The Bill of Rights (Part I): background

Madison and the Bill of Rights

America’s democratic experiment is based on three foundational documents, the Declaration of Independence, the Constitution and the Bill of Rights. While James Madison is commonly acknowledged as the “Father of the Constitution,” he has an even stronger claim on the title of the “Father of the Bill of Rights.” The story of the drafting of the Bill of Rights is a tale that begins with the ideals and natural rights identified in the Declaration of Independence in 1776. A generation later, these rights were enshrined by the Bill of Rights into the Constitution in 1791.

When the idea of a federal Bill of Rights was first proposed at the Constitutional Convention in 1787, the vast majority of the founders rejected the suggestion. Madison himself initially opposed adding a bill of rights to the Constitution. Alexander Hamilton even considered a formal bill of rights to be dangerous to liberties that weren’t enumerated. Nevertheless, the Bill of Rights has become an iconic statement of American values, which were articulated in the Declaration of Independence, but omitted from the Constitution. It is not surprising then, that Jefferson regarded the Bill of Rights as more important than the Constitution itself.

James Madison is universally acknowledged as the father of the Constitution, but is equally responsible for drafting the Bill of Rights

This post is divided into three parts. Part I provides background about the genesis of declarations of rights in Anglo-American history. James Madison did not originate the rights contained in the Bill of Rights. Rather, when he realized the merits of amending the Constitution due to anti-Federalist opposition, he consulted the established body of law that America had inherited from England, including the Magna Carta (1215), the Petition of Right (1628), and the English Bill of Rights (1689). Madison also had access to colonial charters, state constitutions and bills of rights, the Northwest Ordinance of 1787, and approximately 200 proposed amendments offered by the anti-Federalists during state ratifying conventions. In particular, Madison borrowed from Virginia’s Bill of Rights, drafted in 1776 by George Mason, with assistance from a young James Madison.

Part II tells the story of the Constitutional Convention of 1787, which did not see fit to prepare a bill of rights. Part II will summarize the reasons why the Federalists opposed a bill of rights, along with the reasons why the Anti-Federalists adamantly disagreed. Ultimately, James Madison was persuaded of the wisdom of the so-called Massachusetts Compromise. Beginning with Massachusetts, several large states with powerful Anti-Federalists constituencies agreed to ratify the Constitution based on the assurance that a bill of rights would be adopted by the first Congress. Madison’s conversion to support a bill of rights was also motivated by campaign promises that he was forced to make in Virginia when he ran for election to the first Congress. Writing from Paris, Thomas Jefferson also prevailed upon Madison that “no just government” should refuse to adopt a Bill of Rights.

Part III (pending) completes the story of how Madison drafted the Bill of Rights during the first Congress. Madison focused on individual liberties which he“limited to points which are important in the eyes of many and can be objectionable in those of none.” In so doing he preserved the structural integrity of the Constitutional framework, without making any substantive amendments to the body of the Constitution sought by the Anti-Federalists. Madison then relentlessly shepherded his Amendments through the first Congress.

Part III explains that by championing an innocuous Bill of Rights based on personal liberties, Madison succeeded in undermining the Anti-Federalists’ call for a second constitutional convention. Madison thereby solidified public support for the Constitution and the new federal government.

When the first Congress met in 1789, they confronted the enormous task of breathing life into the Constitution. The newly conceived federal system involved democracy on a scale never before attempted. Fortunately, the First Congress acted as a virtual second sitting of the Constitutional Convention under the leadership of James Madison.

Madison introduced nineteen proposed amendments to Congress on June 8, 1789. The House of Representatives reduced Madison’s proposals down to seventeen amendments. The Senate narrowed and repackaged the proposal to twelve amendments. The compromise Congressional Joint Resolution was approved on September 25, 1789 and sent to the states for ratification. Only ten of the twelve proposed amendments were ratified by the states. The Bill of Rights became law when three fourths of the states ratified ten proposed amendments on December 15,  1791.

The Joint Resolution from the first Congress presenting the Bill of Rights for ratification to the states is pictured above. The Constitution, Bill of Rights and the Declaration of Independence are housed in the Charter of Freedoms Rotunda in the National Archives in Washington, D.C., pictured below.

Background of the Bill of Rights in Anglo-American History

The American colonies inherited a rich body of law and traditions from England. Beginning with the Magna Carta in 1215, England gradually established the concept of the rule of law. By the close of Middle Ages, Enlightenment philosophers were questioning the absolute rule of kings. During the Glorious Revolution in 1688, King James II was replaced with William and Mary who agreed to abide by a new English Bill of Rights. These events helped expound the notion of individual liberties and “natural rights.” During the 17th Century Enlightenment philosophers, including John Locke, Charles Montesquieu, and Jean-Jacques Rousseau developed theories of limited government that would be put into action after the American Revolution.

Magna Carta: On June 15, 1215, an assembly of barons forced King John to sign the Magna Carta, which was referred to at the time as the Articles of the Barons. Also known as the Great Charter of King John, the Magna Carta became one of the most important constitutional documents in western history. In particular, Chapter 39 established the principle that not even the king was above the law:

“No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.”

Parliament was established fifty years later in 1265. Over time it acquired the power to adopt laws and approve taxes proposed by the king. When the American colonies were founded the colonial governments recognized the principles contained in Chapter 39 of the Magna Carta. In 1765 when Parliament passed the controversial Stamp Act, John Adams cited the Magna Carta in support of the principle of “no taxation without representation.” Today, this concept of “the law of the land” is embodied in the due process clauses of the 5th and 14th Amendments to the United States Constitution that no person may be deprived of “life, liberty or property, without due process of law.”

The Petition of Right: More than 400 hundred years after the Magna Carta, Parliament prevailed upon King Charles I to sign the Petition of Right in 1628. The Petition recognized the gradual development of individual liberties implied in the Magna Carta. Among other things, the Petition imposed important restrictions on royal powers, including the king’s ability to extract taxes without the consent of Parliament, the right to be free on bail prior to trial, and the prohibition on the quartering of troops in private homes. Although King Charles grudgingly signed the Petition of Right, he likely had no intention of complying with it when he dismissed Parliament in 1629. He did not reconvene Parliament until 1640, leading to the English Civil War which began in 1642.

The English Civil War, the English Bill of Rights and the Glorious Revolution:

During the English Civil War in 1649, King Charles I was tried for treason. In a trial which was the first of its kind, King Charles was executed for attempting to “uphold in himself an unlimited and tyrannical power to rule according to his will, and to overthrow the rights and liberties of the people.” The monarchy was temporarily abolished by Oliver Cromwell and his Parliamentary allies. The monarchy was subsequently restored, but the balance of power had shifted to Parliament. During the Glorious Revolution in 1688, King James II was replaced with William of Orange and his wife Mary, who agreed to abide by a new English Declaration of Rights, which was signed on February 12, 1689.

The execution of Charles I during the English Civil War is pictured above. William and Mary, the signatories to the English Bill of Rights, are shown below

The English Declaration of Rights was written into statutory law as the English Bill of Rights. It reaffirmed the principles of the Petition of Right and set forth thirteen basic rights regarded by Parliament as the “true, ancient, and indubitable rights and liberties of the people.” Among the rights that in recognized were freedom of speech in Parliament, freedom to petition the king, freedom to bare arms for self-defense, freedom from cruel and unusual punishment and excessive bail, and freedom from taxation without the agreement of Parliament.

Colonial Charters and political rights in the American Colonies:

When the English settled in America they brought with them their inherited and cherished rights as English subjects. As described above, beginning with the Magna Carta in 1215, English subjects gained hard fought political liberties that were unimaginable in absolute monarchies around the world. The principles of limited government, the rule of law and representative democracy were incorporated into the colonial charters that established legal rights in the American colonies.

Colonial charters from the king granted land to the colonies and specified the colony’s relationship with the British crown. While each colonial government had its differences, some began under proprietary charters while others were royal colonies, all colonial charters contemplated that the colonists retained the rights and privileges of Englishmen. Leading up to the Revolutionary War, this guarantee was frequently invoked when opposing King George III. In retaliation for the Boston Tea Party, Parliament revoked the Massachusetts Charter of 1691. Click here for a discussion of the Massachusetts Government Act, which one of the “Intolerable Acts” which precipitated the American Revolution.

The first colonial charter was granted to Virginia in 1606. Georgia, the last of the colonies, was granted its charter in 1732. Click here for a link to the colonial charters and related documents. In 1765, Patrick Henry would cite the First Charter of Virginia in a speech before the House of Burgess condemning the Stamp Act.

The influential Virginia Charter of 1606 famously declared that all subjects shall have all “liberties, franchises and immunities” as if they had been born in England:

…. that all and every the Persons being our Subjects, which shall dwell and inhabit within every or any of the said several Colonies and Plantations, and every of their children, which shall happen to be born within any of the Limits and Precincts of the said several Colonies and Plantations, shall HAVE and enjoy all Liberties, Franchises, and Immunities, within any of our other Dominions, to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England, or any other of our said Dominions.

Another influential charter was Pennsylvania’s 1701 Charter of Privileges, also known as the Charter of Liberties. Written by William Penn, the Pennsylvania Charter recognized an array of individual rights which would later influence the drafting of state constitutions and the Bill of Rights. Penn hoped that his eponymous colony and “noble experiment” in politics would be governed by Quaker principles of equality and tolerance. Philadelphia’s famous Liberty Bell was made in 1751 to commemorate the fiftieth anniversary of the Pennsylvania’s Charter of Privileges.

In addition to granting popularly elected representatives the right to enact laws, Penn’s 1701 Charter of Privileges guaranteed freedom of conscience and provided for separation of church and state as follows:

…That no Person or Persons, inhabiting in this Province or Territories, who shall confess and acknowledge One almighty God, the Creator, Upholder and Ruler of the World; and profess him or themselves obliged to live quietly under the Civil Government, shall be in any Case molested or prejudiced, in his or their Person or Estate, because of his or their conscientious Persuasion or Practice, nor be compelled to frequent or maintain any religious Worship, Place or Ministry, contrary to his or their Mind, or to do or super any other Act or Thing, contrary to their religious Persuasion.

The Virginia Declaration of Rights and State Constitutions

When James Madison drafted what would become the Bill of Rights in 1789, he was very familiar with the Virginia Declaration of Rights of 1776. The Virginia Declaration of Rights was principally drafted by George Mason, but was the product of a formidable committee that included Edmund Randolph, Patrick Henry and James Madison. Historian Bernard Schwartz describes the influential Virginia Declaration of Rights as the first truly American Bill of Rights:

The Virginia Declaration of Rights of 1776 is the first true Bill of Rights in the modern American sense, since it is the first protection of the rights of the individual to be contained in a Constitution adopted by the people acting through an elected convention.

As the first declaration of rights written into a state constitution, the Virginia declaration became a model for other state constitutions including the United States Bill of Rights. When drafting the Declaration of Independence Thomas Jefferson borrowed from the first section of Mason’s Declaration of Rights, which asserted that “all men are created equally free and independent” and have “certain inherent natural rights,” such as the rights to life, liberty, property, happiness and safety. The easily recognizable first paragraph of the Declaration provides:

That all men are created equally free & independent, & have certain inherent natural Rights, of which they can not, by any Compact, deprive or divest their Posterity; among which are the Enjoyment of Life & Liberty, with the Means of acquiring & possessing Property, & pursueing & obtaining Happiness and Safety.

The document further asserted that “a majority of the community hath an indubitable, unalienable, & indefeasible Right, to reform, alter, or abolish” any government that was acting contrary to these purposes. A twenty-five year old James Madison helped draft paragraph 14 regarding freedom of religion, which provided that “all men shou’d enjoy the fullest Toleration in the Exercise of Religion.” 

James Madison acknowledged that James Mason was the “master builder” of the Virginia Declaration of Rights. It is noteworthy that Mason was one of three delegates present on the final day of the Constitutional Convention who refused to sign the Constitution because it lacked a bill of rights. He subsequently wrote an influential anti-Federalist pamphlet, Objections to This Constitution of Government. As will be described in Part II, Anti-Federalist insistence on a Bill of Rights is largely responsible for Madison’s commitment to spearhead a federal bill of Rights through the Congress.

Early federal materials

In addition to the seminal Virginia Declaration of Rights and other authorities discussed above, Madison also had access to the following landmark legislation and proclamations from the Continental Congress and its successor, the Confederation Congress. These federal authorities written by the emerging American nation included: 1) the Declaration of Rights and Grievances of the Stamp Act Congress; 2) the Declaration of Resolves of the First Continental Congress; 3) the Declaration of Independence; 4) the Articles of Confederation; and 5) the Northwest Ordinance of 1787.

The Declaration of Rights and Grievances of the Stamp Act Congress was an effort by the colonies to express their strong opposition to the Stamp Act of 1765. Delegates from 9 of the colonies met in New York City in October of 1765 to discuss a unified colonial response to the Stamp Act. The resulting Declaration of Rights and Grievances, along with related colonial boycotts, convinced Parliament to repeal the controversial Stamp Act the following year in 1766. Click here for a discussion of the Stamp Act, which was replaced by the Declaratory Act of 1766.

Among other things, the Declaration of Rights and Grievances asserted that: 1) only the colonial legislatures had a right to tax the colonies, not Parliament, 2) affirmed the right to trial by jury which was an “inherent and invaluable right of every British subject,” 3) criticized the use of abusive Admiralty Courts, 4) declared that the colonists are entitled to “all the inherent rights and liberties’ of natural born subjects of the kingdom of Great Britain, 5) declared that the colonists had the right to petition the king or Parliament, and 6) proclaimed the right to be free from taxation without representation.

The Stamp Act Congress was also historically significant as it was the first unified action by the American colonies against British rule. While professing loyalty to the king, the Stamp Act Congress would serve as a template for future colonial resistance and lay the groundwork for the Continental Congress in 1774.

The Declaration of Resolves of the First Continental Congress was issued less than a decade later, on October 14, 1774. Also known as the Declaration of Colonial Rights, it was adopted by delegates from twelve colonies. The Declaration was an effort by the aggrieved colonies to respond to the Intolerable Acts passed by Parliament in 1774, following the Boston Tea Party. The Declaration of Resolves based its claims on three sources, the “immutable laws of nature, the legal principles of the English constitution” and the colonial charters. After listing grievances against Parliament, the Declaration reiterated the principle that Americans were entitled to all rights of Englishmen. The Declaration contained ten resolutions, including the following: no taxation without representation, the right to trial by jury, the right to peaceably assemble, a prohibition on standing armies during times of peace, and the right to petition the king for redress of grievances.

The Declaration of Resolves was an important precursor to the Declaration of Independence which would be adopted less than two years later by the Second Continental Congress. Click here for a discussion of the Boston Harbor Act, which was the first of Intolerable Acts (known as the Coercive Acts in Britain). The First Continental Congress also passed the Articles of Association, which called on the colonies to stop importing goods from the British Isles beginning on December 1, 1774, if the Coercive Acts were not repealed.

The Declaration of Independence requires no introduction. The Second Continental Congress convened in May of 1775, following the battles at Lexington and Concord. Thomas Jefferson eloquently channeled John Locke’s natural rights and George Mason’s Virginia Declaration of Right into the iconic statement that “all men are created equal, endowed by the their creator with inalienable rights to life, liberty and the pursuit of happiness.” Click here for a discussion of the Declaration of Independence.

The Articles of Confederation served as the early constitution during the Revolutionary War until the Constitution was ratified in 1788. As would be pointed out by Madison and other Federalists, the Articles did not contain a bill of rights. The anti-Federalists would respond that the Articles did not require the enumeration of rights since the Confederation Congress had very little power. Click here for a link to the Articles of Confederation.

The Northwest Ordinance of 1787 is widely recognized as one of the most important laws adopted by the Confederation Congress. The Northwest Ordinance established the procedure for the northwestern territories to join the country as states, on an equal footing with the original thirteen colonies. Drafted the same summer that the Constitutional Convention met in 1787, the Northwest Ordinance accomplished the heavy lifting of formulating a blueprint for governing what would eventually become six new states, on lands acquired during the Revolutionary War. The foundation laid by the Northwest Ordinance would successfully integrate the unified country, until the Civil War. Click here for a link to the Northwest Ordinance.

Copied below are the legal rights listed in six articles in the Northwest Ordinance. In particular, Article 1 protected freedom of religion. Article 2 contains more than a half dozen individual rights, including the right to trial by jury, the writ of habeas corpus, bail, the prohibition against “cruel and unusual punishment,” the right to just compensation, and the concept of due process of law:

Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.

Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged….

Among other things, Article 4 provided that the territories shall forever remain part of the United States. Article 5 specified that no less than three nor more than 5 states would be created in the Northwest Territory. Article 6 declared that “there shall be neither slavery nor involuntary servitude” in the Northwest Territory.

This Post continues in Part II, which discusses the story of the Constitutional Convention of 1787 which elected not to draft a bill of rights. Part II also recounts Madison’s conversion to support a bill of rights.

Additional reading:

Magna Carta (Library of Congress)

Pennsylvania Charter of Privileges (American Philosophical Society, “the oldest learned society” in the U.S,, founded by Benjamin Franklin)

Reed & Adams, The Bill of Rights Primer (2013)

George Mason: Forgotten Founder (Smithsonian)

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