Madison and the Bill of Rights

By Mitchell Kaidy

If the Declaration of Independence can be resoundingly celebrated by Americans each year, why not, on Dec. 15, mark another landmark document — the Bill of Rights?

The Declaration, written almost entirely by one author, denounced the denial of Americans’ inherent rights, condemned the despotic King who was responsible for the denial, and proclaimed the colonies’ independence. Within a few days in 1776, with little dispute or alteration, the document written by Thomas Jefferson was adopted.

By contrast, the Bill of Rights underwent a longer, much  more troubled gestation. First proposed at the Philadelphia Constitutional Convention in 1789 (and initially opposed by James Madison), its adoption was vastly more misunderstood, emotional and extended.

Over more than a decade, nearly every proposed phrase at one time or another became contentious; every provision fiercely supported or opposed, and it was widely denounced as unnecessary and — insistently — a threat to States’ rights.

So over a decade, championing it required dedication, vigor, staying power, and a nimble-enough intellect to undercut its numerous opponents. Those qualities were possessed by one diminutive man — James Madison, who had earlier helped father the Constitution.

Twelve years after the Declaration was approved by the Continental Congress and a decade after the Constitution was enacted by the original States, the proposed Bill of Rights was being hotly debated in state conventions across the fledgling nation.

Some founders, especially from the South, were convinced that a federal Bill of Rights would undermine broader rights guaranteed in their State constitutions. Others maintained that to extend any rights, another Constitutional convention was necessary — possibly jeopardizing the sanctity of the hard-won main document.

On both matters, one small-in-stature Virginian spent years traveling the young nation to convince Legislatures that their states would not only sacrifice nothing, but would benefit by adding a single instrument that guaranteed broader rights.

Traveling from one wary or opposed State Legislature to another, and debating the subject in the House of Representatives, James Madison kept insisting that the average citizen would benefit — and that a Bill of Rights should be added without amending the Constitution.

The future president’s unpaid, decade-long missionary zeal is described in James Madison and the Bill of Rights by University of Kentucky Prof. Richard Labunski, published by Oxford University Press. If Labunski’s book leads to any conclusion, it is that Madison, often referred to as “The Father of the Constitution” should also be called “The Father of the Bill of Rights.”

Although the author doesn’t mention it, the first reference to a “Bill of Rights” appears to have come in a series of 1787-79 letters from Madison’s fellow Virginian, the crusading Thomas Jefferson. Several of those letters were published in The Life and Selected Writings of Jefferson, collected by Koch and Peden in 1944.

In Paris at the time representing the colonies, Jefferson not only repeatedly advocated a “Bill of Rights,” but proposed several provisions that were ultimately adopted. “I will now tell you what I do not like” Jefferson wrote Madison in 1788 about the evolving Constitution. “First the omission of a bill of rights providing … for freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of habeas corpus laws, and trials by juries in all matters of fact …”

Even as the Jefferson-Madison letters were in transit, Jefferson’s political foil, Alexander Hamilton, was contending in New York newspapers in what became known as “The Federalist” that a Bill of Rights was superfluous because the Constitution intrinsically guaranteed all rights. Other influential politicians shared Hamilton’s view.

Opponents kept insisting that the proposed federal amendments would undermine states’ rights. To mollify them, both Madison and Jefferson were forced to declare that States could nullify any unconstitutional Federal acts — ultimately a calamitous interpretation that laid the justification for the breakaway Confederate states decades later.

But after years of emotional debate and opposition, the inconspicuous date Dec. 15, 1791, rolled around. On that date, Virginia, perhaps the most unrelenting opponent over the years, became the final state to agree to the amended Bill of Rights if several proposed amendments were dropped,  boosting what is now the First Amendment from fourth to the top.

So shouldn’t the beneficiaries of the second-most-important document in the nation’s history pause to remember and celebrate that meaningful day, Dec. 15?

Mitchell Kaidy of Rochester, N.Y., has worked for three daily newspapers, TV and public radio. He contributed articles with a team of reporters that won a special citation for the Gannett Newspapers from the Pulitzer Prize Committee in 1963 and won a Project Censored award in 1993. Email

From The Progressive Populist, January 1-15, 2008

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