Madison's Music (30 page)

We almost didn't have a Bill of Rights, though, much less a coherent poetic celebration of democracy and freedom. It's not as though bills of rights were rare in 1787. Starting in 1215 with the Magna Carta and running through the burst of Revolutionary rights-bearing documents produced from 1765 to 1783, I count at least four English declarations of rights, three major colonial compilations of rights, and eighteen Revolutionary efforts to describe individual rights. In fact, Madison had at least forty-two source documents to choose from, to say nothing of dozens and dozens of proposed amendments suggested by the states. But it all almost came to nothing.

Our first effort at a national charter, the 1781 Articles of Confederation, did not contain a Bill of Rights, perhaps because the national government under the Articles was so weak—it lacked an executive, a judiciary, and the power to tax—that it was deemed unnecessary to list protected rights. When the fifty-five Founders gathered in Philadelphia on May 25, 1787, to discuss amending the Articles of Confederation to strengthen the national government, sentiment quickly turned to scrapping the Articles entirely in favor of a brand-new Constitution, even if that appeared to exceed the delegates' original mandate. The consensus among the delegates was that it would be a mistake to include a bill of rights in the new Constitution. Some, such as Alexander Hamilton, believed that the proposed new national government was already too weak and should not be further hobbled by declarations of rights. Others, such as James Wilson, feared that a formal enumeration of rights would be dangerous because it would imply a strong central government with power to violate them. Madison himself, accurately predicting a future Antonin Scalia, feared that any written enumeration of rights might accidentally leave some important rights out, making it difficult or impossible for new rights to evolve and be recognized. While several halfhearted efforts were made late in the game to insert provisions protecting rights into the new constitution, they got nowhere. After a formal proposal to add a bill of rights was unanimously rejected, the Constitution was finally signed on September 17, 1787, without a bill of rights.

The closest thing to rights in the original constitutional text was the promise in Article VI that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Article 1, section 9 contains a promise that Congress would not suspend habeas corpus except in times of war or rebellion, and a promise that bills of attainder and retroactive criminal laws would be prohibited. But those two essentially procedural guaranties, while important, are separation of powers–based protections of the rule of law generally, not protections of particular rights. A potential equality provision in Article IV, section 1 promised that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states,” but any hint of serious protection of equality was immediately erased by the notorious clause providing for the apprehension and return of fugitive slaves, and the nonamendable guaranty of the right to import slaves for twenty-one more years, until 1808. Four prominent delegates, Elbridge Gerry (Mass.), George Mason (Va.), Luther Martin (Md.), and Edmund Randolph (Va.), refused to sign the proposed new constitution because it lacked a bill of rights. John Lansing and Robert Gates, the delegates from New York, actually walked out of the Constitutional Convention after six weeks in order to begin organizing opposition to the document.

Ratification was far from a sure thing. Unlike the Articles of Confederation, which had required unanimous consent, the 1787 Constitution required ratification by only nine states to become effective, at least within the territory of the ratifying states. Because two states, Rhode Island and North Carolina, openly opposed the new constitution (Rhode Island refused to call a ratifying convention; North Carolina held a convention and overwhelmingly rejected it), the ratification math was harder than it first appeared; approval by nine of the eleven states in play was needed. The Founders didn't trust either an up-or-down popular vote on ratification in each state or ratification by the state legislatures. Instead, they insisted on state ratifying conventions with delegates often elected from malapportioned districts. The slice of the population
that elected the delegates excluded women, members of racial minorities, and white men who didn't have enough money to meet each state's property qualifications for voting. While a few states relaxed property qualifications somewhat to permit broader white male participation in the ratification process, there was no thought of permitting women, African Americans, or Native Americans to vote. The closest thing to a feminist consciousness was Abigail Adams's plaintive plea to her husband, John, “not to forget the ladies.”

When the proposed new constitution was presented to the Confederation Congress (which served under the Articles of Confederation from 1781 to 1789 and had issued the call for amendments to the Articles in the first place), the Confederation Congress declined to endorse it, in part because many members believed that the delegates had exceeded their authority by drafting an entirely new constitution instead of amending the Articles of Confederation. The best the Founders could do was to obtain unanimous consent from the Congress to submit the new draft constitution to the states for possible ratification, without an endorsement. Opponents of ratification, calling themselves Anti-Federalists, viewed the new constitution as a threat to individual freedom. A strong national government, they feared, would be controlled by men like Alexander Hamilton, who favored industry and manufacture over an Arcadian vision of citizen farmers. The failure to provide for a bill of rights became a rallying point for the Anti-Federalists, who argued that the powers granted to the national government by the new constitution were too dangerous unless they were constrained by a written list of rights.

The new constitution's supporters, calling themselves Federalists, led by Hamilton, Madison, and John Jay, answered that the twin structural protections of federalism and separation of powers would be much more effective in preserving freedom than any “parchment barriers.” In the end, facing likely defeat in the ratification process, the Federalists promised to amend the new constitution by adding a Bill of Rights as soon as it was ratified.

Even with the promise, it was a close thing. Five states, Delaware (December 7, 1787), Pennsylvania (December 12), New Jersey (December 18), Georgia (January 2, 1788), and Connecticut (January 8), quickly ratified by comfortable margins, although the debate in Pennsylvania, which ratified by a vote of 46–23, was fierce and was marred by resort to mob violence aimed at compelling dissenting members of the state legislature to attend the legislative session calling for a ratifying convention. The dissenters had stayed away hoping to prevent a quorum. The next state up, Massachusetts, was a battleground, eventually ratifying by a vote of 187–168 on February 5, 1788, but only after the Federalists promised to enact a Bill of Rights and submit a series of proposed amendments. On February 13, facing almost certain defeat in New Hampshire, the Federalists engineered a vote of 56–51 to adjourn the ratifying convention to allow the delegates to seek guidance from their constituents. It was a brilliant tactical move that probably saved the Constitution. Ratification by comfortable margins in Maryland (April 28, 1788) and South Carolina (May 23) brought the number of ratifying states to eight. When New Hampshire reconvened and ratified on June 21, 1788, by a vote of 57–47, the new Constitution officially became law in the nine ratifying states.

Without Virginia and New York, though, it would've been stillborn. After bitterly contested elections in each state, Virginia ratified on June 26, 1788, by a vote of 89–79, and New York followed suit on July 26 with a razor-thin ratification margin of 30–27. The New York vote was something of a surprise, for the Anti-Federalists appeared to control the convention by a wide margin. Once again, the tactical brilliance of the Federalists in delaying New York's vote until ten other states had ratified probably snatched victory from almost certain defeat. Virginia narrowly rejected a conditional ratification, expressly contingent on the adoption of a bill of rights. New York's ratification came with twenty-five proposed rights amendments and thirty-one other assorted suggested changes. North Carolina and Rhode Island refused to ratify until a bill of rights was adopted. North Carolina finally ratified on November 21, 1789, a
year after Washington was elected president. Rhode Island held out until May 29, 1790, and ratified by a vote of 34–32, but not until the Rhode Island delegates adamantly demanded a bill of rights, despite the fact one had already been adopted by Congress eight months earlier.

The first United States Congress elected under the new Constitution was scheduled to convene on March 4, 1789, but didn't assemble a quorum until April 1. Actually, it was the nation's fourth Congress. The first Continental Congress met briefly in 1774 to coordinate economic resistance to Great Britain. The second Continental Congress reconvened in 1775 after Lexington and Concord, issued the Declaration of Independence in 1776, appointed George Washington as commander in chief, and remained in session until 1781 to manage (or mismanage) the Revolutionary War. The third congress, the Confederation Congress, was a unicameral legislature established under the Articles of Confederation. The Confederation Congress was in session from 1781 to 1789. It negotiated the Treaty of Paris, ending the Revolutionary War, enacted the Northwest Ordinance in 1787, set in motion the process of drafting a new constitution, and organized the first elections for president and Congress under the new Constitution in November 1788.

When it finally got to work on April 1, 1789, the first United States Congress had a lot on its plate. The executive and judicial branches had to be created and organized from scratch. Given the press of urgent business, Congress was in no hurry to consider a bill of rights. Only after Virginia and New York had submitted formal demands on May 5 and 6 for a new constitutional convention capable of rewriting the entire document was Madison able to focus his colleagues' attention on a declaration of rights. On June 8, 1789, Madison, who had won a hard-fought congressional election victory against James Monroe, finally took the floor of the House of Representatives and proposed a draft declaration of rights in the form of a series of freestanding constitutional amendments to be interpolated into the existing text. Madison's House colleagues
complained long and loud about being diverted from really important work but reluctantly agreed to hear him out.

Madison was a political genius but a very reluctant poet. As of June 8, 1789, he had no intention of drafting a bill of rights at all, much less a coherent poem to human freedom. Instead, he proposed that a series of rights-declaring clauses be interpolated into the body of the Constitution at the point where the potentially dangerous government power the clauses were designed to limit was found. Instead of a poem, Madison was thinking about a good-government cookbook, in which spicy, potentially indigestible helpings of government power could be made palatable by immediate immersion in a soothing rights-protective sauce. Given the debates over a bill of rights during the ratification process, there was a careful method to Madison's original structural madness. By avoiding a coherent and comprehensive listing of rights, Madison was attempting to avoid an inadvertent freezing of rights to only those described by the literal text. Moreover, by structurally placing the right at the point where the power was created, Madison hoped to avoid any implication that a written catalog of rights implied the existence of power not explicitly granted in the text.

Madison began his recipe for good government with an elegant proposed new preface to the Constitution drawn from George Mason's preface to the 1776 Virginia Declaration of Rights, which had formed the basis for Thomas Jefferson's Declaration of Independence. Madison's preface asserted that government exists solely to protect the people's enjoyment of life and liberty, the right of acquiring and using property, and the pursuit of happiness and safety. He even inserted a right of rebellion if government failed to fulfill its purpose. The newly elected members of the fledgling national government did not take kindly to Madison's suggestion that they were sitting uneasily atop a revolutionary volcano of popular rejection. The elegant preface with its right of rebellion never made it out of Congress.

Madison then proposed two structural fixes designed to correct perceived flaws in the Constitution's original text having nothing
to do with rights. He urged, first, that the provisions of Article I, section 2, clause 3 setting out the structure of the House of Representatives be amended to set a maximum on the size of the House and the number of constituents each member could represent. A modified apportionment formula raising the ceiling to 50,000 constituents was eventually adopted by Congress but was ratified by only nine of the needed eleven states. If Madison's original June 8 apportionment proposal had been ratified by the necessary eleven states, the current House of Representatives would consist of 20,000 members, a terrifying thought. Today, each of the 435 members of the House represents approximately 670,000 people.

Madison's second proposed structural fix urged that Article I, section 6, clause 1, dealing with Congress's compensation, be amended to ensure that a sitting Congress could not increase its own salary. The proposal made it through Congress but was initially ratified by only five states. The proponents never gave up. In 1992, when Michigan became the thirty-eighth state to ratify Madison's proposal, the idea of limiting Congress's power to vote itself a pay raise finally achieved acceptance by three quarters of the states and became the Twenty-Seventh Amendment only 74,003 days after Congress had first recommended its adoption by the states. Better late than never.