The editors made only trivial changes to Madison’s quartering-of-troops clause, which eventually became the Third Amendment. Madison had proposed:
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.
The committee’s version read:
No soldier shall in time of peace be quartered in any house without the consent of the owner; nor in time of war but in a manner to be prescribed by law.
The committee’s version is marginally better, but I wouldn’t pay much for the improvement.
The editors’ emerging concern with structure also appears in the minor change to Madison’s double-jeopardy draft. Madison had written, “no person shall be subject . . . to more than one punishment or one trial for the same offence . . .” The editors put “trial” before “punishment” to reflect the chronology of the two events. The more significant editorial change to Madison’s proposed clauses protecting against double jeopardy, self-incrimination, deprivation of due process of law, and unlawful taking of private property, which eventually became the Fifth Amendment, involved a rewrite of the takings clause. Madison had originally written:
. . . nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.
The editors substituted:
. . . nor shall private property be taken for public use without just compensation.
Score another minor point for the editors.
On the other hand, the editors just couldn’t keep their hands off Madison’s prototype of the Fourth Amendment. Madison wrote:
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.
The committee removed the d from “secured,” deleted the word their from “their houses” and “their papers,” and substituted the term effects for “their other property.” The editors also removed the reference to “all unreasonable searches and seizures,” and changed the last two ors to ands. Because protection from “unreasonable searches and seizures” is the heart of the clause, it’s hard to imagine what the editors had in mind when they took that language out. The phrase was promptly reinstated during congressional debate, with the suggestion that its omission had been inadvertent.
Madison had ended his proposed interpolations into Article I, section 9 with a clause designed to respond to critics who had argued that a bill of rights was dangerous because it would preclude the recognition of additional unwritten rights, and imply the existence of a muscular government with implied powers capable of violating rights. Madison’s clause, which eventually evolved into the Ninth Amendment, provided:
The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be 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.
The editors shrank Madison’s text from fifty-seven to twenty-one words, entirely eliminating the clause designed to prevent the implied growth of government power.
The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.
The proposed limits on the power of the states in Article I, section 10 survived with minor editorial tinkering. Madison’s violate was changed to “abridge,” and the ors became nors. Madison’s clause limiting appeals from civil jury verdicts—which eventually became the Reexamination Clause of the Sixth Amendment—remained virtually intact, with a $1,000 jurisdictional amount imposed on Supreme Court appeals, and one minor editorial change. Madison had written:
nor shall any fact, triable by jury, according to the course of the common law, be otherwise re-examinable than may consist with the principles of common law.
The editors improved the diction:
Nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable than according to the rules of the common law.
In addition to moving the criminal procedure trial rights from Article I to Article III, the editors tinkered with the text. Madison had provided for notice of “the cause and nature of the accusation.” The editors flipped the order of nature and cause. Madison had provided that an accused be “confronted by his accusers and the witnesses against him. . . .” The editors removed accusers but left witnesses. Presumably, they believed the two categories were interchangeable, but who knows for sure? Madison’s catchall jury trial clause that eventually fragmented into parts of the Fifth, Sixth, and Seventh Amendments was substantially edited for the better. Madison’s June 8 draft included a guaranty of grand jury indictment “in all crimes punishable by loss of life or member.” The editors provided:
no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment by a Grand Jury.
Madison originally included a rambling provision on the location of criminal trials. The editors provided that trial should take place where the crime occurs, but that if a crime occurs in a place in possession of an enemy or where an insurrection was taking place, a trial could be moved to a new location. Madison’s June 8 civil-jury-trial language provided:
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.
This was shortened by the editors and placed in a separate clause to read:
In suits at common law the right of trial by jury shall be preserved.
Finally the editors tinkered slightly with Madison’s proposed closing clause, designed to preserve separation of powers and federalism. Madison had written:
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 powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise 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.
The committee cleaned up the text, providing:
The powers delegated by this Constitution to the government of the United States, shall be exercised as therein appropriated, 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 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.
In the end, the first round of editing by the Committee of Eleven made few substantive changes to Madison’s June 8 draft but did carry out some useful reorganization. It also occasionally condensed Madison’s discursive language into sharper prose. Given the committee’s makeup, I suspect that the minor structural reorganizations came from Roger Sherman, but I’ll bet that the felicitous line editing was Madison editing himself.
On July 28, when John Vining sought to present the report of the Committee of Eleven recommending adoption of seventeen clauses, he was met by the House’s usual unwillingness to take time from important matters to discuss something as abstract as a declaration of rights. The report was promptly tabled for future consideration. It wasn’t until August 3 that Madison could get the floor. The best he could do was to obtain a commitment by the House to consider the report as a committee of the whole as soon as time was
available. On August 13, the House, sitting as a committee of the whole, finally began debate on the report of the Committee of Eleven.
The discussion began with the by now ritual grumblings about taking time away from more important matters. In fairness, the House was simultaneously debating the structure of the judicial department and voting on what became the Judiciary Act of 1789. John Vining didn’t make matters easier by apologizing profusely for interfering with the scheduled debate over a bill to appoint land agents for Western lands, which he acknowledged was much more important than the Bill of Rights. Theodore Sedgwick, who would later play an important editorial role on the Committee on Style, grumbled that the House had “much other and more important business requiring attention.” Elbridge Gerry, who had refused to sign the Constitution because it lacked a bill of rights and who had demanded that every amendment proposed by a state ratifying convention be discussed on the floor of Congress, continued to play his complex game by urging Madison to withdraw his proposals entirely. Gerry hoped that failure to adopt a bill of rights would require the calling of a new constitutional convention with power to rewrite the 1787 document. Madison didn’t take offense. In fact, Gerry eventually served as Madison’s vice president from 1813 until Gerry’s death in 1814.
Debate began on August 13. Roger Sherman, who had lost the argument in the Committee of Eleven, urged once again that the seventeen pending clauses be consolidated in a single coherent bill of rights. Once again, Madison, the reluctant poet, disagreed, insisting on interpolating the clauses into the body of the Constitution at five different places. Elbridge Gerry then piped up, ridiculing the idea of a single coherent bill of rights. Sherman’s motion for a single bill of rights was once again roundly defeated.
On August 14, the House finally began considering Madison’s handiwork. His stripped-down addition to the preamble was adopted by a vote of 27–23, although it was eventually rejected by the Senate. His apportionment fix, linking House representation to thirty thousand constituents and fixing the maximum size of the House at 275, carried 27–22. His structural limit on Congress raising its own salary carried easily. None of it made its way into the final Bill of Rights. On August 15, a Saturday, the House finally began debating the committee’s edited version of Madison’s effort to protect religious freedom. The committee’s version read:
No religion shall be established by law, nor shall the equal rights of conscience be infringed.
Roger Sherman moved to strike the amendment entirely, arguing that it was unnecessary because Article I, section 8 did not give Congress the power to establish a religion in the first place, so no need existed for an antidote. After Madison reminded his colleagues that some feared that the Constitution’s “necessary and proper” clause would expand Congress’s power beyond the literal text of the Constitution, Sherman’s motion was overwhelmingly defeated. Attention then turned to the text. Madison explained that the clause was intended to prevent Congress from establishing a national religion and requiring people to observe it by law. Samuel Livermore (N.H.), an opponent of strong national government who had opposed the creation of lower federal courts, moved to amend the text to read:
Congress shall make no laws touching religion, or infringing the rights of conscience.
While the House adopted the Livermore version by a vote of 31–20, subsequent editing would veer back toward Madison’s “establishment” language. Theodore Sedgwick then ridiculed Madison’s insistence on protecting the right of assembly as well as speech. His effort to excise “assembly” was roundly defeated. A sustained effort to augment Madison’s protection of the freedom to apply to the government for redress of grievances by adding a right of the people “to instruct their representatives” was defeated by a vote of 41–10, but not before it triggered a discussion of Edmund Burke and the nature of representative democracy. The day ended with Fisher Ames unsuccessfully seeking to derail all further discussion of the committee’s work.
Madison had a good day on Monday, August 17. The House voted to approve Madison’s “right to keep and bear arms” clause, including a narrow 24–22 vote to retain a provision guarantying religious conscientious objection to military service. Madison’s “cruel and unusual punishment” clause was upheld over objections that it was too vague, and his ban on “unreasonable search and seizures” was reinstated. The text of what would become the Fourth Amendment was strengthened by Egbert Benson’s motion adding the language “no warrants shall issue [without probable cause etc.].” Madison’s recognition of unenumerated rights that eventually evolved into the Ninth Amendment was adopted verbatim. Gerry couldn’t even get a second for his effort to substitute impair for disparage. Finally, Madison’s effort to limit the states from interfering with religious freedom, speech, or the press, which he described as the most important element of his work, was overwhelmingly accepted with a minor edit that shifted it into a positive statement:
. . . the equal rights of conscience, the freedom of speech, or the press, and the right to trial by jury in criminal cases, shall not be infringed by any State.
On Tuesday, August 18, the House ended its consideration of the Committee of Eleven’s edit of Madison’s June 8 proposals by approving his separation-of-powers clause and slightly modifying his federalism clause, which had read:
The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.
The House added “or to the people” at its close. So, after a week of debate, the only significant change imposed by the committee of the whole on the Committee of Eleven’s proposals was a minor redraft of Madison’s religious-freedom amendment. But surviving the committee of the whole was just the beginning. Madison had to do it all over again before the same House of Representatives in its formal parliamentary dress.
Poetry struck late on August 19. After the House rejected what was left of Madison’s effort to amend the preamble, the indefatigable Roger Sherman moved for a third time to reorganize Madison’s separate clauses into a single coherent Bill of Rights. This time, after an unreported debate, Sherman won. Madison was less than pleased. He did not serve on the three-person Committee on Style charged with rearranging the clauses into a single document. In fact, Sherman did Madison—and us—a huge service by insisting that Madison’s music be displayed in a manner that reveals its majestic harmonies. If Madison ever receives royalties from his poetry, he should split them with Roger Sherman.
In fairness to Madison the poet, though, he had already developed the content, order, and structure of the rights sprinkled throughout the larger text. All Sherman did was to lift the rights out one by one in the order that Madison had placed them and list them all in a single place. It took a day. If they do split the royalties, Madison is entitled to the lion’s share.
On August 20, Fisher Ames successfully urged yet another rewrite of the religious-freedom clause, reinstating an explicit protection for free exercise, retaining the right of conscience, and continuing to place establishment before free exercise:
The Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.
The “keep and bear arms” clause was also slightly amended to reinstate Madison’s original use of the words “in person” at the close of the conscientious-objection provision, presumably to signal that conscientious objectors could be required to perform alternative service. Because the conscientious-objection clause did not make it through the Senate, we’ll never know exactly what the House had in mind. The rest of the material that became the Bill of Rights sailed through with little debate. Fittingly, on August 21, Roger Sherman had a redundant last word by editing Madison’s federalism clause to read:
. . . the powers not delegated to the United States by the Constitution nor prohibited by it to the States, are reserved to the States respectively, or to the people.
That was the way it already read except for the one com
ma after the word States.
August 22 was devoted to unsuccessful efforts by House members to place pet amendments into the text, and to the adoption of the final version of Madison’s doomed apportionment clause setting a ceiling of fifty thousand on the number of constituents a House member could represent. The big news on August 22 was the appointment of a three-person Committee on Style, consisting of Roger Sherman, Egbert Benson, and Theodore Sedgwick, to rearrange Madison’s separate clauses into a single Bill of Rights. Madison, having lost the argument over whether to interpolate the rights into the body of the Constitution or to list them separately, was sulking in his tent, but he had already done most of the heavy organizational lifting. The order of his June 8 proposals meticulously prefigures the organization of the First, Second, and Third Amendments and closes with material tracking the Ninth and Tenth. The material that evolved into the Fourth through Eighth Amendments was somewhat less meticulously organized. But that left something for Roger Sherman to do. The three members of the Committee on Style closeted themselves for a day or so and quickly presented the House with a document containing seventeen proposed articles on August 24, 1789. The first two articles were the ill-fated apportionment and congressional pay raise provisions, having nothing to do with rights. With the exception of Madison’s separation-of-powers clause, which didn’t get through the Senate, the remaining fifteen articles prefigure the remarkable order and structure of the Bill of Rights. The three editors didn’t tinker with Madison’s placement of the order of the rights that became the First, Second, and Third Amendments, although the First Amendment material is still divided into separate religious and secular clauses. They did, however, bring organizational order to much of the material that became the Fourth, Fifth, Sixth, and Eighth Amendments. The three editors put together a pretty good draft for the Senate’s consideration. It was adopted by the House without debate on August 24.
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