James Madison and the Bill of Rights

James Madison stood about five feet four and weighed scarcely a hundred pounds. He was pale, frail, and a hypochondriac, though his ailments were quite real, and had been since boyhood; when, as a young man, he felt certain that he would die early. He also suffered from debilitating, sudden nervous attacks, which he likened to a kind of epilepsy. In demeanor, his voice was thin and carried poorly; he was certainly no orator, and among strangers, he could seem cold and stiff, folded into a reserve that looked like aloofness.

Yet those who got past that facade found a different side to him: quick-witted, warm, a wonderful talker in a small room, fond of a good story and even a racy joke. But what most set him apart was his mind. Madison had read more and thought harder about the science of government than perhaps anyone of his generation, having driven himself so hard in his studies in youth that his fragile health suffered. But those times had built a lifelong habit of coming to every fight armed with a command of detail that few opponents could match.

That mind fixed on the hardest problem in America in the 1780s — how to hold the new country together. The thirteen states had won their independence from Britain after a vicious Revolutionary War. But under the Articles of Confederation, the first attempt at a national government, America operated less as a nation and more like a league of sovereign neighbors, which, to many Americans, felt exactly right; for in a time before the transportation and communications revolutions, a person’s state often felt like his or her country. To many, a federal Congress was a nuisance to be endured, and even that was in some ways a stretch, given how powerless it was. The Confederation Congress could not tax, regulate trade, or compel the states to obey its laws or pay what they owed. It could ask, only to be promptly ignored.

It didn’t take long for this structure to prove untenable. By the mid-1780s, ruined national credit meant that basic payments couldn’t be made as money was in short supply. States feuded over trade and currency, British troops still occupied forts on American soil, Spain closed the Mississippi to American shipping, and armed farmers in Massachusetts marched on the courts. All this happened while the national government looked on largely helplessly.

Madison watched the happenings with mounting alarm. If the republic was to survive, he believed, it would need a government strong enough to govern.

But knowing the republic needed a stronger government was one thing; knowing how to build one was another. For that, Madison turned to the past. Thomas Jefferson, Madison’s friend, mentor, and political ally, was then serving as the American minister in Paris. He shipped Madison crates of books from abroad. Madison, in turn, buried himself in these histories of republics and confederacies, searching out the flaws that had brought them down. He took these learnings to Philadelphia in the summer of 1787 as one of Virginia’s delegates to a convention officially called to revise the Articles of Confederation.

Madison, however, meant to do more than revise. In his notes, he had not laid out a patchwork repair of the old government, but rather a new one altogether. As the delegates began their work, Virginia’s governor, Edmund Randolph, rose to present the plan Madison had done so much to prepare. It set the terms for the ensuing debate of whether America would remain a league of states, dependent on their cooperation, or become a national government with authority of its own.

Not all of Madison’s design survived the summer, and much of what did survive was altered by compromise. But the central idea he had brought into the room remained. The new federal government would have more authority.

A fellow delegate, William Pierce of Georgia, left a sketch of Madison at work: he “blends together the profound politician with the Scholar,” Pierce wrote, and “in the management of every great question he evidently took the lead in the Convention.” The Constitution that emerged was not Madison’s alone, but no one had done more to think it into being. Now it needed to be ratified.

---

Almost at once, the country split over what the delegates had made. The new government could do so much more than the Confederation could. It could tax. It could regulate trade. It could raise armies. It could make its laws supreme over the states. And it was this very strength that roused the oldest fear in republican politics: the fear of power unchecked.

Americans had just fought a revolution against what they called “a long train of abuses and usurpations.” They knew what unchecked power could do. So the Constitution’s silence on individual rights mattered. It contained no broad declaration of rights — no explicit guarantee of free worship, no protection for speech or the press, no plain statement of the liberties this new government could not touch.

The fiercest voice of that worry was Patrick Henry, the great orator of the Revolution and the most powerful man in Virginia, who had refused his seat at the Convention and now turned the full force of his eloquence against what it had made. At the Virginia ratifying convention, he pressed the case that the new government had been handed powers too vast and loosely defined, and too hard for the people to take back once given away. Congress would hold “the powers of direct taxation, the sword, and the purse,” he warned. Then came the question at the heart of his objection: “Where are your checks in this Government?”

George Mason put the objection even more plainly. He had written Virginia’s own Declaration of Rights a decade before, and now refused to sign a Constitution that had none. His written objections opened with a single line: “There is no Declaration of Rights.”

Madison understood the force of the complaint. But he did not see the danger exactly as his opponents did. The Anti-Federalists looked at the Constitution and saw a distant government powerful enough to become tyrannical. Madison saw that danger, but he also saw another: state legislatures acting for popular majorities, confident in their own virtue and careless of those in the minority. Written rights, he believed, could help, but they were not enough. State constitutions already had bills of rights, and still, Madison wrote, “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.” For the Anti-Federalists, a bill of rights was a necessary barrier against federal power. To Madison, a bill of rights could help, but it was not the main safeguard. The more significant protection lay in the structure of the government itself. As he later put it, “Ambition must be made to counteract ambition.”

Even so, the worries were not enough to stop the Constitution. One by one, the states ratified it. But in the more important states, the margins were thin — Virginia approved it by ten votes. New York by three. And these were not clean victories. The hardest-fought conventions ratified the Constitution and, in the same breath, called for it to be changed, sending along lists of amendments with an understanding that the new Congress would take them up.

The Constitution had survived its ratification. Whether it would survive what came next was the open question.

---

On June 21, 1788, New Hampshire became the ninth state to ratify the Constitution, the number needed to bring the new government into being. But the fight was far from over. Several states had ratified on the understanding that amendments would follow, and North Carolina had withheld its approval, refusing either to ratify or reject the Constitution until Congress answered the demand for a bill of rights. In New York and Virginia, Madison’s defeated opponents were pushing for a second convention to revisit and revise the Constitution.

Yet within the new Congress, there was little desire to address the matter. Its members, most of them the Constitution’s own supporters, had a government to build — there was revenue to raise, courts to establish, and departments to create. Amendments didn’t seem like a pressing issue given the other priorities.

But a bill of rights would be written after all, and pushed through the new Congress by one of the least likely men to author it, the man who had done more than anyone to build the Constitution, and who had argued that it needed no such list at all. James Madison.

---