On June 8, 1789, Representative James Madison introduced the
Bill of Rights into the First Congress. Madison delivered what was
arguably the most important speech of his political career. It was a
masterpiece of rhetorical statesmanship. Madison attempted to
persuade those with whom he agreed that a Bill of Rights was not very necessary
to support it in order to save the Constitution and produce unity in the new
republic.
Madison had surprisingly opposed a Bill of Rights since it
was introduced during the Constitutional Convention by Virginian George Mason
and advocated by the Anti-Federalists throughout the ratification debate in the
states. During a long exchange with Thomas Jefferson, then in Paris,
Madison privately articulated his reasons for opposing a Bill of Rights.
Most of the Madison’s reasoning was based upon the fact that
he believed, along with James Wilson and Alexander Hamilton, that the Founders
had created a natural rights republic with enumerated powers in a written
constitution. The rights of mankind were built into the fabric of
human nature by God, and government had no powers to alienate an individual’s
rights. Moreover, leaving certain rights out or vaguely defining
them was a recipe for disaster since the government could then act with respect
to rights where it had no power according to the original compact.
Although he enumerated several reasons for his opposition,
Madison then gave his friend hope when he averred that most important reason in
favor of a Bill of Rights was that, “The political truths declared in that
solemn manner acquire by degrees the character of fundamental maxims of free
Government, and as they become incorporated with the National sentiment,
counteract the impulses of interest and passion.” Madison thought
the liberties would become engrained in the American character.
When he arose to give the speech on June 8, Madison faced
hostility from several Federalists who thought the House of Representatives had
more pressing business to attend to and seemed to ignore their promise of “subsequent
amendments” safeguarding liberties during the ratification debates. Madison
wanted to make sure that obligation was fulfilled because he knew that failing
to do sure would strengthen the Anti-Federalist push for a second Convention to
alter the Constitution and that it would stir up continuing opposition to the
new republic.
Madison began his speech by stating that a Bill of Rights
would prove to the Anti-Federalists that the Federalists were “as sincerely
devoted to liberty and a republican government.” In an act of
reconciliation and magnanimity, he reached out to the Anti-Federalists because,
“We ought not to disregard their inclination, but, on principles of amity and
moderation, conform to their wishes, and expressly declare the great rights of
mankind secured under this constitution.”
Madison then explained that the people had something to gain,
but nothing to lose from the protection of their sacred liberties. He
was concerned that if the Congress did not act, a second Constitutional
Convention would fundamentally alter the structure of government. He
wanted to avert this possibility at all costs. But he did “wish to
see a door opened to consider, so far as to incorporate those provisions for
the security of rights.”
Perhaps surprisingly to modern ears, the greatest danger
would not come from the executive or judicial branches but from the
legislative. In a republican form of government, the people are most
directly represented in the legislative branch which makes the laws. Therefore,
it is the most powerful branch where the greatest danger really comes from the “great
body of the people, operating by the majority against the minority.”
Madison then neatly summarizes the arguments of the
Federalist opponents of the Bill of Rights, admitting that “the arguments are
not entirely without foundation.” He agreed that the national
government had enumerated powers and could not act outside those powers to
violate liberties in addition to the fact that states already had bills of
rights. A Bill of Rights might also leave some rights out, thereby
rendering them insecure and subject to violation. “This is one of
the most plausible arguments I have ever heard urged against the admission of a
bill of rights,” he admits.
Although he thought that the state legislatures would guard
against encroachments by the national government and that the states were the “sure
guardians of the people’s liberty,” Madison had witnessed severe repression of
the rights of conscience and majority tyranny in Virginia and thought the
proposed Bill of Rights should apply to the states as well as the national
government. “It must be admitted,” he argued, “that the state
governments are as liable to attack these invaluable privileges as the general
government is, and therefore ought to be as cautiously guarded against.” The
members of Congress fought zealously against limitations upon the states and
Madison lost this battle. Until the Fourteenth Amendment “incorporated”
the Bill of Rights, it only applied to the national government.
Madison magnanimously completed his lengthy speech by
reaffirming the significance of considering amendments to the Constitution
protecting liberties and fulfilling the sacred pledges made during the
ratification debates. “If we can make the constitution better in the
opinion of those who are opposed to it, without weakening its frame, or
abridging its usefulness, in the judgment of those who are attached to it, we
act the part of wise and liberal men.”
This important speech was a model of statesmanship. It
sought to produce unity on constitutionalism in the new American republic by
reaching out to opponents and prudently deflecting calls for additional
constitutional conventions, which Madison thought would result in chaos. He
could have done what was politically expedient and deferred to those who wanted
to delay consideration of a Bill of Rights though Madison saw that the
Federalists probably meant never to take it up. They had won the
debate after all, and the Constitution was ratified. Madison would
not let them off the hook and held them to their pledge to safeguard the
traditional and natural rights of mankind in a free republic. He set
aside his own belief that the Bill of Rights was not wholly necessary and stood
firm for principle and the public good. That is why, amid the
commemorations of Memorial Day, D-Day, and Independence Day we should remember
the principles of June 8 for which those brave soldiers were fighting when
they gave their “last full measure of devotion.”
________________________
Tony Williams is the Program Director for the Washington,
Jefferson & Madison Institute. He is the author of four
books on the founding of America including America’s Beginnings: The
Dramatic Events that Shaped a Nation’s Character.
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