Madison's Music

by Burt Neuborne

  When it finally got to work on April 1, 1789, the first United States Congress had a lot on its plate. The executive and judicial branches had to be created and organized from scratch. Given the press of urgent business, Congress was in no hurry to consider a bill of rights. Only after Virginia and New York had submitted formal demands on May 5 and 6 for a new constitutional convention capable of rewriting the entire document was Madison able to focus his colleagues’ attention on a declaration of rights. On June 8, 1789, Madison, who had won a hard-fought congressional election victory against James Monroe, finally took the floor of the House of Representatives and proposed a draft declaration of rights in the form of a series of freestanding constitutional amendments to be interpolated into the existing text. Madison’s House colleagues complained long and loud about being diverted from really important work but reluctantly agreed to hear him out.

  Madison was a political genius but a very reluctant poet. As of June 8, 1789, he had no intention of drafting a bill of rights at all, much less a coherent poem to human freedom. Instead, he proposed that a series of rights-declaring clauses be interpolated into the body of the Constitution at the point where the potentially dangerous government power the clauses were designed to limit was found. Instead of a poem, Madison was thinking about a good-government cookbook, in which spicy, potentially indigestible helpings of government power could be made palatable by immediate immersion in a soothing rights-protective sauce. Given the debates over a bill of rights during the ratification process, there was a careful method to Madison’s original structural madness. By avoiding a coherent and comprehensive listing of rights, Madison was attempting to avoid an inadvertent freezing of rights to only those described by the literal text. Moreover, by structurally placing the right at the point where the power was created, Madison hoped to avoid any implication that a written catalog of rights implied the existence of power not explicitly granted in the text.

  Madison began his recipe for good government with an elegant proposed new preface to the Constitution drawn from George Mason’s preface to the 1776 Virginia Declaration of Rights, which had formed the basis for Thomas Jefferson’s Declaration of Independence. Madison’s preface asserted that government exists solely to protect the people’s enjoyment of life and liberty, the right of acquiring and using property, and the pursuit of happiness and safety. He even inserted a right of rebellion if government failed to fulfill its purpose. The newly elected members of the fledgling national government did not take kindly to Madison’s suggestion that they were sitting uneasily atop a revolutionary volcano of popular rejection. The elegant preface with its right of rebellion never made it out of Congress.

  Madison then proposed two structural fixes designed to correct perceived flaws in the Constitution’s original text having nothing to do with rights. He urged, first, that the provisions of Article I, section 2, clause 3 setting out the structure of the House of Representatives be amended to set a maximum on the size of the House and the number of constituents each member could represent. A modified apportionment formula raising the ceiling to 50,000 constituents was eventually adopted by Congress but was ratified by only nine of the needed eleven states. If Madison’s original June 8 apportionment proposal had been ratified by the necessary eleven states, the current House of Representatives would consist of 20,000 members, a terrifying thought. Today, each of the 435 members of the House represents approximately 670,000 people.

  Madison’s second proposed structural fix urged that Article I, section 6, clause 1, dealing with Congress’s compensation, be amended to ensure that a sitting Congress could not increase its own salary. The proposal made it through Congress but was initially ratified by only five states. The proponents never gave up. In 1992, when Michigan became the thirty-eighth state to ratify Madison’s proposal, the idea of limiting Congress’s power to vote itself a pay raise finally achieved acceptance by three quarters of the states and became the Twenty-Seventh Amendment only 74,003 days after Congress had first recommended its adoption by the states. Better late than never.

  With the preface and structural fixes out of the way, Madison got down to the real business of rights. The story of the Bill of Rights begins with Madison’s June 8 proposals for amending Article I, section 9, inserting a series of separate clauses protecting religious freedom, free speech, free press, free assembly, the right to petition, the right to bear arms, limiting the quartering of troops, banning double jeopardy, guarantying due process of law, prohibiting unlawful search and seizure, banning cruel and unusual punishment, protecting jury trial and the right to counsel, and recognizing the possibility of additional unenumerated rights. Madison’s proposed text was often wordy, and the poetic structure was not yet evident to the naked eye—although Madison had already grasped much of it, especially the structure and content of what became the First Amendment. In fact, the order of the six rights textually protected in what became the First Amendment was fixed on June 8, even though each was treated as a separate interpolation. Madison’s June 8 provisions eventually evolved into the First, Second, Third, Fifth, Eighth, Fourth, Sixth, and Ninth Amendments, in that order. As of June 8, though, no one could accuse Madison of poetry.

  Madison also urged that a new clause be placed into Article I, section 10, forbidding states from violating the rights of conscience, freedom of the press, and jury trial in criminal cases. The 1789 Senate, consisting of twenty-one white men of substantial property elected by the state legislatures, erased this effort to impose rights-based limitations on state governments. It took the Civil War, the enactment of the Fourteenth Amendment in 1868, and years of legal wrangling before Madison’s vision of a Bill of Rights limiting state as well as federal government finally became a reality through the “incorporation” of most of the Bill of Rights into the Fourteenth Amendment’s Due Process Clause, an act of genuine semantic daring.

  Madison continued by suggesting a new clause in Article III, section 2, limiting the power of the Supreme Court by imposing a minimum jurisdictional amount on appeals and forbidding Supreme Court review of jury verdicts except in accordance with existing common law principles. This was a very big deal in a legal world where juries often decided what the law was. The second half of Madison’s proposed jury material eventually became the “reexamination clause” of the Sixth Amendment. In addition, the third clause of Article III, section 2 was to be replaced by a guaranty of a unanimous and impartial jury in all criminal cases, grand jury presentment in capital cases, and jury trial in civil cases, protections that eventually found their way into the Sixth, Fifth, and Seventh Amendments. Madison concluded his June 8 speech with a recommendation that a clause protecting separation of powers be placed in Article VI, forbidding the three branches of government from poaching on each other’s turf, together with a federalism clause, ensuring that powers not given to the federal government or forbidden to the states be reserved to the states. Although the federalism clause became the Tenth Amendment, Madison’s separation-of-powers clause, like his elegant preface and his clauses protecting religious freedom, free speech, and jury trial against the states, was rejected by the Senate. Eventually, though, all of Madison’s “lost clauses” but one became law through the magic of aggressive judicial review. Separation of powers is enforced nontextually; state governments are bound under the incorporation doctrine; but the Seventh Amendment right to jury trial in federal civil cases has not yet been applied to the states.

  When Madison finally sat down on June 8, many of his colleagues were less than enthusiastic about the substance of his handiwork, and about taking time away from genuinely important things to debate the abstractions of a declaration of rights. Several sought to table the discussion indefinitely. Several others sought to refer the matter to a committee, where it might die a quiet death. Yet others doubted the necessity and wisdom of the entire enterprise. Finally the House was persuaded to continue considering the adoption of a bill of rights as a committee of the whole whenever time per
mitted. It took Madison more than a month to get the Bill of Rights onto the House’s agenda again. On July 21, he asked the House to consider his proposed June 8 amendments as a committee of the whole. The response was more griping about taking time away from pressing matters, especially because many members feared that each amendment recommended by a state ratifying convention would be discussed at length on the House floor. Instead, Madison’s colleagues voted to refer the matter to a select committee of eleven members (the Committee of Eleven), one from each ratifying state (North Carolina and Rhode Island had refused to ratify the Constitution without a bill of rights and were, therefore, not members of the union in 1789). The committee would review Madison’s proposed draft, canvass the large number of amendments recommended by the state ratifying conventions, and report back to the full House with a formal proposal. To his discomfort, Madison had his first set of congressional editors.

  The Committee of Eleven met from July 21 to July 28, 1789, but kept no written records. By and large, they were an unimpressive group. It’s hard to imagine them editing James Madison’s work. The two leading members were Madison himself, representing Virginia, and Roger Sherman from Connecticut. Sherman, who had been a member of the Committee of Five that had drafted the Declaration of Independence, was the Founders’ version of Leonard Zelig. He was the only person to sign all four of our foundational documents—the Continental Association (1774), the Declaration of Independence (1776), the Articles of Confederation (1781), and the United States Constitution (1787). The ubiquitous Sherman is also the only person to serve on the three editorial committees that produced the Bill of Rights—the Committee of Eleven, the three-person Committee on Style, and the three-person House delegation to the House/Senate conference committee. Madison served on the Committee of Eleven and the House/Senate conference committee, but was not a member of the Committee on Style.

  But that’s getting ahead of the story. The other nine earnest back-benchers on the Committee of Eleven were John Vining (Del.), Egbert Benson (N.Y.), Abraham Baldwin (Ga.), Aedanus Burke (S.C.), Nicholas Gilman (N.H.), George Clymer (Pa.), Benjamin Goodhue (Mass.), Elias Boudinot (N.J.), and George Gale (Md.). Boudinot had served in the ceremonial post of president of the Continental Congress from 1782 to 1783. As president, he had signed the Treaty of Paris formally ending the Revolutionary War. He went on to head the United States Mint. Egbert Benson became one of John Adams’s short-lived Article III “midnight judges,” appointed to the Second Circuit in 1801 and serving until his post as chief judge was abolished by the Jeffersonian Congress in 1802. George Gale went on to become superintendent of distilled spirits for Maryland.

  Roger Sherman turned out to be Madison’s editor in chief, not because he was much help in conceiving or drafting the rights-bearing provisions, but because he was so committed to listing them in a single coherent document. During the Committee of Eleven’s deliberations, Sherman actually drafted a handwritten version of a proposed bill of rights, but Madison, acting like any stubborn author, would have none of it. Madison insisted on his original June 8 model of interpolating freestanding protections into the Constitution’s text, and persuaded the Committee of Eleven to go along over Sherman’s objections. No signs of poetry yet.

  The Committee of Eleven’s first task was to sift through the blizzard of proposed amendments that had accompanied many of the state ratification documents. The editors made short work of them. In fairness, Madison had already carefully reviewed the existing state bills of rights, the old colonial charters, and the four historic English bills of rights, beginning with the Magna Carta, as well as the state ratifying materials, and in his June 8 proposals he had included a proposed rights-bearing amendment on any issue raised by at least three of the source documents. Although Elbridge Gerry (immortalized as the inventor of the gerrymander) would later demand that every amendment proposed by the state ratifying conventions be debated on the floor of the House, the obvious care with which Madison had responded to the issues raised by the conventions made that task unnecessary. Gerry’s motion was soundly defeated. Freed from the necessity of considering each proposed amendment, the editors turned to Madison’s June 8 text. They quickly scrapped the elegant preface, including its right of revolution. In its place, the committee recommended a single introductory phrase:

  Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone, We the People . . .

  Even that scaled-down snippet of Enlightenment political science failed to make it into the final version submitted to the states. The committee then modified Madison’s structural apportionment clause to place a ceiling of 175 on House membership. The ban on Congress raising its own salary survived unscathed. As we’ve seen, both of Madison’s structural fixes survived the congressional editing process (Congress eventually eliminated the 175 House member ceiling in place of a ceiling of 50,000 people per representative), but neither was ratified by the necessary three quarters of the states, a number that had grown from ten to eleven with the delayed ratification by North Carolina and Rhode Island and the admission of Vermont into the Union as the fourteenth state.

  The real editing work began with the provisions of Madison’s June 8 draft that would become the First Amendment. The committee cut Madison’s one hundred seven words to fifty-two. Madison had opened with a protection of religious freedom to be inserted in Article I, section 9, between clauses 3 and 4:

  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 Committee of Eleven penciled in a shorter version that eliminated Madison’s protection of religious belief or worship but kept the ban on establishing religion (without the word national) and the protection of equal rights of conscience but flipped the order. The committee put the ban on establishing religion first and dropped the language about religious belief or worship, relying on the protection of equal rights of conscience. We’re still arguing about why the editors put the ban on establishment of religion ahead of protection of its free exercise. The edited version read:

  No religion shall be established by law, nor shall the equal rights of conscience be infringed.

  The committee apparently viewed Madison’s separate clauses protecting “religious belief and worship” and “equal rights of conscience” as redundant. Subsequent editors in the Senate would also view the two clauses as overlapping but would elect to reinstate an explicit protection of religious worship and eliminate the provision on equal rights of conscience. It would take almost two hundred years for the Supreme Court to undo Congress’s editorial mischief and reinstate Madison’s brilliant perception that while conscience and religion are deeply intertwined, the two ideas are not necessarily coterminous. Centuries ahead of his time, Madison understood, though his colleagues on the Committee of Eleven and in the Senate did not, that deeply felt secular conscience is entitled to the same degree of constitutional respect as religious belief.

  Madison’s first crack at protecting free speech in his June 8 draft inserted two clauses into Article 1, section 9, providing:

  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 the common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.

  The committee shortened Madison’s wordy version into a single clause about half as long:

  The freedom of speech, and of the press, and the right of the people peaceably to assemble and consult for the common good, and to apply to the government for redress of grievances, shall not be infringed.

  Score one for the editors. But note that Madiso
n had already settled on the order of the six rights in what came to be the First Amendment.

  The committee’s other editing coup was organizational: the transfer of Madison’s material guarantying fair criminal procedure—public trial, notice of the charges, confrontation of witnesses, compulsory process, and right to counsel—from Article 1, section 9 (dealing with legislative power) to Article III, section 2 (dealing with the judiciary), where it was united with the provisions guarantying jury trial, local venue, and grand jury indictment. The editorial decision to link criminal trial rights, including notice, confrontation, and right to counsel, with the jury trial provision is the first sign of an effort to attain structural coherence. It was the first tentative hint of the poetry to come. Curiously, the editors left Madison’s other criminal procedure guaranties, including double jeopardy, self-incrimination, and due process provisions, back in Article I, section 9. That link would be made later.

  The rest of the committee’s editorial efforts were the kind of minor changes that drive authors—and subsequent readers—crazy. Madison’s original version of what would become the Second Amendment’s right to keep and bear arms had three clauses:

  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.

  The committee rearranged and shortened the clauses:

  A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

  While Madison’s operational phrase “the right of the people to keep and bear arms” was left intact by the editors, the editors flipped the order of the militia clause and the keep-and-bear-arms clause. Folks have argued for years about what legal effect, if any, should flow from the flipping of the order of the first two clauses, and whether the short-lived addition (and subsequent disappearance) of the phrase “composed of the people” was intended to mean anything. The right to religiously based conscientious objection to military service was eventually eliminated by the Senate. But the power of Madison’s vision has triumphed, persuading Congress to provide for conscientious objection from the draft.