Looking back through the lens of history we tend to accept the sequence of events that gave us the Constitution and the Bill of Rights as somehow inevitable. Most Americans make little or no distinction between ratification of the Constitution and the adoption of the first 10 amendments, what we now call the Bill of Rights. However, the outcome of the Constitutional Convention, its ratification by the states, the formation of the Bill of Rights, and finally their adoption by state legislatures were far from certainties. Each of these was a separate and hard-fought intellectual battle with a final result that was no sure thing. There were 2 years between the ratification of the Constitution and the approval by state legislatures of the Bill of Rights that amended it.
Richard Labunski’s book James Madison And The Struggle For The Bill of Rights is the story of the intellectual battles James Madison and others fought to ensure personal liberties were guaranteed – explicitly.
Labunski takes the reader from the Philadelphia Convention where Madison arduously recorded the proceedings for 6-7 hours every day of the Convention, noting every vote and every important discussion. It was an exhausting task. Labunski makes bare mention of Madison’s role in the writing of several of the Federalist Papers, instead focusing on Madison’s fight with Patrick Henry at Virginia’s ratifying convention, where he played a pivotal role.
Madison initially believed that the amendments guaranteeing personal liberties were unnecessary because the Constitution as written, gave only certain rights to the federal government. He and others argued that by specifying individual rights as reserved to the people or states, the implication would be that the federal government retained all others. In general, the Federalists yearned for a stronger federal system due to their exasperation with the ineffectual government in place under the Articles of Confederation. It was at the Virginia ratifying convention that Madison began to see the importance of amending the Constitution to include these guarantees, initially if only for the “salutary” affect of appeasing the people. It was at this convention that Madison’s battle for the Bill of Rights began. Ironically, he ended up fighting with anti-Federalists for many of the provisions they wanted.
Madison’s chief opponent was Patrick Henry, the fiery orator of “give me liberty, or give me death”, fame. Henry was an anti-Federalist of tremendous stature and reputation. His goal was to do whatever he could to force a second constitutional convention in which not only would a “Bill of Rights” be incorporated, but the federal power as defined by the first convention would be severely curtailed. In particular, he and many other opposed direct taxation and the power granted to the judiciary. Madison, having been a participant, as well as the recorder of the first convention, knew that the odds of repeating its success were highly unlikely. He very much agreed with Charles Cotesworth Pinckney, a delegate for South Carolina, who said in the closing debate at the Philadelphia convention: “Conventions are serious things and ought not to be repeated.”
Patrick Henry was a political force to be reckoned with in Virginia. He recognized Madison as a worthy opponent and directed his efforts against the new Constitution accordingly. After failing to stop ratification, he turned his efforts to defeating Madison in his bid to represent Virginia in the First Continental Congress. Since the mechanism for choosing representatives was left to the states to define, some states elected their candidates at large, while others were locally chosen from districts. Even before Massachusetts’ Governor Elbridge Gerry redistricted his state, creating “salamander” shaped legislative districts (and giving rise to the term gerrymander), Patrick Henry concocted a region highly in-conducive to electing Madison. He and other anti-Federalists convinced war hero (and Madison’s good friend and future president), James Monroe to run against him.
In spite of Madison’s dislike for campaigning, he did so, and ultimately prevailed. He corresponded extensively, writing numerous quasi-open letters which were published. These contained explanations of his views on amending the new Constitution. In fact, he promised his support for the personal liberties guaranteed in the Bill of Rights. He would labor to ensure that congress would work on this immediately. Madison felt that if the people wanted such guarantees, they were entitled to them, whether he thought them superfluous or not. Moreover, procuring them via congress, e.g. within the government, was a much safer bet than resorting to another convention by the states.
Madison remained true to his word, and worked tirelessly in that first session of congress toward that end. It was a fight he took on largely by himself. He faced opposition from both the Federalists and the anti-Federalists. His colleagues, the Federalists could not understand why he was fighting so hard. William Loughton Smith of South Carolina tried to give him an out, saying that Madison had “done his duty: He supported his motion with ability and candor, and if he did not succeed, he was not to blame.” Madison wasn’t looking for an out. Once the Constitution was ratified, he believed in securing personal liberties as he had promised.
The Federalists were opposed to amending the Constitution for a variety of reasons:
The anti-Federalists opposed Madison because he was a Federalist, but also because they realized that his plan to institute guarantees of personal liberties, would appease many of their constituents and remove much of the impetus for the more sweeping changes they sought, specifically concerning the judiciary and direct taxation.
In the end, the Federalists were not opposed to such guarantees, they merely thought it inconceivable that the federal government, constructed as it was, would abuse its power. The amendments that eventually passed the house and senate were limited to those guaranteeing personal liberty. Twelve were sent to the state legislatures for ratification and ten of these were ratified and became the “Bill of Rights” we have today. Virginia was the last state to approve them, and Madison again had to fight anti-Federalists led by Patrick Henry, who still wanted further limitations on the power of the federal government.
The creation of the nation’s founding documents has been justly called a miracle, but this book provides insight into the remarkable statecraft that melded high principle with political necessity and forged a nation.