The Fight to Prevent the Bill of Rights

A fervid World War II-era poster by Howard Chandler Christy celebrates the Bill of Rights.

(LAFAYETTE COLLEGE SPECIAL COLLECTIONS AND COLLEGE ARCHIVES)

On September 25, 1789, the United States Senate made a decision that still shapes the daily lives of all Americans: It gave President George Washington, to present to the individual states, a remarkable set of amendments to the new U.S. Constitution. They were the first ten amendments, known together today as the Bill of Rights. Though they are now taken for granted as cornerstones of American life, their enactment was very controversial. In fact, they were the product of a hard-fought battle in which many of the nation’s founders opposed them.

Even so, less than three years after that September day enough states had approved the amendments to make them law. They laid out the most essential liberties that the founding fathers wanted to secure, and as the continuing debates about their meaning show, they are not quite as unambiguous as some of their writers might have hoped. Nevertheless, the Bill of Rights has served for over 200 years as a basic document of the U.S. government and the American identity.

The process that ended with the Senate’s September 25 endorsement was a very difficult one. Although today most Americans consider the Bill of Rights a document without which our country simply couldn’t function, at the end of the eighteenth century this was hardly so evident. James Madison was the principal architect of the Bill of Rights, as of the Constitution itself, but Alexander Hamilton, for one, argued vigorously against it. Thomas Jefferson, on the other hand, pressed just as eagerly in its favor. Patrick Henry, remembered primarily for his fiery oratory—“Give me liberty or give me death!”—is rarely recognized for his early role as a consistent opponent of a strong federal government, but his efforts to thwart the construction of an effective Constitution crop up throughout the debate over the Bill of Rights.

Hamilton argued in The Federalist Papers that the amendments would be superfluous at best and subversive at worst: “ … bills of rights … are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?” In other words, as Hamilton and other Federalists saw it, the government shouldn’t have the resources or authority to interfere in areas beyond its jurisdiction to begin with—for example, it should have no power to restrict the press and no legal way of giving itself the power. A bill of rights would only suggest that the government could do such things, except in the specific areas the bill addressed. Though Hamilton lost this particular debate, his fear has been in some ways vindicated by history. The government’s authority to abridge personal privacy, for example, has at times been justified by the argument that the Bill of Rights does not explicitly name privacy as a fundamental liberty.

Madison, certainly the most essential supporter of a bill of rights, started out sympathizing with Hamilton’s perspective. He called such a bill a “parchment barrier” and was deeply skeptical of the idea of listing liberties that the government could not restrict, agreeing that the best defense against unbridled power was simply to deny the government any way of exercising it. His mind was changed, though, over the course of a long correspondence with Thomas Jefferson, who was in France helping his old ally the Marquis de Lafayette write his country’s Declaration of the Rights of Man and Citizen. Responding to a draft of the Constitution Madison sent to him, Jefferson wrote: “I do not like…the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restrictions against monopolies …” and a set of other liberties. Jefferson was unimpressed by the Federalist argument that the government could be made essentially impotent to infringe on basic rights.

When the First Congress began, Madison—elected to the House of Representatives despite Patrick Henry’s best efforts to derail his candidacy—culled a dozen or so items for a bill of rights from an initial list of more than 200. Over the summer of 1789 both the House and the Senate debated Madison’s proposals, and each chamber of Congress passed its own version of a bill of rights. In early September a conference committee of the two houses met to hammer out a compromise agreement, and it succeeded in winning the Senate’s approval by September 25. Some of Madison’s initial proposals were defeated. An amendment declaring that all government emanates from the people, for example, was not included in the final Bill of Rights. Henry’s attempt to cripple the federal government by adding an amendment declaring national taxes illegal also went down in defeat. The document that finally emerged was one that addressed Hamilton’s reservations as well as Jefferson’s hopes: The Ninth Amendment declares, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”; it was inserted to soothe fears, as Madison put it, “that those rights which were not singled out, were intended to be assigned into the hands of the General Government.”

Though it divided the founding fathers, the Bill of Rights turned out to be a unifying document. It addressed one of the principal arguments against the ratification of the Constitution—that citizens’ liberties were not adequately protected—and it helped draw states like North Carolina and Rhode Island, initially hesitant to join the union, into the arms of the new national community. Even beyond that, though, the Bill of Rights has acted as a reminder, throughout American history, that there are values like tolerance and free expression that the American state cannot violate and that American law must defend.

—Alexander Burns, an undergraduate at Harvard College, is a frequent contributor to AmericanHeritage.com