The Story of the Bill of Rights
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The Story of the Bill of Rights


The Bill of Rights was not something the Framers always knew they wanted… Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or the press… Okay, okay. Stop. That was the First Amendment, which wasn’t part of the original Constitution, it wasn’t even originally first. To get the Bill of Rights and make the Constitution whole, James Madison and the Framers put each other through one of the toughest political fights in American history. There was nothing preordained about it. There were so many things that could’ve gone wrong. They have no idea if in the next year, that government is going to still be there. You can take nothing for granted in this time period. The Framers got into huge, very, very difficult arguments about what rights people should have, what the government could do, what the government could be in control over. The Bill of Rights was actually the result of a hard-fought compromise to save the Constitution. It became a bitter political struggle, yet out of that fight came one of the most principled governing documents the world had ever seen. On one side, the Federalists. They believed in a strong national government that would have power over the states. The federal government is going to be able to protect us against the British and against other European powers. But they’ll also protect us against the small-mindedness of state governments and make sure that the states don’t do unfair things to individuals. And they included some of the best-known leaders of the day – General George Washington, Alexander Hamilton and James Madison. On the other side, the Anti-Federalists. They included Thomas Jefferson, George Mason and Patrick Henry. They believed in strong local government – that the states should have most of the power. See, back then, people didn’t fly places or have satellite TV. To them, their state was their country. And so I think we can understand the localism of someone like Patrick Henry, who could say Virginia is my country, better if we understand that Patrick Henry only left Virginia three times in his entire life. Among the Anti-Federalists were most Americans who had lived through the Revolutionary War. The Bill of Rights is a product of the American Revolution. Americans had fought a war arguing that their rights as Englishmen had been taken away. It is that the king had become a tyrant, and so the idea of rights was very much on their mind. The men who signed the Declaration of Independence, asserting that all men were born with inalienable rights that no government – or king – could take away, those men were fugitives from the British crown who would be executed if caught. Washington, Hamilton and many of the men who were leaders of the new nation starved, froze, lost limbs and fortunes and risked their own lives for this moment. You look at photos of the Civil War, you see cadavers, killed soldiers all over the fields and you get some sense of the barbarism of it. Well, there are no photos from the Revolutionary War, that went on for so long, but it was equally barbaric. Their feeling was we just threw off the voice of tyranny after eight years of bloodshed. We are now not going to create a new government that is going to tyrannize us all over again. What was that war about? Well, that war was about self-determination, and it was about guaranteeing that no one would ever take your rights away again. Everyone believed those rights should be protected, but how? No one wanted another king, but holding 13 states together was proving to be impossible with a weak central government. Remember, they already had the Articles of Confederation, and it was a disaster. So when the Framers met in Philadelphia, that was their second attempt at a Constitution. And they might never have agreed to one had it not been for James Madison. James Madison is often referred to as the father of the Constitution. He had a tremendous understanding of all the forces at work and was one of the people who was really navigating through all the crosscurrents to enable everybody to get together and really form a government. A hypochondriac, very, very high-strung, very smart. And he is also the most underappreciated, without a doubt, of any of the Founders from the early years of this country. Madison came to Philadelphia in May of 1787 with a plan for a strong national government that, after four grueling months of heated arguments and compromises, essentially became the Constitution we know today. By September, the men were exhausted and absolutely ready to go home. Then George Mason stands up. George Mason was a delegate from Madison’s Virginia, and he was about to start a huge fight. George Mason says, We ought to have a Bill of Rights. We have fought this long, bloody, brutal war and we are now going to create this new federal government, and where is freedom of speech and freedom of the press and right to a fair trial? And he said something that was shocking to people. He said, I would rather cut off my right hand than sign the Constitution as it is currently written. Everyone in the room understood Mason’s desire to protect those rights, but they voted him down anyway. There wasn’t any sentiment for a Bill of Rights. I think it’s really hard to think of the Bill of Rights as something that not only isn’t necessary, but maybe is a bad thing, right? How can rights be bad? Believe it or not, at that moment, most of them thought that spelling out certain rights, or what we call “enumerating” them, was a bad idea, and they didn’t want to spend another month in Philadelphia trying. Which rights do you choose to protect? And if you leave out certain rights, does that mean that the government can trample them? Or that the people won’t have them, because they weren’t on the list? Madison is opposed to a Bill of Rights in the Constitutional Convention. He can’t understand what the point of it is. He says, Look, we’ve written a Constitution that spells out very clearly what the government can do. Take freedom of the press, for example. It doesn’t say anywhere in the Constitution that the government – the federal government – can regulate the press. If the government wasn’t given that power, the government didn’t have that power. And there was one other reason they decided a Bill of Rights wasn’t necessary. Everybody took note of the fact that many of the states – eight states – had Bills of Rights of their own. Including Virginia, which had been drafted a month before the Declaration of Independence by George Mason. In the end, the Framers signed a Constitution that had no Bill of Rights, thinking that was the right thing to do. George Washington has endorsed it, Ben Franklin has endorsed it, but it’s not law in any way, shape or form. It’s just a plan. And what happens over the next year is that that plan is going to be debated in every state, up and down the continent. The new Constitution had to be ratified by the states, and it became clear almost immediately that the Federalists had a big problem. Once people got to see the new Constitution, because it started to appear in newspapers, people asked, What protections does your Constitution offer for the people’s liberties? Yes, where is the Bill of Rights? And the Federalists realized that they had badly miscalculated. They were so wrong about that that it imperiled the ratification of the Constitution. There were men who were aghast. This went against everything they thought they’d fought the Revolution for. And they think James Madison has created a bit of a Frankenstein… It’s alive! It’s alive! It’s alive! That the federal government is actually too strong. They want some restrictions on the federal government. They want a Bill of Rights. The fight was on. They needed nine states to ratify, and five came through in the first few months, but North Carolina refused to ratify the new Constitution without a Bill of Rights. In Massachusetts, only a last-minute compromise allowed it to pass. Federalists promised to amend the new Constitution with a Bill of Rights. Massachusetts ratified, then other states got on board, but only after they proposed amendment after amendment – hundreds of them. In Virginia, James Madison receives a letter from his good friend Thomas Jefferson, who was in France this whole time as the U.S. ambassador. Jefferson tells him there has to be a Bill of Rights. And he writes this attack on the Constitution, why you should not ratify it. Jimmy Madison must have been apoplectic, I mean, he finally actually writes Jefferson a letter that, if we boiled it down to its essence said, Would you please shut up? Would you please stop doing this? I’m trying to get this Constitution passed. The Bill of Rights was adopted because Thomas Jefferson and others said, We won’t support the Constitution unless it makes very clear that there are certain rights that the government can’t take away. Virginia is in danger, too, with both Mason and old Patrick Henry thundering against us. There was major opposition to the Constitution in Virginia, led especially by Patrick Henry, who was an ardent champion of states’ rights. You might remember Patrick Henry from the Revolution. Give me liberty, or give me death! Now, when you have someone who’s going to put up this much of a fuss… Give me liberty, or give me death! … you’re probably going to make concessions. Madison and other supporters of the Constitution could only win Virginia’s support for ratification by promising a Bill of Rights. And here’s the thing: Madison kept his promise. He still didn’t believe that the Bill of Rights was necessary, but the promise became a central part of his campaign for Congress. Really. That’s right; the Bill of Rights was a campaign promise. And Madison being Madison, once he made that promise, Madison believed that his honor was important. He had made a promise, and so he was going to do it. James Madison won election to the very First Congress… New York City was chosen to be the nation’s capital. … where he almost immediately proposed a Bill of Rights. After years of work to write and then ratify the Constitution, Madison turns right around to amend it. Now, to amend the Constitution, he’s got to get two-thirds of the House of Representatives to say yes, then two thirds of the Senate, and then go back to the states all over again to get three-quarters of them to approve. The same states that had just proposed some 200 amendments. Madison weeds through them, writes some of his own, and submits 19 to Congress. Madison chose the amendments that he did because he wanted to protect individual rights and not damage the Constitution. Many of the suggested amendments would have made structural changes. Here’s where Madison being wily and a nationalist is really important. A lot of the suggestions for the Bill of Rights were not about what we consider our rights, individual liberties. A lot of what the Anti-Federalists wanted was to weaken the national government. Madison was not going to let that happen, but he also had to find amendments everyone could agree upon because if he couldn’t get the Bill of Rights ratified, the states might call a second Constitutional Convention. And what Madison said to his colleagues is, A second Convention, it’s going to redo this Constitution, it’s going to be a disaster, and the nation’s very survival is at stake. And he says, I’m not going to put any of those things in the Bill of Rights. I’m going to make sure the Bill of Rights is just about personal liberties. He saves the Constitution! Madison’s amendments protect individual rights, not only from the new federal government, but also from popular majorities who might use their power to abuse the minority. He addresses his own earlier concerns about enumerating rights, and he even tries to take on the power of the states. In the end, the first Congress reworks and passes only 12 of Madison’s 19 amendments; the Senate was not ready to take on the power of the states. That didn’t happen until 77 years later. Madison wasn’t able to sell that idea successfully to the first Congress and so that idea doesn’t become, really, a deep part of our Constitution until after the Civil War. What is remarkable about the Bill of Rights is that they are written in plain language. The most important thing to the Framers was that this was a document for the people. There was a real push to have the people, the folks that lived in this country, understand and be able to participate in their own democracy. The Bill of Rights came from the people. It wasn’t something hatched in the mind of one person – James Madison, or anyone else – it came from a national conversation. It’s written in very crisp, compact language so that ordinary people could actually memorize it, the same way that people at the time memorized Scripture passages, or memorized a favorite song. It’s supposed to get into your head. It’s not written in legalese precisely because it’s a text from the people, for the people, addressed to the people. And the people responded. Madison’s work creates a document that is ratified much more easily than the Constitution just two years before, but the states whittled the 12 amendments passed by Congress down to 10. The first two amendments don’t make it – one about expanding the House of Representatives, and the other about congressional salaries. As a result, what was Madison’s third amendment becomes what we know today as the First Amendment, and those 10 amendments are what we know as the Bill of Rights. On December 15, 1791, the state that puts the Bill of Rights over the top is James Madison’s Virginia. In my view, it’s accurate and fair to say that the Bill of Rights is at the very heart of the American experience, because it provides a protection to each and every citizen in each and every aspect of their lives, and it confines government to its proper role, with a protection against unreasonable government action that might otherwise ensue. If there’s any one characteristic of the American system of government that can be identified as absolutely essential to our national character, it is the Bill of Rights.

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