A List of Liberties

As states debated ratifying the Constitution, a call for a bill of rights grew louder

by Stephen D. Solomon

On Sept. 12, 1787, just before the end of the Constitutional Convention in Philadelphia, George Mason of Virginia made a key suggestion to the delegates. The draft Constitution would be stronger, he said, if "the plan had been prefaced with a Bill of Rights." Such a solemn assurance of individual rights, he said, would "give great quiet to the people."

Mason enjoyed broad respect on the issue of rights. He had been the leading author in 1776 of the Virginia Declaration of Rights, perhaps the most far-reaching document of individual liberty up to that time. But he worried that the Virginia Declaration and other state guarantees would provide scant protection in the face of the powerful federal government that the delegates had designed to replace the weak alliance under the Articles of Confederation.

What would prevent this new national government from violating the fundamental rights of Americans unless there was a bill of rights? Nonetheless, his suggestion was overwhelmingly rejected.

Five days later, Mason and two other delegates — Virginia Gov. Edmund Randolph and Elbridge Gerry of Massachusetts — refused to sign the Constitution. Mason had many concerns about the concentration of power in the federal government, but the failure of the Philadelphia convention to adopt a bill of rights was at the top of his list.

James Madison, the primary architect of the Constitution during that Philadelphia summer, had worked with Mason on the Virginia Declaration 11 years earlier. Though he disagreed over adding a federal guarantee for the rights of the people, Madison worried that the issue could have serious consequences. He wrote to Thomas Jefferson that Mason "considers the want of a Bill of Rights as a fatal objection" to the Constitution and noted that Mason had left Philadelphia "in an exceeding ill humour."

Mason was indeed in "ill humour" and would soon offer his objections to the American people.

Thus began a state-by-state fight to ratify the Constitution with Virginia's ratifying convention poised to play a pivotal role. Virginia was a large, wealthy and influential state. As Henry Knox wrote to George Washington, "Much will depend on Virginia."

In early June 1788, 170 delegates from across Virginia and hundreds of onlookers arrived in Richmond, the state capital. They crowded into the New Academy, one of the grandest buildings in a town that lacked the sophistication of the former capital, Williamsburg. Boasting an inland port below the falls of the James River, Richmond was a magnet for politicians and wealthy plantation owners as well as rougher men who made a living on the frontier. Taverns in the town did a brisk business, with drunken brawls sometimes spilling outside. Goats and hogs wandered the dirt streets and wallowed in the mud after rainstorms.

Partisan and emotional spectators watched the proceedings from the public balconies and doorways. As one noted, the town "is exceedingly crowded, & many of no principle & desperate Fortunes are attending there."

Delegates included some of the leading lights of America's founding generation, and all sons of Virginia: Madison, Mason, Patrick Henry, Edmund Randolph, James Monroe, John Marshall, Edward Pendleton and George Wythe. Among the missing: George Washington, who had served as president of the Constitutional Convention, was monitoring the proceedings from Mount Vernon, and Thomas Jefferson was in Paris serving as minister to France.

Newspapers up and down the seaboard swelled with letters and articles, broadsides and pamphlets came off the presses, and people gathered in taverns and coffeehouses to argue over the issues of ratification. The Federalist, a series of essays under the name "Publius" by Madison, Alexander Hamilton and John Jay, had already appeared in New York papers to persuade citizens in the state to support the Constitution. "The Newspapers in the middle & Northern States begin to teem with controversial publications," Madison wrote a month after the Philadelphia convention.

Madison led the pro-ratification forces on the floor in Richmond. Soft-spoken and cerebral, he knew every corner and cobweb of the Constitution, having had a leading hand in drafting it. He had more than worthy foes in Mason and Henry. There would be no support from Henry, the influential former five-term governor of Virginia, who informed Washington that he would strongly oppose ratification. "The Concern I feel on this Account, is really greater than I am able to express," he wrote.

Mason was another formidable adversary. He had circulated his "Objections to This Constitution of Government," a long list that began with his most serious complaint: "There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security." Many others who opposed ratification — the so-called Antifederalists — rallied around him, objecting to the concentration of power in the federal government at the expense of the states and to the failure to propose a bill of rights. They wanted amendments to address their concerns before any vote to ratify. Madison and his Federalist allies refused to waver from an up-or-down vote on the Constitution as written. Amendments, they said, could come later.

The Virginia delegates convened at a critical moment. Eight states had ratified the Constitution by the time the Richmond convention got underway, only one short of the number required to put the Constitution into effect for the states that approved ratification. Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified with large majorities. But then the Constitution encountered a serious downdraft. Massachusetts just barely ratified, 187 to 168, and only after the Antifederalists extracted a promise by supporters of the Constitution to seek amendments in the First Federal Congress. Then more than 90 percent of voters in a Rhode Island referendum turned down the Constitution. The ferocity of the debate continued to grow as Maryland approved without conditions, followed by South Carolina's approval with amendments.

The Virginia convention could provide the Constitution with the deciding vote in favor of ratification. As the convention started, Gov. Edmund Randolph, who had refused to sign the Constitution in Philadelphia, gave cheer to the Federalists by declaring his support.

Henry, though, launched a broad attack against the Constitution in his opening speech. The Philadelphia delegates had been charged solely with amending the Articles of Confederation, he said, but they had engaged in an "utter annihilation" of them. By creating the Constitution, which he called "this perilous innovation," they had concentrated so much power in the federal government that the people were at serious risk — "their liberty will be lost, and tyranny must and will arise."

Mason also spoke that day, agreeing with Henry on many issues. The concentration of power in the federal government, such as the power of directly laying taxes, he said, "is totally subversive of every principle which has hitherto governed us. This power is calculated to annihilate totally the State Governments" and "is one of the worst curses that can possibly befall a nation." Mason hammered even harder at his most cherished theme — protecting individual rights. Throughout history, he said, "there never was a Government, over a very extensive country, without destroying the liberties of the people." He could not trust Congress to be full of virtuous men, and "considering the natural lust of power so inherent in man, I fear the thirst of power will prevail to oppress the people. … The question then will be, whether a consolidated Government can preserve the freedom, and secure the great rights of the people."

Henry was back on the attack the next day. "Here is a revolution as radical as that which separated us from Great Britain," he argued. He criticized a standing army "to execute the execrable commands of tyranny" and direct taxation, which violated the rights of Virginians under their Declaration of Rights. The generous grant of power to the national government and specifically the president would set up a system that "squints toward monarchy. … Your President may easily become a King."

So many defects tainted the Constitution, Henry argued on June 7, that they should be fixed before ratification. "A previous ratification of a system notoriously and confessedly defective will endanger our riches — our liberty — our all," he warned.

Although many delegates spoke during the three weeks of debate, Henry dominated the convention with long speeches. One observer noted with only some exaggeration that Henry "spoke all that day (Thursday), all Friday, Saturday, Monday, Tuesday, and Wednesday, and was still speaking on Thursday, the date of our information."

Madison could not match Henry's rhetorical flourishes, but he possessed a compelling intellect. He argued that the weak Articles of Confederation had failed, just as had confederations all throughout history, and that the delegates in Philadelphia fixed the shortcomings by increasing the power of the national government.

The Constitution was justified in giving Congress the power to raise and support an army, Madison said. Congress needed the power to directly tax the people and not depend on the states to voluntarily provide resources. A direct tax would support the Nation's growth and would also enable Congress to provide resources for defense. Without this tax, a foreign power could attack the country by targeting the weakest states while the country struggled to raise contributions, especially from those states not immediately affected.

The convention seemed almost evenly split. If there was one issue that could tilt the convention one way or the other, it was the lack of a bill of rights to protect the people. Though a strong proponent of the people's rights going back to his work with Mason on the Virginia Declaration, Madison and his Federalist allies were skeptical that a national bill of rights was a wise approach. Madison worried that if some rights were enumerated in a bill, it might lead to the conclusion that other rights did not exist. And he thought that a bill of rights was no more than a "parchment barrier" against oppression. A viable protection for the people's rights, he wrote in Federalist Papers No. 10, lay in the wide diversity of interest groups that would prevent a powerful majority from taking control of the government and violating the rights of others.

Madison, though, underestimated how strongly Americans would feel about explicit protections for their rights, especially after their experience with an overbearing Parliament. As Jefferson had written to him, a bill of rights "is what the people are entitled to against every government on earth, general or particular, & what no just government should refuse, or rest on inference."

Henry argued, "The necessity of a Bill of Rights appears to me to be greater in this Government, than ever it was in any Government before." He wanted to list the rights of the people. "Why not say so?" he asked. "Is it because it will consume too much paper?"

Henry lost on a motion to delay ratification in favor of circulating a declaration of rights to the other states. But days of hammering on the theme of protecting the people's rights had carried great weight. Now, to gain enough votes for ratification, Madison and his allies agreed that the Virginia convention should propose amendments to the First Federal Congress, which would consider them under the amendment process specified by Article V — approval by two-thirds of the House and Senate and three-quarters of the states. Even then, the delegates agreed to the Constitution by only a narrow margin, 89 to 79. Virginia had ratified.

In just two days, a committee that included Madison, Mason and Henry compiled 20 amendments listing the "essential and unalienable rights of the people" and an additional 20 amendments that addressed other concerns regarding the federal government. The list of rights closely resembled the Virginia Declaration of Rights that Mason had written in 1776.

As it turned out, ratification by Virginia did not provide the critical ninth state to put the Constitution into effect. Unknown to the delegates in Richmond, New Hampshire had narrowly ratified four days earlier with proposed amendments.

Nonetheless, Virginia's vote and its endorsement of a bill of rights proved critical. On July 2, a rider galloped into Poughkeepsie and delivered the news of Virginia's vote to the New York ratifying convention. Antifederalists controlled the convention, but now that the Constitution had been officially approved, New York faced the unappealing prospect of a future outside the new country. Alexander Hamilton and his allies now had the leverage to achieve ratification — but only by a vote of 30 to 27 and only after agreement to recommend a bill of rights similar to the one proposed by Virginia.

Madison made good on his pledge to support a bill of rights. On June 8, 1789, Madison, now a representative, stood on the floor of the First Federal Congress in New York and introduced a bill of rights. It was time, Madison said, to "expressly declare the great rights of mankind secured under this Constitution." He added, "It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled."

Madison had compiled the bill from the proposals of various state ratifying conventions that, in turn, had drawn directly from George Mason's Virginia Declaration of Rights. More than two years later — on Dec. 15, 1791 — it was, fittingly, Virginia whose ratification put the Bill of Rights into effect.

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Stephen D. Solomon, an associate professor at New York University, is author of Revolutionary Dissent: How the Founding Generation Created the Freedom of Speech.