments. Seeing that ratification could happen, Patrick Henry argued in Virginia that the ratification should wait until the next Congress was elected.  But after being negated by the Virginians, Henry left Richmond for home and gave up the battle.  The Virginia House and Senate were in a standoff, partly because of amendments 11 and 12, but there were other issues as well.

   Virginia took up ratification again in October 1791.  Finally on December 15, 1791, Virginia completed its action to ratify the amendments.  On December 30, 1791, Washington notified Congress that the Bill of Rights had been ratified.  These were added to the end of the original U.S. Constitution.  Labunski’s 2006 book is ISBN: 13: 978-0-19-518105-0.  The PBC Library has 9 copies.

December 15, 2014   

William J. Skinner, Author
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if you want to know how the Democrats suppress  

the Republican vote in South Florida and Orlando

Please E-mail me if your HoA or Condo A restricts political activity where you live.

HOW  DEMOCRATS  SUPPRESS

 REPUBLICAN VOTERS

IN SOUTH FLORIDA

The Supreme Court of the United States recently decided that,

There is no right more basic in our democracy than the right to participate in electing our political leaders. Citi­zens can exercise that right in a variety of ways: They can run for office themselves, vote, urge others to vote for a particular candidate, volunteer to work on a campaign, and contribute to a candidate’s campaign. This case is about the last of those options.

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Our cases have held that Con­gress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U. S. 1, 26–27 (1976) (per curiam). At the same time, we have made clear that Congress may not regulate contributions simply to reduce the amount of money in politics, or to restrict the political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U. S. ___, ___ (2011) (slip op., at 24–25).

   Many people might find those latter objectives attrac­tive: They would be delighted to see fewer television com­mercials touting a candidate’s accomplishments or dispar­aging an opponent’s character. Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition. See Texas v. Johnson, 491 U. S. 397 (1989); Snyder v. Phelps, 562 U. S. ___ (2011); National Socialist Party of America we have empha­sized, the First Amendment “has its fullest and most urgent application precisely to the conduct of campaigns for political office.” Monitor Patriot Co. v. Roy, 401 U. S. 265, 272 (1971).

In a series of cases over the past 40 years, we have spelled out how to draw the constitutional line between the permissible goal of avoiding corruption in the political process and the impermissible desire simply to limit polit­ical speech. We have said that government regulation may not target the general gratitude a candidate may feel toward those who support him or his allies, or the political access such support may afford. “Ingratiation and access . . . are not corruption.” Citizens United v. Federal Elec­tion Comm’n, 558 U. S. 310, 360 (2010). They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be respon­sive to those concerns.

Any regulation must instead target what we have called “quid pro quo” corruption or its appearance. See id., at 359. That Latin phrase captures the notion of a direct exchange of an official act for money. See McCormick v. United States, 500 U. S. 257, 266 (1991). “The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Federal Election Comm’n v. National Con­servative Political Action Comm., 470 U. S. 480, 497 (1985). Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” Bennett, supra, at ___ (slip op., at 25). And those who govern should be the last people to help decide who should govern.

The statute at issue in this case imposes two types of limits on campaign contributions. The first, called base limits, restricts how much money a donor may contribute to a particular candidate or committee. 2 U. S. C. §441a(a)(1). The second, called aggregate limits, restricts how much money a donor may contribute in total to all candidates or committees. §441a(a)(3).

This case does not involve any challenge to the base limits, which we have previously upheld as serving the permissible objective of combatting corruption. The Gov­ernment contends that the aggregate limits also serve that objective, by preventing circumvention of the base limits. We conclude, however, tha that the aggregate limits do little, if anything, to address that concern, while seriously re­stricting participation in the democratic process. The aggregate limits are therefore invalid under the First Amendment.

A

For the 2013–2014 election cycle, the base limits in the Federal Election Campaign Act of 1971 (FECA), as amended by the Bipartisan Campaign Reform Act of 2002 (BCRA), permit an individual to contribute up to $2,600 per election to a candidate ($5,200 total for the primary and general elections); $32,400 per year to a national party committee;¹ $10,000 per year to a state or local party committee; and $5,000 per year to a political action com­mittee, or “PAC.” 2 U. S. C. §441a(a)(1); 78 Fed. Reg. 8532 (2013).² A national committee, state or local party com­mittee, or multicandidate PAC may in turn contribute up to $5,000 per election to a candidate. §441a(a)(2).³

The base limits apply with equal force to contributions that are “in any way earmarked or otherwise directed through an intermediary or conduit” to a candidate. §441a(a)(8). If, for example, a donor gives money to a party committee but directs the party committee to pass the contribution along to a particular candidate, then the transaction is treated as a contribution from the original donor to the specified candidate.

   For the 2013–2014 election cycle, the aggregate limits in BCRA permit an individual to contribute a total of $48,600 to federal candidates and a total of $74,600 to other politi­cal committees. Of that $74,600, only $48,600 may be contributed to state or local party committees and PACs, as opposed to national party committees. §441a(a)(3);78 Fed. Reg. 8532. All told, an individual may contribute up to $123,200 to candidate and noncandidate committees during each two-year election cycle.

The base limits thus restrict how much money a donor may contribute to any particular candidate or committee; the aggregate limits have the effect of restricting how many candidates or committees the donor may support, to the extent permitted by the base limits.

——————

       ¹There are six authorized national party committees: the Republican National Committee, the Democratic National Committee, the National Republican Senatorial Committee, the Democratic Senatorial Cam­paign Committee, the National Republican Congressional Committee, and the Democratic Congressional Campaign Committee. See 2 U. S. C. §431(14).

²A PAC is a business, labor, or interest group that raises or spends money in connection with a federal election, in some cases by contrib­uting to candidates. A so-called “Super PAC” is a PAC that makes only independent expenditures and cannot contribute to candidates. The base and aggregate limits govern contributions to traditional PACs, but not to independent expenditure PACs. See SpeechNow.org v. Federal Election Comm’n, 599 F. 3d 686, 695–696 (CADC 2010) (en banc).

³A multicandidate PAC is a PAC with more than 50 contributors that has been registered for at least six months and has made contributions to five or more candidates for federal office. 11 CFR §100.5(e)(3) (2012).PACs that do not qualify as multicandidate PACs must abide by the base limit applicable to individual contributions.

 MCCUTCHEON ET AL. v. FEDERAL ELECTION COMMISSION, 572 U. S. ____ (2014), decided April 2, 3014.

            I cited this case as an introduction to this blog to give you a feel for what the conservatives on the current Supreme Court can say when the subject is only money and how much money a voter can donate to favored candidates in one election. 

Just imagine what they might say if the subject was access to the political process by registered voters who are being suppressed from participation in those political process rights where they live.  I am not focusing on the suppression of minority voters; I focusing about suppression of Republican voters.

This analysis gives facts that cover Palm Beach County, but it is applicable to any county where the majority of the registered voters are members of one party and the county has a large number of dwelling units that are condos, homeowner associations, or community associations.  Most of these counties are in South Florida.

For example, in Palm Beach County the total population on April 15, 2014 was 1,355,759.  The number of persons under 18 years of age was 20.1%.  www.Census.gov  So the number eligible to register to vote is reduced to 1,083,253. Of the latter number, there are 235,407 registered Republicans, 366,151 registered Democrats, 234,441 other registered voters, for a total of 835,999 registered voters.   www.pbcelections.org.  This leaves 247,254 census counted people who are not registered to vote.  In other words 23 % of the population in Palm Beach County is not registered to vote.        

Part of the 247,254 are persons counted as living here may be foreign nationals with second homes, undocumented foreigners (illegal aliens receiving US welfare or not), or US citizens living in second homes who vote elsewhere.  But it remains that 23 % of the population in Palm Beach County counted by the census is not registered to vote.  One might ask how the other 77 % can be causing so much trouble.  I will now make a stab at explaining the answer.

If these unregistered voters were allow to sign up to vote with same day registration (registered on the day of election), the major parties could easily be outvoted by the new voters, depending on which turn out to vote. There would be no way to catch or stop them these first timers if they all voted and 25% of the Republican stayed home. If a large part of the unregistered population were eligible to register and did so on election day, the party in which most of them registered would be on top easily.   Only Democrats like Ted Deutch recommend same day registration.

You probably have not contemplated the voting situation through this lens.  These numbers do not lie and I am not trying to mislead anyone.   But these numbers are not the main point with the voter suppression going on against Republicans.  There is more.

In Palm Beach County there are 1,572 homeowners associations containing 299,286 homes or undeveloped lots within those HOAs.  Palm Beach County has the largest number of HOAs in Florida and has a similar number of condo residents.    www.myfloridalicense.com/dbpr/sto/file_download/public-records-CTMH.html. You probably have not seen those figures before, but the Florida legislature ordered a study in 2013.

Using the 299,286 figure and 2.59 persons per house according to the 2008-2012 Census data,  this means there could be 775,150 persons living within just the HOAs, plus a large number in the condo associations.

According to the Supervisor of Elections for PBC the registered Democrats are 44% and the registered Republicans are 28% of the total registered voters. www.pbcelections.org.  Therefore, with distribution across HOAs presumed to be equal county-wide the residents (citizens of Florida or not) the HOA boards are likely to be represented in the same proportion.

  If these assumptions are true, then the Democrats can always out vote the Republicans on the boards or in the communities of South Florida.  In other areas of the state Republicans are not out numbered so much.  HOA boards, consisting of many more Democrats than Republicans, can successfully keep other parties from conducting any political discussions with neighbors under the standard covenants that run with HOA property.  These covenants are made into rules by the Boards and homeowners who are the Democrats, a 61% majority.  HOA rules often prohibit political activity. www.pbcelections.org.  

Is that is what is going on in Palm Beach County politics?   Some political activists think so.  You may know of cases where you live in South Florida. Some examples.

In Valencia Palms HOA in western Boynton Beach, there was an on-going and functioning Ronald Reagan Club that met monthly for a year or so until the Board of the HOA found out it was a political club.  That Board stopped them from meeting in HOA rooms and will not allow the club to use common space meeting rooms because politics is divisive and tears the community apart.

In Valencia Shores HOA in western Lake Worth, the Republican Committeeman had no trouble delivering literature for elections and talking to Republican voters from 2004 until 2012.  In the summer of 2012 he was warned he was “soliciting” in violation of community rules.  The Committeeman was told in writing that he would be fined by the Board if he did it again. 

The two Committeeman later wrote the Board and asked that the rules be changed for “soliciting” and that elected party committee people be allowed to walk the streets to speak to Republicans at their front door and leave literature if they were not home.  “Soliciting” was something else besides political communication. 

The Board then amended the two sentence rule into one sentence rule which still left approval to the discretion of the Board.  The Committeemen then wrote to ask the they be allowed to hang a plastic envelope with printed matter in it on the outside of mailboxes as the Board does for its HOA newsletter or to leave printed matter on the front door stoop in an envelope like the mailman, FedEx, or United Parcel Service driver does. 

The Board responded that it would then permit hand delivery of documents person to person.  But it “recommended” that no documents be left at the door or mailboxes.  In addition, the Board recommended that the Committeemen mail documents to the addresses or take an ad in the HOA newsletter. These Board decisions apply these same privileges to any newly elected Committeeman or Committeewoman as this part of the Committeemen’s request was not objected to.

[2018 update] The Board has now amended the rules to say that if  any group raises any money from its members that certain reports must be made periodically to the HOA.  This, of course, allows the Board to monitor what is being done by the people inside the HOA.
 

Of course, the Committeemen knew they could use the Post Office to mail documents to residents of his HOA.  The two Committeemen in this precinct know well the cost of getting political mail to the voters.  Five times in an election year and the bill would be north of $1,500.  The advertisement offer is another communication method that needs further testing. In the heat of the 2014 and 2016 elections is not the time for lengthy proceedings to change wording in ads.  Will the Board want to change the wording when they see the ad?   Will the ad make politics divisive?  Will the Board charge a higher fee for the political ad?   The uncertainty and the fact that the Board has already threatened fines, means caution is needed.  In court cases, this is called a “chilling effect.”  Do you see what is happening?

In all fairness to Valencia Shores HOA they have permitted one public meeting in October 2012 for candidates of the Republican Party.  They did so after the Committeemen cited the Florida Statute that allows reasonable use of HOA facilities by candidates for office or public officials.

There are probably many other instances like those of these two HOAs across the length and breadth of Palm Beach County.  If any reader has a story to share and will give their name, HOA name and stand by their story, this will be added to the collection of methods that the majority Democratic Party organization uses to control the political activity of Republicans with the resulting suppression of Republican political activity and voting.  Does your HOA allow political meetings in your HOA facilities?  Does your HOA prohibit you from delivering political literature to the door of the homes in your HOA?  If not, what are the reasons given for this suppression of your First Amendment rights. 

If one checks the voting records of Republicans, it can safely be said that the voter turnout is almost usually under 75%.  That means that for 235,000 voters, Republicans can only get 176,000 out in a good Presidential election.   Everyone knows that non-Presidential year elections have only a 10 to 20% turnout.  Republicans are such a small part of the registered voters in Palm Beach County that they need Independents and Democrats to vote for Republicans in order to win elections in Palm Beach County

The Republican vote is being suppressed by a number of things already, including indicted and convicted Republican office holders, turncoat Charlie Crist and his cadre of crooks, and the bitter and nasty pubic arguments between Republican candidates.  That 25% of registered Republicans have sat out on elections for the past 10 years is shocking.  Republicans have to deal with reality and get involved in selecting candidates and advising them to clean up their act.

These negative problems have to be dealt with up front – vetting candidates, being ready for the last two weeks attack from the nasty literature distribution from the Democrats, and having candidates that can speak truth to the lies in an understandable way.  Of course, being ready means having money for campaign materials, cable and TV ads and hundreds of coffees, receptions, meet and greets, and other events.  People who avoid the vote, probably do not give money to candidates. 

I urge you not to surrender your core First Amendment rights to make political speech and that you work to help your elected Committeemen and Committeewomen.  My wife and I signed nothing that agreed we gave up our First Amendment rights to live where we live.  If we could organize every precinct to spread the word about what needs to be done, we could win some elections just by showing up in larger numbers. 

Will you use some time to protect your First Amendment rights in 2014 and 2016, or will you simply go along to get along and send the bill for increases in government spending to your grandchildren?   Help protect what our forbearers gave us in the First Amendment.

[2018 update]  No progress has been made with the Florida legislature since attempts have been made numerous times.  Governor Scott referred me to the legislature.  No Republican would introduce a bill to correct this situation yet.  One Democrat introduced a bill and the Republicans would not assign it to a committee.  Admittedly the issue is complicated and a sponsor needs a brain and determination.  So does maintaining our First Amendment rights.  2018 elections are upon us and we can expect to be suppressed again.

                                                                                    William J. Skinner

                                                                                    BillSkinnerLW@aol.com