National Bill of Rights Day customarily occupies a minor place
on our calendars, if it occupies a place at all. It falls every
year on December 15, commemorating the ratification of the first 10
amendments to our Constitution, which occurred on that day in 1791.
Bill of Rights Day is a day for rising above the commotion over the
meaning of each specific amendment. It is an opportunity for us to
reflect upon the purpose of those amendments as a whole, to step
back and consider the crucial questions that our Founders
confronted in considering the idea of amending the Constitution to
include a bill of rights.
Implicit in the story surrounding our Bill of Rights is the
proposition that the liberties of a nation can only be secured by
citizens of firm conviction who understand our rights and liberties
and will actively defend them. As Americans studying this important
document, we revivify in the public mind the rights and privileges
set forth in these amendments. And in doing so, we dutifully
fulfill its original purpose.
Although the Founders had extensive experience with bills of
rights in the various states, at the Constitutional Convention
there was little support for, or even discussion of, placing a
statement resembling a bill of rights in the Constitution. When two
of the Convention's most influential delegates, Elbridge Gerry and
George Mason, proposed adding a bill of rights to the Constitution,
their proposal was rejected by a unanimous vote of the states after
receiving very little discussion.
The story of the Bill of Rights can be told as the story of how
and why the Convention did not support a bill of rights and how
James Madison, the "Father of the Constitution," was persuaded to
take on the duty of serving as the "Father of the Bill of Rights"
in the First Congress.
The Founders' indifference toward a bill of rights in the
national Constitution was premised on the idea that it would not be
practically useful. The experience of the states in the 1780s
demonstrated that bills of rights, though suitable for theoretical
treatises, imposed no effective restraints on those who would be
responsible for protecting rights in practice. As Alexander
Hamilton wrote in Federalist 84, the provisions of the
various state bills of rights "would sound much better in a
treatise of ethics than in a constitution of government."
Benjamin Rush similarly stated that those states which had tried to
secure their liberties with a bill of rights had "encumbered their
constitutions with that idle and superfluous instrument." The
Founders at the Convention believed that a bill of rights would be
merely another "parchment barrier" incapable of restraining those
who would seek to violate its provisions, and thus it would fail to
provide true security for liberty.
The Federalists' Opposition to a Bill
The indifference of the Federalists--the defenders of the
proposed Constitution--to a bill of rights turned into outright
opposition when the Anti-Federalists denounced the Constitution and
sought to obstruct its ratification. Near or at the top of most
Anti-Federalists' lists of objections to the Constitution was the
absence of a bill of rights. In response to this opposition, the
Federalists argued that a bill of rights would be "not only
unnecessary in the proposed constitution, but would even be
dangerous." Their arguments are worth considering for
what they teach us about the central principles of our
First and most importantly, the defenders of the Constitution
argued that a bill of rights would undermine the idea of a
government with limited powers. A bill of rights might betray the
central principle of a written constitution as the product of a
social compact, which affirms that all authority originally resides
in the people and that the people create a government of
limited and enumerated powers in a written
To suggest, for example, that the liberty of the press is not to
be infringed upon might imply that, without such a provision, the
federal government would possess that power. The Founders
feared that we might infer that they created a government with
unlimited power and that the specific provisions in the Bill of
Rights denote particular reservations of power from an otherwise
unlimited government. James Wilson made this argument most
forcefully in speeches defending the Constitution in the state of
Pennsylvania. The theory underlying the Constitution, he argued, is
that "congressional power is to be collected, not from tacit
implications, but from the positive grant expressed in the
instrument of the union. Hence...everything which is not given is
reserved." Therefore, the presence of a bill of rights
"would have supposed that we were throwing into the general
government every power not expressly reserved by the people."
Similarly, Alexander Hamilton contended that a bill of rights
"would contain various exceptions to powers which are not granted;
and on this very account, would afford a colourable pretext to
claim more than were granted. For why declare that things shall not
be done which there is no power to do?"
Adding to this first difficulty was a second problem: A bill of
rights, Federalists argued, could not sufficiently define the
rights that individuals possess by nature and those rights and
privileges which governments are obliged to secure to citizens.
Thus, a bill of rights would not only "afford a colourable pretext"
for the government to claim more power than was granted to it by
the Constitution; it would also insufficiently enumerate the rights
which ought to be protected by the government. This would imply
that any right not explicitly mentioned in the Bill of Rights must
not be protected by it. Due to the impossibility of defining all of
the rights which government must respect, a bill of rights would
leave a window open for government to infringe upon the rights of
its citizens. The centuries-old history of American constitutional
law serves to illustrate the force of this argument. Even the
greatest American jurists disagreed about the meaning of the
provisions of these amendments.
Federalists advanced a third and more subtle critique, namely
that a bill of rights might confuse people about the ultimate
source of their rights. Many Federalists thought there was no need
for a declaration of rights in 1787, because the work had already
been done in 1776. In the Declaration of Independence, our Founders
had declared that all human beings are endowed with natural and
inalienable rights by virtue of their participation in the same
fundamental human nature. What need was there to set forth these
principles again, particularly in a document whose purpose was not
to describe the natural state of man but to establish the
institutional framework of the government? To declare our
fundamental rights in a document subject to ratification by the
people suggested a dangerous principle, namely that the
source of rights lies in consent and agreement rather than
nature. In other words, a bill of rights might suggest to the
people that their rights come from positive law, agreement, and
judicial enforcement rather than nature. As Jack Rakove writes, "By
implying that traditional rights and liberties would be rendered
insecure if they went undeclared, Anti-Federalists in effect
suggested that the existence of these rights depended upon
their positive expression."
Madison's Change of Opinion
Ultimately, James Madison and most of the other Federalists
changed their minds and favored ratification of the amendments we
today call our Bill of Rights. While many historical accounts
suggest that Madison and the Federalists acquiesced in the adoption
of these amendments because it was the only pathway to ratification
of the Constitution, they did not change their position due to mere
political opportunism. As Rakove points out, "Contrary to the usual
story, the concessions that Federalist leaders offered to secure
ratification in such closely divided states as Massachusetts,
Virginia, and New York did not establish a binding contract to
provide a bill of rights." In fact, by the time the First Congress met
in April of 1789, the necessity of appeasing the Anti-Federalists
on this point had subsided. Thus, the existence of the first 10
amendments to the Constitution cannot be explained merely as
political maneuvering necessary to secure ratification.
Nor did the Federalists become persuaded that their objections
to a bill of rights in the abstract were unfounded. They still
believed that a bill of rights would be ineffective, even
dangerous, if construed in an improper manner. Madison, announcing
his change of mind in a letter to Thomas Jefferson, remarked, "My
own opinion has always been in favor of a bill of rights, provided
it be so framed as not to imply powers not meant to be included in
the enumeration." In other words, if a bill of rights could
be framed in a way that avoided the Federalists' objections, it
might serve some useful purpose.
Madison's statement explains why he took the lead in writing the
amendments that were considered by the First Congress. His intent
was to frame the amendments in a way that would not undermine what
had been achieved at the Convention. For one, Madison proposed to
insert the amendments in the body of the Constitution, alongside
other rights and protections already in the text, rather than
placing them outside the Constitution as amendments to it. This
would avoid a central problem that we encounter today, namely that
the public's focus (and reverence) is drawn away from the
Constitution and toward the amendments.
Second, having been rebuffed in that attempt by his colleagues
in Congress, Madison was careful not to actually call the proposed
amendments a bill of rights. Thus, the term "bill of rights" is not
to be found in the preamble to the first 10 amendments to the
Constitution. Strictly speaking, what we today call the Bill of
Rights are 10 separate amendments, and they were to be considered
as separate provisions rather than a single document. In a subtle
but important move, the First Congress responded to the call for a
bill of rights by providing a number of "declaratory and
restrictive clauses" to be considered for ratification.
This is also demonstrated by the fact that only 10 of the 12
proposed amendments were ratified in 1791. If the 12 amendments
were to be considered as a single bill of rights, it would have
been necessary to give an affirmative or negative vote to these
amendments as a whole.
By framing the amendments in this way, Madison pointed back to
the Declaration of Independence as the philosophic statement of
rights and first principles; the amendments were not intended to
replace or revise what had been set forth in that document.
Therefore, the amendments should not be construed as enlarging the
grant of power to the federal government by the Constitution, nor
could they be thought to serve as a sufficient definition of all
the rights and privileges of citizens.
These points illustrate the crucial importance of the Ninth and
Tenth Amendments. Those amendments were drafted and ratified to
prevent the Constitution from becoming a carte blanche of
authority to an unlimited government. Neglect of these amendments
by the public as well as the courts has been so conspicuous as to
illustrate the force of the Federalists' original objections to a
bill of rights. Yet for Madison, these amendments were central.
They were intended to prevent the false interpretations that might
be placed upon the provisions enumerating powers in the
The Purpose of the Bill of Rights
There is one final question to be answered: Even if Madison
believed that a bill of rights could be framed--as ours surely
was--with the intent of preventing the implication of powers not
granted to the government by the Constitution, what benefit could
be gained by it? Was it not Madison who argued most forcefully that
we cannot trust in parchment barriers? The answer is that Madison
indeed thought ambition would counteract ambition, to "oblige the
government to control itself"--this was the idea of
checks and balances. But it does not explain how the Founders
proposed to safeguard individual liberty from tyranny of the
majority, rather than tyranny of the rulers over the ruled. The
safeguard of individual liberty, Madison reasoned, must lie with
the people themselves. It is the people who must be responsible for
defending their liberties. And a bill of rights, Madison and his
colleagues finally concluded, might support public understanding
and knowledge of individual liberty that would assist citizens in
the task of defending their liberties.
A bill of rights, they saw,
could serve the noble purpose of public education and
edification. As Madison confided to Jefferson, "The political
truths declared in that solemn manner acquire by degrees the
character of fundamental maxims of free Government, and as they
become incorporated with the national sentiment, counteract the
impulses of interest and passion."
From this view, our first 10 amendments are still important
today, in their text and substance, beyond their legal effect. They
still call upon us to study them for the sake of knowing our
liberties and defending them from all encroachments. Although these
amendments may be nothing more than "parchment barriers," they can
still provide a bulwark against encroachments on our rights. For as
Hamilton wrote in Federalist 84, the security of liberty,
"whatever fine declarations may be inserted in any constitution
respecting it, must altogether depend on public opinion, and on the
general spirit of the people and of the government. And here, after
all...must we seek for the only solid basis of all our rights."
is Assistant Director of the B. Kenneth Simon Center for American
Studies at The Heritage Foundation.
Alexander Hamilton, The Federalist, ed. Jacob E. Cooke
(Middletown, Conn.: Wesleyan University Press, 1961), No. 84, p.
579. All citations to The Federalist will cite the paper
number, followed by the page number in the Cooke edition.
Benjamin Rush, speech at Pennsylvania
Ratification Convention, cited in Herbert Storing, What the
Anti-Federalists Were For (Chicago and London: University of
Chicago Press, 1981), p. 68.
Federalist No. 84, p.579.
James Wilson, "State House Speech," October 6,
1787, cited in The Founders' Constitution, eds.Philip B.
Kurland and Ralph Lerner (Indianapolis, IN: Liberty Fund, 1987),
Vol. I, p. 449.
James Wilson, Pennsylvania Ratifying Convention
, November 28, 1787, cited in Thomas B. McAffee, "The Original
Meaning of the Ninth Amendment," Columbia Law Review, Vol.
90 (1990), p. 1233.
Federalist No. 84, p. 579.
Rakove, Original Meanings: Politics and Ideas in the Making of
the Constitution (New York: Random House, 1997), p. 324
(italics in original).
Letter from James Madison to Thomas Jefferson,
October 17, 1788, in Founders' Constitution, eds. Kurland
and Lerner, Vol. I, p. 477.
See Preamble to the Bill of Rights, available
online at www.billofrights.org.
Federalist No. 51, p. 349.
Letter from James Madison to Thomas
Jefferson, October 17, 1788, in Founders' Constitution, eds.
Kurland and Lerner, Vol. I, p. 477.
Federalist No. 84, p. 580.