Madison's
Speech, June 8, 1789
Introduction
by Devin Bent
(devin@bents.net)
At the Constitutional Convention, James Madison
had not believed that a bill of rights was required for the new
government. However, during the ratification process, several
states had called for a bill of rights, and Madison felt it was
his obligation, his duty, to propose one. Madison also clearly
felt a need to control the amendment process by taking leadership
of the effort. New York, when it ratified the Constitution, had
called for another constitutional convention, which was now clearly
provided for in the Constitution. By drafting a Bill of Rights,
Madison headed off that possibility. He stated quite openly:
"I should be unwilling to see a door opened
for a re-consideration of the whole structure of the government,
for a re-consideration of the principles and the substance of
the powers given; because I doubt, if such a door was opened,
if we should be very likely to stop at that point which would
be safe to the government itself. . ." (see Madison's
Speech)
It is clear that Madison truly thought that a
bill of rights was not necessary except to mollify those who thought
it was required, to preclude another constitutional convention
and to encourage the final two states to ratify the Constitution
(see
Speech). In later years, his letters revealed no
great pride of authorship. In a letter of 1821 he referred to
"those safe, if not necessary, and those politic, if not
obligatory, amendments." In his speech to Congress the best
he could say of a bill of rights was that it was "neither
improper nor absolutely useless." (see
Speech) This is, certainly, faint praise.
One the other hand, Madison was enough of a politician
to appreciate the usefulness of an appeal to the Bill of Rights.
Less than a decade later, he specifically refers to the 1st and
10th amendments in the Virginia
Resolutions protesting the Alien and Sedition Acts.
While proposing the amendments, Madison reviewed
many of the arguments that had been raised for and against a bill
of rights. The speech is in that respect a very good recapitulation
of the arguments.
There are certain things to note in Madison's
speech. He proposed that the actually body of the Constitution
be revised by insertion, deletion or revision of articles and
clauses. In practice, however, amendments are listed at the end
of the Constitution and footnotes (or now links) note what portions
of the body have been amended. If Madison had had his way, most
of what we now know as the Bill of Rights would be inserted into
the first article of the Constitution following the prohibition
on bills of attainder. It is important to note that Madison does
not seem to using the same numbering of articles of the Constitution
that we use today. When he references the third article (judiciary)
or the fifth article (amendment process), his numbering is consistent
with ours. However, when he refers to the 2nd article it seems
very clear that he means what we today would call the the first
article. In an attempt to clarify matters we have added the appropriate
article number in parenthesis whenever Madison seems to be using
a different system.
Several of Madison's proposals were never approved
by Congress. His very first suggestion (see
Speech), a prefix to the Constitution did not secure
approval by Congress. Today, many would argue that the substance
of the Madison's proposed prefix is inherent in the Constitution
and not necessary (which, of course, is exactly what Madison believed).
In what was to become the second amendment, the
right to bear arms, Madison proposed a recognition of the rights
of what we would call conscientious objectors: "no person
religiously scrupulous of bearing arms, shall be compelled to
render military service in person." (see
Speech) Today, we recognize the rights of conscientious
objectors, but they have not received the explicit Constitutional
protection that Madison desired.
Madison also proposed three restrictions on the
states: "No state shall violate the equal rights of conscience,
or the freedom of the press, or the trial by jury in criminal
cases." (see
Speech) It is interesting to speculate that Madison
may have considered these three the most critical rights. These
restrictions were not approved by Congress, and thus the Bill
of Rights in its original intent was to restrict only the federal
government. Eventually more extensive restrictions were imposed
on the states by the 14th amendment and its interpretation by
the Supreme Court (see Amendment
XIV).
Madison also proposed an explicit statement recognizing
the separation of powers, although not using that phrase (see
Speech). This statement was not included in the Bill
of Rights, and to this day the Constitution has no explicit mention
of the separation of powers. Nonetheless, the separation of powers
is held by all to be implicit in the Constitution, an interpretation
butressed by Madison's discussions in the Federalist Papers.
At Madison's prompting, Congress proposed twelve
amendments, which they called "articles," in 1789. Articles
three through twelve were ratified by three-fourths of the states
by 1791 and became amendments one through ten or the Bill
of Rights. The first two articles, however, met a
different fate.
Madison's proposal concerning the apportionment
of the House of Representatives was the first of the twelve articles
proposed by Congress to the states, but was never ratified by
the requisite three-fourths of the states. It reads as follows:
"Article the first: After the first enumeration
required by the first article of the Constitution, there shall
be one Representative for every thirty thousand, until the number
shall amount to one hundred, after which the proportion shall
be so regulated by Congress, that there shall be not less than
one hundred Representatives, nor less than one Representative
for every forty thousand persons, until the number of Representatives
shall amount to two hundred; after which the proportion shall
be so regulated by Congress, that there shall not be less than
two hundred Representatives, nor more than one Representative
for every fifty thousand persons.''
The sense of the amendment is to forbid Congress
from reducing the number of Representatives. Now that the House
has 435 Representatives, there seems to be little need for the
amendment.
An article forbidding an increase in Congressional
pay until an election had intervened was the second of the twelve
approved by Congress (see
Speech). However, it was not ratified with the other
amendments and thus is not in the Bill of Rights. Forty years
later, a disappointed Madison, writing his "Autobiography"
in the third person (see Sources),
still lamented the failure of this amendment:
"He highly disapproved of public bodies
raising the wages of themselves, and declined receiving the
additions made by the Legislature of Virginia to the wages of
member whilst he was one. In this he was not singular. He was
much surprised and disappointed at the incompleting of the Ratification
of the prohibitory article proposed to the Constitution of the
U.S. . ."
In 1992, after another 160 years, the article
was finally ratified by three fourths of the states: it became
the 27th
amendment more than 200 years after it was approved
by Congress.
Nonetheless, most of Madison's proposals were
adopted either in substance or in totality. Links are provided
between Madison's proposed changes and the Constitutional amendments
which embody these changes. There is, in fact, very little in
the Bill of Rights that is not included in Madison's proposal.
There is also very little in Madison's proposal that was not itself
included in earlier documents. As an extreme example we can compare
Section 9 of the Virginia
Declaration of Rights with the corresponding proposal
of Madison
and with the eighth amendment of the Bill
of Rights.
The Virginia Declaration of Rights was adopted
in 1776 with primary credit given to George Mason. While Madison's
"shall not be" is more elegant and more forceful than
Mason's "ought not to be," the similarities outweigh
the differences. However, great originality is not a virtue in
politics. The tried and true stated well is reassuring. What Madison
was to say years later about Jefferson and the Declaration could
easily be adapted to Madison and the Bill of Rights:
"Nothing can be more absurd than the cavil
that the Declaration contains known and not new truths. The
object was to assert, not to discover truths, and to make them
the basis of the Revolutionary act. The merit of the Declaration,
therefore, could only consist in a lucid communication of human
rights, in a condensed enumeration of the reasons for such an
exercise of them, and in a style and tone appropriate to the
great occasion, and to the spirit of the American people."
Letter to Thomas Jefferson, September 6, 1823.
