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What you might not know about the Bill of Rights

Today is Bill of Rights Day.

Today is Bill of Rights Day. Seriously, it is, declared so by President Obama and similarly proclaimed on every Dec. 15 by every president since FDR first did so in 1941.

Now the bad news: You don’t get the day off. But let’s have some fun with it on the slim possibility that, like me, you consider constitutional history fun. Here goes:

We think of the U.S. Constitution as about rights, but mostly it isn’t. It is about the powers of the federal government that the framers created, and it is a fundamental rulebook for the operation of that government.

The 55 (or so, they kept coming and going from Philadelphia during the Constitutional Convention summer of 1787) white men who drafted the Constitution didn’t write the Bill of Rights (hereafter “BR”). And most of them opposed including any such section in their document.

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On Sept. 12, 1787, the Constitution was basically drafted and the framers were considering small, last-minute changes, when Virginia delegate George Mason, himself the chief author of the BR of Virginia, gained the floor and argued that “it would give great quiet to the people” if the Constitution was prefaced with a BR.

George Mason
University of Chicago Library
George Mason

According to the best records of the debate that day, only one other framer (Elbridge Gerry of Mass.) agreed. The motion was voted down 10 states to 0. (Mason and Gerry couldn’t deliver their own state delegations for the proposition. Just 10 of the 13 states were present and voting at the time.) Mason and Gerry, at least partly over this issue, decided not to sign the BR-less Constitution. (Mason, according to James Madison’s notes, said he would “rather chop off his right hand” than sign the document without a BR.)

Why did the framers reject Mason’s idea? One likely reason is very human. It came up too late. They were tired, preparing to go home, sick of Philly where they had been for 16 weeks. The Mason project would certainly have required they postpone adjournment for some considerable time.

A second reason gets to the often-overlooked essence of what had happened during those weeks. The framers were (small f) federalists. They favored a strong national government, much stronger than the weak one that preceded the Constitution (the one delineated by the Articles of Confederation). The real states-righters had either boycotted the convention (as Patrick Henry had done) or left early in protest (as the New York delegates, other than Alexander Hamilton, had done) when they realized that the convention was dominated by big-government federalists.

Of those who stayed to the end, plenty of evidence indicates that many of them — especially “Father of the Constitution” Madison, and Hamilton, who was the most radical federalist — would like to have gone further. They knew that a stronger government would make the population nervous and might wreck their chances of getting their draft ratified. So they had held back and put together the strongest federal scheme that they thought could get ratified. In that frame of mind, adding a long section specifying all the powers that the national government didn’t have was an unappealing prospect.

Jefferson weighs in
But the decision not to include a BR caused trouble almost immediately, starting with the reaction of Thomas Jefferson. Polls often indicate that most Americans think Jefferson was the chief author of the Constitution. In fact, he was in France (as U.S. ambassador) all that summer, receiving updates by snail mail from his friend and protégé Madison.

As soon as the Constitutional draft was finalized, Madison sent Jefferson a copy for his reaction. Jefferson’s  biggest objection — described in a letter back to Madison — was “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, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws and trials by jury.”

In my own Bicentennial book on the Constitution, (from which this piece borrows shamelessly) I wrote that that passage is so strong and clear an advocacy for a Bill of Rights that it almost makes a case for Jefferson, in absentia, as the father of the BR.

But George Mason — whose role was direct and more public than Jefferson’s — might have the stronger claim to that title. Soon after the convention adjourned and the draft — without Mason’s signature — began to circulate, Mason published an essay complaining that the draft contained “no Declaration of Rights, and the laws of the general [federal] government being paramount to the laws and constitutions of the several States, the Declarations of Rights in the states are no security.”

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‘Conditional’ ratification
The absence of a Bill of Rights became the paramount argument used against the Constitution during the long campaign for ratification. Patrick Henry (yes, the “give me liberty or give me death” Virginian of 1775) took up the Mason argument and put it more colorfully as he argued against ratification.

The truth is, Mason was truly concerned about what might happen to civil liberties without a BR. Patrick Henry had far more fundamental objections to the Constitution (for example, he did not believe that the federal government should have direct taxing power — as the Confederation government did not). But Henry recognized that the threat of a tyrannical national government, running roughshod over fundamental liberties of religion, speech and press, made the best argument with which to alarm 1788 America about the proposed new charter.

Henry, the preeminent Virginia politician/tactician of the time, conceived a strategy to defeat the draft without directly calling for “no” votes. (After all, George Washington himself, the greatest man of the time, had chaired the Philadelphia convention and associated his enormous prestige with the project.)

So Henry asked his allies to seek a vote that would ratify the Constitution conditionally. The “condition” was the Constitution couldn’t take effect until it was amended to correct its flaws. The anti-federalists in each convention drafted their own list of changes that had to occur before their “ratification” could take effect.

The pro-ratification forces immediately realized that a conditional ratification was no ratification at all. Unless at least nine states ratified unconditionally (see Article VII), the first congressional and presidential elections could not be held and the new government could not begin operations and a new convention would have to be called to deal with changes to satisfy the “conditional” ratifications. Patrick Henry, who had been chosen as a Virginia delegate to the convention but had stayed away, saying he “smelt a rat,” would plan to attend the second convention seeking bigger changes than those represented by the BR.

The Federalist Papers
Madison and Hamilton led the ratification campaign and used the pseudonymous essays that became known as the “Federalist Papers” to advocate for ratification and to answer objections that were raised against the draft.

In Federalist #84, the second-to-last of the long series, Hamilton took head on the argument over the missing Bill of Rights, arguing that such an explicit list of powers that the government did not have — the power to censor the press or impose a religion, etc. — might actually backfire and render the federal government more powerful.

Without such amendments, Hamilton argued, it was clear that the new federal government had only those powers given to it by the Constitution itself and no others. If you added a list of powers that the national government didn’t have, it might create an implication that the government had all powers except for those that were explicitly reserved. For those of you haven’t read a Federalist Paper for a while, here’s a segment of Hamilton argument #84:

“Why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights.”

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That argument didn’t work. What did work was a campaign promise. Nothing was going to satisfy Patrick Henry, but Madison told the more moderate skeptics that if they would support ratification of the document as it stood, the very first Congress would assemble a list of the suggested changes that had been proposed and he would use the amendment process of Article V to refer amendments to the states enshrining the various explicit guarantees of rights.

It worked. The ratification votes in Virginia and New York were extremely close (Virginia 89-79; New York 30-27) but the Constitution squeaked through and took effect as written.

Henry’s revenge
Madison had planned to go to Congress and there fulfill his promise. But Patrick Henry was the political boss of Virginia and the senators would be chosen by the Legislature. Henry arranged for Virginia to send two anti-federalists to the first Senate.

That forced Madison to run for popular election (a prospect he found most distasteful) to the House. And, not done torturing Madison, Henry arranged to put Madison’s home county into a district with several anti-federalist strongholds. But Madison, who had written to a friend that he hoped he could avoid doing anything that would have a whiff of “electioneering, which I despise,” had to campaign hard, including writing a letter to a local minister, intended for publication, expressing his strong support for an amendment to the Constitution guaranteeing freedom of religion.

Madison won his seat and became the leading member of the first House of Representatives. And — in compliance with the promise he had made in so many ways (and notwithstanding the many arguments he had previously made against the necessity of a Bill of Rights) — just one month into the life of the first Congress, Madison rose to ask the House to consider a set of constitutional amendments securing basic liberties.

Madison proposed, and pushed through the House, 13 amendments. The Senate killed one of them (interestingly, it would have required the states to respect freedom of religion and expression; Madison argued that it was the most important one on the list). The other 12 were referred to the states for consideration. Patrick Henry opposed ratification, calling the amendments “guileful,” and saying they were designed to do no more than “lull suspicion.” And they did lull suspicion. Although the Virginia antifederalists were able to stall the process for two more years, they eventually ratified and 10 of the amendments took effect on this date in 1791, which makes today the 220th anniversary.

What we call the First Amendment was really  No. 3
If you were paying close attention, you noted in that last paragraph that, after the Senate killed one of Madison’s original 13 amendments, 12 were referred to the states. But the Bill of Rights consists of the first 10 amendments to the Constitution. Two others failed of ratification, at least for a couple of centuries, and they were the first two on the list as referred to the states.

The long lost First Amendment (you’ll find the text, under “Article the first” on this link) is a mind-numbingly boring provision attempting to regulate how many members of the House there would be and how much population per district until certain thresholds are reached after which different numbers apply.

The long lost Second Amendment was simpler. Congress could not pass a pay raise for its own members that would take effect until after the next election. And that one has a fairly amazing (and very touching) history of its own that you may have missed unless you pay very close attention to the news.

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Nowadays, most amendments are drafted with a provision requiring that they be ratified within a fixed time period, after which they go away. But Madison and the boys hadn’t thought about that and referred the first 12 amendments without such time limits. The original Amendment Two, for some reason that I do not know, failed to get enough ratifications in 1789-91, but stayed very slightly alive for 210 years. (Of course, the number of states required to ratify an amendment kept going up.) Very, very occasionally, especially when Congress voted itself a pay increase, someone would stumble upon it and it actually picked up two ratifications, one 80 years after it was proposed and one almost 100 years after that (Wyoming in 1978). But it still never expired. Then, quoting from a footnote to the online annotated Constitution: “

“In the early 1980’s, Gregory Watson, an aide to a Texas legislator, took up the proposed amendment’s cause. From 1983 to 1992, the requisite number of states ratified the amendment, and it was declared ratified on May 7, 1992”  74,003 days after it was first referred to the states.

It is now the 27th and both the oldest and the most recent amendment to the U.S. Constitution. Happy Bill of Rights Day.

The text of the Bill of Rights is here.