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Commentary

Hereto in the debate that surrounded Madison’s motion for the House to resolve itself into a committee of the whole for him to present his proposed amendments few in the House seem aware of the substance of the proposals themselves. Some speakers, however, alluded to the complaints that the Constitution as ratified did not provide adequate safeguards to commonly held liberties. Yet, the state conventions and many of those wary of the extensive powers of the new federal government also complained of structural elements, such as the power of direct taxation and Congress’s ability to regulate the time and manner of elections. For those House members evincing a deep reluctance to enter into the topic of amendments, although generally pleading that more important business lay before the House, much of that reluctance probably was a fear that entering into the topic would open the door to a host of alterations to the governmental superstructure that would undermine the federal government as conceived in the Constitution.

Finding opposition to this motion to form a committee of the whole, Madison rose and withdrew that motion and took up the suggestion, offered earlier by Smith of South Carolina, moving instead that a select committee be formed to consider and report upon his proposals. Madison probably was reluctant to commit the proposals to a select committee. As the discussion on 5 May surrounding the introduction of Virginia’s application for a convention of states suggests, even in 1789, committees were an elephant’s graveyard for inconvenient bills. Madison took the opportunity, however, to press his point.

In moving that his proposals be referred to a select committee (and perhaps encouraged by the extensive time already spent by those pleading lack of time), Madison took the floor and entered into a lengthy speech. In this speech he argued the necessity of addressing the subject with despatch and set out his proposals in their entirety.

Madison urged that ‘the House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures some things to be incorporated into the constitution, that will render it acceptable to the whole people of the United States, as it has been found acceptable to a majority of them.’ (Annals of Congress, 1st Cong., 1st sess., 448-49.)

Where amendments might be made that would not injure the constitution but would prove to ‘the doubting part of our fellow citizens’ that the Constitution’s proponents ‘were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism’ adopting such amendments would show a spirit of deference to these critics. Despite ratification, many remained dissatisfied and this group included many people ‘respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive.’ The concession by many on the point of ratification with the expectation that their concerns would be promptly addressed also ‘calls upon [Congress] for a like return of moderation.’ The fact that two states remained outside the union, largely on the basis of this issue, provided an even stronger motive. (Ibid. 449)

In addition to these reasons, Madison acknowledged that he himself felt that amendments would be valuable. ‘If all power is subject to abuse, that then it is possible the abuse of the powers of the General Government may be guarded against in a more secure manner than is now done….’ (Ibid. 449-50) This could be done without endangering the powers of the federal government granted in the Constitution. ‘And in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one.’ (Ibid. 450)

Madison asserted that he did not wish to reconsider the whole structure of the government, and he warned, ’I doubt, if such a door were opened, we should be very likely to stop at that point which would be safe to the Government itself.’ (Ibid. 450) Madison maintained, however, that ‘it will be practicable…so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the Government by those who promoted its adoption.’ (Ibid. 450)

The proposals that Madison set forth demonstrate that Madison initially conceived of the amendments as being incorporated into the body of the Constitution’s text, as would be common to normal legislative process. Whether amendments should be incorporated into the text or annexed to the text (as was ultimately adopted and is well known to anyone familiar with the Constitution) and questions of the legal effect of each method would be the subject of an extended debate on 13 August 1789. The core of Madison’s proposals, however, show a clear affinity with the provisions of the Bill of Rights as ultimately adopted, albeit not without extensive revision and some notable exceptions.

Madison not only presented the proposals, but offered an extensive explanation and defense of them. The first article in his proposals was a declaration of rights. In his exposition of this provision, Madison provides the forensic underpinning that could be applied to the need for securing basic rights by his proposed amendments, and, indeed, for what would become the Bill of Rights, taken as a whole.

‘The first of these amendments relates to what may be called a bill of rights.’ (Ibid. 453) Here, for the first time in the debates, Madison uses the term that would eventually be applied to the adopted amendments as a whole. Yet, in this instance, he applies it only to the declaration that he proposed be prefixed to the Constitution that declared that political power originates in the people, is exercised for the people’s benefit, and they retain the right to reform or change government when it is found inadequate. (See Ibid. 451) Such a declaration was never adopted and Madison himself stated in his speech that ‘I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I conceived, that in a certain form, and to a certain extent, such a provision was neither improper nor altogether useless.’ (Ibid. 453)

He acknowledges that reasonable people differed in their views of the efficacy and wisdom of such declarations of rights—some even holding them to be dangerous. He further acknowledges that some opponents objected to the Constitution by noting that it lacked a comparable declaration as in the English Bill of Rights. Here Madison notes that the British constitution may have provided for checks on royal power, but the ‘power of the Legislature is left altogether indefinite.’ (Ibid. 453) This state of affairs leaves those rights with which Americans were most concerned, such as those of the press and of conscience, wholly insecure. (Ibid. 453) Although, Madison allows that one could argue that such a limit on a representative legislative power may not be necessary, he notes that ‘a different opinion prevails in the United States. The people of many States have thought it necessary to raise barriers against power in all forms and departments of Government….’ (Ibid. 453-54) Such bills of rights, when adopted in the federal Constitution and in all the state constitutions, ‘will have a salutary tendency.’ (Ibid. 454)

The forms these declarations take in the various states differ widely. Some assert the rights of the people in forming a particular plan of government, others ‘specify positive rights, which may seem to result from the nature of the compact.’ He gives trial by jury as an example, which ‘cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community….’ Yet, trial by jury ‘is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.’ Other declarations ‘lay down dogmatic maxims with respect to the construction of the Government; declaring that the legislative, executive, and judicial branches shall be kept separate and distinct.’ (Ibid.) Here, echoing his eloquent statement in Federalist ‘Number LI’, he notes, however, that ‘Perhaps the best way of securing this in practice is, to provide such checks as will prevent the encroachment of the one upon the other.’ (Ibid.; see also J. Madison, ‘Number LI,’ in The Federalist on the New Constitution… (Hallowell, Maine, 1852) (First published 1788), pp. 238-242, available at https://catalog.hathitrust.org/Record/009778357.)

Whatever the form of declarations of rights, however, ‘the great object in view is to limit and qualify the powers of Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.’ (Annals 453) Each political community may so limit the powers of any department of government—executive, legislative, or judicial—and ‘in some cases, against the community itself; or, in other words, against the majority in favor of the minority.’ (Ibid.) Madison asserts that in the American system the legislative is the strongest branch, and such a declaration is proper to curtail potential abuse by the legislature ‘because it is under the least control.’ (Ibid. 454)

Yet, he asserts the greatest danger lies in abuse by the community itself. ‘The prescriptions in favor of liberty ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power.’ (Ibid. 454-55) This lies ‘in the body of the people, operating by the majority against the minority.’ (Ibid. 455) ‘Paper barriers’ may not be the strongest defense against the power of the political community at large, but the declaration of certain rights has ‘a tendency to impress the public opinion in their favor, and rouse the attention of the whole community….’ Accordingly, such declarations may be one way ‘to control the majority from those acts to which they might be otherwise inclined.’ (Ibid.)

Madison then confronts in turn various specific arguments levelled against bills of rights. First, he considers the argument that bills of rights are unnecessary in the Constitution’s plan of federal government. Because the powers of the federal government were enumerated, then it followed that all unenumerated powers remained with the people. Therefore, the argument goes, ‘the constitution is a bill of powers, the great residuum being the rights of the people; and therefore, a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the Government.’ (Ibid.) Although the powers of the federal government are circumscribed, the federal government is empowered to make all laws necessary and proper to carry out its enumerated powers. Congress itself is the judge of what is necessary and proper, and it may deem necessary and proper ‘which laws in themselves are neither necessary nor proper.’ (Ibid. 455-56) He gives the example that Congress, pursuant to its power to raise revenue, could deem it necessary to issue general warrants to enforce collection. (Ibid. 456) Therefore, a bill of rights could restrain such abuses of power under the Constitution. He notes that the people in framing certain state constitutions deemed it necessary to restrain the state legislatures from such a powers even though the same argument could be applied to the republican state governments as to the federal government.

Next, he considers the argument that a federal bill of rights is unnecessary because the state declarations of rights are still in place and were not repealed by the enactment of the Constitution. Madison simply notes that many of the declarations in the states are defective or improper, and do not secure republican principles to the fullest extent. This is an interesting argument in light of the Constitution’s Supremacy Clause, which afterwards was to be interpreted broadly to subordinate even state constitutions to federal law—displacing conflicting provisions. To use Madison’s previous example of the federal government’s issuing general warrants to enforce revenue collections, at least under subsequent interpretation, a state provision guarding against such general warrants would be of little effect on the execution of the federal law. That this was considered a salient argument indicates the prevailing uncertainty regarding the interaction of the state and federal authorities at this time.

Finally, Madison considers the argument that he calls ‘one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system.’ (Ibid. 456) The argument ran that ‘by enumerating particular exceptions to that grant of power, it would disparage those rights which were not placed in that enumeration…those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequentially insecure.' (Ibid. 456) Madison notes that he sought to guard against this interpretation by a provision that states: ‘The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.’ (See Madison’s Proposed Amendments.)

Madison rejects the argument that such a provision is unnecessary because in it has not been effectual in the state constitutions where such a provision has been employed. ‘It is true,’ Madison notes, ‘there are a few particular States in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power.’ (Ibid. 456-57) Interestingly, Madison argues that, if incorporated into the Constitution, courts ‘will consider themselves in a peculiar manner the guardians of those rights….’ (Ibid. 457) Thus, they will situate themselves against the legislative and executive branches’ assumption of power and will be ‘naturally led to resist every encroachment upon the rights expressly stipulated for in the constitution by the declaration of rights.’ (Ibid.) This point would be strengthened by the fact that the state legislature would monitor the federal government ‘and would be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty.’ (Ibid.)

After addressing these specific arguments, Madison proceeded to examine certain examples of specific amendments that he offered, such as revising the proportion of representation in the House of Representatives, preventing the legislative branch from varying its own compensation, or setting jurisdictional amount in controversy limits on appeals from state courts, and (from looking at the amendments proposed by State conventions and finding ‘that several are particularly anxious that it should be declared in the constitution’) a declaration that powers not delegated to the federal government are reserved to the states.

Moreover, Madison also proposes that certain further limitations be placed on the states themselves. Earlier in his speech, Madison asserted that many of the states’ constitutional provisions are deficient with regard to some of the same civil safeguards that he sought to instate in the federal Constitution and that many states have violated the provisions in their constitutions. In accordance with this claim, Madison proposes that among the restrictions on state prerogative, he ‘wish[ed] to extend this interdiction, and add…that no State shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases….’ (Ibid. 458) This addition would give a ‘double security on those points.’ He maintains that ‘it is proper that every Government should be disarmed of powers which trench upon those particular rights.’ All must admit, he says, ‘that the State Governments are as liable to attack these invaluable privileges as the General Government is, and therefore ought to be as cautiously guarded against.’ (Ibid.)

In response to the the critics of taking up the subject of amendments in a committee of the whole, Madison acquiesced by withdrawing his motion to go into committee, but used the opportunity to present his amendments to the House in an extensive and articulate address effectively circumventing the complaints of those opposed to his presenting his proposals. In doing so, he brought the subject to public view, but even this insistence that the issue be addressed and his reasoned defense of his proprosals did not win over the many members of the House that had no desire to enter into the subject. The conclusion of Madison’s speech did not mark the end of the debate, not even for this day. The debate whether, how, and when to take up the subject would consume the remainder of the day’s session.

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Madison's Proposed Amendments was created on 08 June 1789

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