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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