James Madison: Father of the Bill of Rights? Teaching American History Blast Pennsylvania, 2011

James Madison: Father of the Bill of Rights?

Teaching American HistoryBlast Pennsylvania, 2011

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Overview

James Madison is sometimes said to be the “Father of the Bill of Rights” as well as the “Father of the Constitution.” Madison was certainly one of leading civil libertarians of his generation, but he opposed the addition of a bill of rights to the Constitution during much of the ratification struggle before eventually championing one.

Overview

Why did one of the most fervent champions of civil liberties (especially religious liberty) first oppose the addition of a bill of rights to the Constitution but then champion one in the First Congress?

“Early and Strong Impressions in Favour of

Liberty both Civil and Religious”

Madison’s Early Enthusiasm for Religious Liberty

In pre-revolutionary Virginia, like most of the other southern colonies, the Church of England was established. Dissenting religious groups – composed mostly of Presbyterians, Quakers, and Baptists- were extended legal “toleration” under English law, but were nevertheless required to secure permits for meetinghouses and licenses to preach, to be married by ministers from the established church, to attend its services unless their meeting house was licensed by the state, and to pay taxes to support Anglican ministers. When they resisted these laws, Baptists in particular were fined, whipped, and jailed.


* Madison saw Baptists being persecuted in nearby counties as he was growing up. He abhorred the “diabolical Hell conceived principle of persecution” that raged across Virginia as a result of “Pride[,] ignorance[,] ignorance[,] and Knavery among the Priesthood and Vice and Wickedness among the Laity.”


* His early education under private tutors and then at Princeton under John Witherspoon contributed to his zeal for religious liberty. Madison’s readings at this time included some of the most Progressive thinkers of the Scottish Enlightenment, especially Frances Hutcheson and David Hume.


Madison began his political career, logically enough, fighting to secure religious liberty for dissenters and to disestablish the Anglican Church. In the 1776 Virginia Convention that wrote the first state Constitution he added an amendment to the 16th article of George Mason’s famous “Virginia Declaration of Rights.”


• Mason’s original version: “all man should enjoy the fullest toleration in the exercise of religion, according to the dictates of conscience, unpunished and unrestrained by the magistrate unless … any man disturb the peace, the happiness, or safety of society.” (PJM, I, 173). • Madison’s amended version: “all men are equally

entitled to the full and free exercise of it [religion] accord[in]g to the dictates of Conscience; and therefore that no man or class of men ought, on account of religion to be invested with peculiar emoluments or privileges.” (PJM, I, 174).


Madison’s amendment had two purposes: 1) to insure the recognition of religious liberty as a natural right, not something that the state merely had to tolerate 2) to disestablish the church in the state of Virginia.


The second part of Madison’s amendment was not passed by the Virginia Constitutional Convention of 1776, but petitions to the legislature the next session effectively disestablished the Anglican Church in Virginia. After the 1776 legislative session, no tax money was ever again collected for the established church. But would the disestablishment of the Anglican church lead to a multi-establishment of religion or separation of church and state in which all religions were placed on a voluntary basis?


Over the next decade, Madison and Jefferson worked to create a radically new understanding of the relationship of church and state in Virginia. This one was based upon the voluntary support of all religious groups by its members, not the state.

Madison’s Early Support for Religious Liberty

The Virginia church –state struggle came to a head in 1784. Patrick Henry sponsored a general assessment for the support of “Teachers of the Christian Religion.” This bill passed several readings, but its passage was defeated by Madison who urged the legislature to send the bill to the people for their consideration.


A petition war followed and Madison wrote “Memorial and Remonstrance Against Religious Assessments” to counter the tax to support teachers of the Christian religion. The petition war heavily favored proponents of strict voluntarism and the tax to support religion was decisively defeated. In its place, Jefferson’s “Bill for Establishing Religious Freedom” was passed in 1785.


Madison’s “Memorial and Remonstrance” is a landmark document in the history of church state relations. Madison began with the argument that religion is a natural right. He also forcefully argued that voluntary support of religion by the members of each sect was the only policy consistent with the true state of Christianity and the 16th article of the Virginia Declaration of Rights. He also set forth a series of arguments about why this was the policy that would be best for the state by encouraging immigration and commerce. Finally, he argued that any tax of any amount to support religion was a violation of religious liberty.

Jefferson’s Tombstone

The Bill of Rights and the Constitutional

Convention

George Mason at the Constitutional Convention

Two years later in 1787, Madison served in his most famous moment as one of the delegates from Virginia at the Constitutional Convention. At the end of the meeting, George Mason proposed that a bill of rights be added to the Constitution. A bill of rights “could be drawn up in a few hours,” Mason argued, with the aid of the state bills of rights.

George Mason at the Constitutional Convention (September

12) • Col: MASON perceived the difficulty mentioned by Mr. Gorham. The jury cases can not be

specified. A general principle laid down on this and some other points would be sufficient. He wished the plan had been prefaced with a Bill of Rights, & would second a Motion if made for the purpose. It would give great quiet to the people; and with the aid of the State declarations, a bill might be prepared in a few hours.

• Mr. GERRY concurred in the idea & moved for a Committee to prepare a Bill of Rights. • Col: MASON 2ded. the motion. • Mr. SHERMAN, was for securing the rights of the people where requisite. The State

Declarations of Rights are not repealed by this Constitution; and being in force are sufficient. There are many cases where juries are proper which can not be discriminated. The Legislature may be safely trusted.

• Col: MASON. The Laws of the U. S. are to be paramount to State Bills of Rights. • On the question for a Come. to prepare a Bill of Rights • N. H. no. Mas. abst. Ct. no. N. J. no. Pa. no. Del no. Md. no. Va. no. N. C. no. S. C. no. Geo.

no. [

The Bill of Rights in the Ratification Struggle Mason’s observation that a bill of rights would “give great

quiet to the people” turned out to be very prophetic. When the Constitution was submitted to the states for ratification, the lack of a bill of rights became the leading obstacle to ratification.

Federalists versus Anti-Federalists and Jefferson

• Anti-federalists hammered away at the lack of a bill of rights as necessary to the liberty of a free people.• The strength of their appeal was that the state constitutions

had bill of rights. Why not have one at the Federal level as well? Hadn’t Americans fought a revolution because all governments endangered rights? Even more, the tradition of bills of rights reached all the way back to colonial charters that enumerated rights. Why had the Convention made this mistake? Could the people’s liberties be secure without a bill of rights?

Why did Madison Not Join Mason in Favoring a Bill of Rights?

• Madison experiences with the church – state struggle in Virginia and then his further experiences with protecting economic rights during 1786 and 1787 had taught him that the greatest threat to rights was not from violations by the government but from majority factions. At one point during the church-state struggle, Madison had feared that a coalition of dissenting religious groups might favor a tax to support all religions.


• Furthermore, Madison did not fear all of the branches of the government equally. Instead, he feared that the legislative branch was most likely to violate rights in republican governments because the people were the source of all power and the legislative branch responded quickly and often unreflectively to their passions and interests.


• As he would soon make clear, Madison just did not believe that the national government had either the power or the opportunity to violate the rights of the people. Congress had been given no power to pass laws concerning religion or freedom of the press. No protection was needed where the government exercised no power.


• Finally, if these rights were threatened by the national government, they would not be protected by “parchment barriers” anyway. Extent of territory, the state governments, and separation of powers were the true remedies to violations of liberty by the national government.

Jefferson and the Bill of Rights

Jefferson and Radical Whig Ideology

• In 1787-1789, Jefferson was still locked into the ideology of the Revolution. He believed that governmental power –independent acts by the government – were a greater threat to liberty and rights than majority factions.

Jefferson’s Response to Shays’ Rebellion

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. Unsuccessful rebellions, indeed, generally establish the encroachments on the rights of the people which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions as not to discourage them too much. It is a medicine necessary for the sound health of government.” Jefferson to Madison, January, 30, 1787.

Jefferson and Shays’ Rebellion

“The late rebellion in Massachusetts has given more alarm than I think it should have done. Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century & a half. No country should be so long without one.”

December 20, 1787

Jefferson and Energetic Government

This was also at the same time that Jefferson declared, “"I own I am not a friend to a very energetic government. It is always oppressive. It places the governors indeed more at their ease, at the expense of the people." --Thomas Jefferson to James Madison, 1787.

Jefferson and Energetic Government

Jefferson was thus cool to the Constitution when he first got news of the Convention and read its final product. He opposed perpetual executive reeligibility and the absence of a bill of rights.

Jefferson on the Absence of a Bill of Rights

"I will now add what I do not like. First, 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 all matters of fact triable by the laws of the land and not by the law of nations." --Thomas Jefferson to James Madison, 1787. ME 6:387

Jefferson on the Absence of a Bill of Rights

"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 inferences." --Thomas Jefferson to James Madison, 1787. ME 6:388, Papers 12:440

Jefferson’s Opinion was Used in the State Ratifying Conventions • In the Virginia State Ratifying Convention, Patrick Henry

evoked Jefferson’s opinion on the lack of a bill of rights to fortify his opposition to the Constitution. Jefferson’s letters had been circulated and one found its way into Henry’s hands. Jefferson’s criticism of the absence of a bill of rights was also used in the Maryland ratifying convention.

Jefferson’s Suggestions

Jefferson argued that 9 states should ratify but four withhold ratification until a bill of rights was added. When the idea of recommendatory amendments was proposed as an alternative, Jefferson conceded that this was a better idea. Still later during the ratification struggle, Jefferson suggested that bills of rights would be effective because the judiciary would become the protector of these rights. Madison, according to Jefferson, had omitted the “legal check” which a bill of rights would give to the judiciary. (PJM, XII, 13-15). An independent judiciary composed of men of unquestionable character, Jefferson reasoned would be above the frenzy of fellow citizens bidding them to do wrong and would become a guardian for these rights.

Madison’s Response to Jefferson and the Anti-Federalists on a Bill of

Rights

Why Did Madison Initially Oppose the Addition of A Bill of Rights? If as I have argued, James Madison was perhaps the most

committed civil libertarian of any of the American Founders, why did he not favor a bill of rights? Why did he disagree with Jefferson and the Anti-federalists about the necessity of a bill of rights?

Why Did Madison Initially Oppose the Addition of A Bill of Rights? First, Madison, like James Wilson and other Federalists, made

the following argument: a bill of rights is unnecessary and dangerous. It is unnecessary because a) state bills of rights are not repealed and b) the government created by the Constitution is one of limited powers. No authority is presumed over the rights of the people.

Why Did Madison Initially Oppose the Addition of A Bill of Rights? Providing a bill of rights is therefore dangerous because the

government may believe that only the rights listed will be protected. Other rights not listed will then be in danger and the government will be led to assume power where it has no power.

Note: Jefferson countered that “half a loaf is better than no bread at all.”

Why Did Madison Initially Oppose the Addition of A Bill of Rights? The threat of majority factions: “Wherever the real power in a

Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is cheifly 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.” Against this threat, bills of rights were mere “parchment barriers.”

Why Did Madison Initially Oppose the Addition of A Bill of Rights?• If majority factions were the problem, then the proper

solution was not parchment barriers, but “the limited powers of the federal Government and the jealousy of the subordinate Governments,” extent of territory, and separation of powers.

Why Did Madison Initially Oppose the Addition of A Bill of Rights? Madison’s Non-Zero Sum Theory of Power. Madison did not believe

that independent acts of tyranny by the government were the principal threat to liberty .

“It has been remarked that there is a tendency in all Governments to an augmentation of power at the expence of liberty. But the remark as usually understood does not appear to me well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and in the latter sense only is it in my opinion applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which divides these extremes should be so inaccurately defined by experience.”

Why Did Madison Initially Oppose the Addition of A Bill of Rights? Power granted to the national government is not necessarily a

threat to liberty. Liberty and power, contrary to Jefferson’s thinking and the ideology of the Revolution, were not necessarily antagonistic. The greatest threat to rights was from majority factions and excessive liberty, not independent actions of the government and excessive governmental power. Government had to have a certain degree of power to prevent it from allowing excessive liberty. Excessive liberty would lead to despotism. Liberty was a mean between excessive governmental power (threatening tyranny) and no governmental power (creating licentiousness).

“The true grounds of opposition”:

The overwhelming reason that Madison opposed the addition of a bill of rights, however, was that the Anti-federalists were using the lack of a bill of rights to try to prevent the proposed constitution from being ratified. Madison believed that the preservation of the union depended upon ratification of the Constitution. Without union, the states were likely to divide into separate confederacies, foreign intervention was likely (the British in favor of New England states), the French for Southern ones, and the Spanish for western territories. Europe – with its standing armies and perpetual wars – would be reintroduced in North America. Madison and other Federalists viewed the Bill of Rights as “a Trojan horse masking their adversaries hopes for more radical amendments.” (Rakove, Revolutionaries, 393)

The Political Context of Madison’s

Opposition to a Bill of Rights • Within this context, Madison had to argue against a second

constitutional convention and anything but recommendatory amendments to the Constitution. The Constitution had to be ratified first and then the question of amendments could be taken up if the union was going to survive.

The Massachusetts’ Compromise

The “compromise” that the Federalists worked out to secure ratification of the Constitution was stumbled upon in Massachusetts, the fifth state to ratify the Constitution on February 6, 1788. Here, Federalists agreed to recommend amendments to the Constitution to be proposed in the First Congress under the amendment procedures of the Constitution.

The Massachusetts’ Compromise

• The Massachusetts’ solution was followed in each of the 6 states that subsequently ratified the Constitution in 1788. But would the Federalists fulfill the campaign pledge? Would they add a bill of rights to the Constitution after ratification?

“Separating the Well-Meaning From the Designing Opponents”

Madison Sponsors a Bill of Rights in Congress

Madison took up the campaign pledge to supply a bill of rights. He fought relentlessly in Congress to get his fellow delegates to add a bill of rights. He formulated the initial provisions, spurred his colleagues to add a bill of rights, and stewarded them through the House of Representatives and through a conference committee. Without him, there would have been no bill of rights initially.


• Why did Madison now fight so hard to secure passage of a bill of rights? He did so in part because he had promised to provide a bill of rights and had been elected on the basis of that promise. In October 1788, Patrick Henry blocked Madison’s election to the United States Senate. He championed a measure that gerrymandered Madison’s candidacy for a seat in the House of Representatives into an Anti-federalist district (a residency requirement passed earlier by Anti-federalists prevented Madison from switching districts), placed Madison against a strong Anti-federalist candidate (young James Monroe), and circulated rumors that Madison considered the Constitution sacrosanct and would never support amendments. Madison was forced to return to Virginia. As a part of his campaign tour for a seat in the House, Madison issued a series of letters which bound him in honor to support a bill of rights once Congress was convened.


More importantly, however, Madison fought so vigorously now for a bill of rights for the same reason that he had opposed one during the ratification contest: the Constitution. Madison vehemently fought against the addition of a bill of rights prior to ratification to protect the Constitution, then he vehemently fought for the addition of a bill of rights for much the same reason: to protect the Constitution. Now that the Constitution was safely ratified, the addition of a bill of rights would bring those “patriotic” opponents of the Constitution who had wanted a bill of rights as a condition for supporting one. Even more strongly, the issue of amendments could now be turned against the remaining Federalist and used to extinguish Antifederalism. Madison was explicit in his desire to separate the “well-meaning” from the “designing” opponents of the Constitution through passage of a bill of rights. Madison was pushed by his constituents at his election to sponsor a bill of rights, but he was also pulled by his honor and his commitment to preserve the Constitution.

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Was Madison Sincere? • The passage of the bill of rights was, however, something more than

a political expedient to quash Anti-federalism. Even as he lamented the “nauseous” project of amendments, Madison convinced himself that a bill of rights would be constructive, if properly written. In both his letter to Jefferson and his speeches in the First Congress urging a bill of rights, Madison pointed to two ways in which a bill of rights would be important to the preservation of liberty. First, the “political truths” in the bill of rights might become widely accepted by the public and thus provide barriers to the formation and concert of factions and standards against which the people might rally against the government if it violated their rights. Second, he argued, following a suggestion from Jefferson, that the judiciary would become the peculiar guardians of these rights. “Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights,” Madison observed in his June 8th, 1789 speech to Congress.


Madison used a pamphlet containing the over 200 recommendations from the states to formulate a list rights to be protected. He provided protection for a wide range of civil liberties. He scrupulously avoided suggestions from the states that either altered the structure of the national government or returned powers to the states. Madison called these non-controversial amendments, but this weeding process made the amendments very controversial to the few Anti-federalists in Congress.


“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. “

--- Madison’s first draft for the establishment and free exercise clause.

Madisonian Peculiarities Madison want to integrate the rights protected into the text, not include them as a list at the end of the Constitution. Madison scholars think that this would not have worked? How would this have changed constitutional interpretation?

Madisonian Peculiarities: Popular Sovereigntyand the Preamble

• Madison also favored amending the Preamble to include a provision like the preamble of the Declaration of Independence minus the statement that “all men are created equal.” Madison proposed: “First, That there be prefixed to the constitution a declaration, that all power is originally rested 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.”

Madisonian Peculiarities: Separation of Powers

• Madison also favored a provision declaring a commitment to separation of powers.

• “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.” (Note the irony here. Madison had said in The Federalist Nos. 47 to 51 that separation of powers cannot be maintained by writing a commitment to the principle on paper, but he does precisely that here.

Madisonian Peculiarities: Madison’s Provision Restricting the States

• “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.“ • Everyone knew that the bill of rights would apply

only to the national government. Madison provided this amendment, however, because he wanted to protect rights within the small sphere of the state governments where majority factions were more easily formed. This was a vestige of his universal veto of all state laws.

Madison’s Forgotten Amendments (Now the 27th Amendment)

• “No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.”

• First proposed 1789, proposed again, 1989, ratified 1992 as the 27th amendment.

The Ninth Amendment •

The ninth amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment was written to address the problem of construction leading the national government to assume power over rights not enumerated. But how do we construct a list of rights not enumerated?

The Judiciary and the Bill of Rights

In the debate in the 1st Congress, Madison also introduced Jefferson’s suggestion that the Judiciary would protect these rights. This suggestion was Jefferson’s great contribution to the creation of the Bill of Rights and the single most important point where he influenced Madison’s thoughts on bills of rights. “Independent tribunals of justice,” Madison suggested presciently, “will consider themselves in a peculiar manner the guardians of these rights.“ (PJM, XII, 207).

“A Tub For A Whale” • The Anti-federalists believed that they had been had by

Madison’s amendments. They did not address their real grievances. One Congressman said of Madison’s amendments that they were “frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage.”

“A Tub For A Whale” • “Seamen have a custom, when they meet a whale, to fling him

out an empty tub• by way of amusement, to divert him from laying violent hands

upon the ship.”• Jonathan Swift, Tale of a Tub (1704)

Does Enumeration Threaten Liberty?

• The Federalists said that enumeration would lead to the assumption of power. Did this happen? Writing down freedom of the press lead to a discussion of its contours during the early republic and members of the Federalist Party said that freedom of the press did not preclude imprisonment for sedition. Would it have been better if their had been no amendment? Would it have been better to say that Congress did not have this power at all?

Documents

James Madison: Father of the Bill of Rights? Teaching American History Blast Pennsylvania, 2011