Without Him, No Bill of Rights

James Madison is being subjected to some very hard knocks at the hands of historians these days. Not only has he been pictured as a lifelong apologist for slavery, but he has even been replaced as “the Father of the Constitution” by none other than John Rutledge of South Carolina.¹ Much of the general public might not notice these criticisms, especially since most Americans over the past two centuries have not celebrated Madison as much as they ought to have. He has no temple erected to him on the Mall, and only recently did he have a building that is part of the Library of Congress named after him. While Monticello, the home of his friend and older colleague Thomas Jefferson, has been restored to Jeffersonian perfection and for decades has been a shrine visited by tens of thousands of people every year, Madison’s home, Montpelier, is only now being restored to the condition it was in when Madison lived there. To the public he has always seemed smaller than Jefferson in every way. Not only was he merely five feet six or so to Jefferson’s six two or six three, but he never seems to have escaped from Jefferson’s shadow. In their great collaboration throughout their lives he was at all times the subordinate sidekick, ready “always,” as he told Jefferson in 1794, to “receive your commands with pleasure.”

So it is a welcome relief to have Richard Labunski’s book, which puts Madison very much back at the center of the founding era. Labunski believes “that no other person in the nation’s history did so much for which he is appreciated so little.” Of course, over the past half-century scholars have not entirely neglected Madison. They have praised him for his originality, his imagination, and his concrete contributions to the constitutionalism of the founding era. Not only was he a passionate promoter of religious liberty, steering Jefferson’s famous bill for religious freedom through the Virginia legislature in 1785–1786, but no one did more to bring about the Philadelphia Convention that created the Constitution. He was both the author of the Virginia plan that served as the working model for the Convention and the indefatigable note-taker of the debates in the Convention; without his notes we would know very little of what went on in that summer of 1787.

Because the final Constitution deviated from his Virginia plan in fundamental ways (by eliminating the power of Congress to veto all state legislation and doing away with proportional representation in the Senate), Madison initially thought it would be a failure. Consequently, he always denied that he was its “father”; it was, he contended throughout his life, “the work of many heads and many hands.”

Madison was born in 1751 into the class of Virginia slaveholding planters who dominated their society as few aristocracies have. Although his father was the richest landowner in Orange County, Virginia, he was not far removed from the raw frontier, and young Madison, like most of the founders, became the first of his family to attend college. In Madison’s case it was the College of New Jersey (later Princeton), where he was introduced, through the Scottish-born president John Witherspoon, to the enlightened ideas of eighteenth-century Scottish thinkers such as Francis Hutcheson, Adam Smith, and David Hume. In college he revealed an intellectual intensity and earnestness that he never lost. He even stayed on an extra year to study Hebrew and become one of Princeton’s first graduate students. His father’s plantation wealth enabled Madison, who complained endlessly of his poor health, to return home to study and contemplate what he might do with his life. In today’s world he would probably have become a college professor.

But in 1776 the idealistic twenty-five-year-old Madison became caught up in the revolutionary movement. He took the republicanism of the Revolution so seriously that in 1777 he decided, in seeking a seat in the state assembly, that he would introduce a “more chaste mode of conducting elections in Virginia” by refraining from personal soliciting and the treating of voters to food and drink. No matter that doling out liquor to the voters had been part of Virginia’s electoral practices for decades. Madison believed that the corrupting influence of liquor was “inconsistent with the purity of moral and republican principles.” His opponent, a former tavern-keeper, had no such scruples and won the election to the Virginia assembly. It was the only popular election Madison ever lost.

If Madison is not actually the “father of the Constitution,” he was certainly the “father” of the Bill of Rights, which is what the first ten amendments to the Constitution were called. With Labunski’s book we now have a very readable and reliable narrative of how Madison gave birth to the Bill of Rights. Labunski has not written an analytical work. He does not probe Madison’s notion of rights in the penetrating way the historian Jack N. Rakove has done² ; nor does he compare the federal Bill of Rights with the English Bill of Rights of 1689 or with the declarations of rights in the revolutionary state constitutions of 1776. He simply tells the story of the creation of the federal Bill of Rights.

Although other historians have told this story before, no one has emphasized the contingency and unpredictability of the process as much as Labunski has. Because historians write history looking backward, sometimes over centuries, they often tend to assume that what happened had to have happened the way it did. Consequently, they tend to ignore that people had to choose among different possible actions, just as we do in the present, and that the choices they made had serious consequences for the future. Although people in the past had to work under all sorts of constraints, both physical and cultural, and were not as free as we sometimes would like them to have been, nevertheless it is often healthy to be reminded of the uncertainty and lack of inevitability in the way many events in the past took place.

At the beginning of the nation’s history, Labunski says, “the presence of a few individuals like Madison or Washington at certain places and times could be crucial to the course of events.” Washington certainly seems indispensable, and in the case of the Bill of Rights Labunski makes a convincing case for Madison as well.

Labunski, who is a professor in the School of Journalism and the School of Telecommunications at the University of Kentucky, begins with the Philadelphia Convention, which decided not to add a bill of rights to the Constitution. In the final days of the convention, George Mason, the much-respected author of Virginia’s 1776 declaration of rights, proposed that the Constitution be prefaced with a bill of rights. With the delegates voting by state, Mason’s proposal was unanimously rejected. After nearly four months of wrangling and delicate compromising most delegates were tired and did not want to open up debate on a new subject all over again.

More important, most of the delegates, including Madison, thought that since the new national government was one of limited powers, a bill of rights was not needed in the federal Constitution. Although several of the state constitutions drafted in 1776 had included bills of rights, they were different, declared the Federalists, which was the name the defenders of the Constitution assumed. Because the people in 1776 had invested all their power in their state governments, the people had needed bills of rights to protect them from that invested power. But because the new federal government was given only specifically delegated powers, it could not do what it was not entrusted to do. As Alexander Hamilton wrote in Federalist No. 84, “Why declare things shall not be done, which there is no power to do?”

Madison shared the view that the delegated nature of the federal government’s powers rendered a bill of rights unnecessary, but he also believed that listing some rights might imply that those not listed did not exist. Besides, he explained in a thoughtful letter to Jefferson on October 17, 1787, the various bills of rights of the states had been mere “parchment barriers” that had not stopped state legislatures from violating individual rights. Bills of rights made sense in England where the crown was the threat to the people’s rights. But in America where the majority rules, “the invasion of private rights,” he said,

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 other words, the people themselves were the violators of their own rights—a predicament that few patriots in 1776 had anticipated.

As profound as Madison’s reasoning was, it could not persuade Jefferson or many other Americans. The absence of a bill of rights in the Constitution, Labunski correctly claims, became “its most conspicuous flaw, and one that supporters would be unable to successfully defend.” In nearly all of the state ratifying conventions the lack of a bill of rights became the principal source of opposition to the Constitution.

At first Madison did not appreciate the degree of opposition to the Constitution in his own state of Virginia. Following the adjournment of the Philadelphia Convention he had gone on to attend the Congress of the lame-duck Confederation in New York where he began helping Hamilton write the essays of The Federalist designed to persuade New Yorkers to ratify the Constitution. Soon, however, he came to realize that ratification in Virginia might be as difficult as it would be in New York. Although friends urged him to return and become a candidate for the Virginia ratifying convention, he hesitated. Initially, he thought it would be improper for members of the Philadelphia Convention to participate in the ratifying conventions; but when he learned that others had no such qualms, he changed his mind and reluctantly agreed to have his name entered as a candidate. But he hated electioneering and thought he could stand for election without actually leaving New York and going back to appear before the Virginia voters.

Frantic Federalists convinced him otherwise, and he finally returned to Virginia, arriving on March 23, 1788, one day before the election to the convention that was to meet in June. On election day, standing before the Orange County voters outdoors in the cold, he gave a nearly two-hour speech that, says Labunski, “almost certainly meant the difference between victory and defeat.” Madison himself agreed that if he had not shown up for the election, he would likely have lost it. That one of the opponents he defeated was the former tavern-keeper who had beaten him in the election to the assembly in 1777 must have, Labunski suggests, given him special satisfaction.

The consequence of Madison’s not being elected would have been serious. Without his participation in the ratifying convention, Virginia may very well have failed to accept the Constitution. Only Madison was able to stand up to the dazzling eloquence of Patrick Henry, who emerged as the powerful leader of the Virginia Anti-Federalists, as the opponents of the Constitution were called. Not that Madison was an impressive speaker. He had a thin and frail voice compared to Henry’s, but his penetrating and logical mind made up for any weaknesses in his style of speaking. Through three weeks of debates, which were the first ever recorded in Virginia’s history, Madison carried the burden of the Federalist cause. Dressed, as he habitually did, entirely in black, Madison repeatedly rose to answer the speeches of Henry and the other opponents of the Constitution. Despite suffering from what he called a “bilious indisposition” (which was chronic stomach discomfort and diarrhea), he presented what one delegate referred to as his “plain, ingenious, & elegant reasoning” in contrast to the emotional and demagogic rhetoric of Patrick Henry. The debate in the Virginia convention was extraordinary—“the most thorough discussion,” Labunski writes, “of the proposed plan of any of the ratifying conventions.”

The stakes were very high. North Carolina and Rhode Island did not ratify the Constitution, but being less significant states their absence from the Union did not much matter. But if Virginia had failed to ratify the Constitution, the Union could not have sustained itself. Henry was not exaggerating when he told the convention that Virginia was “the most mighty State in the Union…. Does not Virginia,” he asked, “surpass every State in the Union, in number of inhabitants, extent of territory, felicity of position, and affluence and wealth?”

Henry and the other Anti-Federalists wanted the Constitution defeated and a second convention called. But if that were not possible, they at least wanted ratification on condition that certain amendments be adopted; indeed the Anti-Federalists in the convention had come up with no fewer than forty such amendments. For his part Madison feared that conditional ratification would be tantamount to a defeat of the Constitution and would thus throw the Union into chaos. He therefore argued strenuously against adding any amendments to the Constitution. Suddenly, Henry declared that the distinguished Virginian (and Madison’s friend) Thomas Jefferson, who was serving as American minister in Paris, very much wanted a bill of rights added to the Constitution.

Madison was embarrassed by the revelation of his friend’s opinion on the need for a bill of rights. He knew Jefferson’s opinion, of course, but he hadn’t known that Jefferson had told others what he thought. Jefferson seems to have supported the addition of a bill of rights to the federal Constitution not because he had thought through the issue the way Madison had, but largely because a bill of rights was what good governments were supposed to have. All his liberal aristocratic French friends said so; indeed, as he repeatedly said,

The enlightened part of Europe have given us the greatest credit for inventing this instrument of security for the rights of the people, and have been not a little surprised to see us so soon give it up.

One almost has the feeling that Jefferson was advocating a bill of rights out of embarrassment over what his liberal French associates would think.

Whatever the sources of Jefferson’s opinion, the revelation that he wanted a bill of rights increased the pressure on Madison and the other supporters of the Constitution. Finally, on June 25, 1788, the delegates in the Virginia convention voted, first on the motion to ratify the Constitution contingent upon amendments being added in accordance with Article V, which sets out the processes for amendment. This was defeated by a margin of eighty-eight to eighty. Then a final motion to ratify the Constitution, with amendments recommended but not required, was approved eighty-nine to seventy-nine. Among the amendments recommended, for example, were those that changed the structure of the government and prohibited the maintenance of a standing army in peacetime.

Having lost the vote over ratification, Patrick Henry became determined to undermine establishment of the new federal government, essentially by keeping Madison out of it. Controlling as he did the state’s assembly, Henry worked first to prevent Madison from being elected to the federal Senate, which was then done by the legislature; instead of Madison, the legislature selected two Anti-Federalists. Not satisfied with that, Henry engineered the gerrymandering of the electoral district that Madison would have to run in if he were to seek a seat in the new federal House of Representatives. Knowing from the votes in the ratifying convention which counties opposed the Constitution, Henry “assembled,” writes Labunski, “in the nation’s first congressional election—a district for the primary purpose of keeping one candidate, James Madison, out of office.” At the same time Henry arranged for Madison to be once again elected to the Confederation Congress in New York, which would govern until the new Congress could take over; this would conveniently remove Madison from Virginia during the crucial months leading up to the congressional election. And finally, he recruited a particularly strong candidate, the handsome war hero James Monroe, to run against Madison for a seat in the new House of Representatives.

When Madison returned from New York in late December 1788, only five weeks remained before the congressional election. In the campaign Monroe emphasized the need for a bill of rights and Madison realized he would have to change his public position on a bill of rights if he were to win the election. During the previous year he had slowly softened his views on a bill of rights, a process that Labunski never fully explains. By the fall of 1788 he was telling Jefferson, somewhat disingenuously, that his “own opinion has always been in favor of a bill of rights,” provided such a bill was correctly framed. Madison had come to recognize that even many of the Federalists now accepted the adding of amendments to the Constitution, as long as those amendments, as Madison put it, were “carried no farther than to supply additional guards for liberty, without abridging the sum of power transferred from the States to the general Government.”

Thus Labunski is correct in claiming that Madison’s support for a bill of rights in his campaign against Monroe in January 1789 was not simply a matter of political expediency. He had gradually changed his views and was now prepared to offer, Labunski writes, “what amounted to a campaign pledge that if he was elected, he would sponsor a bill of rights in the First Congress and work diligently toward its passage.” Although he hated soliciting votes and traveling, especially in the dead of winter, Madison nonetheless campaigned hard for five weeks throughout the district, giving speeches and writing dozens of letters. He won decisively, taking 57 percent of the vote.

On May 4, 1789, only a month after the First Congress assembled, Madison announced to the House that he would soon introduce amendments to the Constitution. Before making this announcement he had been busy preparing amendments and getting the Congress to think about them. He inserted into President Washington’s inaugural address a suggestion that the Congress consider using the amendment procedures to satisfy those who were unhappy with the Constitution without, however, endangering the structure of the government.

Madison was determined to see a bill of rights enacted. He sifted through the nearly two hundred suggested amendments made by the states, most of which suggested altering the powers and structure of the national government with respect to such matters as taxation, the regulation of elections, federal judicial authority, and the presidential term. Madison deliberately ignored these structural proposals and extracted from the lists of amendments mainly those concerned with personal rights that he thought no one could argue with. These included most of the ten amendments that were finally attached to the Constitution, such as freedom of speech and the press, the right of assembly, the right to be secure against unreasonable searches, and the right to a speedy trial.

On June 8, 1789, Madison proposed his nine amendments, most of which he believed could be inserted into Article I, Section 9, as prohibitions on the Congress. He also included one amendment to be inserted into Article I, Section 10, that actually prohibited the states, and not just the federal government, from violating rights of conscience, freedom of the press, and trial by jury in criminal cases. He considered this the “most valuable amendment on the whole list.” It was the only one of the proposed amendments that directly limited the authority of the states.

At first his Federalist colleagues in the House claimed that it was too early to bring up amendments, that the country ought to have some experience with the Constitution before changing it. Discussing amendments would take up too much time, especially since there were other more important issues like collecting revenue that the Congress ought to be considering. They ridiculed him in private; one called him “poor Madison,” who “got so Cursedly frightened in Virginia, that…he has dreamed of amendments ever since.” They told him he had done his duty and fulfilled his promise to his constituents by introducing the amendments, and now he ought to forget about them. But Madison wouldn’t forget about them, and he hounded his colleagues relentlessly. Madison assured them that the discussion of a bill of rights would not take too much time, maybe only a day; his proposals were so self-evident that no debate would grow out of them. He could not have been more wrong. The debate over a bill of rights went on throughout the summer of 1789.

In several elegant and well-crafted speeches Madison laid out the reasons why a bill of rights had now become important and should not be delayed. It would quiet the minds of the people uneasy about the new government and help to bring North Carolina and Rhode Island into the union. “It will,” he argued,

be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.

We have something to gain, he said, and nothing to lose. He answered all the doubts and all the arguments against a bill of rights, most of which were the doubts and arguments he himself had earlier voiced.

There is no question that it was Madison’s personal prestige and his dogged persistence that saw the amendments through the Congress. There might have been a federal Constitution without Madison but certainly no Bill of Rights. Madison did not get all he wanted and in the form he wanted. His colleagues in the House eliminated his preamble, revised some of his other amendments, and placed them at the end of the Constitution instead of incorporating them into the body of the Constitution as he had wished. The House then sent over seventeen amendments to the Senate, most of which in one form or another ended up in the final Bill of Rights. The upper house compressed these amendments into twelve, in the process eliminating Madison’s proposal to protect certain rights from the state legislatures, which he had considered the “most valuable” of all his amendments. Two of the twelve amendments—on apportionment of the House and on congressional salaries—were lost in the state ratification process. (Since the Congress had specified no time limit for ratification, the congressional salary amendment—providing that a change in salary can take effect only after an intervening election—was belatedly ratified as Amendment XXVII in 1992.) When all is said and done, the remaining ten amendments—the Bill of Rights—were Madison’s.

He pushed and prodded and persisted, and the amendments were debated, modified, reduced in number, but somehow finally passed. Sometime in the summer of 1789 sentiment began to shift. The Anti-Federalists in the Congress began to realize that Madison’s rights-based amendments undercut the desire for a second convention and thus actually worked against their cause of fundamentally altering the Constitution. The Anti-Federalist Aedanus Burke of South Carolina was among the first to declare openly that Madison’s proposals were “not those solid and substantial amendments which the people expect.” They were “little better than whip-syllabub, frothy and full of wind, formed only to please the palate.” Or, in an image borrowed from Jonathan Swift, Burke likened Madison’s amendments to a tub thrown to the whale to divert it in order to save the ship. The image was a common one for describing a diversionary tactic, and others, both Anti-Federalists and Federalists, found “a tub to the whale” an appropriate way of describing Madison’s bill of rights. Madison’s amendments, as opponents of the Constitution angrily proclaimed, were “good for nothing” and were “calculated merely to amuse, or rather to deceive.” They affected personal rights and liberties alone, they complained, and left taxation and the basic structure of the government as they were. Before long, the Federalists were expressing surprise that the Anti-Federalists had become such vigorous opponents of amendments, since amending the Constitution was originally an Anti-Federalist idea.

Under the circumstances the states ratified the first ten amendments slowly and without much enthusiasm. Only when Virginia finally approved the ten amendments in December 1791 was ratification by three quarters of the states fulfilled and the Bill of Rights made an official part of the Constitution.

The country then promptly forgot about the Bill of Rights until the twentieth century, when everything changed. In our own time the Bill of Rights has become even more important judicially than the Constitution itself. Although both Jefferson and Madison pointed out in passing that a bill of rights might place a “legal check… into the hands of the judiciary” that could be used to protect the people’s liberties against improper acts of the government, neither they nor anyone else at the time could have foreseen just how significant judicial review of possible violations of the Bill of Rights would become in the last half of the twentieth century. What some in 1789 called Madison’s “milk-and-water amendments” have now become potent indeed.