Engage: The Promise That Saved the Constitution
September 1787: The Constitution is signed and sent to states for ratification. Immediately, opposition erupts. George Mason, who helped write the Constitution, refuses to sign. His reason? “There is no Declaration of Rights.”
Mason wasn’t alone. Patrick Henry thundered in Virginia: “The necessity of a Bill of Rights appears to me to be greater in this government than ever it was in any government before.” Samuel Adams demanded protections in Massachusetts. New York nearly rejected the Constitution over this issue.
The Federalists—Hamilton, Madison, Jay—argued a bill of rights was unnecessary and even dangerous. But they lost the argument in the court of public opinion. To secure ratification, they made a promise: pass the Constitution now, and we’ll add a bill of rights immediately. That promise became the first ten amendments.
Explore: Why No Bill of Rights Originally?
The Federalists offered three arguments against a bill of rights:
1. It’s Unnecessary:
The Constitution creates a government of limited, enumerated powers. It can only do what’s explicitly authorized. Since it’s not given power to restrict speech or religion, it can’t do so. Why prohibit what’s already impossible?
2. It’s Dangerous:
Alexander Hamilton in Federalist No. 84 argued that listing rights implies everything not listed can be violated. Why declare “Congress shall make no law abridging freedom of speech” if Congress has no power over speech anyway? The declaration suggests power exists.
3. State Constitutions Already Have Them:
Most states had bills of rights. Since states retain most power under federalism, these state protections suffice.
The Anti-Federalists weren’t convinced. They’d seen how power expands. Parchment barriers might not stop tyranny, but they’re better than nothing. And they force government to argue against rights explicitly rather than eroding them silently.
Explain: Madison’s Change of Heart
James Madison originally opposed a bill of rights. But during Virginia’s ratification convention, he realized the Constitution couldn’t pass without one. He made a public pledge to add amendments.
After ratification, Madison kept his promise. In June 1789, he proposed amendments to the First Congress. He’d initially wanted to insert them into the Constitution’s text, but Congress decided to add them as separate amendments.
Of Madison’s proposed amendments, Congress approved 12 and sent them to states. Ten were ratified by December 15, 1791, becoming the Bill of Rights.
What Didn’t Make It:
- An amendment requiring one representative for every 50,000 people (would mean 6,600+ House members today)
- An amendment preventing congressional pay raises from taking effect until after an election (finally ratified in 1992 as the 27th Amendment!)
Madison designed the amendments carefully:
- They limited federal government, not states (until the 14th Amendment changed this)
- They protected individuals and minorities from majority tyranny
- They clarified that the enumeration of rights didn’t deny others (9th Amendment)
- They reserved unenumerated powers to states and people (10th Amendment)
Elaborate: Who Needed Protection and Why
The Bill of Rights responds to specific historical abuses:
First Amendment: British Crown controlled press, established official religion, prohibited assembly
Second Amendment: British attempted to seize colonial weapons at Lexington and Concord
Third Amendment: British forced colonists to house soldiers in their homes
Fourth Amendment: British used “writs of assistance” for general searches without specific cause
Fifth Amendment: British denied due process; used forced confessions; tried people multiple times for same crime
Sixth Amendment: British held secretive trials without juries; denied accused the right to confront witnesses
Seventh Amendment: British judges, not juries, decided civil cases
Eighth Amendment: British imposed cruel punishments; excessive bails and fines
Ninth Amendment: Fear that listing rights would imply others don’t exist
Tenth Amendment: Fear that federal power would eclipse state sovereignty
These weren’t abstract philosophy—they were responses to lived tyranny. The framers had experienced these abuses and wanted explicit protection.
Evaluate: Have These Rights Been Protected?
The Bill of Rights promises much. Has America delivered?
Successes:
- Free press exists (even when government hates criticism)
- Religious pluralism without official state religion
- Criminal defendants have extensive procedural protections
- Police need warrants for searches (with exceptions)
- Jury trials remain for serious crimes
- Government can’t quarter soldiers in homes
Failures and Limitations:
- Bill of Rights didn’t apply to states until 14th Amendment (1868) and subsequent “incorporation”
- Didn’t protect enslaved people, Native Americans, women from state abuses
- Rights have been restricted during crises (Civil War, WWI, WWII, Cold War, War on Terror)
- “Rights” are often balanced against “interests”—not absolute
- Poor people often can’t effectively exercise rights (legal representation, bail)
- Modern technologies raise questions framers couldn’t anticipate
The Living Debate:
Every generation argues over what these amendments mean:
- Does free speech include hate speech? Campaign spending? Social media?
- Does the right to bear arms mean muskets or AR-15s? For militia or individuals?
- What counts as “unreasonable” searches in the digital age?
- Is the death penalty “cruel and unusual”?
The Bill of Rights provides framework, not answers. Each generation must decide what these protections mean in their context.
Key Vocabulary
- Bill of Rights: First ten amendments to the Constitution, ratified 1791
- Individual Rights: Protections for persons against government power
- Enumeration: Listing something specifically (as opposed to implied)
- Ratification: Formal approval by states
- Amendment: Formal change or addition to the Constitution
Think About It
If you were adding an 11th amendment to the Bill of Rights in 1791, what right would you protect? What about today—what modern right should be explicitly protected?
Additional Resources
Primary Source: Read the Bill of Rights as ratified:
https://www.archives.gov/founding-docs/bill-of-rights-transcript
Notice the phrasing: “Congress shall make no law…” This limited only federal government. State governments could restrict speech, establish religions, etc. until the 14th Amendment and incorporation doctrine changed this in the 20th century.
Also read Federalist No. 84 by Alexander Hamilton arguing against a bill of rights:
https://avalon.law.yale.edu/18th_century/fed84.asp
Hamilton lost this debate, but his concerns about enumerating rights (what about rights not listed?) led directly to the 9th Amendment.
Tomorrow: We’ll examine the First Amendment—five freedoms in 45 words that define American liberty.