by Lynne Cheney
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IN THE FIRST SESSION of the First Congress, the Senate took the lead in establishing a federal court system. The Judiciary Act of 1789 provided for district courts, circuit courts of appeal, and a chief justice and five associate justices for the Supreme Court. But the pace of the Senate scarcely matched that of the House. William Maclay, an exceedingly slender Pennsylvania senator with deep worry lines between his brows, noted in the journal he kept, “We used to stay in the Senate chamber till about 2 o’clock, whether we did anything or not, by way of keeping up the appearance of business. But even this we seem to be got over.”27
Perhaps because of the light press of business, the Senate spent weeks debating the question of titles. Senators, and particularly the president of the Senate, John Adams, were eager to have Washington called “Excellency,” “Elective Highness,” or even “His Highness the President of the United States of America and Protector of the Rights of the Same,” and they continued to press the matter even after the House rejected elevated titles. Madison soothed his thoroughly irritated colleagues by praising them for their republican instincts and even persuaded them to treat the other body courteously, appointing still another committee to decline Senate suggestions. After the Senate had finally given up, Madison reported to Jefferson that “J. Adams espoused the cause of titles with great earnestness.” Jefferson responded, “The president’s title as proposed by the Senate was the most superlatively ridiculous thing I ever heard of.” He was reminded, he wrote, of what Benjamin Franklin had once said of Adams, that he was “always an honest man, often a great one, but sometimes absolutely mad.”28
Washington was said to favor a majestic title, just as he favored a stately presentation of himself at his Tuesday receptions, or levees. Wearing black velvet, a long sword in a white polished-leather scabbard, and—the latest in fashion—yellow gloves, he bowed to visitors one by one as they approached him. Madison noted, however, that the president did have his limits when it came to grand behavior. At one levee, as folding doors were thrown open to admit him into the room, Washington’s assistant, David Humphreys, announced, “The President of the United States,” in what Madison called “a loud and pompous voice.” Reported Madison, “The effect was the more ludicrous as not more than five or six gentlemen had assembled.” Washington threw Humphreys a look, which, Madison said in later years, “he could more easily remember than describe.”29
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SHORTLY BEFORE the House adjourned for the day on Monday, May 4, 1789, Madison gave notice that in three weeks he “intended to bring on the subject of amendments to the Constitution.”30 His most immediate purpose was to undercut a proposal that he knew was coming from Theodorick Bland, his old nemesis, once handsome, but grown corpulent now. The next day, Bland presented Virginia’s call for a convention of all the states to consider amendments to the Constitution. After Madison pointed out that the Constitution required applications from two-thirds of the states before Congress could act, Virginia’s application was tabled. The next day, a New York congressman presented that state’s application for a second convention, and it too was tabled.
Madison hoped that by introducing amendments in Congress—the second way that the Constitution provided for change—he could take away the rationale for a second convention while at the same time making a conciliatory gesture to those whom he called “well-meaning opponents.”31 He also had a campaign promise to keep. He had told Virginia voters that the First Congress should recommend amendments to the states for ratification, and he had to make sure that happened. Thus it was that over the next weeks as he was debating tariffs, titles, and offices in the executive branch, he was also sifting through the more than two hundred amendments that had been proposed by various state ratifying conventions. He put aside those that would change the governmental framework the Constitution provided and concentrated on those aimed at securing rights.
While Madison was sorting out amendments, he was also worrying about his mother. He told Eliza Trist that he sent to the post office for his mail “with the most serious apprehensions.” He also told her that Theodorick Bland had received “a melancholy memento of mortality”: “After experiencing for several weeks occasional sensations very disagreeable, he was suddenly attacked with either an apoplectic, epileptic, or paralytic stroke under which he would have expired if the lancet had not been instantly applied. He remained senseless for some time. After a few hours, however, his mind became right, and he is at present in a manner well, but not without the disquietude incident to the nature of such attacks and the bare possibility of relapses.”32 Madison’s description seems to come from someone who knew well how unsettling it was to experience such an attack—and to be aware that another could follow.
Few of Madison’s fellow congressmen shared his urgency to proceed with amendments, and he agreed to two delays in order to finish the revenue measure. Finally, on June 8, saying that he felt “bound in honor and in duty,” he moved that the House go into the committee of the whole so that he could present his proposals. He was met by a hail of objections, not only from Antifederalists, but from Federalist congressmen, who said there were more important matters and that the Constitution hadn’t been in effect long enough to consider changes to it. Madison pressed ahead, arguing that he wanted only to introduce the amendments and did not expect an immediate decision. Roger Sherman grumpily observed that Connecticut had ratified the Constitution by a large majority, wanted the government it set forth, and had no desire for amendments. Why, then, interrupt crucial work to discuss them? he asked.33
Late in the day, when he was finally able to begin, Madison emphasized that he wanted to make the Constitution “as acceptable to the whole people of the United States as it has been found acceptable to a majority of them.” Moreover, he said, the amendments he had in mind, by satisfying objections being made in Rhode Island and North Carolina, would ease the way for those two states to come into the Union.34
Most of those who had opposed the Constitution, Madison asserted, disliked it not because of its structure but “because it did not contain effectual provisions against encroachments on particular rights.” One can imagine the dozen or so Antifederalists in the hall shaking their heads, since structural change was exactly what they had in mind. They wanted to alter the government that the Constitution had framed, particularly to limit the federal government’s powers. But Madison plunged ahead as if there were no doubt about his premise. There were ways “to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution,” he said, thus bringing to Congress the case he had made during his Virginia campaign.35
Madison did not inflate the value of the amendments beyond what he believed it to be. He described a bill of rights as “neither improper nor altogether useless.” Indeed, should the states as well as the federal government adopt such bills, “upon the whole, they will have a salutary tendency.” Rights amendments, he said, could have a positive effect on the way in which people thought of the rights themselves: “As they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one means to control the majority from those acts to which they might be otherwise inclined.”36
Madison’s proposals did not call for the government to grant rights, but rather enjoined interference with them. “The civil rights of none shall be abridged on account of religious belief” was a formulation that avoided even a hint that people had ever for a moment given over their right to worship freely. Other amendments followed the same pattern: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments”; “The right of the people to keep and bear arms shall not be infringed”; “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 war
rants issued without probable cause.” Lest there be any confusion that forbidding interference with these rights somehow made others fair game, Madison had an amendment specifically addressing the issue: “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.”37
In a nod to one of the amendments most commonly suggested in ratifying conventions, Madison also proposed that powers not delegated by the Constitution to Congress be reserved to the states. In addition, he used the occasion to propose a remedy for a problem that continued to concern him: the ability of the states to deny rights to their citizens. “No state,” he proposed, “shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”38
As Madison’s proposals became public, he was criticized both by those who thought what he was doing was unnecessary and by those who accused him of creating a diversion—throwing “a tub to the whale,” they called it. Richard Peters, the Speaker of the Pennsylvania General Assembly, offered a good-humored critique: “I see you have been offering amendments to the machine before it is known whether it wants any.” Peters joked that the only people who should throw out tubs were those “who were afraid of the whale,” which caused Madison to counter that far from being fearful, he had the whale in his sights. A bill of rights, by bringing the public around to support of the Constitution, would, Madison wrote, “kill the opposition everywhere.”39
But progress was slow. Not until August 13 was there a motion to consider amendments, and as soon as it was made, one annoyed congressman after another took the floor to argue for postponement. Thirty-year-old John Vining, a leading citizen of Delaware, used the occasion to needle Madison, saying that he was only going along with the motion because he was “impressed by the anxiety which the honorable gentleman from Virginia had discovered for having the subject of amendments considered.”40
As soon as the House had resolved itself into the committee of the whole, Roger Sherman of Connecticut rose to object. Madison’s proposal interwove amendments into the Constitution rather than adding them at the end, and Sherman argued that so doing would create an entirely new document. The debate that ensued took up the rest of the day. Gentlemen who had argued that the amendments would consume too much time took the floor to speak at length, which, in turn, encouraged others. Said one congressman, “As so much has been said, I wish to give my opinion.”41 Sherman’s motion was defeated, but he would bring it up again and prevail. Thanks to his persistence, amendments would be appended to the Constitution, which served Madison’s purposes better than interweaving would have. If one wants to encourage respect for rights, how wise to have them in a form that can be displayed on classroom walls across the land.
The House finally took up the first amendment—though not the one we call the First Amendment today. This one capped the size of the House of Representatives and seems an odd place to have begun after all the time that Madison had spent talking about rights. But five of the six states recommending amendments had taken up this subject, leading Madison to propose that the Congress be authorized to alter the formula for representation set forth in the Constitution—one representative for every thirty thousand constituents—so that the number of House members would never exceed 175. Fisher Ames took to the floor to argue against allowing the number of House members—59, as he spoke—to increase at all. The House would degenerate as its numbers grew, he said, attracting men of lesser abilities as increased membership made the job of representative less consequential. Elbridge Gerry accused Ames of snobbery, and other congressmen jumped in, a few actually speaking to the motion on the floor. In the end, the members voted to cap the size of the House at two hundred and, having exhausted themselves with the first amendment proposed, quickly approved the next proposition—that any pay raise they passed for themselves could not take effect until after an intervening election.42 Then they adjourned.
On the next day’s agenda were propositions that would form most of the First Amendment, the one so revered today that many Americans think that Congress must have considered it first in recognition of its primacy. That was not the case, nor did the debate, which began August 15, reveal an abundance of veneration on the part of the delegates. A discussion about prohibiting state-sponsored religion descended briefly into name-calling before the House approved the proposition that “Congress shall make no laws touching religion or infringing the rights of conscience.”43
Many Federalists were still irritated at what appeared to them a waste of time. When delegates took up “freedom of speech and of the press and the right of the people peaceably to assemble and consult for their common good and to apply to the government for redress of grievances,” Theodore Sedgwick of Massachusetts tried to show what trivialities the House was concerning itself with by moving to strike out “assemble.” Said he, “They might [as well] have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper.” Antifederalists, angry and bitter at being forced to debate Madison’s amendments instead of ones they preferred, sidetracked the debate onto other matters, such as whether the people had the right “to instruct their representatives.”44
Aedanus Burke, an Antifederalist from South Carolina, accused the Federalists of deceit. They pretended to be amending the Constitution in order to conciliate people, but the amendments they were offering were “little better than whip-syllabub, frothy and full of wind, formed only to please the palate.” He took the floor to demonstrate the kind of “solid and substantial amendments” he had in mind, holding up what states such as South Carolina had approved: propositions to constrain the power of Congress by requiring term limits and sharply restricting the authority to tax; to restrain the president’s war powers and deny him removal power; and nearly to eliminate the federal judiciary. But Madison had the votes to render Burke’s show ineffective, and members passed the proposition forbidding Congress to interfere with speech, publication, or assembly. They had discussed a possible deletion to the clause (the right to assemble) and a possible insertion (the right to instruct), but they had not debated the intricacies of free speech or free press that have concerned Americans since. Are there occasions when free speech may be properly abridged? Is it possible for a free press to go too far?45
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FISHER AMES, although not averse to trying to hijack the debate himself, had apparently grown tired of his colleagues’ multiple pronouncements on everything besides the matter under consideration, and he moved to cut off debate. Following many objections, he withdrew his motion, but not before thoroughly infuriating a southern member, probably Aedanus Burke of South Carolina, who “hinted an intention” to challenge Ames to a duel. If he followed through, it was the first known instance of one congressman challenging another, and what was likely the second quickly followed. Elbridge Gerry reported that he was approached by someone who said that as long as there was talk “of calling out, he had reason to be offended at something I had said and should use the same freedom with me.” Congressman George Leonard of Massachusetts observed that the bill of rights debate was driving “the political thermometer high each day.”46
The House was off on Sunday, and the debate on Monday improved to the extent that no member is recorded as having threatened another’s life. But Antifederalists continued to make motion after motion that they had no hope of winning. Madison let other Federalists answer them—until Thomas Tudor Tucker of South Carolina tried to strike out the proposition that prevented states from infringing upon personal rights. Madison took the floor immediately, saying this was “the most valuable amendment in the whole list,” and it was retained.47
Antifederalists were intent on getting a vote on all the amendments states had proposed, including those that would substantially change the government. They got their chance—and their comeuppan
ce—on August 18, when members without debate and on a voice vote turned them down.48
As the direction of the House became clear, Madison turned to his correspondence. Richard Peters had sent him a rhymed fable about eleven cooks (that is, states) who make a delicious soup, only to have a rude group of guests (Antifederalists) insist on altering the recipe before they even take a taste. Madison, amused, wrote back, “May I hope that ‘The Wise Cooks and Foolish Guests’ is but a sample of the treat you meditate for your friends.” He went on to report to Peters on “the nauseous project of amendments,” a phrase that has been taken to mean that the father of the Bill of Rights was sickened by the undertaking that would bring him such renown. Certainly he was tired. “The work has been extremely difficult and fatiguing,” he told Edmund Pendleton a few days before House passage of seventeen amendments.49 But in the context of the fable, the word “nauseous” is probably a reference to the gut-wrenching mess that the rude guests intended to make of the soup. Madison had managed to prevent their mischief and in his success must have found satisfaction.
But when the amendments came back to the House from the Senate, there was a disappointment. The number had been reduced to twelve, in some cases by combining and in others by eliminating, and gone was the amendment Madison had valued most, the one prohibiting the states from infringing on individual rights. It had been part of a campaign he had started at the Constitutional Convention, and he would not see victory in his lifetime. The Fourteenth Amendment, ratified in 1868, would, however, prohibit states from abridging “the privileges or immunities of citizens,” depriving them “of life, liberty, or property, without due process of law,” and denying them “the equal protection of the laws.” Eventually, this amendment would be construed to mean that most provisions of the first ten amendments apply to the states, thus affirming the importance of Madison’s goal.