Madison had spent the last two years thoroughly immersed in the political campaign to draft the Constitution and oversee its ratification. Jefferson, on the other hand, was an ocean away in Paris, and although Madison had kept him informed of the state-by-state developments in the ratification process, Jefferson was blissfully oblivious to the supercharged political atmosphere that Madison was trying to manage.
This helps to explain the rather strange proposal that Jefferson made in February 1788, when ratification remained problematic: “I sincerely wish that the first nine conventions, may receive [the Constitution], and the last four reject it. The former will secure it finally, while the latter will oblige them to offer a declaration of rights in order to complete the union. We shall thus have all its good, without its principal defect.”16
One can only imagine the sense of horror that seized Madison when he read these words, for they came perilously close to the second convention option that he regarded as the political equivalent of a poison pill designed to kill the Constitution under the pretext of amending it. Jefferson obviously thought that the absence of a bill of rights was a fatal flaw in the document and, though he probably did not realize it, was willing to put ratification at risk in order to include what he called a “declaration of rights.”
There are two discernible reasons for Jefferson’s obsession with a bill of rights, one quite specific, the other more general and revelatory of how his mind worked. On the specific side, he was currently engaged in conversations with Lafayette and other French reformers who were attempting to draft a declaration of rights for a new French constitution. All of them regarded such a declaration as an utterly essential statement of the principles on which the French Revolution should proceed. Jefferson was especially invested in this project, since, at least as he saw it, the goal was to bring the values of the Declaration of Independence, his very words, to the revolution in France. Finding the language to define basic human rights, then, was very much on Jefferson’s mind.
More generally, Jefferson did not think about constitutions, or even government itself, in the same way as Madison or, for that matter, any other prominent American statesman of his time. As for constitutions, he regarded them as temporary political frameworks, merely transitory arrangements that should be revised or replaced every twenty years to reflect the interests and values of a new generation. As for government, he wanted it small, weak, and as close to invisible as possible. The trouble with most Europeans, he observed, was that they were bred to prefer “a government [they] can feel.” His mind and heart longed for a world in which government would not be felt, indeed one in which it almost disappeared.17
In effect, Madison and his fellow nationalists had been working to create a constitution that was most admirable for the energetic qualities that Jefferson despised and denounced. A bill of rights was so important to Jefferson because its essential function was to define what government could not do, creating a political zone where individual rights were free to roam beyond the surveillance and restrictions of kings, courts, legislatures, and judges. This was Jefferson’s ideal, in truth his utopian vision, and it was as far removed from Madison’s interest-driven political universe as night from day.18
Madison confessed that he and his mentor seemed to be on different pages: “I have never thought the omission [of a bill of rights] a material defect, nor for any other reason than it is anxiously desired by others…. I have not viewed it in an important light.” Moreover, Madison went on to describe all bills of rights as “parchment barriers,” easily ignored and violated “by overbearing majorities in every state.” In Virginia, for example, Madison claimed that the Declaration of Rights “has been violated in every instance where it has been opposed to a popular current.”
Jefferson’s problem, as Madison saw it, was that he believed that the primary threat to personal rights came from government. That might be true in Europe, “but in our Governments the real power lies in the majority of the community.” So the real threat came “from acts in which the Government is the mere instrument of the major number of the constituents.” As a result, Madison concluded that a bill of rights, “however strongly marked on paper, will never be regarded when opposed to the decided sense of the public.” He did not foresee the active role of the Supreme Court as the ultimate arbiter of either the Constitution or the Bill of Rights.19
It is unlikely that Jefferson understood what Madison was saying, since the idea that the greatest threat to the rights of the people could be popular opinion was impossible to imagine from a Jeffersonian perspective. At any rate, Jefferson never addressed Madison’s argument and simply held firm to his core conviction: “As to the bill of rights, however, I still think it should be added.” In response to Madison’s claim that no bill of rights could possibly cover all the possible abuses, Jefferson countered that “half a loaf is better than no bread.”20
As we have seen, Madison had reached the same conclusion by January 1789, though not for the reasons Jefferson had offered. He apparently made up his mind to lead the movement for a bill of rights during his campaign for a seat in the House. It was a difficult campaign because Henry had persuaded James Monroe, another Jefferson protégé and sometime friend of Madison, to run against him, and redefine the borders of Madison’s district—what would later be called “gerrymandering”—to tilt the playing field.
It didn’t work—Madison won handily, 1,308 to 972—but in the course of the campaign he came under relentless pressure from his erstwhile constituents to support the recommended amendments of the Virginia convention. That pushed him over the line. He let it be known that if elected, he would take up the cause of amendments. “It is my sincere desire,” he now vowed, “that the Constitution ought to be revised, and that the first Congress meeting under it ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants, etc.”21
In truth, he still did not share Jefferson’s faith in the efficacy of written lists of rights, and he believed that the greatest protection of individual rights was already embedded in the political framework created by the Constitution. But the political reasons for going forward were now clearer than ever: his Virginia constituents wanted amendments; a bill of rights would undermine the subversive second convention movement; and reluctant ratifiers in six states would learn that he was listening. As he put it to Jefferson, such an act of conciliation would “extinguish opposition to the system, or at least break the force of it by detaching the deluded opponents from their designing leaders.” In short, he viewed the movement for a bill of rights not as an opportunity to glimpse the abiding truths, but as the final step in the ratification process.22
Madison was in an excellent position to act on his promise. He was generally recognized as the “first man” in the House. His central role at the Constitutional Convention, his contribution to the Federalist Papers, and then his prominence at the Virginia convention had made him, for the first time, a conspicuous national figure. Soon after his inauguration, Washington had asked him to draft a letter to the members of Congress, expressing his desire to work closely with them. The members of Congress, not knowing of Madison’s involvement, asked him to draft their reply to Washington. It was Madison writing to Madison. He had become the second most prominent figure in the new government.23
In early March 1789, just five days after Washington had taken the oath of office, Madison announced his intention to propose amendments to the Constitution later in the month. He then entered into one of those intense periods of Madisonian preparation, taking the Virginia Declaration of Rights and all of the amendments recommended by the states into his study for deliberation. To call Madison the “Father of the Constitution” is quite plausible, but it is also arguable, given the significant roles played by others in Philadelphia, chiefly Gouverneur Mor
ris. But there is no question that Madison was the “Father of the Bill of Rights.” He wrote the first draft single-handedly, ushered it through the House, and negotiated with leaders in the Senate as they reduced the seventeen amendments proposed by the House to twelve.24
Several congressmen commented on Madison’s nearly obsessive dedication to the passage of a bill of rights, blaming his compulsion on a misguided fear that the threat of a second convention loomed if he failed to act promptly. Theodore Sedgwick, a representative from western Massachusetts, believed that Madison was “constantly haunted by the ghost of Patrick Henry.” And Robert Morris, now a senator from Pennsylvania, thought that Madison “got so cursedly frightened in Virginia that he dreamed of amendments ever since.” They had a point. The movement for a second convention was already beginning to fade, as Jay had predicted it would. But just as Hamilton had chosen to take no risk in ensuring Washington’s election, Madison felt an urgent need to pass a bill of rights before the disciples of Henry and Clinton could mobilize their forces. He was almost surely exaggerating the threat, but given the arduous trail he had traveled to reach a political version of the promised land, he was in no mood to take any chances.25
Madison spent several weeks in the late spring of 1789 working on the amendments and trying to decide where they should be inserted into the text of the Constitution. Apparently he harbored the conviction that including them within the document rather than adding them at the end would enhance the body of the text instead of just tacking them on as a tail. “There is a neatness and propriety in incorporating the amendments to the Constitution itself,” he explained, “so that the amendments are interwoven into those parts in which they naturally belong.”26
During the debate in the House, Roger Sherman of Connecticut called attention to the problem with this approach: namely, it revised the document that the framers in Philadelphia had signed without their authorization or knowledge. In effect, it created the illusion that the amendments had been drafted at the Constitutional Convention. (By now, Madison surely wished that they had.) The more appropriate way to proceed, Sherman argued, was to regard the amendments as a separate codicil to the original text of the Constitution, which was, in fact, what they were.27
Madison immediately recognized this as an unanswerable argument and conceded the point, which also relieved him of the daunting task of deciding how to corkscrew a series of civil rights and restrictions on federal power into the original text of the Constitution. The result was to give the Bill of Rights a separate status as an epilogue that accurately reflected the concerns of so many delegates at the ratifying conventions. Over time this separate placement allowed the Bill of Rights to assume an iconic status of its own, as the legal version of the liberal values first articulated in the Declaration of Independence, and as the classic statement of rights beyond the reach of government, the American version of the Magna Carta. Small wonder, then, that Jefferson regarded it as more important than the Constitution itself.28
If we wish to recover Madison’s mentality during the congressional debates over what became the Bill of Rights—what we might call Madison’s “original intentions”—the best place to look is the opening speech he delivered on June 8 to the House, in which he presented the fruits of his quite massive editorial labors during the spring months. Several representatives objected to considering a revision of the Constitution at this time. As James Jackson of Georgia put it, the Constitution was like “a ship that has never yet put to sea…. Upon experiment she may prove faultless, or her defects might be very obvious.” It was too early to start tampering with the text.29
What’s more, Congress had more pressing issues to resolve. It needed to set up a federal revenue system, translate the vagaries in the Constitution into a workable federal judiciary, create executive departments and define their authority—in short, get the government up and going. Madison’s proposal that the House put itself into a committee-of-the-whole format to debate his draft of a bill of rights would mean that it could not focus on all those other important duties.
Madison eventually relented on the tactical questions by abandoning his committee-of-the-whole proposal and allowing his suggested amendments to be sent to a special committee, which would permit the House to proceed with its other business. But he insisted on the principle that a bill of rights must be an immediate priority. And he was explicit about his reasons for doing so:
It cannot be a secret to the gentlemen of this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, yet there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty…. There is a great body of the people falling under this description…. We ought not to disregard their inclination, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.30
He also noted that there were still two states, North Carolina and Rhode Island, that had failed to ratify, and it behooved the newly created federal government to persuade them, as he put it, “to throw themselves into the bosom of the new confederacy.” In short, while the new government surely needed to be up and going, it was imperative to perform this one piece of unfinished business that, in effect, would complete the ratification process.31
Madison’s predominantly political motives in the summer of 1789 have, for understandable reasons, faded into oblivion over the ensuing years, so that what we remember are the amendments enshrined in the current Bill of Rights (see Appendix C). Madison’s original list of amendments contained the standard set of rights we have come to expect, most of which were already recognized in many of the state constitutions. The major ones included the right of free speech, a free press, freedom of religion, freedom from unwarranted searches and seizures, the right to a jury trial within a reasonable period of time, and the explicit presumption that powers not delegated to the federal government were reserved for the states. Madison bundled several of these rights together in what became nine draft amendments. The House unbundled several of his composite paragraphs to produce seventeen amendments, subsequently reduced to twelve by the Senate, and then to ten in the state ratification process.32
But if we are truly to grasp Madison’s original intentions in the crucible of this creative moment, there are four features of his first draft that are worthy of attention. Perhaps the initial item to notice is the absence of a certain amendment that had been proposed by all the states that had made recommendations.
Six states had urged a return to the arrangement under the Articles whereby federal tax requests would be regarded as voluntary rather than mandatory by the states. Each state had proposed a different scheme whereby the states and the federal government could negotiate their differences, but the core idea was to move at least halfway back to state sovereignty on the essential question of taxation. Since the failure to fund the federal budget and debt was a central reason for the fiscal chaos under the Articles, Madison believed that this recommended amendment struck at the heart of the union. His way of handling the problem was simply to ignore it. Though it had been a unanimous recommendation from six states, it disappeared in Madison’s editing process.
Second, moving in exactly the opposite direction, Madison proposed an amendment of his own that no state had recommended: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” At the Constitutional Convention he had tried and failed to enact a provision allowing for a federal veto of state laws. Now he was trying to smuggle that same principle into his bill of rights under the guise of ensuring federal standards for agreed-upon human rights at the state level. It would take the Supreme Court over a century to recognize federal jurisdiction in the Madisonian manner. And history proved Madison right when, as he had predicted to Jefferson, more abuses of individual rights would occur at t
he state than at the federal level.33
But the Senate deleted this proposed amendment for the same reason that the delegates in Philadelphia had rejected its earlier version. They were not ready for such a conspicuous projection of federal power over the state governments. Madison deeply regretted this rejection, saying that he regarded it to be “the most valuable amendment on the whole list.” Nevertheless, a clear majority in both branches of Congress believed it went too far.34
Third, and not wholly unrelated, Madison criticized the part of the Constitution that declared that “the number of representatives shall not exceed the proportion of one for every thirty thousand persons…. It is the sense of the people of America that the number of representatives should be increased.” Here he referred to recommended amendments from several states on this score, all of which were rooted in the conviction that the new version of representation as defined in the Constitution lacked the personal familiarity they had experienced at the state level under the Articles.35
Madison was attempting to convey the honest concerns of delegates in several state ratifying conventions that the geographic size of congressional districts needed to be reduced and the number of representatives increased in order to sustain a meaningful sense of representative government as they understood it. But as Madison surely realized, the problem was inherently unsolvable, because any federal legislature that contained as many representatives as these critics wanted would be an impossibly unwieldy body that would only become more so as the population increased. What had to change was not the ratio of representatives to constituents but the way those constituents thought about representation. It was a problem of scale. Once you moved from a local and state to a national orientation, basic attitudes toward government itself needed to change. Nothing came of this proposal because, in truth, nothing could, but the issue exposed the most palpable and practical way the transition from confederation to nation required a radical change in thinking about how the political architecture of an American republic should be configured.
The Quartet: Orchestrating the Second American Revolution, 1783-1789 Page 21