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THE TEN AMENDMENTS As A
DECLARATION OF RIGHTS
Paul Finkelman*
From an Eighteenth Century perspective, the oddest thing about
the Bill of Rights may be its placement - as a series of amendments
at the end of the Constitution.' The framers of 1787 did not follow
the lead of the Virginia and Pennsylvania constitution-makers of 1776
or the Massachusetts framers of 1780 who put a declaration of rights
at the beginning of their constitutions where most Eighteenth Century
republicans understood it belonged. 2 Moreover, throughout the ratification struggle of 1787-88, the leading supporters of the Constitution
persistently denied that a bill of rights was necessary, proper, or even
useful in the Constitution.'
When these same federalists did propose amendments in 1789,
they followed the advice of George Mason4 and went back to the
first principles of the revolution - writing amendments that by-andlarge protected fundamental liberty. At the same time, they avoided
making any important structural changes in the Constitution itself.
Moreover, the nation refused to ratify the two proposed amendments
which went directly to structural changes5 - however modest and
6
insignificant those changes would have been.
* Associate Professor of History Virginia Polytechnic Institute and State University; B.A.
Syracuse, 1971; M.A., Ph. D., University of Chicago, 1972, 1976; Fellow in Law and Humanities,
Harvard Law School, 1982-83. I thank Philip Presby who served as my research assistant on
this article.
1. This is also true from a 20th Century perspective. It is hard to imagine writing a
constitution today with the expectation that a bill of rights would be unnecessary or would be
added later.
2. Of the twelve states (including Vermont) that wrote constitutions during the Revolutionary
period, only South Carolina, New Jersey, New York, and Georgia did not adopt a bill of
rights. Connecticut, which did not write a constitution during this period, nevertheless adopted
a declaration of rights.
3. For a fuller discussion of the federalist opposition to a bill of rights, see Paul Finkelman,
James Madison and the Bill of Rights: A Reluctant Paternity, 1990 SUP. CT. REv. 301.
4. See Article 15 of the Virginia Declaration of Rights, "That no free government, or the
blessings of liberty, can be preserved to any people, but by a firm adherence to justice,
moderation, temperance, frugality, and virtue, and by a frequent recurrence to fundamental
principles."
5. The proposed, but never ratified, first amendment stated:
After the first enumeration required by the first Article of the Constitution, there
shall be one Representative for every thirty thousand, until the number shall amount
Southern Illinois University Law Journal
[Vol. 16
Most federalists wanted no changes in the Constitution. They
believed a bill of rights was unnecessary because, as a government of
limited and enumerated powers, the new national government, they
felt, could not threaten fundamental rights and individual liberties.
Nevertheless, federalists in the first Congress were willing to accept
amendments which protected individual liberty and minority rights or
explicitly reaffirmed limitations on the national government that the
federalists believed were already in the Constitution of 1787. These
amendments were neither designed to affect, nor did they affect, the
structure of the Constitution or the new national government formed
under it. In presenting them to Congress, Madison was unequivocally
"unwilling to see a door opened for a re-consideration of the whole
structure of the government, for a re-consideration of the principles
'7
and the substance of the powers given."
to one hundred, after which, the proportion shall be so regulated by Congress that
there shall be not less than one hundred Representatives, nor less than one Representative
for every forty thousand persons, until the number of Representatives shall amount
to two hundred, after which the proportion shall be so regulated by Congress, that
there shall not be less than two hundred Representatives, nor more than one
Representative for every fifty thousand persons.
CREATING THE BiL OF RIGHTS: TIE DOCUMENTARY RECORDS FROM THE FIRST FEDERAL CONGRESS
3 (Helen E. Veit et al. eds., 1991) [hereinafter CREATING THE BIa, OF RaioTs]. The proposed,
but never ratified second amendment stated: "No law, varying the compensation for the services
of the Senators and Representatives, shall take effect, until an election of Representatives shall
have intervened." Id.
6. Akhil Reed Amar makes much of these two failed amendments in his article, The Bill
of Rights as a Constitution, 100 YALE L.J. 1131 (1991). Since neither were ratified, they can
at best provide us with a little guidance on what Congress thought it was up to; they cannot,
however, tell us whether our Bill of Rights was structural or not. Amar's analysis of the failure
of the proposed first amendment further underscores the dangers - spelled out so well by
Robert Palmer's essay in this issue - of trying to impose late 20th Century political/legal
analysis on the Founding Fathers without taking seriously the history of what actually happened.
Amar spends two pages and ten footnotes over-analyzing the potential meaning of the proposed
first amendment in an attempt to explain why it was defeated before reaching what he calls "a
final, more obvious explanation," Id. at 1144. This explanation is that of the states which
supported the amendments, only Delaware opposed this one. But, having discovered where the
analysis belongs, Amar still fails to confront the obvious: the proposed first amendment would
have increased the number of representatives in Congress for every state but Delaware, thus
further undermining that state's political power. Amar then mistakenly tells us that "only a
single state - and a tiny one at that - stood between the ten 'success stories' of Amendments
III-XII, and the 'failure' of Amendment I." Id. at 1145. Actually, three other states Massachusetts, Connecticut, and Georgia - might have ratified the First Amendment, and not
the others, thus insuring its adoption. The fact that Virginia ratified the proposed first
amendment "weeks before approving the rest of the Bill of Rights," Id. at 1143, should have
alerted Amar to the possibility that the three non-ratifying states could also have selectively
ratified one or more of the amendments.
7. SPEECH OF MADISON, June 8, 1789, reprinted in CREATING Tn BL.L OF RIGHTs, supra
note 5, at 79.
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Declaration of Rights
The result was that the ten amendments ratified in 1791 formed
a coda for the Constitution in the form of a Bill of Rights, thus
offsetting the initial failure to follow the Eighteenth Century practice
of making a Declaration of Rights the proper prologue to the Constitution.
I.
ANTIFEDERALISTS, FEDERALISTS, AND AMENDMENTS
IN 1789
During the debates over the ratification of the Constitution, the
antifederalists argued for a bill of rights while the federalists opposed
one. In the first Congress, the parties switched sides: the federalists
supported the bill of rights and the antifederalists in the House and
Senate opposed the amendments. An understanding of antifederalist
and federalist goals is a prerequisite to understanding the extent to
which the bill of rights protected individual liberty but did not affect
the structure of the Constitution.
A:
The Antifederalists
The antifederalists generally fell into two camps: the hardcore
antifederalists and the moderate antifederalists.
The hardcore antifederalists opposed the Constitution and a
stronger national government and were willing to use the lack of a
bill of rights as an argument against ratification. The hard core
antifederalists did not like Madison's proposed amendments precisely
because they believed the amendments would undermine their cause
while leaving the structure of the Constitution intact. They wanted
to "strike at the essence of the System" and either return to the
government of the old Confederation "or to a partition of the Union
into several Confederacies. "8
The moderates were not opposed to a stronger government, but
felt a bill of rights was essential to preserve individual liberty. One
federalist would describe these men as "honest" antifederalists. 9 According to Madison, "These [men] do not object to the substance of
the Governt. but contend for a few additional Guards in favor of
the Rights of the States and of the people."' 0 Many of these antifed-
8. Letter from James Madison to Thomas Jefferson (Dec. 9, 1787), in 10 THE PAPERS OF
JAMEs MADISON at 312 (Robert Rutland ed., 1977) [hereinafter MADISON PAPERS].
9. Letter from Tench Coxe to Madison (June 18, 1789), in 12 MADISON PAPERS, supra
note 8, at 239.
10. Letter from James Madison to Thomas Jefferson (Dec. 9, 1787), in 10 MADIsoN PAPERS,
supra note 8, at 312.
Southern Illinois University Law Journal
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eralists were generally satisfied with the amendments Madison proposed precisely because they did not want major structural changes
in the Constitution. Indeed, during the ratification process, Edward
Carrington referred to these people as "federalists who are for amendments.""
Differences between many of the antifederalists were not always
clear. Some moved from one camp to the other before and after
ratification of the Constitution. The best known hardcore antifederalist was Patrick Henry of Virginia. Edmund Randolph, who refused
to sign the Constitution at the Convention but later supported it, is
an example of a moderate antifederalist. So too, to a certain extent,
was George Mason. When he saw the proposed amendments, Mason
felt "much Satisfaction" and indicated that with two or three minor
structural changes he "cou'd cheerfully put" his "Hand & Heart to
2
the new Government.'1
During the ratification of the Constitution, antifederalists proposed numerous amendments to the Constitution. Because of differences within the antifederalist camp, the suggested amendments of
the ratification period fall into two general categories. The hardcore
antifederalists most wanted amendments which went to the structure
of the Constitution. They would have liked either a second Convention
to rewrite the Constitution or a series of amendments that would
have revised the entire structure of the government. The moderate
antifederalists were also concerned about the structure of the government, but they were far more interested in amendments which would
protect fundamental liberty. In the end, the moderate, or "honest"
antifederalists, were willing to accept a bill of rights without structural
changes; the hardcore antifederalists were not.
As the "loyal opposition" in the ratification process, 3 the antifederalists are responsible for putting the bill of rights on the national
agenda. Moreover, their demands forced the federalists to respond.
The accomplishment of the hardcore antifederalists was to pressure
the federalists to add a bill of rights to the Constitution. This
"accomplishment" was in a sense their failure. The hardcores did
not want to modify the Constitution with a bill of rights so that it
1i. Letter from
Edward Carrington to Thomas Jefferson (Apr. 24, 1788), in 13 THE PAPERS
OF THOMAS JEFFERSON at 101 (Julian P. Boyd ed., 1956).
12. LETTER FROM GEORGE MASON TO SAMUEL GjiFFiN (Sept. 1789),
THE BILL OF RIGHTS, supra note 5, at 292.
reprinted in
CREATING
13. Paul Finkelman, Antifederalists: The Loyal Opposition and the American Constitution,
70 CORNELL L. REv. 182 (1984).
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Declaration of Rights
would be palatable to the moderate antifederalists; they wanted to
totally undermine the Constitution or replace it with something else.
The accomplishment of the moderate antifederalists was to work with
federalists to achieve the Bill of Rights.
Without the persistent antifederalist arguments and threats, we
might not have a Bill of Rights today, and certainly we would not
have obtained one when we did. 14 But, acknowledging the antifederalists for placing a bill of rights on the agenda and for pressuring
the federalists to support it is not the same as crediting the antifederalists for the adoption of the Bill of Rights. That distinction, in
the end, goes to the federalists.
B:
The Federalists
For a variety of reasons, the federalists opposed the addition of
a bill rights to the Constitution. 5 This opposition was firm during
the Constitutional Convention and during the ratification process.
Federalists basically saw nothing wrong with the Constitution, did
not believe that it threatened liberty, and saw no reason to change
it. This position was clearly articulated by Georgia's James Jackson
during the Congressional debates over the amendments. Jackson
declared that the Constitution was "like a vessel just launched, and
lying at the wharf; she is untried, you can hardly discover any one
of her properties." Therefore, he argued that amendments should be
delayed until this ship of state could be launched and Congress
"guided by the experiment.' ' 6
Some federalists never conceded that a bill of rights was necessary. For example, in the House of Representatives six
"antiadministration"' ' 7 federalists - William Floyd (N.Y.)," James
Jackson (Ga.), Samuel Livermore (N.H.), George Mathews (Ga.),
14. See, e.g., Jack Rakove, The Madisonian Theory of Rights, 31 Wm. & MARY L. REv.
245 (1990); Robert Rutland, The Revitalization of the Bill of Rights, 31 Wm. & MARY L. REV.
287 (1990); Paul Finkelman, James Madison and the Bill of Rights: A Reluctant Paternity,
1990 SuP. CT. REV. 301.
15. See infra part II.
16. 1 ANNALS OF CONo. 442 (Joseph Gales ed., 1789). Jackson is one of a group of federalists
who voted with the antifederalists in opposing the Bill of Rights. Kenneth Bowling has
characterized Jackson as one of the "antiadministration federalists" in the first Congress.
KENNETH BOWLING, POLITICS IN TI FIRST CONGRESS, 1789-1791, at 257 (1990).
17. The term "antiadministration federalists" is from
1789-1791, at 257 (1990).
KENNETH BOWLING, POLITICS INTHE
FIRST CONGRESS,
18. Floyd opposed the ratification of the Constitution in New York, and although he claimed
to be a "federalist" in the First Congress, this designation is suspect.
Southern Illinois University Law Journal
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John Page (Va.), and Michael Jenifer Stone (Md.) - voted against
the Bill of Rights. 9 Similarly, the federalist-dominated legislatures in
Connecticut and Georgia refused to ratify any of the proposed amendments, in part on the theory that the Constitution was already
20
perfect.
Most federalists in Congress, however, did support the Bill of
Rights. The First Congress was overwhelmingly federalist. There were
only two antifederalist senators and only a handful of antifederalists
in the House. The Bill of Rights, then, was a federalist bill of rights.
This is crucial to our understanding of the amendments. The federalists, as I will demonstrate below, were adamantly opposed to any
structural changes in the Constitution. The Federalists "who controlled the First Congress and who had won the fight for the new,
stronger central government did not want to weaken the structure
they had designed."'" The Bill of Rights they wrote protected individual rights because the federalists were not opposed to protecting
such liberties; the Bill of Rights protected minority rights because
such protections - in the areas of religion, expression, and criminal
due process - were consistent with the values held by most Americans
of the late Eighteenth Century. The Bill of Rights failed to affect the
structure of the new Constitution because the federalists were opposed
to such changes and they had the votes to prevent them.
II. FEDERALIST OPPOSITION TO A BILL OF RIGHTS AND
THE PRESERVATION OF THE PROPOSED STRUCTURE OF
GOVERNMENT
At the Constitutional Convention and during the ratification
struggle federalists uniformly opposed a bill of rights. In debating
the antifederalists, they made numerous arguments against the importance, utility, and value of a bill of rights. Some of these were
blatantly opportunistic and political. Others were honest disagreements
with antifederalists over the dangers to liberty posed by the Constitution.12
19. The votes are recorded in CREATING THE BILL OF RIGHTS, supra note 5, at 51-53. For
further discussion of how to interpret the votes in the House, see infra Section V.A.
20. LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: RELIGION AND THE FIRST AMENDMENT
85 (1986).
21. Wythe Holt, What Did Not Become a Part of the Bill of Rights: Limitations on the
Judiciary, paper given at the 1992 meeting of the American Association of Law Schools, San
Antonio, Texas, p. 2. Quoted with the permission of the author.
22. For a more elaborate discussion of federalist arguments against a bill of rights, see Paul
Finkelman, James-Madison and the Bill of Rights: A Reluctant Paternity, 1990 SuP. CT. REV.
301.
Declaration of Rights
19921
Three federalist arguments against a bill of rights are particularly
useful for illuminating the rationale behind the federalists opposition
to structural changes in the Constitution. These arguments - focusing
on the limited power of Congress, the powers of the states, and the
necessity of having a strong national government - were expressed
tentatively at the Convention and fleshed out more fully during the
ratification struggle. Federalist opposition to changes in the structure
of the government becomes clearer when we examine why the federalists, especially James Madison, came to support a bill of rights in
the spring and summer of 1789.
A. A Bill of Rights was Unnecessary Under a Limited
Government
Most delegates at the Philadelphia Convention argued that a bill
of rights was unnecessary because they were creating a government
of limited powers which could not undermine individual liberties.
Throughout the Convention and the ratification process, federalists
argued that the new government was limited in its powers and could
only exercise those powers explicitly granted by the Constitution.
Under such a view of the Constitution, a bill of rights would be
unnecessary because Congress had no authority to legislate in ways
that might harm individual liberties.
This argument might be seen as an opportunistic sophistry of
federalists who for other reasons opposed a bill of rights. However,
in the Convention federalists took quite seriously the argument about
limited powers. This understanding is made clear when we examine
attempts by federalists at the Convention to strengthen the powers of
Congress.
Late in the Convention, a group of federalists, led by James
Wilson and James Madison, tried to give Congress the power to grant
charters of incorporation to businesses, including banks, to create
canal companies and to build a national university. 2 Wilson, Madison,
and other federalists wanted to add these specific powers to the
Constitution because they thought the powers of the new government
were limited by the explicit delegations of authority in the Constitution. They believed that the national government could legislate in
these areas only if such powers were expressly delegated to Congress.
23. 2 RECORDS
1966) [hereinafter
OF THE FEDERAL CONVENTION OF
RECORDS.]
1787, at 615-16 (Max Farrand ed., rev. ed.
Southern Illinois University Law Journal
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Federalists at the Convention used similar logic to oppose the
addition of a bill of rights. When Charles Pinckney and Elbridge
Gerry "moved to insert a declaration 'that the liberty of the Press
should be inviolably observed,"' Roger Sherman responded, "It is
24
unnecessary - The power of Congress does not extend to the Press."
After the Convention, federalists continued to take this position.
James Wilson told Philadelphians that, under the Constitution, "every
thing which is not given, is reserved." Thus, "It would have been
superfluous and absurd to have stipulated with a federal body of our
own creation, that we should enjoy those privileges, of which we are
not divested either by the intention or the act, that has brought that
body into existence.' '25 Roger Sherman declared that "The liberty of
the Press can be in no danger, because that is not put under the
direction of the new government.' '26 In Federalist84, Hamilton argued
that a bill of rights was unnecessary because "in strictness, the people
surrender nothing, and as they retain every thing, they have no need
of particular reservations." He argued that the preamble, which began
"WE THE PEOPLE ...
"
was "a better recognition of popular
rights than volumes of those aphorisms which make the principal
figure in several of our state bill of rights .... ",27 In this famous
essay, Hamilton asked: "Why declare that things shall not be done
which there is no power to do? Why for instance, should it be said
that the liberty of the press shall not be restrained, when no power
is given by which restrictions may be imposed?" 28 Oliver Ellsworth
similarly answered the complaint that "There is no declaration of
any kind to preserve the liberty of the press, etc" by noting:
Nor is liberty of conscience, or of matrimony, or of burial of the
dead; it is enough that Congress have no power to prohibit either,
and can have no temptation. This objection is answered in that the
states have all the power
originally, and Congress have only what
29
the states grant them.
24. Id. at 617-18.
25. JAMES WILSON, SPEECH IN THE STATE HOUSE YARD, PHILADELPHIA (October 6, 1787),
reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 168-69
(Merrill Jensen ed., 1976) [hereinafter DOCUMENTARY HISTORY); and in 13 DOCUMENTARY
HISTORY, supra at 339-340.
26. A CITIZEN OF NEW HAVEN (Roger Sherman), reprinted in, 15 DOCUMENTARY HISTORY,
supra note 25, at 282.
27. THE FEDERALIST No. 84, at 437 (Alexander Hamilton) (Gary Wills ed., 1988).
28. Id.
29. A LANDHOLDER, VI, (Oliver Ellsworth, Dec. 10, 1787), reprinted in 3 DOCUMENTARY
HISTORY, supra note 25, at 490.
1992l
Declaration of Rights
Even after the Constitution was ratified Madison continued to
make this point in explaining why he thought a bill of rights was
unnecessary. In October 1788, Madison tried to persuade Jefferson
that a bill of rights was unnecessary because, as a compact for a
government of limited powers, the Constitution did not empower the
national government to interfere with liberty. Thus, a bill of rights
was unnecessary because "the rights in question are reserved by the
manner in which the federal powers are granted." 30
B.
The State Governments Would Protect Liberty
While asserting that Congress could not infringe on the fundamental liberties of the people, the delegates in Philadelphia argued
that the state governments already protected individual liberties and,
thus, further protections were unnecessary. In the Convention, James
Wilson asserted that one purpose of the states was "to preserve the
rights of individuals." Oliver Ellsworth explained that he looked to
the state governments "for the preservation of his rights."',
Near the end of the Convention, Roger Sherman opposed the
addition of a bill of rights, arguing that "the State Declarations of
Rights are not repealed by this Constitution; and being in force are
sufficient." He believed that the national legislature might "be safely
trusted" not to interfere with the liberties of the people. A majority
of the delegates supported Sherman in defeating an explicit protection
for a free press.3"
After the Convention, federalists continued to make similar arguments about the state Constitutions. In Federalist 46, Madison
argued that the state governments would prevent the national government from expanding its powers beyond those granted in the Constitution. Similarly, Hamilton argued in Federalist 32 that under the
Constitution the "State Governments would clearly retain all the
rights of sovereignty which they before had and which were not by
that act [the Constitution] exclusively delegated to the United States." 33
The logic of this, to federalists, was obvious: because the United
States government could not regulate fundamental rights, the state
bills of rights would be sufficient to protect basic liberties.
30. Letter from Madison to Jefferson (Oct. 17, 1788), in 11 MADISON PAPERS, supra note
8, at 295, 297.
31. 1 REcoRDs, supra note 23, at 354, 492.
32. 2 id. at 588.
33. TIE FEDEALIST No. 32, at 152 (Alexander Hamilton) (Gary Wills ed., 1982).
Southern Illinois University Law Journal
[Vol. 16
Implicit in this analysis was the notion that the states were perhaps
already too strong. Madison's main complaint about the final version
of the Constitution was the inability of the national government to
veto state legislation.14 Madison did not doubt that the states would
be powerful enough to protect the liberties of the people from federal
encroachments. What he feared was that the states would undermine
the liberty of their own citizens. Madison felt that the greatest danger
to liberty would be from the state governments themselves. This
reflected Madison's fundamental distrust of democratic majorities as
a whole. In the Virginia legislature, Madison had encountered men
who "seemed so parochial, so illiberal, so small-minded, and most
of them seemed to have only 'a particular interest to serve.' They
had no regard for public honor or honesty" and were "reluctant to
do anything that might appear unpopular." 35 If anything, then, the
states were already too powerful under the national constitution, and
the national government was too weak. This notion led to a third
reason for federalist opposition to a bill of rights.
C.
A Bill of Rights Would Weaken the National Government
Many federalists opposed amendments because they feared such
amendments would both strengthen the states and weaken the central
government and, in effect, undermine the structure of the new system.
This argument was not articulated at the Convention, but it is made
clear by attempts of leading federalists at the Convention to strengthen
the powers of the national government.
The proposed Virginia Plan provided that the national legislature
be able "to negative all laws passed by the several States, contravening
in the opinion of National Legislature the articles of Union. 3 6 Future
34. Letter from James Madison to Thomas Jefferson (Oct. 24, 1787), in 10 MADISON PAPERS,
supra note 8, at 212. In 1789, when he drafted what became the Bill of Rights, Madison
attempted to make certain amendments applicable to the states in one last attempt to secure a
federal veto over some state legislation. This provision passed the House but was deleted by
the Senate. This was Madison's strongest attempt to affect the structure of the new government
through amendments - but this proposed structural change would have strengthened the
national government and weaken the states. Moreover, it would also have protected local
minorities from overbearing majorities in individual states. This, the most extreme of Madison's
amendments, suggests that he had no interest in undermining the structure of the federal
government, and that he had a great desire to protect individual rights wherever he could.
35. Gordon Wood, Interests and Disinterestedness in the Making of the Constitution, in
BEYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AMERICAN NATIONAL IDENTITY 74
(Richard Beeman et al. eds., 1987).
36. 1 REcoRDs, supra note 23, at 21 (debate of May 29).
19921
Declaration of Rights
federalists were divided on this proposal when it was debated in the
Convention. Madison thought it "essential to the efficacy & security
of the Genl. Govt." Charles Pinckney agreed with him, as did a
majority of delegations from Virginia, Massachusetts, and North
Carolina. However, the remaining seven delegations were swayed by
the arguments of Roger Sherman and Gouverneur Morris that such
a power was unnecessary. Sherman was confident that the state courts
argued
would not uphold an unconstitutional measure, while Morris
37
such a law "will be set aside in the Judiciary departmt."'
In late September, a variety of delegates, including Franklin,
Madison, Charles Pinckney, and Wilson, attempted to give Congress
the power to build roads and canals, to grant charters of incorporation, and to create a national university. These proposals received
some support, but failed.38 These failed proposals, as well as the
general trimming back of the enormous power allocated to the new
government in the Virginia Plan, illustrate that the leading federalists
at the Convention wanted more power for the national government,
not less.
At the Convention, federalists similarly argued that a strong
national government was vital to liberty. Alexander Hamilton thought
that the greatest threat to liberty came from government instability.
He believed the Convention was "now to decide for ever the fate of
Republican Government; and that if we did not give to that form
due stability and wisdom, it would be disgraced & lost among ourselves, disgraced & lost to mankind for ever." Hamilton "professed
himself to be as zealous an advocate for liberty as any man whatever,
and trusted he should be as willing a martyr to it though he differed
as to the form in which it was most eligible." 39 He believed a powerful
central government, not a bill of rights, was the key to liberty.
Similarly, James Wilson argued that a weak government would be
"liable to anarchy & tyranny." '40
Madison also felt that a strong central government was necessary
for the preservation of liberty. When he left the Convention, Madison
was clearly ambivalent about the Constitution because he did not
think the document created the strong, consolidated government that
he had wanted. "The Constitution Madison expounded and defended
as 'Publius' was a pale version of the plan he had carefully worked
37.
38.
39.
40.
2 id. at 27-28 (debate of July 17).
Id. at 615-616.
1 id. at 324.
Id. at 426.
Southern Illinois University Law Journal
[Vol. 16
out before the Philadelphia meeting. ",41
He thought the plan, although
a vast improvement over the Confederation, did not go far enough.
In private correspondence, he argued that the government created
by the Constitution was still too weak. Shortly before the Convention
ended, he wrote in secret code to Jefferson, who was still in France,
that the plan of government "will neither effectually answer its
national object nor prevent the local mischiefs which every where
excite disgusts agst. the state governments." 42 In late October, he still
bemoaned that the Convention had not adopted his proposal to give
'4a
Congress a "constitutional negative on the laws of the States.
If Madison really believed that the Convention had created a
proper but delicate balance between competing interests, as he wrote
his friends in Virginia, then he properly feared amendments which
would destroy this balance. However, if Madison really viewed the
Constitution as creating too weak a government, as he privately
expressed to Jefferson, then he certainly did not want any amendments, including a bill of rights, which would have further weakened
the national government.
This analysis suggests why Madison was hostile, and then ambivalent, to the adoption of a bill of rights. More importantly, it
underscores why any amendments Madison did support would not be
directed at the structure of the government, but only at protecting
individual and minority rights, which he had never thought were ever
really threatened by the Constitution.
During the debate over the Bill of Rights in Congress, federalists
similarly expressed reservations about weakening Congress. For example, while debating what became the Eighth Amendment, New
Hampshire's Samuel Livermore expressed his concerns about limiting
the power of the national government because at some time in the
future the government might need to impose excessive penalties. He
admitted the proposed amendment expressed "a great deal of humanity," which he claimed to admire but worried about its openended phrasing. Livermore wondered what was "meant by the term
excessive bail," and who would decide when bail was excessive. He
noted that "it is sometimes necessary to hang a man, villains often
41. Charles Hobson, The Negative on State Laws: James Madison, the Constitution, and
the Crisis of Republican Government, 36 WM. & MARY Q. 217 (3rd Ser., 1979).
42. Letter from Madison to Jefferson (Sept. 1787), in 10 MADISON PAPERS, supra note 8,
at 163-64.
43. Letter from Madison to Jefferson (Oct. 24, 1787), in 10 MADISON PAPERS supra note
8, at 212.
19921
Declaration of Rights
deserve whipping and perhaps having their ears cut off." He asked,
"[A]re we in [the] future to be prevented from inflicting these
punishments because they are cruel?" 44 Federalists like Livermore
wanted to avoid limiting the power of the national government to
suppress crime and prevent anarchy.
D.
Federalist Opposition to a Bill of Rights and an Individualist
Interpretation of Most of the First Ten Amendments
The reasons federalists gave for opposing a bill of rights, as
detailed in parts A, B, and C above, support the argument that when
the Federalists wrote amendments in 1789 they were careful to maintain the existing government structure 45 they created in 1787. At the
same time, these three arguments illustrate why an individualist interpretation of the bill of rights is generally4 the most plausible. The
federalists argued that a) the national government could not legislate
about individual liberties; b) that the states already protected individual liberties; and c) that structural changes would undermine the
power of the federal government.
By agreeing to endorse some amendments, as they ultimately did,
the federalists in the first Congress simply reaffirmed their initial
position that civil liberties and minority rights were secure under the
Constitution and its existing structure. Individual civil liberties, they
believed, were already protected by the limitations on the power of
Congress in the Constitution, and, thus, the Amendments merely
reaffirmed what already existed. Similarly, federalists believed minority rights were already protected by the structure of the government
itself which the amendments left basically untouched. As Madison
44. 1 ANNALS OF CONo. 782-83 (Joseph Gales ed., 1789).
45. This is not true to the extent that Madison would have weakened the states and, by
extension, strengthened the national government with his proposed amendment to apply aspects
of the present-day First and Fifth Amendments to the states. However, structural amendments
that would have strengthened the national government were not possible in 1789.
46. Obviously, the Tenth Amendment deals with the power of the states as well as the
protection of individuals. Similarly, the Second Amendment appears to be about state militias
rather than an individual right to own weapons. The literature on this Amendment remains
weak. Much of the historical work on the Amendment has been written by partisan opponents
of any form of gun control whose work reflects their biases. Other works on the Second
Amendment, like the provocative articles Sanford Levinson, Our Embarrassing Second Amendment, 99 YALE L.J. 637 (1989) and Robert J. Cattrol & Raymond T. Diamond, The Second
Amendment: Toward an Afro-Americanist Reconsideration, 80 GEO. L.J. 309 (1991), shed little
light on the origin of the Amendment. The most historically sound investigation of the
amendment remains Lawrence D. Cress, An Armed Community: The Origins and Meaning of
the Right to Bear Arms, 71 J. OF AM. HIST. 22 (1984).
Southern Illinois University Law Journal
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argued in Federalist 10, the greatest danger to liberty in a Republic
came from "the violence of faction" which he defined as "a number
of citizens, whether amounting to a majority or minority of the
whole, who are united and actuated by some common impulse of
passion, or of interest, adverse to the rights of other citizens, or to
the permanent and aggregated interests of the community. ' 47 Madison
saw no way to eliminate the causes of faction without destroying
political liberty itself. But he believed that political factions might be
controlled by increasing the number of the electors so that no single
interest could actually obtain a majority.
Extend the sphere, and you take in a greater variety of parties and
interests; you make it less probable that a majority of the whole
will have a common motive to invade the rights of other citizens;
or if such a common motive exists, it will be more difficult for all
who feel it to discover their own strength, and to act in unison with
each other.48
This, of course, was precisely the structure of the government created
by the Constitution of 1787.
In 1789 then, the federalists were willing to provide explicit
protections of liberty precisely because they believed such protections
were mostly redundant. They refused to tinker with the structure of
the government because they believed serious structural changes would
undermine basic liberties. These points become clearer when we briefly
examine James Madison's role in the adoption of the Bill of Rights.
III. JAMES MADISON, THE BILL OF RIGHTS, AND THE
PRESERVATION OF THE CONSTITUTION'S STRUCTURE
49
James Madison was the reluctant father of the Bill of Rights.
Throughout the ratification process, he opposed any amendments to
the Constitution. In the end, he agreed to support amendments, and
even work for them, because he believed such a change in posture
was necessary to gain election to Congress, secure wide national
support for the Constitution, and derail the hardcore antifederalists'
demands for a second Convention which might have undermined the
47. THE FEDERALIST No. 10, at 43 (James Madison) (Gary Wills ed., 1988). He had of
course developed these arguments earlier, in THE VicEs OF THE POLITICAL SYSTEM, reprinted in
9 MADISON PAPERS, supra note 8, at 350-54.
48. THE FEDERALIST No. 10, at 48 (James Madison) (Gary Wills ed., 1988).
49. See generally, Paul Finkelman, James Madison and the Bill of Rights: A Reluctant
Paternity, 1990 SuP. CT. REv. 301.
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Declaration of Rights
entire structure of the new Constitution. Indeed, Madison's conversion
from opposing a bill of rights to introducing one in Congress is tied
directly to his belief that this was the only way to head off the
structural changes the more extreme antifederalists wanted.
When he proposed amendments in Congress, Madison's strategy
was twofold. First, he wanted to be certain that "the structure &
stamina of the Govt. are as little touched as possible." He also
"limited" his proposed amendments "to points which are important
in the eyes of many and can be objectionable in those of none." 50
Thus, Madison tried to avoid controversial political issues affecting
the structure of the government and concentrated on alterations that
would preserve individual liberty. He thought that "nothing of a
controvertible nature ought to he hazarded" because that might defeat
the amendrfients and lead to renewed support for a second convention.
He told Edmund Randolph that he had avoided anything of a
"controversial nature" because of the "caprice & discord of opinions"
in the House and Senate, which had to approve the amendments by
a two-thirds vote, and in the state legislatures, three-fourths of which
had to approve the amendments. The amendments had a "twofold
object of removing the fears of the discontented and of avoiding all
such alterations as would either displease the adverse side, or endanger
the success of the measure.'""
Madison's statements from the spring of 1789 dovetail with his
earlier views that the Constitution did not need a bill of rights, and
that any amendments which further limited the power of the central
government would undermine the success of the new system. This
reflected his view, expressed even before the Convention had finished
its work, that the government under the new Constitution would in
the end not be strong enough to properly function.
As mentioned earlier, before the Convention ended, Madison
wrote Jefferson expressing his belief that the plan of government
"will neither effectually answer its national object nor prevent the
local mischiefs which every where excite disgusts agst. the state
governments. " ' 2 Again, it is important to note that in late October,
50. Letter from Madison to Edmund Randolph (June 15, 1789), in 12
MADISON
PAPERS,
supra note 8, at 219.
51. Letter from Madison to Edmund Pendleton (June 21, 1789); Madison to Edmund
Randolph (June 15, 1789); and Madison to Samuel Johnston (June 21, 1789), in 12 MADISON
PAPERS, supra note 8, at 253, 219, 250. See also, Madison to Tench Coxe (June 24, 1789);
Madison to George Nichols (July 5, 1789), in 12 MADISON PAPERS, supra note 8, at 257, 282.
52. Letter from Madison to Jefferson (Sept. 6, 1787), in 10 MADIsoN PAPERS, supra note
8, at 163-64.
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in another letter of Jefferson, Madison lamented the fact that the
Convention had rejected his proposal to give Congress a "constitutional negative on the laws of the States." 5 3
This correspondence gives us important insight into Madison's
goals for the Amendments that he ultimately introduced in Congress.
If Madison really viewed the Constitution as creating too weak a
government, as he privately expressed to Jefferson5 4 then he certainly
did not want any amendments which would have further weakened
the structure of the national government. If he would agree to any
amendments at all, he would want them to sound in individual liberty
and not in structure. "As late as 1789" Madison feared that "the
necessary powers of the central government would prove vulnerable
to the encroachments by the states." 5 Clearly, he would be unwilling
to support any amendments that might make the central government
even more vulnerable.
The amendments which Madison might be willing to support as he ultimately did - would not be structural in nature. Structural
amendments would only undermine the national government. Even
the two structural amendments that he did support in Congress in
1789, the failed First and Second Amendments, only affected the
structure of the government at the margins. Indeed, it is hard to
imagine how our government would be substantially different if the
two had been adopted, unless of course it led to a substantially larger
House of Representatives than we have today.5 6
53. Letter from Madison to Jefferson (Oct. 24, 1787) in 10 MADISON PAPERS, supra note
8, at 212.
54. In other correspondence, which was more likely to be made public, he urged his friends
at home to support the Constitution because it had succeeded in "blending a proper stability
& energy in the Government with the essential characters of the republican Form" while
retaining "a proper line of demarcation between the national and State authorities." But, this
seems more like a political posture than an accurate reflection of Madison's true beliefs. Letter
from Madison to Edmund Pendleton (Sept. 20, 1787), in 10 MADISo N PAPERS, supra note 8,
at 171.
55. Lance Banning, The Hamiltonian Madison, 92 VA. MAG. OF HIST. & Bioc. 7 (1984).
56. One possible result would be an enlarged House of Representatives - with one member
of Congress for every 50,000 citizens. Akhil Amar argues that "what the [proposed] First
Amendment promised in the short term - increased congressional size - it took back in the
long run. Its final clauses established a maximum, not a minimum, on congressional size."
Akhil R. Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1142 (1991). This
is technically correct only in the most meaningless way. The proposed amendment actually said
that after the House reached two hundred members the House should have "not less than two
hundred Representatives, nor more than one representative for every fifty thousand people."
CREATN Tm BILL OF RIGHTS supra note 5,at 3. This "maximum" would allow for a Congress
of approximately 5,000 members today. If this amendment had passed, it is possible that the
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Declaration of Rights
Madison's letter to Rev. George Eve written in January 1789
illustrates that the framer of the Bill of Rights had individual liberties,
not structural changes, in mind when he began to move toward his
reluctant paternity of the bill of rights. Unlike Eve, Madison still
doubted the need for a bill of rights and did not see in the Constitution
"those serious dangers which have alarmed many respectable Citizens." Thus while the Constitution was unratified Madison had
opposed amendments because he believed they were "calculated to
throw the States into dangerous contentions and to furnish the secret
enemies of the Union with an opportunity of promoting its dissolution." However, with the Constitution ratified he was willing to
support "amendments, if pursued with a proper moderation and in
a proper mode" because under such circumstances they would "be
not only safe, but may well serve the double purpose of satisfying
the minds of well meaning opponents, and of providing additional
guards in favour of liberty." Madison told Eve,
Under this change of circumstances, it is my sincere opinion that
the Constitution ought to be revised, and that the first Congress
meeting under it, ought to prepare and recommend to the States
... provisions for all essential rights, particularly the rights of
Conscience in the fullest latitude, the freedom of the press, trials by
jury, security against general warrants, &c.11
It is hard to read this letter, and this list, and think that Madison is
talking about structural changes or guarantees that would protect the
majority. Indeed, his very first protection of liberty was designed for
individuals and minorities.
In Congress, Madison faced the "dilemma of how to go along
with amendments to the Constitution without fundamentally altering
either the power or structure of the newly created central government."58 He accomplished this by deftly arranging "to be appointed
head of the committee considering the recommendations of the state
ratifying conventions." 5 9 In this way he was able to reject all the
50,000 member district would have become entrenched in the public mind and been difficult to
overcome. Congress could, of course, have limited its size under this amendment, just as it has
under the present Constitution.
57. Letter from Madison to George Eve (Jan. 2, 1789), in 11 MAIsoN PAPERS, supra note
8, at 404-05.
58. Richard E. Ellis, The Persistence of Antifederalism after 1789, in BEYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AMERIcAN NATIONAL IDENTITY 298 (Richard Beeman
et al. eds., 1987).
59. Id.
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demands for structural changes while writing amendments that protected fundamental liberty.
Any doubt of Madison's antipathy to structural changes is revealed in his first major Congressional speech in favor of Amendments. Here he declared he was
unwilling to see a door opened for a reconsideration of the whole
structure of the Constitution - for a re-consideration of the principles
and the substance of the powers given because I doubt if such a
door were opened, we should be very likely to stop at that point
which would be safe to the Government itself.60
The amendments Madison proposed answered the prayers of men
like Rev. Eve and Elder John Leland - Baptist leaders in Virginia
who feared that the government under the Constitution would undermine their individual liberties, especially the right to practice their
religion as they wished. 6 ' Neither Madison nor the people he represented in Congress wanted fundamental changes in the structure of
the new government.
IV.
THE STRUCTURAL ROAD NOT TAKEN
Were we able to speak today with Madison, or any of the other
federalists who supported the amendments, I think they would be
surprised to think anyone thought they had offered to change the
structure of the Constitution, or even that their amendments "sounded
in structure." 62 On the contrary, they would argue that their amendments did no more than reaffirm the existing limitations on the
national government that stemmed from the creation of a government
of limited powers.
Contemporary comments on Madison's proposed amendments
underscore the fact that no one at the time thought they were making
structural changes. Madison's friends were pleased that he was able
to offer amendments that avoided major changes in the Constitution.
Federalists knew what they did not want because models for structural
amendments were available to them; but with the exceptions of the
proposed first and second amendments, both of which were of minor
importance to the structure of the government, and neither of which
was ratified, the Congress ignored the demands for structural changes.
60. 1 ANNALS OF CONO. 450 (Joseph Gales ed., 1789).
61. For further discussion of this see infra Section VI, C.
62. The term is used in Akhil R. Amar, The Bill of Rights as a Constitution, 100 YALE
L.J. 1131 (1991).
Declaration of Rights
19921
A. Contemporary Understanding of the Non-Structural Nature of
the Amendments
For Madison, the Bill of Rights was never a necessary substantive
reform. It was always a tactical position to both smooth over the
feelings of sincere nationalists - like Rev. Eve and Elder John Leland
who favored the Constitution but feared for individual liberties,
and to head off antifederalist demands for a second convention. His
"strategy was to seize the initiative for amendments, to use the
Federalist majority in the First Congress to finish the unavoidable
business of amendments in such a way as to remove from the national
agenda the major antifederalist objections ...."63 The way to do
this was to give-in on the demands to explicitly protect individual
liberties while avoiding structural changes that would undermine the
new government.
Madison had introduced the amendments because he claimed it
"was my duty" to do so.6 His unstated goal was to convince the
nation's moderate antifederalists to support the Constitution. His
subsequent correspondence indicates that he believed his strategy was
working. He was certain that the amendments, if adopted, would "be
satisfactory to a majority of those who have opposed the Constitution." ' 6 He was pleased that they were "limited to points which are
important in the eyes of many and can be objectionable in those of
none." Proudly he noted that "the structure & stamina of the Govt.
are as little touched as possible."6'
Madison's friends agreed that this was the proper tactic. Even
before the amendments were actually before Congress, Benjamin
Hawkins, a leading federalist in North Carolina, urged Madison to
"do something by way of amendments without any material injury
to the system." 67 On the morning Madison proposed the amendments,
Pennsylvania's George Clymer feared that Madison might be "so far
frightened with the antifederalism of his own state as to attempt to
63. Herbert J.Storing, The Constitution and the Bill of Rights, in THE AMERaCAN
FOUNDING:
POLITICS, STATESMASmP, AND THE CONSTITUTION 32 (Ralph Rossum and Gary McDowell
eds.,
1981).
64. 1 ANNALS
OF CONG.
459 (Joseph Gales ed., 1789).
65. Letter from Madison to Jefferson (June 13, 1789), in 12 MADISON PAPERS, supra note
8, at 218.
66. Letter from Madison to Edmund Randolph (June 15, 1789), in 12 MADISON PAPERS,
supra note 8, at 219.
67. Letter from Benjamin Hawkins to James Madison (June 1, 1789), in CREATING THE
BILL OF RIGHTS, supra note 5, at 243-44.
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lop off essentials" of the government." However, by that afternoon
he was relieved to discover the proposed amendments were "merely
a tub to the whale." 69 As a point of contrast, he noted that Elbridge
Gerry "proposes to treat us with all the amendments of all the
antifederalists in America.''70 In fact, the same day Madison proposed
his amendments, Gerry presented to the Congress the amendments
proposed by the various state ratifying Conventions. 7' These contained
a full range of antifederalists proposals.7 2
After Madison proposed the amendments, Tench Coxe, a Philadelphia federalist, happily noted that "the most ardent & irritable
among our friends are well pleased" with the amendments, as were
"honest" antifederalists. Edmund Randolph, meanwhile, noted that
"strong federalists" in Virginia supported the amendments, while
among diehard antifederalists "nothing, nay not even the abolishment
of direct taxation would satisfy those, who are most clamorous."
Another Virginia friend was pleased the amendments would protect
individual liberty "so far as declarations on paper can effect that
purpose" while at the same time "leaving unimpaired the great Powers
73
of the government."
B. The Road Avoided: Antifederalist Proposals for Structural
Changes
If we compare Madison's proposed amendments with those recommended by the state ratifying conventions or proposed by antifederalist delegates, we begin to see bright line distinctions between
68. Letter from George Clymer to Richard Peters (June 8, 1789), in CREATNG THE BILL OF
RioHTs, supra note 5, 245.
69. Id. The phrase "a tub to the whale" comes from the custom of sailors of throwing a
"tub" overboard to distract a whale. "Seamen have a custom, when they meet a whale, to
fling him out an empty tub by way of amusement, to divert him from laying violent hands
upon the ship." JONATHAN SwIFT, TALE OF A Tun (1704), quoted in Kenneth Bowling, "A Tub
to the Whale:" The Founding Fathers and the Adoption of the Bill of Rights, 8 J. EARLY
REPuBLIC 223 (1988).
70. Letter from George Clymer to Richard Peters (June 8, 1789), in CREATING THE BLL OF
RIGHTS, supra note 5, at 245.
71. Speech of Gerry (June 8, 1789), in CREATING Tm BiLL OF RIGHTS, supra note 5, at 8992.
72. They are reprinted, as presented by Gerry, in CREATING THE BILL OF RIGHTS, supra note
5, at 14-28.
73. Letter from Tench Coxe to Madison (June 18, 1789); Edmund Randolph to Madison
(June 30, 1789); and Joseph Jones to Madison (June 24, 1789), in 12 MADISON PAPERS, supra
note 8, at 239, 273, 258-59. See also Edward Stevens to Madison (June 25, 1789), in 12 MADISON
PAPERS, supra note 8, at 261.
Declaration of Rights
19921
structural amendments and the amendments Madison proposed to
protect individual liberty. The various state ratifying conventions
proposed 210 amendments. By eliminating duplications, "[a]bout 100
separate proposals can be distinguished." A "clear majority" of these
called for structural changes.74 Madison and the First Congress ignored
or rejected virtually all of these proposed structural changes.
The clearest example of the difference between structural changes
and protections of fundamental liberties comes from an examination
of the proposed amendments offered by the Virginia ratifying convention. The Virginia ratifying convention was sharply divided. The
change of only a handful of votes would have defeated the Constitution in Virginia. After the convention had ratified the Constitution,
the federalist majority agreed to vote for a series of recommended
amendments to be sent to the first Congress. These Virginia federalists
- led by Madison - did not agree that these amendments were
necessary or even useful. Most of the federalists, including Madison,
were opposed to any post ratification changes. The Virginia federalists
voted to send these amendments on to the new Congress to help
smooth over the rifts within that Commonwealth's political elite
caused by the ratification struggle.
Virginia divided its proposed amendments into two categories.
The first list of twenty proposals formed "a Declaration or Bill of
Rights asserting and securing from encroachment the essential and
unalienable Rights of the People .... ." Some of these, like a requirement for rotation in office and a prohibition on hereditary
offices, were structural in nature. Most were not. They dealt with the
civil liberties that are today protected by the Bill of Rights subse7
quently adopted in 1791 .
After this list of 20 amendments which would form a "Bill or
Declaration of Rights," the Virginia convention wrote 20 more proposed changes which were called "Amendments to the Body of the
Constitution.' '76 With the exception of two proposals dealing respectively with the militia and juries, this list was structural in nature.
74. Kenneth Bowling, "A Tub to the Whale:" The Founding Fathers and the Adoption of
the Bill of Rights, 8 J. EARLY REPUBLIC 223, 228 (1988). See also Richard E. Ellis, The
Persistence of Antfederalism after 1789, in BEYOND CONEDERATION: OoGns OF Tm CONSTITUTION AND
AmuEcAN
NATIONAL IDENTITY
297 (Richard Beeman et al. eds., 1987) ("The
amendments proposed by the states fall into two categories. The first limited the authority of
the central government over individuals .... The amendments of the second group were both
substantive and structural.").
75. CREATING THE BILL OF Rlrs,
supra note 5, at 17-19.
76. Id. at 19.
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By looking at this second Virginia list we can see what "structural" amendments would have looked like. Virginia wanted a twothirds majority of the Senate for the adoption of all commercial
treaties and a three-fourths majority of both houses for all other
treaties. A constitution rewritten to satisfy the Virginia antifederalists
would have required a two-thirds majority for all navigation laws that is regulations of commerce; required rotation in office for
presidents; prohibited a standing army in time of peace without a
two thirds majority in Congress; severely limited federal jurisdiction
over what became the District of Columbia; limited the federal court
system to "one supreme Court, and in such courts of Admiralty" as
Congress might create; allow for impeachment trials of Senators by
"some Tribunal other than the Senate;" and limited the power of
the national government to collect taxes in the states."
The distinction between structural changes and protections of
fundamental liberties is further clarified by examining the proposed
amendments from other states. Virtually all the antifederalists would
have rewritten the judiciary article to the point where "the national
court system might have been unrecognizable, and it is possible that
our constitutional history would have been much different than it has
been." '78 New York's ratifying convention, which was completely
dominated by antifederalists, proposed most of the structural amendments Virginia wanted. In addition, a Constitution amended to satisfy
New York would have: limited federal jurisdiction along the lines
that became the Eleventh Amendment; limited federal jurisdiction in
controversies between states only to cases involving land grants;
prohibited any federal treaty from operating against a state constitution - thus undermining the supremacy clause; prohibited Congress
from granting monopolies; required a two-thirds majority in both
houses of Congress to borrow money or to declare war; provided
strict temporal limitations on the suspension of habeas corpus; required rotation in office for United States senators; prohibited federal
capitation taxes; limited the president's power to grant pardons;
limited federal power to adopt bankruptcy laws; limited federal diversity jurisdiction in cases involving land; and prohibited the creation
of intermediate appellate federal courts. 79 Massachusetts and New
77. Id. at 19-21.
78. Wythe Holt, What Did Not Become a Part of the Bill of Rights: Limitations on the
Judiciary, paper given at the 1992 meeting of the American Association of Law Schools, San
Antonio, Texas, p. 2. Quoted with the permission of the author.
79. Id. at 21-28.
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Declaration of Rights
Hampshire would have limited federal court jurisdiction, prohibited
the federal government from granting monopolies, and cut back on
the federal government's power to tax.8°
Even today's Second Amendment, which might be seen as somehow affecting the structure of the government, did not "sound in
structure" to Pennsylvania's antifederalists. They envisioned an
amendment that would have truly crippled the nation's ability to
conduct a military policy. The minority of the Pennsylvania ratifying
convention concluded that "as standing armies in the time of peace
are dangerous to liberty, they ought not to be kept up; and that the
military shall be kept under strict subordination to and be governed
by the civil powers." Beyond that, however, they wanted to prevent
the federal government from interfering with the state militias. They
proposed:
That the power of organizing, arming, and disciplining the militia
(the manner of disciplining the militia to be prescribed by Congress)
remain with the individual states, and that Congress shall not have
authority to call or march any of the militia out of their own state,
without the consent of such state, and for such length of time only
as such state shall agree."'
C.
Structural Amendments Proposed in the Senate, and Rejected
The antifederalists of 1787-88 were not the only Americans who
longed for structural changes. Some members of Congress also wanted
structural changes. On September 8, 1789, the Senate considered
twenty separate additions to the proposed amendments.8 2 Some of
them were general statements of political theory,83 but others went
directly to the structure of the Constitution and the new government.
Two of the proposals would have required the publication of the
proceedings of the House and Senate every year and the annual
80. Id. at 14-15, 16-17.
81. DISSENT OF THE MINORITY
supra note 25, at 624.
OF THE CONVENTION,
reprinted in 2
DOCUMENTARY HISTORY,
82. These are found in 4 BERNARD SCHWARTZ, THE ROOTS OF THE BILL OF RIGHTS 1151-53
(1971). These are also reprinted in CREATING THE BILL OF RIGHTS, supra note 5, at 42-45.
83. The first proposed change declared "That all power is naturally vested in, and consequently, derived from, the people; that magistrates, therefore, are their trustees and agents,
and, at all times, amenable to them." The second stated: "That government ought to be
instituted for the common benefit, protection, and security of the people; and that the doctrine
of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of
the good and happiness of mankind." The third through the sixth were of a similar nature. 4
BERNARD SCHWARTZ, THE ROOTS OF Ta BILL OF RIGHTS 1151
(1971).
Southern Illinois University Law Journal
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publication of the "receipts and expenditures of all public money."
Another would have required a two-thirds vote of the Senate for the
ratification of all commercial treaties and a three-fourths vote of both
houses for other types of treaties. These proposed amendments would
have required a two-thirds vote of both houses of Congress for
commercial legislation, required a similar vote to maintain a standing
army, prohibited peacetime military enlistments of longer than four
years, limited federal jurisdiction in what became the District of
Columbia and on federal lands, required a rotation in office for the4
President, and cut back on the jurisdiction of the federal courts.1
These changes "sounded in structure." The Senate rejected every one
of them.
These are the kinds of proposed amendments that went to the
structure of the government. Madison and his fellow federalists were
adamantly opposed to such changes. To read the amendments proposed by Madison as "structural" is to read back into history a late
twentieth century analysis that would have been utterly anachronistic
to the generation of 1789.
V.
THE TUB TO THE WHALE
If the federalists of 1789 who supported the Bill of Rights did
not think that they were adopting structural changes, what did the
antifederalists think? Did they think the amendments "sounded in
structure"? Certainly they did not.
As noted in Section I of this article, the antifederalists of 178788 might be divided into two classes."5 Moderate antifederalists opposed the Constitution because it lacked a bill of rights while "hard
core" antifederalists did not like Madison's proposed amendments
precisely because they believed the amendments would undermine
their cause, while leaving the structure of the Constitution intact.
These antifederalists, some of whom were in the first Congress, did
not see the proposed bill of rights as bringing about a structural
change, and for that reason, they opposed Madison's amendments.
A.
Antifederalists in Congress
Congressman Aedanus Burke wanted amendments, but not the
kind Madison proposed. He thought Madison's were "frothy and full
84. Id. at 1152-53.
85. See generally Jon Kukla, A Spectrum of Sentiments: Virginia's Federalists, Antifederalists, and 'Federalists Who.Are for Amendments,' 1787-88, 96 VA. MAo. HIST. 277 (1988).
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Declaration of Rights
of wind, formed only to please the palate; or they are like a tub
thrown out to a whale, to secure the freight of the ship and its
peaceable voyage."8' 6 Antifederalists in Boston thought Madison's
proposals had, in effect, laid "aside the amendments proposed by
the several states in order to prevent anything from being done on
the subject."8 " Other antifederalists agreed.
The hardcore antifederalists - most notably Patrick Henry and
his followers - thought that fundamental structural changes were
really necessary. Even before Madison's amendments were on the
floor, Samuel Chase, still an antifederalist, 8 predicted there would
be "no essential alterations." He expressed the "fear that no Check
will be placed on the Exercise of any of the powers granted." 9
Similarly, Richard Henry Lee warned Patrick Henry that Madison's
amendments would not do the trick. Lee did not believe that "the
liberties of the people" would be "safe" "under the gracious manner
of government" by a mere "limitation of power." Lee worried that
Madison's ideas on amendments were "not similar" to those of
himself and Henry. Lee correctly predicted that Congress would
support amendments "such as may secure civil liberty" but that the
Congress would not support many of "our amendments." 9 "Our
amendments" were, of course, the structural changes so dear to the
hearts of Virginia's hardcore antifederalists.
Once they were on the floor, the antifederalists complained about
the amendments Madison proposed. Aedanus Burke "held up copies"
of the proposed amendments of the state ratifying conventions to
illustrate that "all the important amendments had been omitted."
Burke later tried to add an amendment to prohibit standing armies.
The Congress rejected this structural change. Thomas Tudor Tucker
demanded a second convention. Elbridge Gerry wanted the Congress
to sit as a committee of the whole to consider all the proposed
86. 1 ANNALs OF CONG. 774 (Joseph Gales ed., 1789). On this issue see generally, Kenneth
Bowling, "A Tub to the Whale:" The FoundingFathers and the Adoption of the Bill of Rights,
8 J. EARLY REPurUc 223-51 (1988). George Mason thought Madison's proposals were "Milk
& Water propositions," while Senator Richard Henry Lee dismissed them as "not similar" to
the amendments proposed by the Virginia ratifying conventions. Id. at 233.
87. Bowling, supra note 86, at 237.
88. Chase would soon become an Associate Justice of the United States Supreme Court and
an extreme federalist.
89. Letter from Samuel Chase to Richard Henry Lee (May 16, 1789), in CREATING THE BIL
OF RiGHTS, supra note 5, at 240.
90. Letter from Richard Henry Lee to Patrick Henry (May 28, 1789), in CREArmI Tm Bn.L
OF RiGHTs, supra note 5, at 240-41.
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amendments of the ratifying conventions. The House voted down
these proposals as well. Burke, Tucker, and others continued to
propose other structural changes, but to no avail.9
The persistent opposition of the antifederalists to Madison's
amendments is made clear by a brief analysis of the votes in the
House of Representatives on the amendments. There were ten antifederalist members of the first Congress. 92 An eleventh congressman,
William Floyd of New York, had opposed ratification, but by 1789
claimed to support the Constitution. In three key votes on the bill of
rights, all of these men who were present voted together and against
James Madison and the majority of the Congress. On two other key
votes there was a slight breaking of ranks. On a vote over amendments
proposed by the antifederalist Thomas Tudor Tucker, two of the
antifederalists, Elbridge Gerry and Josiah Parker, joined Madison
and the majority of the Congress in overwhelmingly defeating the
proposal. On the last vote in the House, over the wording of what
eventually became the Sixth Amendment, Parker again joined the
majority, while the other antifederalists remained firmly opposed to
the proposed amendments. 93 These votes underscore the antifederalist
opposition to Madison's amendments in Congress. In the Senate there
were fewer votes, but the actions of the two antifederalists in that
body, Virginians Richard Henry Lee and William Grayson, were the
same. Lee and Grayson were in the minority on three recorded votes
and in an 8 to 8 tie on another vote. 94
In 1787-88 the antifederalists had demanded amendments, including a bill of rights. Why did the dozen or so antifederalists in
Congress consistently oppose the amendments of 1789? The answer
is simple. The amendments Madison proposed would not affect the
structure of the government at all. They were only designed to protect
individual liberty and minority rights. The antifederalists certainly
valued these protections. They had been arguing for them all along.
But, they did not want only protections of individual liberty; they
also wanted structural changes which the proposed amendments lacked.
91. Bowling, supra note 86, at 241-43.
92. Theodorick Bland (Va.), Aedanus Burke (S.C.), Isaac Coles (Va.), Elbridge Gerry
(Mass.), Jonathan Grout (Mass.) John Hathorn (N.Y.), Josiah Parker (Va.), Jeremiah Van
Rensselaer (N.Y.), Thomas Sumter (S.C.), and Thomas Tudor Tucker (S.C.).
93. These votes are set out in CREATING THE BtsL OF RIGHTS, supra note 5, at 51-53. Bland
was not present for four of the five votes.
94. Id.
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B.
Declaration of Rights
Amendments "Good for Nothing"
95
When the amendments reached the American people the leading
antifederalists remained unhappy. Patrick Henry believed the amendments were more dangerous than none at all, because they would lull
the people into a false sense of security without dealing with the
structural problems Henry saw in the Constitution. Henry unhappily
realized that Madison's amendments would undermine those who
wished to "retrench the exorbitancy of power granted away ... from
the people." 96 Similarly, Virginia's Theodorick Bland Randolph, a
kinsman to many important Virginia leaders, thought that Congress
had "not made one single material" amendment.97
Virginia's two senators, the only antifederalists in that branch of
the Congress, opposed the amendments to the end. Richard Henry
Lee thought them "mutilated and enfeebled.''98 He believed that "a
government very different from a free one will take place eer many
years are passed.'"'9 Structural changes, not merely protections of
individual liberties and minority rights were necessary, in Lee's eyes,
to prevent tyranny.
William Grayson, Virginia's other senator, was equally unhappy
with Madison's amendments. He believed they were "so mutilated &
gutted that in fact they are good for nothing" and, in the end, would
"do more harm than good."'' 0 Grayson lamented that the "Virginia
Amendments," 101 which were structural in nature, "were regularly
rejected" by the Senate. 0 2 Thomas Tudor Tucker summed up the
views of the antifederalists in Congress: "You will find our Amendments to the Constitution calculated merely to amuse, or rather to
deceive." 0 3
95. Letter from William Grayson to Patrick Henry (Sept. 29, 1789), in 3 PATRICK HENRY:
406 (William Wirt Henry ed., 1891), quoted in Richard
E. Ellis, The Persistence of Antifederalism After 1789, in BEYOND CONFEDEATION: ORIGINs OF
THE CONSTITUTION AND AMERICAN NATIONAL IDENTITY 299 (Richard Beeman et al. eds., 1987).
96. Bowling, supra note 86, at 249.
97. LETTER FROM THEODORICK BLAND RANDOLPH TO ST. GEORGE TUCKER (Sept. 9, 1789),
reprinted in CREATING THE BL OF RIGHTS, supra note 5, at 293.
98. LETTER FROM RICHARD HENRY LEE TO FRANCIs LIGHTFOOT LEE (Sept. 13, 1789), reprinted
in CRATNG THE BnL OF RIGHTS, supra note 5, at 294.
LIFE, CORRESPONDENCE, AND SPEECHES
99. Id.
100. LETTER ROM GRAYSON TO PATRICK HENRY (Sept. 29, 1789), reprinted in CREATING THE
Bn.L OF RIGHTS, supra note 5, at 300.
101. Id.
102. Id.
103. LETTER
in
FROM THOMAS TUDOR TUCKER TO ST. GEORGE TUCKER (Oct. 2, 1789), reprinted
CREATING THE BIL OF RIGHTS, supra note 5, at 300.
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When the amendments reached the Virginia legislature, "the state
senate held up ratification for nearly two years while Anti-Federalists
attacked the amendment[s] as inadequate."' 1 4 The Virginia antifederalists fully understood that ratification of the Bill of Rights would
destroy any chance of getting either a second convention or getting
the kind of structural amendments they wanted.
In Massachusetts, things were more complicated. Federalists in
the Bay State were willing to endorse some amendments, but "the
Anti-Federalists expressed more interest in amendments that would
weaken the national government and strengthen the states than in
protecting personal liberties." Unable to accomplish this, a committee
dominated by antifederalists prevented the ratification of any amendments in Massachusetts. 0 Thus, Massachusetts did not ratify any
amendments until 1939, when symbolically Georgia, Connecticut, and
Massachusetts endorsed the Bill of Rights.
For the antifederalists the proposed amendments remained inadequate, a tub to the whale. And, nearly a decade after their
ratification, Alexander Hamilton, the great nemesis of the antifederalists, agreed that in 1789-91 his old enemies had truly been defeated.
The amendments adopted then answered "scarcely any of the important objections which were urged, leaving the structure of the government, and the mass of its powers where they were." Hamilton
argued the amendments were "insignificant" for those who had
"thought it [the Constitution] originally bad."'' ° In other words, the
Amendments did not affect the structure of the government.
VI.
THE PROTECTION OF MINORITY RIGHTS AND
INDIVIDUAL LIBERTY
The complaints of the antifederalists that the proposed amendments were a "tub to the whale" were only half right. Certainly the
amendments did not restructure the government along the lines demanded by Patrick Henry and his supporters. But they did accomplish
the other goals of the antifederalists - they protected minority rights
and individual liberties.
To understand why the bill of rights must be seen as a protector
of individual liberty, it is necessary to examine the arguments of those
104. LEONARD W. LEVY, THE ESTABLISHMENT CLAUSE: REuGION AND THE FIRST AMENDMENT
86 (1986).
105. Id. at 85-86.
106. Bowling, supra note 86, at 251.
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Declaration of Rights
who demanded a bill of rights: the antifederalists. While losers in the
overall struggle of the era, and thus a minority, they were able to
gain a partial victory by getting explicit protections for individual
liberty through the Bill of Rights.
A.
Ratification in Pennsylvania -
Minority Rights Ignored
Throughout the ratification process, the antifederalists condemned the Constitution for not protecting individual liberty and
minority rights and demanded amendments that would give such
protections. This made sense, because throughout the period the
antifederalists were a minority. They, after all, had lost the political
battle against the Constitution. The history of ratification in Pennsylvania illustrates this.
As soon as the Convention finished its deliberations, the federalists in the Pennsylvania state assembly proposed legislation to set a
date for the election of a ratification convention. By this time, late
September, the assembly was nearing the end of its annual session,
and many members of the assembly had gone home assuming that
there was no more business to conduct. Many of those who had left
were from western Pennsylvania where the greatest opposition to the
Constitution would emerge. The remaining antifederalists argued that
the calling of a ratification convention was an issue for the next
assembly, which would be elected shortly. Their not illogical position
was that the Constitution itself should be part of the political debate
of the upcoming statewide election.
The federalists in the Pennsylvania assembly ignored these arguments and pushed for a vote to call for a convention. The outnumbered antifederalists tried to defeat the call for a convention by
absenting themselves from the assembly to prevent a quorum. However, a federalist-inspired mob violently dragged a few absent members
to the assembly, thus creating a quorum and allowing the federalists
to set in motion the election of delegates to a ratifying convention.
These high-handed federalist tactics had the effect of convincing
some Americans of the need to protect minority rights. Thomas B.
Wait, a Massachusetts politician, for example, wrote a federalist friend
that from "the unprecedented Conduct of the Pennsylvania Legislature" he concluded that "the minority had been ill used." This led
him to "lend an ear to the arguments of the opposition." Although
he had initially "loved Geo. Washington" and "venerated Benj.
Franklin - and therefore concluded that I must love and venerate
all the works of their hands," he soon came to oppose the Constitution
Southern Illinois University Law Journal
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because it lacked a bill of rights that would protect minorities like
those in Pennsylvania.0 7
When the Pennsylvania ratification convention met, the antifederalists were once again the big losers. The federalists, led by James
Wilson, overwhelmed their opponents. After Pennsylvania had ratified
the Constitution, the antifederalist convention delegates published a
document explaining why they had opposed the Constitution and what
changes they wanted. They published their pleas for amendments
under the title "Address and Reasons for Dissent of the Minority of
the Convention of the States of Pennsylvania to their Constituents."l 8
The title of their document suggests they understood the importance
of a bill of rights to protect the minority from the majority.
Even in the states where the issue was close - like Massachusetts
and Virginia - the antifederalists had to settle for recommended
amendments, because it was the best they could get. They were the
minority, and it is because of this that they so much wanted a bill
of rights. Thus, it is illogical and historically inaccurate to argue that
they were not demanding the protection of minority rights.
B.
The Constitution as a Threat to Minority Rights
The antifederalists were a minority in a number of states. During
the ratification contests, they were quickly and overwhelmingly defeated in Delaware, Connecticut, Georgia, and New Jersey. They were
routed in Pennsylvania l° and then soundly trounced in Maryland,
South Carolina, and New Hampshire. In Massachusetts and Virginia,
opponents and supporters of the Constitution were about equally
divided. The antifederalists might have won in those states, but they
were impressively out-maneuvered by their opponents. When the final
vote came in both states, the antifederalists were in the minority.
Only in New York and North Carolina were antifederalists clearly in
the majority, and in the former the federalists still won in the state
convention. 11 0
107. LETTER FROM THOMAS B. WAIT TO GEORGE THATCHER, PORTLAND, MAINE (Jan. 8, 1788),
reprinted in 15 DOCUMENTARY HISTORY, supra note 25, at 284.
108. ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION OF THE STATE
OF PENNSYLVANIA TO THEIR CONSTITUENTS, reprinted in 2 DOCUMENTARY HISTORY, supra note
25, at 618.
109. Despite some rough tactics by federalists in calling a convention, it seems likely that the
antifederalists in Pennsylvania were a minority. See supra note 13 and accompanying text.
110. The situation in Rhode Island was so confusing that it is impossible to tell who was in
the majority.
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Declaration of Rights
Thus, as the ratification process moved forward, the likelihood
of their minority status in the new regime was obvious to most
antifederalists. There seemed to be no stopping the federalist steamroller. Anticipating Alexis de Tocqueville l by nearly half a century,
the Massachusetts antifederalist writer "Agrippa" argued that "[a]
bill of rights . . . serves to secure the minority against the usurpation
and tyranny of the majority." Thus, it was "as necessary to defend
an individual against the majority in a republick as against the king
in a monarchy." "Agrippa" was proud that the Massachusetts constitution had "wisely guarded this point," and he expected no less
from the national constitution." 2 In Georgia, where the federalists
had been almost totally successful, a voice in the wilderness warned
Americans to "[gluard against all encroachments upon your liberties
so dearly purchased with the costly expense of blood and treasure."' 13
It is no wonder, then, that antifederalists argued for a bill of
rights to protect minority rights. On this point, the situation of the
New York antifederalists is especially telling. An overwhelming majority of the delegates elected to the New York ratifying convention
were antifederalists. However, in the end a substantial number of
them, including much of their leadership, voted for ratification because ten other states had already ratified the Constitution. These
antifederalists felt compelled to support the new form of government
because of the pressure from the majority of the other states. Although
in the majority at home, the New York antifederalists who voted for
ratification did so because they already saw themselves as a minority
within the Union and felt they could best protect themselves by
ratifying the Constitution and then working for changes that would
protect minority rights - which were their rights.
Antifederalists often reflected the revolutionary tradition of Whig
ideology that favored limited government. They "injected Enlightenment ideas, especially when it came to justifying bills of rights that
tended to hem in majority rule and many traditional Whigs were
prominent in supporting bills of rights during the 1780s for this very
reason - to moderate majority rule."1 4 Thus, while favoring localism
111. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA. Chapter on the "tyranny of the
majority."
112. LETTERS OF AGRIPPA (Feb. 5, 1788), reprinted in 4 THE COMPLETE ANTI-FEDERALIST II1
(Herbert J. Storing ed., 1981).
113. A GEORGIAN, (Georgia State Gazette, Nov. 15, 1787), reprinted in 3 DOCUMENTARY
HISTORY, supra note 25, at 243.
114. DONALD LUTZ, POPULAR CONSENT AND POPULAR CONTROL: WHIG POLITICAL THEORY IN
THE EARLY STATE CONSTITUTIONS 190 (1980).
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and talking about democracy, the opponents of the Constitution also
understood the importance of restraining the majority. Throughout
the nation, they focused on very specific ways in which the lack of
a bill of rights threatened minority rights.
C.
Religious Minorities and the Bill of Rights
The fears of religious minorities underscore the connection between individual liberty and minority rights in the struggle for a bill
of rights. Throughout the nation dissenting Protestants expressed
concern that the Constitution threatened religious liberty. The demands were not, as Akhil Amar has incorrectly characterized them,
about an "intermediate association," the "church." Nor were they
"designed to create an educated and virtuous electorate."" ' 5 These
demands were about individual liberties of conscience and belief. They
were about the rights of small minorities - Baptists, Quakers, and
other dissenters in a sea of Anglicans (who had recently become
Episcopalians) or Congregationalists who were still established in New
England. The debates in two states, Virginia and Pennsylvania, illustrate the way in which fears over religious liberty were directed at
both individual rights and minority rights.
1.
Virginia and the Baptists
One of the most important constituencies favoring a bill of rights
were the Baptists in Virginia. These religious dissenters were particularly instrumental in converting Madison from an opponent of
amendments to the reluctant father of the Bill of Rights.
James Madison's first encounter with "honest" antifederalists
occurred while he was campaigning for election to the Virginia ratification convention. On March 22, 1788, Madison probably met with
Elder John Leland, an influential Baptist leader, who at the time was
hostile to the Constitution. Leland and other Baptists feared that the
Constitution would undermine religious freedom in the nation. Madison's long record of supporting religious liberty and his sincere
empathy for Leland's concerns convinced the minister to support
l6
Madison for the Virginia convention."
Madison's meeting with Leland was critical to his election campaign, because Madison believed the support of the Baptists was vital
115. Amar, supra note 62, at 1132.
116. Edwin Butterfield, ElderJohn Leland, Jeffersonian Itinerant, 62 PROC. AM.
Soc'y 183-96 (1952).
ANTIQUARIAN
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Declaration of Rights
to his electoral success. Indeed, it seems likely that "Madison owed
his presence in the Virginia convention to [Leland and other] dissenters
whose trust he had earned in the struggle for religious liberty.""' 7
The meeting with Leland was also critical for Madison's eventual
support for a bill of rights. Until this time, Madison dismissed the
antifederalist demand for a bill of rights as a smokescreen for
defeating the Constitution. In Leland, however, Madison faced a man
who wanted to support the Constitution, but sincerely feared that
without a bill of rights freedom of religion would be jeopardized
under the new government. Madison could not easily dismiss Leland's
arguments as politically motivated because they were not. Thus, for
the first time Madison was forced to take seriously the bill of rights
argument even though he did not agree with it.
Madison later encountered the Baptists of his home district while
running for Congress in December 1788. Madison arrived home at
the end of December 1788 to campaign for Congress. He faced an
uphill election campaign. His opponent was James Monroe, a friend
and neighbor, but also a moderate antifederalist who had the support
of Patrick Henry and his allies. Henry and his friends had already
circulated rumors that Madison opposed any changes in the Constitution, including a bill of rights. Madison was particularly disturbed
by allegations that he opposed any amendment protecting religious
freedom.
On January 2, 1789, Madison wrote to Rev. George Eve, a
leading Baptist minister, to explain his position on the Constitution.
As he had a year earlier during the campaign for his election to the
ratifying convention, Madison found that Baptist fears about religious
liberty were sincere, strongly held, and had to be overcome if he was
to win election.
Madison's letter was surprisingly frank for a man seeking votes.
He freely admitted his disagreement with Eve; he did not see in the
Constitution "those serious dangers which have alarmed many respectable Citizens." Thus, while the Constitution was unratified Madison had opposed amendments because he believed they were
"calculated to throw the States into dangerous contentions, and to
furnish the secret enemies of the Union with an opportunity of
promoting its dissolution." However, with the Constitution ratified,
he was willing to support "amendments, if pursued with a proper
117. Jon Kukla, A Spectrum of Sentiments: Virginia's Federalists, Antifederalists, and "Federalists Who are For Amendments," 1787-88, 96 VA. MAG. HIST. & Bioa. 282 (1988).
Southern Illinois University Law Journal
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moderation and in a proper mode" because under such circumstances
they would "be not only safe, but may well serve the double purpose
of satisfying the minds of well meaning opponents, and of providing
additional guards in favour of liberty." Madison told Eve,
Under this change of circumstances, it is my sincere opinion that
the Constitution ought to be revised, and that the first Congress
meeting under it, ought to prepare and recommend to the States
... provisions for all essential rights, particularly the rights of
Conscience in the fullest latitude, the freedom of the press, trials by
jury, security against general warrants, & c.118
Madison's changing position was partially a function of the calls
by his opposition, including Monroe, for a second convention to alter
the Constitution. Madison thought a second convention would lead
to a disastrous rewriting of the Constitution. It would lead to the
kind of structural changes that Madison wanted to avoid. With this
as a likely alternative, Madison now saw amendments as the best
hope for keeping the Constitution more or less as it had been written.
Thus, he told Rev. Eve that future amendments were "the safest
mode" of changing the Constitution because "[tihe Congress, who
will be appointed to execute as well as to amend the Government,
will probably be careful not to destroy or endanger it" while a second
convention, "containing perhaps insidious characters from different
parts of America, [would] be but too likely to turn every thing into
confusion and uncertainty."" 9
Madison subsequently wrote similar letters to other Virginians
explaining his position on a bill of rights. Two of his letters, which
were published at the time, contained his "unequivocal pledge" to
work for amendments if elected to Congress.120 This counterattack
turned the tide in his favor. At a meeting of Baptist leaders, Rev.
Eve defended Madison by reminding his co-religionists that Madison
had always supported their interests by fighting for full religious
freedom in Virginia. 2' In addition, Madison went to various Baptist
118. Letter from Madison to George Eve (Jan. 2, 1789), inII MADISON PAPERS, supra note
8, at 404-05.
119. Id.
120. LETTER FROM MADISON TO THOMAS MANN RANDOLPH (Jan. 13, 1789), reprinted in 11
MADISON PAPERS, supra note 8, at 415-17. LETTER FROM MADISON TO "A RESIDENT OF
SPOTSYLVANIA COUNTY" (Jan. 27, 1789), reprinted in 11 MADISON PAPERS, supra note 8, at
428-29. LETTER FROM BENJAMIN JoHNsoN TO MADISON (Jan. 19, 1789), reprinted in 11 MADISON
PAPERS, supra note 8, at 423-24.
121. RALPH KETCHAM, JAM1ES MADISON, 276 (1971).
MADISON: THE FOUNDING FATHER 48 (1987).
See also, ROBERT RUTLAND, JAMES
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meetings, German churches, and numerous courthouses to debate
Monroe and explain his new support for amendments. His friends
continued to argue his case throughout the district. 122 The campaign
paid off with "a resounding federalist victory and remarkable personal
tribute to Madison in a district 'rigged' against him.' '123
2.
Religion and Antifederalism in Pennsylvania
The Virginia Baptists feared a national government that did not
protect individual and minority religious liberty because they had been
oppressed by the Anglican majority in their own states. But, experience
with oppression was not a prerequisite for understanding the need to
protect individual religious freedom and the rights of religious minorities. The Pennsylvania antifederalists came from a jurisdiction
that had long practiced religious liberty; they did not want to sacrifice
this on the altar of nationalism.
The Pennsylvania antifederalists were concerned that the Constitution did not offer the kind of protection of religious freedom that
the state constitution offered. A Quaker writing as "Timothy Meanwell" in the Philadelphia Independent Gazetteer noted that he had
"searched it [the Constitution] from beginning to ending, and I don't
find a protection for the liberty of conscience, and that all men shall
worship GOD agreeable to their own dictates." This author
should have liked the constitution much better if our friends of the
Convention had inserted the 2d article of the Bill of Rights prefixed
to the Constitution of Pennsylvania That all men have a natural and unalienable right to worship
Almighty God, according to the dictates of their own consciences
and understanding: And that no man ought, or of right can be
compelled to attend any religious worship, or erect or support
any place of worship or maintain any ministry, contrary to, or
against his own free will and consent: Nor can any man, who
acknowledges the being of a God, be justly deprived or abridged
of any civil right as a citizen, on account of his religious sentiments, or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power
122. Letters from George Nichols to Madison (Jan. 2, 1789) (Jan. 24, 1789), in 11 MADISON
Letter from Madison to Washington (Jan. 14, 1789),
417-18. Letter from Henry Lee to Madison (Jan. 14,
1789), in 11 MADISON PPAERS, supra note 8, at 420-27.
123. RALPH KETcHAm, JAMES MADISON 277 (1971).
PAPERS, supra note 8, at 406-09, 427-28,
in 11 MADISON PAPERS, supra note 8, at
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whatever, that shall in any case interefer with, or in any manner
controul, the right of conscience in the free exercise of religious
worship. "2
"Meanwell" believed that the federalists "have lent their aid in
abolishing of the liberty of conscience" as well as freedom of speech
and press. 25 He felt both would be destroyed as soon as the new
26
Constitution went into effect.1
Samuel Bryan, writing as "Centinel," similarly complained about
the lack of a bill of rights to protect religious freedom. In one of his
extremely influential essays, he quoted most of the text of the Pennsylvania Declaration of Rights on religious freedom, as "Timothy
Meanwell" did. 127 A group of citizens in Cumberland County expressed their concern that the Constitution lacked a "declaration of
rights, to secure to the people the liberty of worshiping God according
to their consciences." Quoting the "Supremacy Clause" of Article
VI of the proposed Constitution, these Pennsylvanians noted that
"the bill of rights contained in the constitutions of the several states
are no security
....
I2
The fear that the national government might undermine religious
liberty was stimulated in part by the behavior of the federalists at
the Pennsylvania ratifying convention. Benjamin Rush, one of the
most aggressive federalists in Pennsylvania, urged that the convention
"request the attendance of some minister of the Gospel" to "open
the business of the Convention with prayer."'' 29 Many in the convention, especially the antifederalists, thought this was "a new and
unnecessary measure, which might be inconsistent with the religious
sentiments of some of the members .... ,30 Rush rejected this
notion, arguing that there should be enough "liberality" in the
convention "to unite in prayers for the blessing of Heaven upon their
proceedings, without considering the sect or persuasion of the minister
124.
25, at
125.
126.
127.
466.
TIMOTHY MEANwEu. (Oct. 29, 1787), reprinted in 15 DOCUMENTARY HISTORY, supra note
511-12.
Id. at 513.
Id.
CENTINEL II (Oct. 24, 1787), reprinted in 13 DOCUMENTARY HISTORY, supra note 25, at
128. CUMBERLAND COUNTY PETITION TO THE PENNSYLVANIA
CONVENTION (Dec. 5,
1787),
reprinted in 2 DOCUMENTARY HISTORY, supra, note 25, at 310.
129. NEWSPAPER REPORT OF PROCEEDINGS AND DEBATES, reprinted in 2 DOCUMENTARY HIS-
TORY, supra note 25, at 328.
130. Id.
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Declaration of Rights
who officiated."'' This response underscored the failure of the federalists to consider the fears of religious minorities. Antifederalists
doubtless saw this as an example of what would follow if the
federalists came to power.
During the ratifying convention, antifederalists noted the lack of
a bill of rights and especially the lack of a protection of religious
freedom. "Can we give away the rights of conscience?" asked Robert
Whitehill.13 2 Whitehill later observed that under the supremacy clause
and the treaty making clause, "Treaties may be so made as to absorb
the liberty of conscience, trial by jury, and all our liberties."'3 John
Smilie, a leader of the antifederalists in the Convention, complained
that there was "[n]o security for the rights of conscience."' 34 He
thought they "should be secured" in the federal constitution as they
were in "the bill of rights of Pennsylvania."' Smilie noted that
"Priestcraft" was "useful to all tyrannical governments" and that
under the proposed Constitution "Congress may establish any religion. '136 Other delegates complained about the lack of protections for
pacifists."'
William Shippen, a moderate Philadelphia antifederalist, privately
complained of the lack of "a bill of rights prefixed securing ...
the
liberty of conscience."' 3 In public, writing as "An Old Whig,"
Shippen argued that without freedom of expression there could be no
religious freedom. "Should the freedom of the press be restrained on
the subject of politics, there is no doubt it will soon after be restrained
on all other subjects, religious as well as civil."' 3 9 In the second flag
salute case, West Virginia Board of Education v. Barnette,1° the
Court would apply this reasoning in overturning a mandatory flag
salute law. A former Revolutionary War officer complained that
"men conscientiously scrupulous of bearing arms may be compelled
131. Id.
132. Debate of November 28, 1787, in 2 DOCUMENTARY HISTORY, supra note 25, at 399, 400
("Have we a right to give away the rights of conscience?")
133. Debate of December 7, 1787, in 2 DOCUMENTARY HISTORY, supra note 25, at 514.
134. Debates of November 28, 1787, in 2 DOCUMENTARY HISTORY, supra note 25, at 386.
135. Debate of December 3, 1787, in 2 DocUrMErTARY HISTORY, supra note 25, at 459.
136. Debate of December 12, 1787, in 2
DoCUMENTARY HISTORY,
supra note 25, at 592.
137. Debates of December 6, 1787, in 2 DOCUMENTARY HISTORY, supra note 25, at 509, 511.
138. LETrER FROM WILLIAM SHIIEIN, JR. TO THOMAS LEE SHIPPEN (Nov. 18, 1787), reprinted
in 2 DOCUMENTARY HISTORY, supra note 25, at 288.
139. AN OLD WING, I, ESSAY OF OCTOBER 12, 1787, reprinted in 13
supra note 25, at 378.
140. 319 U.S. 624 (1943).
DOCUMENTARY HISTORY,
Southern Illinois University Law Journal
[Vol. 16
to perform military duty."' 41 In the state ratifying convention, William
Findley and General Anthony Wayne echoed these sentiments.' 42 John
Smilie, a leader of the antifederalists in the Convention, simply
complained that there was "[n]o security of the rights of conscience."' 43 After the convention, the defeated antifederalists again
complained that "the rights of conscience may be violated, as there
is no exemption of those persons who are conscientiously scrupulous
of bearing arms."' 144 This of course dovetailed with the very first
demand of the dissenting antifederalists, that "the right of conscience
shall be held inviolable; and neither the legislative, executive, nor
judicial powers of the United States shall have authority to alter,
abrogate, or infringe any part of the constitution of the several states,
which provided for the preservation of liberty in matters of religion."145
F.
Minority Protections and Other Bill of Rights Issues
Antifederalists' demands for the civil jury, the criminal grand
jury, and the criminal jury in the "district" where the crime had
been committed were also demands for the minority to protect itself
from the majority. The federal judges and prosecutors would represent
the majority of the voters - the winners. Similarly, antifederalists
talked about tyrannical rulers riding roughshod over the majority of
the people - but these were, in the end, losing arguments. They
didn't wash at the time because most Americans accepted the notion
that democratic elections would lead to a reasonable administration
of the laws. Thus, the real fear of the antifederalists was that the
majority would rule, and that they would be in the minority. The
criminal jury drawn from the locality of the accused, the civil jury,
and the grand jury would provide some measure of protection against
the majority that controlled the national government.
In Georgia, "A Planter" argued that the venue of the criminal
jury was important because "the life of a human being is immediately
141. AN OFFICER OF THE LATE CONTINENTAL ARMY (Nov. 6, 1787), reprinted in 2 DOCUMENsupra note 25, at 212.
142. Convention debates of December 6, 1787, in 2 DOCUMENTARY HISTORY, supra note 25,
TARY HISTORY,
at 509, 511.
143. Debates of November 28, 1787, in 2 DOCUMENTARY HISTORY, supra note 25, at 386.
144. THE
ADDRESS AND REASONS OF THE DISSENT OF THE MINORITY OF THE CONVENTION OF
THE STATE OF PENNSYLVANIA
supra note 25, at 638.
145. Id. at 613.
TO THEIR CONSTITUENTS,
reprinted in
2 DOCUMENTARY
HISTORY,
19921
Declaration of Rights
concerned" in criminal cases. Similarly, the vicinage of the jury was
important because a federal judge "who has probably resided only
in one particular part of a country, and whose knowledge of the
individuals who compose the collected community must be very
confined, cannot possibly be so well acquainted with the causes and
motives of action of those individuals as their neighbors who reside
in the vicinity ....
,,46 These arguments again suggest the fears of
antifederalists that individuals - whether defendants in criminal cases
or civil litigation - might be threatened by the Constitution. Similarly,
these comments suggest that the antifederalists saw themselves as the
losers in the political battles to come, and thus they wanted local
juries to protect them from federal judges. Significantly, these comments were written after Georgia had ratified the Constitution - that
is, after the antifederalists in that state had become the minority.
VII.
THE CONSTITUTION AS A THREAT TO INDIVIDUAL
LIBERTY
It is difficult to see the Bill of Rights as a statement of collective
rights. Certainly, some of the Amendments, like the Second, readily
lend themselves to this sort of analysis. Moreover, some of the
antifederalists spoke of the "rights of the people" as if they were
collective rights. But, even these collective rights were often only
applicable on an individual basis. For example, the "Minority of the
Maryland Ratifying Convention" argued for a prohibition on double
jeopardy in criminal cases, "no appeal from matters of fact" as
decided by juries, and the necessity of jury trials in all cases, as "the
boasted birth-right of Englishmen, their descendants, and the palladium of civil liberty.' ' 4 7 Similarly, "A Democratic Federalist" in
Pennsylvania argued that "as a general rule ...
wherever the powers
of the government extend to the lives, the persons, and properties of
the subject, all their rights ought to be clearly and expressly defined,
otherwise they have but a poor security for their liberties."'' 4 It is
hard to see how these rights could be collective; they make sense only
as individual rights.
146. A PLANTER (Apr. 3, 1788), reprinted in 3 DOCUMENTARY HISTORY, supra note 25, at
299.
147. A Minority of the Maryland Ratifying Convention (May 6, 1788), in 5 COMPLETE ANTIFEDERALIST 95 (Herbert J. Storing ed., 1981).
148. A DEMOCRATIC FEDERALIST (Oct. 17, 1787), reprinted in 2 DOCUMENTARY HISTORY, supra
note 25, at 194.
Southern Illinois University Law Journal
[Vol. 16
In the debate over the Constitution even some federalists worried
that the new document might threaten individual rights. Charles
Johnson, a North Carolina federalist who voted for the Constitution
at both of his state conventions, nevertheless thought a bill of rights
was needed to "explicitly secure the trial by jury, according to former
usage - the liberty of the press, with all the other rights of the
individual which are not necessary to be given up to government, and
which ought not and cannot be required for any good purpose." 1 49
Antifederalists, of course, were far more concerned with individual liberties. Mercy Otis Warren, the daughter of the revolutionary
firebrand James Otis, illustrates the way in which antifederalists tied
the ideas of personal liberty from the revolution to the debate over
the Constitution. Warren warned that the people of Massachusetts
would lose "the security of their civil rights" if the Constitution were
ratified. She argued that "the rights of individuals ought to be the
primary object of all government, and cannot be too securely guarded
by the most explicit declarations in their favor."' 50 John Smilie
complained to the Pennsylvania ratifying convention that "every
principle of a bill of rights, every stipulation for the most sacred and
invaluable privileges of man, are left at the mercy of government." ''
Similarly, the minority in the Pennsylvania ratifying convention demanded a bill of rights "ascertaining and fundamentally establishing
those unalienable and personal rights of men, without the full, free,
and secure enjoyment of which there can be no liberty, and over
which it is not necessary for a good government to have the control."
These included "the rights of conscience, personal liberty by the clear
and unequivocal establishment of the writ of habeas corpus, jury trial
in criminal and civil cases, by an impartial jury of the vicinage or
county; with the common law proceedings, for the safety of the
accused in criminal prosecutions .....
These were hardly calls for
collective rights. Rather, these were the essence of the revolutionary
rhetoric that the antifederalists inherited: the need for the individual
to be protected from the government.
149. LETTER FROM CHARLES JOHNSON TO JAMES IREDELL (Jan. 14, 1788), reprinted in 15
DOCUMENTARY HISTORY, supra note 25, at 364.
150. A COLUMBIAN PATRIOT [MERCY OTIS WARREN], OBSERVATIONS ON THE CONSTITUTION, in
16 DOCUMENTARY HISTORY, supra note 25, at 283, 282.
151. Debate of November 28, 1787, in 2 DOCUMENTARY HISTORY, supra note 25, at 392.
152. THE ADDRESS AND REASONS OF THE DISSENT OF THE MINORITY OF THE CONVENTION OF
THE STATE OF PENNSYLVANIA TO THEIR CONSTITUENTS, reprinted in 2 DOCUMENTARY HISTORY,
supra note 25, at 630-31.
19921
Declaration of Rights
To fully understand how the bill of rights was designed to protect
individual liberty, we must place that document in its historical context
as part of the American Revolution. That Revolution was fought over
issues of individual liberty and popular government. During the debate
over the Constitution, many of the antifederalists returned to the
arguments of 1776 and the ideas of the Enlightenment. Antifederalists
"often quoted with approval" John Locke's arguments on individual
rights.'
We can, of course, make light of the importance of individual
liberty in the Revolution by pointing out the horrible contradiction
that many of the Revolutionary leaders, after all, were slaveowners.
As the English Tory Samuel Johnson noted: "How is it that we hear
the loudest yelps for liberty among the drivers of Negroes?"", Indeed,
in the South the Revolution had little impact on slavery, although in
the North emancipation followed in the wake of the Revolution. 55
Moreover, the Constitution written in 1787 was clearly a slaveholders
56
constitution, protecting bondage at every turn.
Nevertheless, despite the contradiction of slaveholding rebels
fighting for their "life, liberty, and the pursuit of happiness," the
generation of 1776 fought to preserve its liberty - including the
liberty to enslave others. The liberties they fought for were often
individual. As early as 1764, James Otis asserted that "the absolute
rights" that Americans were entitled to "are the rights of personal
security, personal liberty, and of private property." The more conservative John Dickinson echoed this concept, arguing that men
"cannot be happy, without Freedom, nor free, without Security of
Property; nor so secure, unless the sole Power to dispose of it be
57
lodged in themselves."' 1
153. DONALD LuTz, POPULAR CONSENT AND POPULAR CONTROL: WHIG POLITICAL THEORY IN
THE EARLY STATE CONSTITUTIONS 190 (1980).
154. DONALD ROBINSON, SLAVERY IN THE STRUCTURE OF AMERICAN POLITICS, 1765-1820, at
80,(1971).
155. DONALD ROBINSON, SLAVERY IN THE STRUCTURE OF AMERICAN POLITICS, 1765-1820 (1971);
PAUL FINKELMAN, AN IMPERFECT UNION: SLAVERY, FEDERALISM, AND COMITY (1981); DAVID
BRION DAVIS, THE PROBLEM OF SLAVERY IN THE AGE OF REVOLUTION (1975); WILLIAM WIECEK,
THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN THE AMERICAN, 1760-1848 (1977); See
generally, ARTHUR ZILVERSlIT, THE FIRST EMANCIPATION (1967).
156. Paul Finkelman, Slavery and the Constitutional Convention: Making a Covenant With
Death, in BEYOND CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AMERICAN NATIONAL
IDENTITY 188-225 (Richard Beeman et al. eds., 1987).
157. JOHN P. REm, CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION: THE AUTHORITY
OF RIGHTS 36 (1986).
Southern Illinois University Law Journal
[Vol. 16
The key to the Revolutionary era concepts of liberty was the
right to property. In 1775, the revolutionary leader Arthur Lee argued
that "the right of property is the guardian of every other right, and
to deprive a people of this, is in fact to deprive them of their
liberty."'5 8 Significantly, Lee was an antifederalist in 1787-88 who
opposed the Constitution because it did not protect individual liberties,
including the right of property.
A number of the amendments adopted in 1791 protected property.
Most obviously was the takings clause of the Fifth Amendment. This
clause is individual in nature; in fact, it makes no sense except as a
clause protecting individual liberties. It is not a clause preventing
government corruption or the self-dealing of government officials,
because the prohibited takings were not by individual government
officials, but by the government itself. In this way, the takings clause
is clearly counter-majoritarian. It prohibits the majority from taking
the property of the minority.
Similarly, the demand for the civil jury can be seen as a protection
of property. Antifederalists feared that federal judges, appointed by
presidents and confirmed by senators who would represent the majority, would arbitrarily take property from individuals through civil
actions initiated by the government. The local jury would prevent
this, and in the process protect private property.
In a larger sense, other amendments can be seen as protecting
private property and individual rights. Eighteenth century Americans
saw property and individual rights in their right to speak, to publish,
and to assemble. The demand for what became the Fourth Amendment stemmed in part from a fear of customs officers, tax collectors,
and other officious government functionaries invading the private
property of individuals.
Mercy Otis Warren, writing as "A Columbian Patriot," reflected
the revolutionary rhetoric of her father in condemning the Constitution for allowing warrantless searches. She reminded readers that "the
daring experiment of granting writs of assistancein a former arbitrary
administration is not yet forgotten in Massachusetts." She warned
that under the proposed Constitution, Americans would be subjecting
themselves, once again, "to the insolence of any petty revenue officer
to enter our houses, search, insult, and seize at pleasure."'' 9
158. ARTHUR LEE, AN APPEAL TO THE JUSTICE AND INTERESTS OF THE PEOPLE OF GREAT
14 (4th ed., 1775) (quoting JOHN P. REID,
CONSTITUTIONAL HISTORY OF THE AMERICAN REVOLUTION 33 (1987)).
159. A COLUMBIAN PATRIOT (MERCY OTIS WARREN), OBSERVATIONS ON THE CONSTITUTION,
BRITAIN, IN THE PRESENT DISPUTE WITH AMERICA,
reprinted in 16 DOCUMENTARY HISTORY, supra note 25, at 272.
Declaration of Rights
19921
A number of antifederalists stressed the centrality of protecting
individual rights under the Constitution. The "important"' 60 Massachusetts antifederalist "Agrippa" warned that "any system" which
"appoints a legislature without any reservation of the rights of
individuals, surrender[s] all power in every branch of legislation to
the government.' ' 61 The minority of the Pennsylvania Convention
asserted that
In all capital and criminal prosecutions, a man has a right to demand
the cause and nature of his accusation ... to be heard by himself
and his counsel; to be confronted with the accusers and witnesses;
to call for evidence in his favor, and a speedy trial by an impartial
jury in his vicinage, without whose unanimous consent, he cannot
be found guilty, nor can he be compelled to give evidence against
himself; and that no man be compelled to give evidence against
himself; and that no man be deprived of his liberty, except by the
62
law of the land or the judgment of his peers.'
It is hard to imagine a statement more directly aimed at individual
liberties and rights. These dissenters were not concerned with the
rights of the group, or with the structure of the government - they
were concerned with protecting the individual against the state. As
the "Minority" in the convention, they were no doubt also aware
that they might be a minority in the nation. It was their individual
rights as members of a political minority they sought to preserve.
"Centinel," one of the most influential antifederalists, denounced
the framers "for the omission of a bill of rights, securing the liberty
of the press, and other invaluable personal rights .... 163 He complained that under the new Constitution the "the general government
would necessarily annihilate the particular [state] governments, and
that the security of the personal rights of the people by the state
constitutions is superseded and destroyed."' 64 Moreover, there was
no declaration, that all men have a natural and unalienable right to
worship Almighty God, according to the dictates of their own
consciences and understanding; and that no man ought, or of right
160. See
LETTERS OF AGRIPPA,
reprinted in 4 THE
COMPLETE ANTI-FEDERALIST
68 (Herbert J.
Storing ed., 1981).
161. Id. at 96.
162. ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION OF THE STATE
OF PENNSYLVANIA TO THEIR CONSTITUENTS, reprinted in 2 DOCUMENTARY HISTORY, supra note
25, at 623.
163.
LETTERS OF CENTINEL, No. I1,
J. Storing ed., 1981).
164. Id. at 152.
reprinted in 2 COMPLETE
ANTI-FEDERALIST 144
(Herbert
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[Vol. 16
can be compelled to attend any religious worship, or erect or support
any place of worship, or maintain any ministry, contrary to, or
65
against his own free will and consent.
Centinel's demand for the protection of "the right of conscience in
the free exercise of religious worship" sounded in individual rights,
not in collective rights or in rights of a community.166
Richard Henry Lee quoted Blackstone to the effect that a jury
trial was "the most transcendent privilege which any subject can enjoy
or wish for, that he cannot be affected either in his property, his
liberty, his person, but by the unanimous consent of twelve of his
neighbors and equals."' 6 7 In demanding amendments to protect jury
trials, "the rights of conscience in matters of religion," "freedom of
the press," and prohibitions on "excessive bail, excessive fines or
cruel and unusual punishments," Lee reflected the pervasive antifederalist desire for protections of individual rights. 16
In Maryland, "A Farmer" argued that freedom of the press was
"one of those inestimable rights of an individual over which society
should have no control."' 1 9 In Pennsylvania, "A Democratic Federalist" feared that "under the enormous power of the new confederation, which extends to the individuals as well as to the states of
America, a thousand means may be devised to destroy effectually the
°
liberty of the Press.''17
VIII.
CONCLUSION
The Amendments adopted in 1787 were neither structural nor
collective. There were good reasons for this. The federalists would
not have tolerated structural changes. They did not need them nor
want them. They would, however, protect individual liberty because
few Americans of that era were hostile to individual rights. Similarly,
the federalists of 1789 were uninterested in oppressing minorities, in
part because they did not need to, in part because they were disinclined
to practice that sort of politics. Thus, the federalist majority in
165. Id.
166. Id.
167. LETTER FROM RICHAuD HENRY LEE TO GovRNOR EDMUND RANDOLPH (OCT.16, 1787),
reprinted in 5 COMPLETE ANTI-FEDERALIST 114 (Henry J. Storing ed., 1981).
168. Id. at 116-17.
169. ESSAYS BY A FARMER (Feb. 15,
1788), reprinted in 5 THE COMPLETE ANTI-FEDERALIST,
supra note 25, at 9.
170. A DEMOCRATIC FEDERALIST (October 17, 1787), reprinted in 2 DOCUMENTARY HISTORY,
supra note 25, at 194.
Declaration of Rights
19921
Congress wrote a bill of rights that went to individual liberties and
the protection of minorities from the federal government.
The federalists also wrote a bill of rights that reflected political
compromise and political infighting. The document, like the Constitution itself, was the product of compromise, debate, and numerous
hands with different agenda's stirring the mix. In his article, The Bill
of Rights as a Constitution, 7' Akhil Amar condemns modern legal
education for failing to read the Bill of Rights as a whole document
and for teaching that the amendments are "countermajoritarian" and
designed to protect minorities. He argues that the Bill of Rights
should be read holistically and as forming a "structure" of government, and the purpose of these structural changes was to prevent a
tyranny of the minority which antifederalists feared.' 72 But, to look
for a "structural" bill of rights is to seek consistency were none could
recently called
be expected to exist. It is what Lawrence Tribe has
73
the "interpretive fallacy" of "hyper-integration."1
The antifederalists would have liked structural amendments. They
would have liked a holistic bill of rights, going to the power and
organization of the government itself. But, they could not get such
amendments. Congress was in the hands of the federalists who had
no intention of granting them. Thus, in the end the antifederalists
settled for the second part of their agenda: the protection of individual
liberty. In this cause they were joined by those federalists, like the
Baptists of Madison's home county, who favored both the Constitution and a bill of rights, as well as pragmatic federalists like
Madison, who did not believe a bill of rights was necessary but were
willing to support formal protections of individual liberty in older to
gain more universial acceptance of the Constitution itself. These were
the amendments on which everyone could agree. They were the
amendments, that Madison believed, if adopted, would "be satisfac' 74
tory to a majority of those who have opposed the Constitution. '
Madison, in the end, was pleased that they were "limited to
points which are important in the eyes of many and can be objectionable in those of none."' 75 They were, as Madison told the Con-
171.
172.
173.
174.
Amar, supra note 62.
Id. at 1131.
LAWRENCE H. TRIBE AND MICHAEL C. DORF, ON READING THE CONSTITUTION 20 (1991).
Letter from Madison to Jefferson (June 13, 1789), in 12 MADISON PAPERS, supra note
8, at 218.
175. Letter from Madison to Edmund Randolph (June 15, 1789), in 12 MADISON PAPERS,
supra note 8 at 219.
Southern Illinois University Law Journal
[Vol. 16
gress, amendments which would "extinguish from the bosom of every
member of the community any apprehensions, that there are those
among his countrymen who wish to deprive them of their liberty for
which they valiantly fought and honorably bled." They were "the
great rights of mankind."' 7 6 Madison introduced amendments "for
the security of those rights."' 77 For the same reason, Congress passed
them and the states ratified them. And, it is those rights of individual
freedom for members of the majority and the minority that we
celebrate in 1991.
176. SPEECH OF
note 5, at 78.
177. Id. at 79.
MADISON
(June 8, 1789), reprinted in
CREATING THE BILL OF RIGHTS,
supra