Although there about a million other things to do, James Madison has his eyes set on the creation of a bill of rights.

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Hello and welcome to the political history of the United States.

Episode 5.22 the Bill of Rights we have spent the last several weeks looking at the formation of the new government, from fights over titles to establishing and then staffing the various departments.

This week I want to move on to the more pragmatic parts of governing.

Chiefly, I want to look at the issues faced during that first year of the new government and administration.

I have decided, however, to split these two things up as both will require and deserve their own special treatment.

This week, therefore, we are going to spend our time looking at the Bill of Rights and then next time we are going to shift over to those economic reforms.

To begin, I want to look back and look at exactly why a Bill of Rights was such a high ranking objective for the new government.

As Stanley Elkins and Eric McKittrick explain in their book the Age of Federalism, the amendments found in the Bill of Rights stand as something of an anomaly as compared to future constitutional amendments.

First, for a document that has proven notoriously hard to amend, it should not be overlooked that a full third of all of the amendments that exist to this day were proposed just months into the existence of the new government.

Furthermore, whereas all future amendments were made to address very specific needs, the amendments in the Bill of Rights were broad in nature.

In fact, for the most part, all of the things that are covered in the Bill of Rights were already standard practice throughout the states.

So the question therefore becomes why the rush?

The necessity of the introduction of a Bill of Rights was something born more of political necessity rather than any other underlying need to protect certain rights that were endangered from the overreach of the national government.

Recall that the idea of a Bill of Rights came up during the Philadelphia Convention, where it was promptly shut down.

The argument was essentially that a Bill of Rights was unnecessary because the states could act as the protector of such individual rights.

More though, by the time that the Bill of Rights came up as a subject during the Convention, everybody in Independence hall was sick to death of everybody else and just wanted to go home.

The idea of a Bill of Rights was dead on arrival in Philadelphia.

However, it would be revived just a few months later during the ratification process.

Again, recall this comeback of sorts begins in Massachusetts Green Ratification There were absolutely those who were still hesitant to fully commit to the new Constitution, some states had proposed a conditional ratification, whereby they would ratify with the agreement that they could bail out if they didn't like how things were going.

This proved unpopular, however, because it would essentially, as James Madison argued, leave the new Constitution in a state where it was not exactly fully adopted.

The idea of a second convention seemed awful, as everybody knew that they would essentially have to start from scratch.

The compromise that was reached was that although ratification was not going to be conditional, along with the newly ratified constitution, the state would send along a list of proposed amendments.

Following Massachusetts, this quickly became the standard operating procedure for the other states.

By the end of the convention, eight of the states had agreed to ratification while sending along their demands for a bill of rights, while Rhode island and North Carolina remained on the outside of the Union until such a bill of rights was introduced.

Although none of the states went the route of conditional ratification, enough demanded a bill of rights that it had become more or less a requirement.

Despite initially arguing that a bill of rights was unnecessary, as the states individually provided many of the rights that people were now clamoring to be included in the Federal Constitution, by the time the new government officially sat, Madison had come around to the idea.

There was a good amount of grumbling coming from both the Federalists and the anti Federalists about the timing of the debates, considering that the new government had a pretty substantial amount of business to attend to.

However, Madison was desperate to get this out of the way, so he pushed forward.

Now, narrowing down the Bill of Rights was not going to be a simple task.

Today we think of the document as being the first 10amendments to the Constitution.

However, in reality, between the different state ratifying delegations, there was a huge number of proposed amendments that they now needed to weed through.

Making matters more complicated is the exact purpose of the amendments.

Sure, there were plenty of individual rights to protect.

However, you also had the anti Federalists dropping amendments to limit the federal government's power and increase the power of the states, thus climb back some of that lost influence from Philadelphia.

The Federalists, unsurprisingly, were themselves very eager to make sure that no decisions being made would do anything to diminish the power of the new national government.

Madison, the devout Federalist that he was, placed his focus squarely on those individual rights while tuning out anything that touched on federal authority.

James Madison was not wrong to believe that specifically enumerating these rights was something of a pointless endeavor, because in many of these cases, these rights were already secured by the various state constitutions.

The right to trial by jury, for example, was something specifically protected in all of the state constitutions, as well as Vermont's, which was still a few years away from statehood.

Eleven states provided for freedom of the press, although interestingly only three states provided for freedom of speech.

Just over half of the states did not bother with preventing ex post facto laws.

Four states failed to acknowledge the idea of illegal search and seizure.

Only two states had any mention of double jeopardy.

Therefore, even though these rights that would eventually become the first 10amendments existed, they seldom existed consistently in all places.

Madison, despite believing that a Bill of Rights was little more than a waste of time, would ultimately be brought around to the idea by Thomas Jefferson.

Writing to Madison, Jefferson explained that a Bill of rights would essentially act as an additional check on the potential abuses of power by either the executive or legislative branches.

The thought was that an independent judiciary, something which was albeit slowly, coming together, would be more immune from the whims of the majority and would have the Bill of Rights to act as a check on overreach.

Jefferson further argued that because the Bill of Rights did touch on certain rights, the implication was that rights not specifically mentioned might fall outside of those protections.

This was enough to get Madison on board with the necessity of a Bill of rights, but that was only part of the battle.

As we have already discussed, Madison just wanted to get down to business and knock out the Bill of Rights.

However, there was little meaningful interest from the rest of the Congress.

There were a whole lot of things to do, and this just didn't really seem like it was the time to be dealing with this specific issue.

Therefore, when on June 8th he made a speech pushing for the Bill of Rights, it largely fell on an audience of lawmakers who were apathetic towards the idea of despite laying out all of his well articulated reasons, and despite being pretty much the most powerful figure in the House, the speech gained little traction.

In fact, the majority of those who spoke on the issue were in favor of tabling future discussions on the matter for down the road, that is, if they didn't object to the idea of a Bill of Rights altogether.

Madison's amendments largely hovered around the pragmatic.

He pointed out that two states were still on the outside looking in, and that the lack of a Bill of Rights was a major reason for that, even among the states that had ratified.

Madison pointed out that there were plenty of people in the country that still distrusted the new Constitution and that a Bill of Rights was in many cases the olive branch being offered to the anti Federalists.

This is where things would stand until August 3rd, when Madison again raised the issue of the Bill of Rights.

This time around, the subject was taken at least marginally more seriously, and beginning on August 13, Congress began the process of considering the proposed constitutional amendments via a committee.

Somewhat ironically, Madison, who is the unquestioned drafter of the Bill of Rights, did not actually envision them being a separate addendum to the Constitution.

Rather, he supported revising the original text and inserting the amendment into that text.

That argument, however, quickly fell flat because first, inserting the amendments directly into the text was likely going to lead to confusion over what the original draft did and did not contain.

Second, it was pointed out that trying to decide where to insert said amendments was going to be more of a headache than it was really worth.

It was much easier simply to tack amendments on to the end of the Constitution.

Now I do want to take a moment and point out a critical aspect of the Bill of Rights.

At the time of their adoption, they did not apply to the states.

In fact, that is not something that we are going to see change until after the Civil War when the first 12amendments were reconsidered in light of the passage of the 14th Amendment.

Even then, this was not an overnight process and over the course of several decades courts would begin applying rights guaranteed under the Bill of Rights to limit the states as well.

Madison did at least partially understand this potential limitation in the original set of his amendments, and indeed had argued for certain amendments to restrict the states as well.

Notably, this is not something that he was asking for, but for all of the amendments which we are going to discuss.

Why more in just a moment.

Instead, Madison wanted to see an overarching amendment applying both to the federal and state governments that would have protected the freedom of the press, freedom of conscience, and the right to criminal jury trials.

Although we know that all three of these things would find their way into the Bill of Rights 2 via the First Amendment and the right to criminal jury trials through the Sixth Amendment, Madison would lose in his efforts to get them to apply more broadly to both state and national governments alike.

The fact was, nobody thought it terribly important to extend the amendments to the individual states.

All of the states already had their own Bill of Rights, so having a national Bill of Rights that restricted them as well seemed redundant.

More importantly, though, remember the real fear of the states was the overreach of the national government.

We have talked about this in depth at this point, but it bears repeating that there really was a lot of fear in the early Republic about the national government becoming an instrument of tyranny.

The Bill of Rights was intended to restrict the national government from such abuses.

Generally speaking, there was very little concern that the states would violate individual liberties.

James Madison still remained skeptical at the idea that the states did not, from time to time, violate the rights of their citizens.

Had it not been the states accepting the worthless money as legal tender that had so seriously damaged the creditor class.

Madison had this in mind during the Constitutional Convention and had been interested in giving the national government the power to intercede in state level legislation via his soundly defeated national veto power.

Although accepting that the veto was very much dead in the water, Madison had hoped to give the power to the federal judicial branch to rein in any states that chose to interfere with individual rights.

Madison unsuccessfully argued that provisions already contained in the Constitution things like prohibitions against bills of attainder or coining their own money, or acting to prohibit state actions.

If you follow this to its end, it meant that the precedent had already been set for the federal government to regulate and prohibit actions by the individual states.

Now, ultimately, the rights conveyed in the amendments would be applied to the states.

However, again, that is not going to come until after the Civil War, when the entire relationship between the states and the federal government would be completely upended.

Following Madison officially introducing everything on June 8th and then continually encouraging action until August, the matter was sent off to a committee for consideration following the exit from the committee.

But prior to being sent to the Senate, the House would make several final changes to the proposed Bill of Rights.

They strengthened the right against self incrimination and revived the prohibition against unreasonable search and seizure, something which the committee had done away with.

They tinkered with what would become the 10th Amendment, clarifying that rights, neither endorsed nor prohibited, belonged to the states or the people.

These changes aside, the product that was sent along to the Senate was still primarily the same as what Madison had proposed in the first place.

When that committee returned, they did so with 17 proposed amendments, which were in turn sent along to the Senate for their consideration.

Unfortunately, the Senate did none of us a favor here and did not record the notes of their debates.

So Those arguments for and against the proposals are largely lost to history.

However, we know what the proposed bill looked like on the other side, so we can evaluate the Senate's actions from there.

First, several of the amendments were combined.

So where we had started with 17amendments, we were now down to 12.

Likewise, the Senate hemmed in Madison's proposal to apply certain protections to the states, something that Madison himself considered to be a significant blow, as again, he had been stymied in his attempts to place a meaningful check on the states from trampling people's rights.

More controversially, the Senate significantly weakened the House's prohibition against the establishment of religion, something that the House was simply unwilling to budge on.

This, in turn, meant that once again, the proposal was heading back to a committee.

During this committee, the House prevailed on their establishment clause.

However, everything else that the Senate had proposed was adopted.

The next day, the Senate voted and likewise gave their stamp of approval.

The Bill of Rights was off to the states for ratification.

Before we can just jump into ratification, I want to pause and do just a quick run through the now 12 proposed amendments, just to make sure that everybody is on the same page and knows what we're going to be talking about.

Now, most of this is going to be a pretty quick overview of the rights, but along the way I'll make a few points where they matter.

Also, just to keep things straight, keep in mind that the first two amendments are not ultimately going to be ratified, which means that what we refer to today as the First Amendment was actually the Third Amendment at the time of ratification.

The first proposed amendment would have laid out a formula for determining the size of the House of Representatives.

It was a complicated amendment with multiple different check marks where things would have changed had it passed.

The size of the House would have likely become unwieldy a long time ago.

A quick Google search so you know, don't actually hold me to this, says that the House today would be hanging out at just shy of 6,200 members had that amendment passed.

The proposed second amendment has a far more interesting journey.

This amendment controls the ability of Congress to grant itself a pay raise, saying that any such raise that is voted upon does not become effective until the following election in the House of Representatives.

This amendment was put into place to stop unjust enrichment for members of Congress.

Although initially defeated, the amendment just kind of hung around getting a vote for ratification here and there.

It might have missed out on becoming a member of the Bill of Rights, but it at least made it into the amendment club eventually.

It is today the 27th and incidentally last constitutional amendment to be ratified.

What would become the First Amendment.

And in order to keep things straight, I'm going to pick up here calling this the First Amendment, even though we know that it was the third in the original proposal, would protect the freedom of speech, free exercise of religion, freedom of the press, peaceable assembly, and the protection to petition the government for a redress of grievances.

The Second Amendment stated that a well regulated militia, being necessary to the security of a free state, that the right of the people to keep and bear arms shall not be infringed.

In the past few decades, this has become the most controversial amendment, taking on a political life all of its own without getting sucked into the modern politics of the matter.

What makes this amendment so thoroughly vexing is that preamble at the beginning talking about the militia.

As legal historian Leonard Levy explains, the Second Amendment itself is a bit of a confusing mess.

In theory, the entire point of being able to call up a militia, being a protected right for the states, is to provide a check against the tyranny of the national government.

While that is all well and good, the problem is that the national government also has the ability to call up that same militia to aid the national government.

So right there, there is something of an inherent contradiction as far as the right of an individual to bear arms.

The courts have generally taken a somewhat restrictive view in what type of arms can be held and have not balked at accepting reasonable regulations on the matter.

However, the right to have arms at all has been protected.

Other historians have taken a more restrictive view of the Second amendment, arguing that really the important part of the amendment is the right to form a militia.

Another legal historian, Noah Feldman, quotes the original text of the amendment which stated that the right of the people to keep and bear arms shall not be infringed, a well armed and well regulated militia being the best security of a free country, but no person religiously scrupulous of bearing arms shall be compelled to render military service.

Feldman argues here that based upon Madison's original proposal, it does seem like for Madison, the key part of the original amendment was indeed protecting the rights of the state to form a militia.

This wording, of course, is not what went out to the states, but does give us at least some insight into what Madison himself may have viewed as the central purpose of the Amendment.

The Third Amendment was to deal with that old boogeyman of the revolution, quartering.

The Fourth Amendment secured people against unreasonable search and seizure and ensured the use of search warrants based upon probable cause.

The Fifth Amendment protects against double jeopardy and a person's right against self incrimination.

It likewise guarantees the right to due process as well as to grand juries for criminal cases.

Wedged in at the end of this Amendment is a guarantee of compensation in cases of imminent domain.

The Sixth Amendment provides rights for criminal defendants, ensuring a right to speedy trial and public trial, the right to a jury, the right to know the charges against you, the right to confront witnesses and the right to subpoena witnesses, as well as the right to the assistance of counsel.

The Seventh Amendment protects the right to a jury trial in federal courts and civil cases so long as the claim is worth more than $20, while also preventing judges from overruling jury verdicts in such civil trials.

The Eighth Amendment establishes that excessive bail not be used, excessive fines not be imposed, and prohibited the use of cruel and unusual punishment.

The Ninth Amendment acknowledges that the Constitution is not all inclusive.

Although there are prohibitions as well as rights conveyed contained within.

It recognizes that there are other rights that are retained by the people and that just because the Constitution doesn't mention them doesn't mean that they don't exist.

The previously discussed 10th Amendment acts as a catch all, stating that power is not given to the United States Government nor prohibited by it to the States, are reserved to the states respectively or the people directly.

Basically, this acts to keep the national government from gobbling up rights that were not explicitly granted to it.

With the Bill of Rights now getting sent off to the states, I think this is a good time to really reinforce that idea that despite the reverence that modern Americans hold for the Bill of Rights at the time this was just not that big of a deal.

Bill of Rights were great and all and sure, during the Constitution's ratification everybody was demanding one, but come on, this is a third tier problem when we have a ton of first tier crises that we need to resolve.

Historian Gordon Wood writes in his book Empire of Liberty that the ratification of the Bill of Rights came slowly and with little enthusiasm.

Three states, Connecticut, Georgia, and somewhat ironically, Massachusetts, the state that had started the entire push for the Bill of Rights in the first place, never actually got around a ratification.

Wood points out that following ratification, everybody just pretty much forgot that the Bill of Rights existed and that it was not until the 20th century that courts would start more seriously considering those first 10amendments.

Things do actually get off to a pretty quick start.

Within six months of the amendments being sent out, only Massachusetts, Georgia, Virginia and Connecticut had failed to ratify.

The magic number for ratification was 11.

However, that number was somewhat fluid throughout the process.

By the time that Virginia put the bill over the finish line, several things had changed.

Recall that the number of votes that is going to be required for ratification was 3/4 of all the states.

That pushed the number back up to 10 states being necessary for ratification of the amendments.

So in short order, you have nine states in the yes column pretty quickly, with the rest taking their sweet time about it.

Georgia's gripe with the Bill of Rights was that the entire thing was somewhat pointless.

The Constitution was brand new.

The ink hadn't even had a chance to dry yet.

So why exactly are we trying to fix something when we don't know what's broken yet?

Wouldn't it make far more sense to wait, figure out what needs to be amended, and then go from there?

Connecticut would join Georgia in not ratifying, albeit for completely different reasons.

There, the leading Federalists had become worried that anti Federalists were just itching to jump on any opportunity presented to them to prove that the Constitution was a deeply flawed document.

Amendments signaled just that, that the Constitution was flawed, because why else would you need to amend it?

So just like Georgia, that was going to be a no from Connecticut.

Massachusetts would prove to be a bit different in their approach to the proposed amendments.

There certainly was some thought there that mirrored what we saw in Connecticut, that amending the Constitution would prove that it was not the perfect document, thus fueling anti Federalist rhetoric.

For their part, the local anti Federalists were disappointed by the new amendments, as they had hoped to strip back some of the power from the national government and return it back to the states, something which Madison specifically went out of his way to prevent.

Despite these challenges, though, the Massachusetts lower house went ahead and adopted all but the First, Second and Twelfth Amendments.

The upper house, on the other hand, adopted all but the first and Second and Tenth Amendment.

And this is exactly the problem.

Both the upper and lower house were fine sending the first and Second Amendment to the trash bin of history.

However, the lower house's opposition to the 10th Amendment and the upper house's rejection of the 12th Amendment proved to be a serious problem.

Sitting here, I can completely understand if your assumption would be that Massachusetts had therefore ratified what would end up becoming the first through Seventh Amendment as well as the Ninth Amendment.

Thomas Jefferson himself seemed to be under this belief and ended up having to write to Massachusetts and ask whether or not they had ratified the amendments.

The response back from the state was a somewhat ambiguous I don't think so.

The problem, as it turned out, was a decision that Massachusetts should decide on all the amendments at the same time rather than sending a piecemeal list.

The end result of this is that Massachusetts never actually got around to reconciling the two different lists, thus never making the final decision.

Just like that, although they were in agreement on all but two of the amendments, Massachusetts failed to ratify the Bill of Rights.

If you are looking for a postscript on these three states in their ultimate path to ratifying the Bill of Rights, I can tell you that they would all eventually come around, although it is going to take a while.

This would be a good time to also point out, lest there be any confusion, that unlike with the Constitution, as long as 3/4 of the states ratified the amendments, they would become the law of the land everywhere.

So it is not as though these three holdouts that we have just discussed existed all the way out to the Franklin Roosevelt administration.

Outside the protection of the Bill of Rights.

Symbolic ratification aside, there remained the issue of the actual ratification of the amendments.

This left only Virginia as having yet to do anything.

The weird 150 year limbo in Massachusetts notwithstanding, Virginia still contained a strong base of anti Federalists that included the likes of Patrick Henry, as well as the Lee family, this group was still very much wanting a second convention, something that the Federalists were equally eager to avoid.

The problem is much like the anti Federalists in Massachusetts, the Virginia anti Federalists did not believe that the amendments went far enough.

They genuinely feared that the Federalists were going to kill off the state governments as soon as the opportunity presented itself.

What they wanted was amendments that would protect the state from what they viewed as the inevitable power grab from the national government.

Both sides were worried about having the votes, and neither was terribly eager to take the risk of a vote.

With that, the Bill of Rights was now the law of the land.

What the passage of the Bill of Rights did do, however, was spell the end for the anti Federalist faction.

They had been completely defeated.

The Constitution had been ratified.

The Bill of Rights had been ratified.

It was abundantly clear to everybody that there was not going to be a second convention.

To put it bluntly, the anti Federalists had been completely and totally defeated.

We will see here in short order that many of those who had been in the anti Federalist camp would begin to coalesce around a new nexus that would become known as the Anti Administration Party.

This faction would primarily be organized around opposition to the fiscal policies of Alexander Hamilton.

Next time we are going to turn our attention to what may well have been the most critical task in the room, the rebuilding of the economy, a task that was to be undertaken by Alexander Hamilton.

As you can probably guess from the last line in our episode today, not everybody is going to be overjoyed with the new system.

Until then, I hope you all have a wonderful two weeks.

I hope that you are staying healthy and that you are staying safe.

And I will see you back here next time as we begin to examine the plan to reinvent the economy of the United States.

States.