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United States Bill Of Rights

The United States Bill of Rights First page of an original copy of the twelve proposed articles of amendment, as passed by Congress and engrossed by William Lambert Created September 25, 1789 Ratified December 15, 1791 Location National Archives Author(s) 1st United States Congress, mainly James Madison Purpose To amend the Constitution of the United States

Preamble and Articles

Amendments to the Constitution

Unratified Amendments:

History

Full text

The United States Bill of Rights consists of the initial ten amendments appended to the foundational legal document of the nation, the United States Constitution. Its genesis lies in the fervent and often acrimonious public discourse that characterized the 1787–88 period concerning the ratification of the Constitution. Penned primarily to mollify the vocal objections raised by the Anti-Federalists, these amendments were not merely an afterthought but a critical concession. They serve to augment the original Constitution by explicitly guaranteeing a range of personal freedoms. These include, but are certainly not limited to, the fundamental freedom of speech, the right to publish, the liberty to practice religion without state interference, the controversial right to possess firearms, the right to assemble peacefully, and a host of other natural and legal rights deemed essential for a free populace.

Crucially, the Bill of Rights imposes clear and direct limitations on the federal government's authority, particularly within judicial and other governmental proceedings. It contains explicit declarations affirming that any powers not specifically enumerated and granted to the federal government by the Constitution are, by default, reserved to the individual states or, failing that, directly to the people. The philosophical underpinnings and legal concepts codified within these ten amendments are not entirely novel; they draw heavily from a lineage of earlier foundational documents. Chief among these influences are the Virginia Declaration of Rights (1776), a pioneering document asserting inherent human rights, the Northwest Ordinance (1787), which established precedents for individual liberties in new territories [1], the venerable English Bill of Rights (1689), a landmark in limiting monarchical power, and even the ancient Magna Carta (1215), which first sought to constrain the authority of a sovereign [2].

It was largely due to the persistent efforts of Representative James Madison that these amendments came to fruition. Madison, having meticulously analyzed the perceived deficiencies of the Constitution articulated by the Anti-Federalists, meticulously crafted a series of corrective proposals. On September 25, 1789, Congress gave its approval to twelve articles of amendment and subsequently forwarded them to the states for their ratification. Interestingly, Madison's initial vision involved integrating these proposed amendments directly into the existing body of the Constitution, weaving them into the relevant articles and sections. However, this structural approach was ultimately rejected in favor of presenting them as supplementary additions, or "codicils," to the original document [3]. Articles Three through Twelve of this proposed set were successfully ratified and formally incorporated into the Constitution on December 15, 1791, thereby becoming the revered Amendments One through Ten. Article Two, a provision concerning congressional compensation, embarked on a far longer journey, eventually becoming part of the Constitution on May 5, 1992, as the Twenty-seventh Amendment. As for Article One, which addressed the apportionment of representatives, it remains in a perpetual state of limbo, still technically pending before the states.

Initially, Madison's proposed amendments had included a clause designed to extend the protective umbrella of some Bill of Rights provisions to the states, not just the federal government. However, the amendments ultimately submitted for ratification were narrowly interpreted to apply solely to the federal sphere. The pathway for their subsequent application to state governments only truly opened in the 1860s, following the pivotal ratification of the Fourteenth Amendment. Since the early 20th century, both federal and state courts have consistently utilized the Fourteenth Amendment to progressively apply various portions of the Bill of Rights to the actions of state and local governments. This crucial judicial and legal evolution is formally recognized as the process of incorporation [4].

It's worth noting that James Madison initially harbored a strong opposition to the very concept of creating a bill of rights. His primary objections, rather logical for a pragmatic statesman, stemmed from two core arguments:

  • Firstly, Madison contended that the Constitution itself did not grant the federal government the authority to infringe upon the rights of the populace. The powers explicitly delegated to the federal government were, in his view, "few and defined," meticulously enumerated in Article I, Section 8 of the Constitution. Therefore, by logical extension, any powers not specifically listed were understood to reside with the individual states or, indeed, with the people themselves [5] [6] [7]. To him, a bill of rights was redundant, a solution to a problem that didn't exist within the constitutional framework.
  • Secondly, and perhaps more profoundly, Madison feared that the act of creating an explicit list of people's rights would be inherently counterproductive. Such a list, he argued, would inevitably imply that any right not included on that list was, by omission, not protected. Madison and many other Framers firmly believed in the existence of natural rights, which they considered too numerous and expansive to be exhaustively itemized. To attempt such an enumeration would, paradoxically, risk limiting the very freedoms they sought to secure [8] [9].

However, the vociferous opponents of the Constitution's ratification, the Anti-Federalists, steadfastly insisted on the absence of a bill of rights as a critical flaw. To ensure the Constitution's ultimate ratification, Madison, ever the pragmatist, reluctantly agreed to champion the addition of such a document, even taking on the formidable task of authoring it himself. He ingeniously addressed his second concern—the potential for an incomplete list to be interpreted as exhaustive—by incorporating the 9th Amendment. This crucial amendment explicitly states that the enumeration of certain rights within the Bill of Rights should not be construed to deny or disparage other rights retained by the people, thus acknowledging the vast expanse of unenumerated liberties [10].

Today, several original engrossed copies of the Bill of Rights persist. One of the most significant of these is permanently exhibited to the public at the National Archives in Washington, D.C., a silent testament to the enduring principles it enshrines.

Background

Philadelphia Convention

Main article: Constitutional Convention (United States)

It's a rather tiresome truth that political systems, much like human intentions, often fall short of their lofty ideals. Prior to the hard-won ratification and subsequent implementation of the United States Constitution, the thirteen ostensibly sovereign states were bound (or rather, loosely shackled) by the Articles of Confederation. This initial attempt at a national framework, painstakingly crafted by the Second Continental Congress and finally ratified in 1781, proved to be a rather anemic endeavor. The national government it established was demonstrably too weak, a mere suggestion of authority, utterly incapable of effectively mediating the frequent and often bitter conflicts that inevitably arose between the states [11]. The Philadelphia Convention, therefore, was convened not merely out of academic interest, but from a pressing necessity to rectify the glaring weaknesses of the Articles—deficiencies that had become painfully evident even before the American Revolutionary War had fully concluded [11].

The convention itself was a protracted affair, spanning from May 14 to September 17, 1787, held within the sweltering confines of Philadelphia, Pennsylvania. While its stated purpose was a modest "revision" of the Articles, the true, less advertised, intention of many of its most influential proponents—chief among them the astute James Madison of Virginia and the sharp-witted Alexander Hamilton of New York—was far more ambitious: nothing less than the wholesale creation of an entirely new governmental structure. This, of course, presented itself as a more efficient solution than attempting to patch up the existing, crumbling edifice. The delegates gathered in the historic Pennsylvania State House, and, with a unanimous vote that perhaps belied underlying anxieties, George Washington of Virginia was elected to preside over the proceedings [12]. The fifty-five delegates who ultimately bore the responsibility for drafting the Constitution are now famously revered as the Founding Fathers of the nascent nation. Thomas Jefferson, serving as Minister to France during this critical period, famously—and perhaps with a touch of diplomatic hyperbole—characterized the assembled delegates as an gathering of "demi-gods" [11]. Notably, Rhode Island, with its persistent independent streak, chose to boycott the convention entirely, a decision that speaks volumes about the fragmented loyalties of the era [13].

As the convention neared its conclusion, on September 12, a rather crucial suggestion was put forth by George Mason of Virginia: the addition of a Bill of Rights to the proposed Constitution, drawing inspiration from existing state declarations of rights. Elbridge Gerry of Massachusetts promptly formalized this into a motion [14]. However, after a regrettably brief discussion—during which Roger Sherman rather dismissively pointed out that existing State Bills of Rights would not, in fact, be rendered null by the new Constitution [15] [16]—the motion was overwhelmingly defeated by a unanimous vote of the state delegations. Madison, surprisingly, was then an opponent of such a Bill of Rights, later rationalizing the vote by characterizing the state bills of rights as mere "parchment barriers," offering little more than an illusory defense against potential tyranny [17]. Another influential delegate, James Wilson of Pennsylvania, articulated a concern that the very act of enumerating the rights of the people could be perilous. His argument, later echoed by Hamilton in the now-famous Federalist No. 84, was that such an enumeration would inevitably imply that any rights not explicitly mentioned simply did not exist [17] [18]. A rather convenient argument, one might observe, for those disinclined to list them.

Given that Mason and Gerry had, by this point, emerged as prominent opponents of the proposed new Constitution, their motion—introduced a mere five days before the convention's scheduled end—may have been perceived by other delegates as a cynical delaying tactic, rather than a genuine attempt at substantive improvement [19]. Regardless of their true intentions, the swift and decisive rejection of this motion proved to be a significant misstep, one that would later jeopardize the entire ratification process. Author David O. Stewart aptly describes the omission of a Bill of Rights from the original Constitution as "a political blunder of the first magnitude" [19], while historian Jack N. Rakove critically labels it as "the one serious miscalculation the framers made as they looked ahead to the struggle over ratification" [20]. One might argue that assuming a populace will simply trust its government, regardless of explicit guarantees, is always a blunder of the first magnitude.

Ultimately, thirty-nine delegates affixed their signatures to the finalized Constitution. Thirteen delegates, perhaps sensing the impending political storm or simply having other engagements, departed before its completion. Three who remained until the very end, however, staunchly refused to sign: Mason, Gerry, and Edmund Randolph of Virginia [21]. Following this, the completed Constitution was formally presented to the Articles of Confederation Congress with the request that it then be submitted to specially convened conventions of delegates, chosen by the people in each state, for their assent and ultimate ratification [22].

Anti-Federalists

On June 5, 1788, Patrick Henry spoke before Virginia's ratification convention in opposition to the Constitution.

In the wake of the Philadelphia Convention, a number of influential revolutionary figures, including the fiery Patrick Henry, the shrewd Samuel Adams, and the eloquent Richard Henry Lee, publicly voiced their strong opposition to the newly proposed framework of government. This stance became known as "Anti-Federalism" [23]. Elbridge Gerry, whose earlier attempt to introduce a bill of rights had been rebuffed, penned one of the most widely disseminated Anti-Federalist pamphlets, "Hon. Mr. Gerry's Objections," which saw an astonishing forty-six printings. This essay, in particular, honed in on the glaring absence of a bill of rights within the proposed Constitution [24]. A pervasive concern among the Anti-Federalists was the perceived threat that a powerful, centralized national government would pose to individual rights. There was a palpable fear that the newly empowered President might, over time, accrue unchecked authority and effectively become a monarch, mirroring the very tyranny they had so recently fought to overthrow. Thomas Jefferson, from his diplomatic post in France, succinctly encapsulated a pragmatic argument in a letter to Madison, advocating for a Bill of Rights: "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can" [25].

The pseudonymous Anti-Federalist writer "Brutus" (widely believed to be Robert Yates) [26] articulated a particularly incisive critique, observing:

We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion—that no bill of attainder, or ex post facto law, shall be passed—that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution [27].

He further pressed his point with this stark observation:

  • Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage [28].

Brutus, like many Anti-Federalists, understood that even without explicit grants of power, governments tend to accrue it through interpretation. Their concern was that without explicit prohibitions, the "general powers" could be stretched to justify abuses, rendering the few explicitly stated protections in the original Constitution—like the prohibition on ex post facto laws or bills of attainder—meaningless if the power to infringe other rights was simply implied. It was a prescient fear, one that continues to echo in constitutional debates today.

Federalists

The proponents of the Constitution, known as Federalists, initially resisted the inclusion of a bill of rights for a considerable portion of the ratification period. Their opposition was rooted, in part, in the practical procedural complexities and uncertainties such a late addition would introduce [29]. James Madison, for instance, argued against its necessity, suggesting in No. 46 of The Federalist Papers—a seminal collection of essays championing the Federalist stance—that state governments provided sufficient safeguards for personal liberty [30].

Alexander Hamilton, in the equally influential Federalist No. 84, went further, asserting that "the constitution is itself in every rational sense, and to every useful purpose, a bill of rights." His argument rested on the premise that the American people, in ratifying the Constitution, were not surrendering their inherent rights, thereby rendering explicit protections redundant: "Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations." This perspective, while perhaps appealing in its theoretical elegance, failed to fully address the palpable anxieties of a populace recently liberated from a government that had indeed presumed much.

Patrick Henry, ever the fiery orator, sharply criticized the Federalist viewpoint, contending that the legislature required clear and unequivocal guidance "of the extent of the rights retained by the people... being in a state of uncertainty, they will assume rather than give up powers by implication" [31]. This highlighted the fundamental difference in political philosophy: Federalists saw inherent limitations in a government of enumerated powers, while Anti-Federalists demanded explicit boundaries to prevent potential overreach. Other Anti-Federalists pointed to historical precedents, such as the Magna Carta and various colonial charters, which had long protected specific rights. Hamilton, in response, argued that the Constitution was fundamentally different in its origin and nature:

  • Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the Magna Charta, obtained by the Barons, swords in hand, from King John [32].

Hamilton's point was that the U.S. Constitution, being a compact among the people themselves rather than a concession from a monarch, inherently preserved rights, making a separate bill superfluous. A neat rhetorical trick, if one chose to ignore the very real fears of the citizenry.

Massachusetts Compromise

Main article: Massachusetts Compromise

George Washington's 1788 letter to the Marquis de Lafayette observed, "the Convention of Massachusetts adopted the Constitution in toto; but recommended a number of specific alterations and quieting explanations." Source: Library of Congress

By December 1787 and January 1788, the initial phase of ratification proceeded with relative ease in five states: Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. However, even in this early stage, the dissenting voices were not entirely silenced; the "bitter minority report" from the Pennsylvania opposition, for instance, gained significant circulation and influence [33]. The Massachusetts convention, by stark contrast to its predecessors, was anything but placid. It was characterized by heated exchanges and intense contention, famously erupting at one point into a physical altercation—a fistfight, no less—between Federalist delegate Francis Dana and the ever-present Anti-Federalist Elbridge Gerry, when Gerry was provocatively denied the opportunity to speak [34].

The political deadlock in Massachusetts was ultimately broken only through a strategic maneuver, a pragmatic compromise. Revolutionary heroes and prominent Anti-Federalists Samuel Adams and John Hancock finally agreed to vote for ratification of the Constitution, but only on the explicit condition that the convention would also propose a series of amendments for consideration by the new federal government [35]. This became known as the Massachusetts Compromise, a pivotal moment that effectively created a template for other states. The amendments proposed by the Massachusetts convention were quite specific, including a demand for grand jury indictment in capital cases, a principle that would later find its way into the Fifth Amendment. Another crucial recommendation was for an amendment explicitly reserving powers not expressly granted to the federal government to the states, which would subsequently form the foundational basis for the Tenth Amendment [36].

Following the influential precedent set by Massachusetts, the Federalist minorities in both Virginia and New York successfully navigated their respective conventions, securing ratification by similarly linking their approval to the recommendation of specific amendments [37]. In Virginia, a committee convened by the convention, headed by the esteemed law professor George Wythe, forwarded an extensive list of forty recommended amendments to Congress. This comprehensive list was divided equally, with twenty enumerating individual rights and another twenty detailing states' rights [38]. The latter category included significant limitations on federal powers, particularly concerning the authority to levy taxes and regulate trade, reflecting deep-seated concerns about centralized economic control [39].

Despite these compromises, a determined minority of the Constitution's critics, such as Maryland's Luther Martin, continued to staunchly oppose outright ratification [40]. However, even many of Martin's allies, such as New York's John Lansing Jr., eventually abandoned their efforts to obstruct the Convention's proceedings entirely. Instead, they shifted their strategy, beginning to take exception to the Constitution "as it was" and focusing their energy on securing amendments after ratification. This strategic pivot, driven by a desire to remain part of the burgeoning Union, saw several conventions transition from demanding "amendments before" to accepting "amendments after" [37]. Ultimately, only North Carolina and Rhode Island maintained their resolute stance, delaying their ratification until amendments had been officially proposed by Congress.

Article Seven of the proposed Constitution meticulously outlined the terms by which the new framework of government would officially be established. It stipulated that the new Constitution would become operational once ratified by a minimum of nine states. Only then would it supersede the existing, largely ineffective government operating under the Articles of Confederation, and critically, it would apply solely to those states that had affirmatively ratified it.

Following a series of intense and often contentious battles within several states, the proposed Constitution finally reached the critical nine-state ratification threshold in June 1788. On September 13, 1788, the Articles of Confederation Congress formally certified that the new Constitution had indeed been ratified by more than the requisite number of states for the new system to be implemented. Consequently, it directed the incoming government to convene in New York City on the first Wednesday of March the following year [41]. True to this directive, on March 4, 1789, the new framework of government officially came into force, with eleven of the original thirteen states participating, marking the formal beginning of the United States under its new Constitution.

New York Circular Letter

Main article: New York Circular Letter

In New York, the political landscape of the Ratifying Convention was heavily dominated by Anti-Federalist sentiment, and they were, understandably, not inclined to simply acquiesce to the Massachusetts Compromise without further assurances. Led by Melancton Smith, this powerful faction was prepared to make New York's ratification conditional upon the prior proposal of amendments, or, in a more drastic move, to insist upon the right to secede from the newly formed union if amendments were not promptly proposed. Alexander Hamilton, recognizing the precariousness of the situation, consulted with James Madison and subsequently informed the Convention that such conditional ratification would be unequivocally rejected by Congress. The new federal government, still in its infancy, could not afford to begin with states dictating terms or threatening secession.

After the pivotal ratification by the ninth state, New Hampshire, swiftly followed by Virginia, it became undeniably clear that the Constitution would indeed go into effect, with or without New York's participation as a member of the Union. Faced with this stark reality, a compromise was struck. The New York Convention, rather than imposing conditions, proposed to ratify, expressing confidence that the states would collectively call for new amendments through the formal convention procedure outlined in Article V of the Constitution, rather than making this a precondition of New York's entry. To facilitate this, John Jay drafted the influential New York Circular Letter, which was then dispatched to all the states, urging them to utilize this constitutional mechanism. In response, the legislatures in New York and Virginia passed resolutions formally calling for a convention to propose the amendments that had been demanded by their respective states, while several other states opted to table the matter for future legislative consideration. It was, in part, as a direct response to these collective actions from the states that James Madison painstakingly drafted the Bill of Rights.

Proposal and ratification

Anticipating amendments

James Madison, primary author and chief advocate for the Bill of Rights in the First Congress

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.

— Thomas Jefferson's letter to James Madison (December 20, 1787) [42]

The inaugural session of the 1st United States Congress, which convened in the formidable Federal Hall in New York City, represented a significant triumph for the Federalists. The Senate, comprised of representatives from eleven states, boasted a solid majority of twenty Federalists, with only two Anti-Federalists present, both hailing from Virginia. The House of Representatives similarly reflected this Federalist dominance, with forty-eight Federalists to a mere eleven Anti-Federalists, the latter drawn from only four states: Massachusetts, New York, Virginia, and South Carolina [43].

Among the Virginia delegation to the House was James Madison, a figure who had been the principal adversary of Patrick Henry during the intense Virginia ratification debates. In a rather predictable act of political retaliation for Madison's victory in that battle, Henry and other Anti-Federalists, who wielded considerable influence within the Virginia House of Delegates, had deliberately gerrymandered a district specifically designed to be hostile to Madison's anticipated congressional run. They even recruited Madison's future presidential successor, James Monroe, to oppose him [44]. Despite these machinations, Madison ultimately defeated Monroe, securing his seat after offering a crucial campaign pledge: he promised to introduce constitutional amendments forming a bill of rights during the First Congress [45]. A testament, perhaps, to the enduring power of a well-timed promise.

Madison, who had initially been opposed to the inclusion of a bill of rights within the Constitution, had, through the crucible of the often contentious ratification debates, gradually come to a profound understanding of its political and symbolic importance. By proactively taking the initiative to propose these amendments himself through the congressional process, he shrewdly aimed to avert a far more perilous outcome: the calling of a second constitutional convention. Such a convention, it was widely feared, might unravel the delicate and hard-won compromises achieved in 1787, thereby reopening the entirety of the Constitution to reconsideration and risking the very dissolution of the nascent federal government. In a letter to Jefferson, Madison articulated this pragmatic concern, stating, "The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty" [46]. He also believed, with a politician's keen insight, that amendments explicitly guaranteeing personal liberties would "give to the Government its due popularity and stability," essentially cementing public trust and legitimacy [47]. Finally, and perhaps most idealistically, he hoped these amendments "would 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" [48]. The enduring debate among historians, however, continues to weigh the degree to which Madison genuinely considered these amendments intrinsically necessary against the extent to which he viewed them as a politically expedient maneuver to secure the new government's stability; in the outline for his address, he tellingly noted, "Bill of Rights—useful—not essential—" [49]. A subtle distinction, but one that speaks volumes.

On the momentous occasion of his April 30, 1789 inauguration as the nation's very first president, George Washington directly addressed the pressing subject of amending the Constitution. He urged the assembled legislators with carefully chosen words, emphasizing a balance between prudence and principle:

  • whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted [50] [51].

Washington's counsel was a clear directive: proceed with caution, prioritize unity and efficacy, but do not neglect the fundamental rights of the people, nor the need for social cohesion. It was a delicate tightrope walk, and Madison, tasked with leading the charge, understood the weight of these expectations.

Madison's proposed amendments

James Madison, ever the meticulous architect, introduced a comprehensive series of Constitutional amendments in the House of Representatives for its earnest consideration. Among his initial proposals was a rather significant one that would have inserted introductory language, emphasizing the concept of natural rights, directly into the Preamble of the Constitution itself [52]. Another forward-thinking proposal aimed to apply specific provisions of the Bill of Rights not only to the federal government but also to the individual states—a concept that, as history shows, would only much later be realized through the Fourteenth Amendment. Several of Madison's proposed amendments were designed to safeguard individual personal rights by strategically limiting various Constitutional powers of Congress, a direct response to the Anti-Federalist fears of federal overreach. Echoing President Washington's earlier admonition, Madison urged Congress to ensure that the revision to the Constitution remained "a moderate one," strictly confined to the essential task of protecting individual liberties [52].

Madison's deep understanding of governmental history was evident in his approach; he meticulously drew upon a wide array of historical sources in crafting his amendments. The ancient English Magna Carta of 1215, for instance, served as a clear inspiration for the fundamental right to petition and the crucial guarantee of trial by jury. Similarly, the English Bill of Rights of 1689 provided an early, if somewhat limited, precedent for the right to keep and bear arms—though, notably, this right was then restricted solely to Protestants—and established the prohibition against cruel and unusual punishment [39].

However, the most profound influence on Madison's textual endeavors came from the existing state constitutions of the nascent American republic [53] [54]. Many of his proposed amendments, including his suggested new preamble, were directly modeled on the Virginia Declaration of Rights, a document largely drafted by the notable Anti-Federalist George Mason in 1776 [55]. To strategically mitigate future opposition to ratification, Madison also judiciously sought out recommendations that enjoyed broad consensus among many states [54]. Yet, in a testament to his own convictions, he did include one significant proposal that no state had specifically requested: a clause stating, "No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases" [56]. Conversely, he conspicuously omitted an amendment that every single state had explicitly asked for, one that would have rendered tax assessments voluntary rather than mandatory contributions [57]. A clear demonstration, perhaps, of where political principle yielded to the practical necessities of national finance.

Madison's detailed constitutional amendments, as he proposed them, were as follows:

  • First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people. That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.
  • Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: "The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;" and in place thereof be inserted these words, to wit: "After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto."
  • Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: "But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives."
  • Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances. The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person. No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law. No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence. The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.
  • Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.
  • Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit: But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.
  • Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence. In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.
  • Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments. The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.
  • Ninthly. That article 7th, be numbered as article 8th [58].

Crafting amendments

Unsurprisingly, Federalist representatives were swift to launch an assault on Madison's proposal. Their fear was palpable: any move to amend the fledgling Constitution so soon after its laborious implementation would inevitably project an image of instability, undermining public confidence in the new government [59]. The House of Representatives, unlike the more insulated Senate, was open to the public, and members such as Fisher Ames issued stark warnings that a protracted "dissection of the constitution" conducted before the galleries could irrevocably shatter public trust [60]. Such is the nature of political theater, where appearance often trumps substance.

A procedural skirmish ensued. After an initial deferral to a select committee for revision, the House eventually consented to take up Madison's proposal as a full body, commencing on July 21, 1789 [61] [62]. The eleven-member committee, in its wisdom, introduced some rather significant alterations to Madison's original nine proposed amendments. Notably, they eliminated the majority of his proposed preamble, perhaps deeming its philosophical pronouncements too grand or too contentious. Crucially, they also added the now-iconic phrase "freedom of speech, and of the press," solidifying these liberties [63]. The House then engaged in a spirited debate over the amendments for a full eleven days. Roger Sherman of Connecticut, a pragmatic voice, successfully persuaded the House to append the amendments to the end of the Constitution, rather than integrating them throughout as Madison had initially envisioned. Sherman's argument was that this approach would allow the original document to "remain inviolate," preserving its perceived integrity [64] [65]. The amendments, having been thoroughly revised and condensed from an initial twenty to a more manageable seventeen, were then approved and dispatched to the Senate on August 24, 1789 [66].

The Senate, with its own distinct deliberative process, further honed these amendments, introducing twenty-six changes of its own. Critically, Madison's original, far-reaching proposal to apply portions of the Bill of Rights to the individual states as well as the federal government was excised, a decision that would have profound implications for future constitutional law [67]. The seventeen amendments were further condensed to a final twelve, which received Senate approval on September 9, 1789 [67]. The Senate also saw fit to eliminate the last vestiges of Madison's proposed changes to the Preamble [68].

On September 21, 1789, a joint House–Senate Conference Committee was convened with the express purpose of resolving the numerous discrepancies that had emerged between the two chambers' respective Bill of Rights proposals. After intense deliberation, on September 24, 1789, the committee issued its report, which finalized twelve Constitutional Amendments for both the House and Senate to consider. This ultimate version was formally approved by a joint resolution of Congress on September 25, 1789, and subsequently forwarded by John J. Beckley to the individual states on September 28 for their ratification [69] [70] [71].

By the time the intricate debates and legislative maneuvering involved in crafting the Bill of Rights amendments had concluded, a rather predictable shift in personal opinions had occurred. A significant number of Federalists, having initially opposed the idea, now publicly voiced their support, effectively neutralizing the most potent critique leveled by the Anti-Federalists. Conversely, many Anti-Federalists, realizing that congressional approval of these amendments would considerably diminish the likelihood of a second constitutional convention—their primary strategic goal—now found themselves in opposition [72]. Anti-Federalists such as Richard Henry Lee continued to argue, with a certain weary resignation, that the Bill of Rights, in its final form, left many of the most objectionable portions of the Constitution—such as the expansive federal judiciary and the power of direct taxation—largely intact and unaddressed [73].

James Madison remained an active and persistent force throughout the legislative journey of the amendments. Historian Gordon S. Wood unequivocally states that "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" [74] [75]. A rather inconvenient truth for those who prefer their historical narratives neat and tidy.

Approval of the Bill of Rights in Congress and the States [76]

| Seventeen Articles Approved by the House August 24, 1789 RatiFirst Article: 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. | First Article: 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; to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons. | First Article: 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. | Pending: Congressional Apportionment Amendment Twelve Articles Approved by the Senate September 9, 1789