Skip to comments.James Madison and our Bill of Rights
Posted on 04/13/2013 4:18:53 PM PDT by Jacquerie
James Madison wasnt a big supporter of Bills of Rights. He wasnt alone. His notes toward the end of the Constitutional Convention of 1787 are sketchy, but one thing is clear; every State (though not every delegate) voted against a Bill of Rights (BOR).
Less than a year later, at the wild Virginia Ratification debates of June 1788, the Federalist team lead by Madison and Anti-Federalists by Patrick Henry went back and forth as to the pro and con of formal inclusion in the Constitution. Anti-Federalists were furious; many Anti-Federalists demanded Virginia withhold ratification until their amendments were ratified by the other States.
Why the Federalist resistance to a BOR?
Madison explained in an October 1788 letter to Thomas Jefferson. He had in his hands a pamphlet that contained all of the amendments proposed by the various State Constitutional Conventions. He was not against a BOR; he could support those that did not imply unenumerated powers. At the same time, he did not think their omission (from the Constitution) a material defect. No, he would support amendments because they were anxiously desired by Constitutional opponents. He did not need to tell Jefferson there was no guarantee of actual Union despite ratification by eleven of thirteen States.
Madison outlined four reasons he was lukewarm toward a BOR. First, the Constitution did not grant power to infringe on our natural rights. Second, he was concerned that rights would be expressed narrowly rather than expansively. As evidence, a proposed amendment from New England objected to the prohibition of religious tests because it would open a door for Jews, Turks, and infidels. Third, because the States would both participate in law making and keep a watchful eye on the operations of new government. Lastly, repeated violations of these parchment barriers have been committed by overbearing majorities in every State.
Experience showed that a BOR was ineffective when needed most. Sound familiar?
In Virginia, he saw their Declaration of Rights violated in every instance where it had been opposed to a popular current. Referring to the mid-1780s controversy over a State supported church bill, he said it was only narrowly defeated, despite a freedom of conscience guarantee in the Virginia Declaration of Rights. IOW, recent history showed that State BOR alone were ineffective barriers to majoritarian abuse.
Wherever the real power in a government lies, there is the danger of oppression. In our (State) Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.
In short, post-revolutionary States did not reliably enforce their various BOR.
He reasoned that BOR were necessary in monarchies, as limits demanded by the people, as powers taken from the prerogatives of the sovereign power, the King. When violated, the multitude of people had not only the raw power of any mob to resist, but legitimate authority to physically fight back against encroachments of the rights granted them.
But in American republican governments, the people and sovereign are identical. When the people themselves overrun the rights of the minority, to whom can the minority appeal? What use then it may be asked can a BOR serve in popular Governments?
Madison identified two. The political truths in a BOR could, over time, become such powerful maxims that they overpower ill-considered, mass impulses. Secondly, and though remote, if evil springs not from the people but from the Government, a BOR would be good grounds for appeal.
Adapted from James Madison Writings pgs 420-421.
In both situations, our BOR proved ineffective; they failed as firewall protection of our individual rights.
Bump for ongoing education
IMO, one of the principle reasons they failed is that it is prohibitively expensive to bring a case to the SCOTUS. Second only to education, the legal system has been the most crucial in bringing about our downfall.
There is a more basic concern about the BOR. The rest of the constitution was created with the understanding that once rules are written down, the first effort made will be to undermine and circumvent them.
For this reason, the rest of the constitution is a “balancing act” by equally powerful groups of people, with different prerogatives and motives, to keep other groups in check.
The most well known is the executive-legislative-judicial balance. But there is also the electoral balance of a truly democratically elected House; a state appointed senate; an electoral college appointed president; and presidential nomination, with senate (and thus state) approval of federal judges.
There is the balance of two senators for each state, which favors the smaller states; and population based number of congressmen, which favors the more populous states.
There is also the three way balance between the national government, the state governments and the people; with the intent that the states would protect the people from the abusive feds, and the feds would protect the people from the abusive states.
In any event, these balances worked generally well, except for abominations like the 17th Amendment
However, the BOR, as a “static” list of rules, has been horribly mauled by exceptions. For example, an effort to even list the exceptions to the first amendment is daunting.
But in the final analysis, all the balances only work so far as the collaboration between competing interests is maintained. If they work together “in the spirit of bipartisanship”, our rights are their first victim.
Not when today's kids were taught, their "rights" came from the government (the president fighting for their rights to equality or some such rot), and "I Am Willing to Give Up Some of My Constitutional Rights to Be Safer".
The Constitution including the BOR should not have been 'hard to understand'. But not when it has been twisted to the present day interpretation.
“. Second only to education, the legal system has been the most crucial in bringing about our downfall. “
Such a good point!
Madison was amazing. Two of my grandfathers were named after him.
As you said, the system was set up first and foremost to be divided between the feds and states. THEN in importance were three branches, followed by a BOR.
The last one hundred years show a BOR unsupported by the competing interests of the States within the larger government is just a parchment barrier . . . worthless.
Why do some men disregard the rights given to them by God? It is the lack of education, not impressed on young minds. With Magna Charta, it was read publicly twice a year in all towns so that the people might not forget their rights and become gradually prepared for arbitrary government. No people remained free because their ancestors enumerated anything on paper, but rather because their rights were constantly kept in view, in addresses, in BOR, newspapers. It is on these principles our freedom must always depend.
There is some fascinating history behind that pamphlet in James Madison’s possession, it wasn’t just some stray compilation of complaints with obscure origins. Madison knew the author as did George Washington.
All in attendance at the Convention knew who he was, he was regarded as one of the preeminent legal minds of the time. The author was also the author of the Virginia Declaration Of Rights and a Founder himself, who walked out on the Convention in Philadelphia precisely because it contained no Bill Of Rights, along with Elbridge Gerry.
He’s known in some circles as The Forgotten Founder. But he’s not forgotten in Virginia and he’s not forgotten here.
His name was George Mason.
Let me ask you this. If States had agency in the Senate these past one hundred years, I cannot imagine they would allow known, progressive, anti-10th amendment justices to federal court benches. Do you agree?
The State ratifying conventions submitted over 110 amendments. I have run across Virginians who think VA alone submitted or had Bill of Rights.
Current events of 1788 and subsequent history proved Madison’s view; parchment barriers are ineffective unless backed up by opposing interests.
In some respects, the latter is a reflection of the former. If you liked the link on the restructuring of the States, please consider this article on how to transform education.
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
Thank you, good learning today.
By the time the Constitution had been ratified by the necessary nine States, several had proposed amendments to be inserted in the body of the Constitution, but no proposal had been made for a declaration of rights. On June 25, 1788, the Virginia ratifying convention appointed a committee to prepare a bill of rights. Two days later, the committee reported a proposed bill of rights, and additional amendments to be included in the Constitution.
The proposal by this committee was a nearly verbatim copy of a Master Draft that George Mason had sent to Gen. John Lamb of the Republican Committee in New York on June 9th, a copy of which remains among the Lamb Papers at the New York Historical Society. The receipt of the Draft was acknowledged in a letter to Mason from Judge Robert Yates, June 21:
Your letter of the 9th inst. directed to John Lamb, Esquire at New York Chairman of the Federal Republican Committee in that City enclosing your proposed Amendments to the new Constitution, has been by him transmitted to such of the Members of Our Convention, who are in sentiment with him. In consequence of this Communication a Committee has been appointed by the members in Opposition to the New System (of which they have appointed me their Chairman) with a special view to continue our correspondence on this necessary and important Subject.
We are happy to find that your Sentiments with respect to the Amendments correspond so nearly with ours, and that they stand on the Broad Basis of securing the Rights and equally promoting the Happiness of every citizen in the Union
The provisions of the bill of rights proposed by the New York ratifying convention were primarly drawn from Mason's Master Draft, though in differing order. North Carolina proposed a bill of rights whose provisions were nearly identical to those of the Virginia convention. The proposals later tendered by the ratifying convention of Rhode Island were probably taken directly from the Master Draft.
The bill of rights proposed by James Madison to the Congress on June 8, 1789 was a nearly verbatim copy of Virginia's proposal, which was a nearly verbatim copy of Mason's Master Draft. Elbridge Gerry probably had a copy of this Draft before him during the congressional debates on the amendments.
In preparing the Master Draft, Mason drew heavily from the Virginia Declaration of Rights which he had written 12 years earlier, and also borrowed provisions from the Declarations of Rights of Pennsylvania and Maryland, as well as the Virginia Constitution of which he was also author. A manuscript copy of the Master Draft in George Mason's handwriting is among the Mason Papers at the Library of Congress.]
Patrick Henry at the ratification convention: “...If you give up these powers, without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw [a state] government that has abandoned all its powers the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights without check, limitation, or control. And still you have checks and guards; still you keep barriers pointed where? Pointed against your weakened, prostrated, enervated state government!
You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!
You arm yourselves against the weak and defenceless, and expose yourselves naked to the armed and powerful. Is not this a conduct of unexampled absurdity? What barriers have you to oppose to this most strong, energetic government? To that government you have nothing to oppose. All your defence is given up.”
He was still a powerful orator. Madison made a better case but Henry beat him anyway.
If the B.O.R. had required that just 1% of the federal justices be impeached and removed every 4 years the Constutuion would still be in force...
No one imagined the courts would one day openly proclaim that they ruled by a ‘living’ constitution.
Bills of Rights alone are ineffective, as Madison wrote and our history since the 17th Amendment proved.
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