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Bill of Rights 2018 Editors' Commentary

Cite as: Bill of Rights 2018 Editors' Commentary, Quill Project at Pembroke College (Oxford, accessed 2019)

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Madison gave notice that he intended to submit proposals for amendments on the fourth Monday in May, which would have been 25 May 1789. The subject of amending the Constitution to secure certain rights and liberties as well as to address structural issues (such as the ratio of representation, federal control over the times and manner of elections, and the matter of direct taxation) had featured prominently in the ratification debates. Indeed, in their forms of ratification, several states had delineated lists of proposals, which ranged from securing those traditional liberties to issues of structure. Many of these forms of ratification also indicated that ratification was undertaken with the understanding that such amendments would be considered at an early stage. Such concerns over the extent of the new government's powers remained with many, despite ratification and the beginnings of the new government's operation. Article V of the Constitution provides two methods for amendment. First, two-thirds of Congress (comprising both houses) may submit proposed amendments to the state legislatures for ratification. Second, two-thirds of the state legislatures may apply to Congress to call a convention to propose amendments, which would then be sent to the legislatures. Under each procedure, proposed amendments would be incorporated into the Constitution when three-fourths of the state legislatures ratified the proposed amendment. Many of the Constitution's proponents feared that should a convention of states be called, then the whole body of the Constitution would be opened for reconsideration. In such a case, not only might the balanced system achieved at the 1787 Philadelphia Convention be lost, but a workable compromise would be difficult, if not impossible to achieve. Madison was among those that felt that, should Congress fail to address the paramount concerns that the Constitution as written did not adequately safeguard traditional liberties or limit federal encroachment on the powers reserved to the states, then calls for a convention would increase. In the days following Madison's notice to submit his proposals to the House, Representatives Richard Bland Lee of Virginia and John Laurance of New York presented resolutions from the legislatures of those states calling for a convention of states to propose amendments (U.S. House Journal. 1789. 1st Cong., 1st sess., 5 & 6 May). The business of Congress, however, was occupied with matters of organising the new government and establishing a system of revenue. Indeed, Madison's presentation of his proposed amendments would ultimately be delayed until 8 June.

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James Madison's Notice was created on 04 May 1789

The debate that surrounded the appropriate action to take on Virginia’s application for a convention of the states to amend the Constitution presaged the emerging divisions on the question of amending the new Constitution and of how such a process should operate under the Constitution’s provisions. Representative Richard Bland Lee, who submitted the resolution on behalf of Virginia, expressed a desire that the application would be discussed by a Committee of the Whole House with Madison’s proposed amendments (Annals of Congress, 1st Cong., 1st sess., 258-60). This proposal, however, elicited opposition from Elias Boudinot of New Jersey, a veteran of the Revolution with extensive experience in the Confederation Congress, including one term as that body’s president. Boudinot contended that the proper course was to table the application until the requisite number of two-thirds of the states likewise had submitted applications for a convention. Until then, Boudinot contended, the House had no power under the Constitution to take up the matter (Ibid. 260). The reluctance of certain members to address the calls for Constitutional amendment, such as those expressed in Virginia’s application, caused Madison to urge members ‘to treat this subject with all due respect.' Yet, Madison agreed that ’Congress had no deliberative power with respect to a convention.' Should two-thirds of the states call for a convention, then the matter would be out of Congress’s control; it would be compelled to call such a convention. But, until the requisite number of applications were submitted, it was appropriate to table the application (Ibid.). Bland, on the other hand, asserted that the House’s discussion of the application was in nowise unconstitutional, drawing further opposition from Benjamin Huntingdon of Connecticut, who opposed committing the application to a committee. Thomas Tudor Tucker of South Carolina, however, agreed with Bland and offered that Article V’s two methods of amendment—a convention called by two-thirds of the states or a proposal to the states by Congress—meant that commitment and discussion of the application lay within Congressional discretion. Further, the states clearly had the power to submit such applications and, out of respect, such applications should not be disregarded (Ibid. 260-61). In this discussion, Elbridge Gerry of Massachusetts questioned whether the debate was in order and suggested that the application ought to be tabled until whatsoever time consideration of amendments might be taken. John Page of Virginia opposed referring the application to a committee but offered that entering the petition into the journal would accord due respect. Bland and Madison consented to this suggestion, which was seconded by Alexander White, also of Virginia (Ibid. 261). Following this exchange, ‘[t]he house resumed the consideration of the report of the committee respecting the duties on tonnage’ (New-York Daily Advertiser, edition of 6 May 1789). The exchange among members of the House reveals that at this early stage divisions were evident in the sentiments of the members of the House of Representatives concerning the need or efficacy of amending the Constitution. These divisions would be more evident as the issue arose again. Interesting, too, are the discussions of the appropriate manner in which such an amendment process should operate in light of the Constitutional text. Yet, one point raised in this exchange that would bear on subsequent arguments, particularly those of Madison, is that all seem certain that if two-thirds of states duly call for a constitutional convention, then the process would be effectively out of Congress’s power.

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Virginia's Address to the Congress was created on 05 May 1789

On 5 May 1789, Richard Bland Lee submitted Virginia's application for a Convention of States to amend the Constitution. That application initiated a debate among members as to the correct procedure to follow upon the submission of such applications and the efficacy of proposing amendments at all at that stage. Ultimately, the House arrived at a compromise of entering Virginia's resolution in the Journal of the House and tabling the application (U.S. House Journal. 1789. 1st Congress, 1st sess., 5 May 1789; Annals of Congress, 1st Cong., 1st sess., 258-61). The following day, John Laurance of New York submitted a strongly-worded resolution from that state's assembly similarly requesting a convention to take up amendments. With the procedure adopted the previous day in place, this application did not elicit a similar debate. Rather, the application simply was read, entered in the journal, and ordered to be filed (Gazette of the United States, edition of 9 May 1789, 31; U.S. House Journal. 1789. 1st Cong., 1st sess., 6 May 1789; Annals of Congress, 1st Cong., 1st sess., 282).

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New York's Address to the Congress was created on 06 May 1789

Immediately following Madison’s motion to form a Committee of the Whole to present his proposed amendments, William Loughton Smith of South Carolina protested the ‘inexpediency of taking up the subject at the present moment, in a committee of the whole, while matters of the greatest importance and of immediate consequence were lying unfinished. The great business of the revenue appeared to him to claim a constant and uninterrupted attention till compleated.’ (Gazette of the United States, edition of 10 June 1789, 66). That the South Carolinian was the spearhead of opposition to taking up the issue of amendments is notable in that South Carolina, like some other states, enjoined its representatives ‘to exert their utmost abilities and influence to effect an alteration of the Constitution, conformably to the aforegoing resolutions’ (South Carolina Form of Ratification). It is also notable, however, that South Carolina's form of ratification expressed no reservation about protections for liberties. Rather, that document contains reservations relating to structural relations of the power of the federal government to that of the state. Thus, Madison's protests concerning the pressing need to address the potential threat to traditional liberties may have carried less resonance. Smith argued that either appointing a select committee to consider the amendments recommended by the state conventions or tabling the proposals for the consideration of House members ‘would enable the House to enter upon business better prepared than could be the case by a sudden transition from other important concerns to which their minds were strongly bent...’ (Annals of Congress, 1st Cong., 1st sess., 441). These appeals to practicality were tempered, however, by his contention that ‘it must appear extremely impolitic to go into the consideration of amending the Government, before it is organized, before it has begun to operate....I wish, therefore, gentlemen would consent to the delay: for the business which lies in an unfinished state—I mean particularly the collection bill—is necessary to be passed…' (Ibid.). Smith 'moved therefore, that instead of referring the subject to a committee of the whole, a select committee should be raised, to take into consideration the amendments proposed by the several States’ (Gazette of the United States, edition of 10 June 1789, 66). Smith’s opposition to taking the subject up at that time seems rather definite. As the debate wore on, with several other speakers in opposition, Madison protested that he had a duty to bring the matter up to satisfy those suspicious of the extensive power of the new federal government. Smith again intervened declaring that if Madison’s purpose had been to do his duty, then he had done so. ‘[I]f he did not succeed, he was not to blame.’ Smith was willing to go into committee for the sole purpose of receiving the proposals, and stated that afterwards, he would move to the effect (surely tongue in cheek): ‘That, however desirous this House may be to go into the consideration of amendments to the constitution, in order to establish the liberties of the people of America on the securest foundations, yet the important and pressing business of the Government prevents their entering upon that subject at present’ (Annals of Congress, 1st Cong., 1st sess., 445-46). Smith was not alone in opposition to taking up the matter, however. Madison’s attempt to present his proposed amendments initiated an extensive debate during which the various opinions on the need or wisdom of discussing Constitutional amendment was brought to bear. It is unclear whether Smith made a formal motion to form a select committee to consider Madison’s proposals and, if so, the motion did not receive a second, as the debate proceeded on the basis of the wisdom of taking up amendments at all at that time and the most efficacious manner of doing so.

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Smith's Proposal for a Select Committee was decided on 08 June 1789

Upon Madison's motion that the House go into a Committee of the Whole to consider his proposals for amendments to the Constitution, James Jackson of Georgia opposed taking up the subject of amendments, proposing that any consideration of the subject be postponed until March 1790 (Annals of Congress, 1st Cong., 1st sess., 443). Jackson took the floor immediately following William Smith of South Carolina, who also opposed entering into the subject (see commentary, 'Smith of South Carolina Opposes...'). Like Smith, Jackson urged that the House could not neglect the revenue bill. Yet, Jackson positioned himself more squarely against undertaking amendments at all. Jackson reasoned, ‘If I agree to alterations in the mode of administering this Government, I shall like to stand on the sure ground of experience, and not be treading air. What experience have we had of the good or bad qualities of this constitution? Can any gentleman affirm to me one proposition that is a certain and absolute amendment? I deny that he can’ (Ibid. 442). Jackson dismissed the arguments that the Constitution as ratified did not provide sufficient protections for long-held rights: ‘Much has been said by the opponents to this constitution, respecting the insecurity of jury trials, that great bulwark of personal safety. All their objections may be done away, by proper regulations on this point, and I do not fear but such regulations will take place. The bill is now before the Senate, and a proper attention is shown to this business.’ Asserting that none could oppose such a regulation, Jackson asks, ‘Then why should we fear a power which cannot be improperly exercised?’ (Ibid.). Jackson's seemingly firm belief that simple regulation could guarantee basic liberties is all the more remarkable in light of the statements that he would make but a month later in regard to compensation for the Senate: 'All Governments incline to despotism, as naturally as rivers run into the sea. Despotism makes its way gradually, by slow and imperceptible steps; we shall, ere were are aware, get beyond the gulf, and then we shall be astonished how we reached there' (Ibid. 683). Jackson noted that Georgia ratified the Constitution by a unanimous vote. Although, he would not oppose amendments to satisfy those of other states, provided such were based upon experience, the people of Georgia were ‘satisfied with it, in its present form’ (Gazette of the United States, edition of 10 June 1789, 66). Similar arguments arose in several speakers’ addresses. Roger Sherman of Connecticut would make such a point later in the debate, arguing that Connecticut ratified the Constitution by a great majority, and ‘they desired no amendments’ (Annals of Congress, 1st Cong., 1st sess., 445; see also the Speech of John Vining of Delaware, Ibid. 448). Assuming a unanimous assent to every aspect of the instrument by reifying the entire population of a state, whose approbation is presumed by the silence regarding amendment in the formal ratification forms, while an effective rhetorical device, deflects the issue. Sherman, at least, certainly must have been aware of this fact, as he was a member of the Connecticut ratification convention, which form of ratification indicated that nearly a quarter of the delegates dissented from ratification. Indeed, the speeches from that convention collected in Elliot’s Debates, although all in favour of ratification, indicate anything but unanimity (see 2 Elliot’s Debates, 185-202). More interesting, however, is the resort to a claimed desire for experience before addressing the issue of amendment. This point, too, would be a theme in the arguments of those opposed to taking up amendments (see Speech of Sherman, Annals of Congress, 1st Cong., 1st sess., 465-66; and of Vining, Ibid. 448). These arguments represent a salient divergence of viewpoint between the proponents of immediate amendment and those that sought delay or were reluctant to address the issue at all. The fear of experiment based on theoretical speculation was shared by many, not only in the First Congress, but at the Philadelphia Convention as well. This fear only could have been encouraged by the experience in various states during the revolutionary and confederation periods. Indeed, at the Philadelphia Convention, Elbridge Gerry was reluctant to present the Constitution to popular conventions because, in the eastern states, at least, ‘The people…have (at this time) the wildest ideas of Government in the world’ (M. Farrand (ed.), The Records of the Federal Convention of 1787 (New Haven, London, & Oxford, 1911), vol. I, p. 123, available at http://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-1). A desire to eschew wild theoretical ideas probably underlay Vining’s objection to taking up the subject of amendments in the debate on 8 June when he stated that he opposed taking it up at that time, not only ‘because more important business is suspended,’ but also ‘for want of experience.’ Vining allowed, however, that nevertheless he ‘wish[ed] to see every proposition which comes from that worthy gentleman [Madison] on the science of Government; but I think it can be presented better by staying where we are...’ (Annals of Congress, 1st Cong., 1st sess., 448.) Unfortunately, whether this comment was made with the sarcastic intent that the statement seems to bear or was rather merely oratorical deference is lost in the bare transcript. On the other hand, the proponents of immediate amendment asserted that their insistence on inserting safeguards to the rights of free people was not speculative theory. In fact, Virginia’s resolution calling for a convention of states, introduced in the House earlier in the session on 5 May, directly addressed this point. While noting that the delegates to the Virginia ratification convention ratified the Constitution ‘from motives of affection to our sister States’ they nevertheless ‘gave the most unequivocal proofs, that they dreaded its operation under the present form.’ The application asserts that the objections raised by the convention ‘were not founded in speculative theory, but deduced from principles which have been established by the melancholy example of other nations in different ages…’ These principles are such that ‘experience has taught us, are necessary to secure from danger the unalienable rights of human nature’ (Commonwealth of Virginia, Gen’l Assembly, 14 Nov. 1788 (Introduced to U.S. House of Representatives as an application for convention of states on 5 May 1789)). Similarly, many of the objections lodged by various ratifying conventions, such as Virginia, New York, Massachusetts, and New Hampshire, as well as those lodged by North Carolina (which refused ratification until amendments were introduced), were deeply influenced by such rights as had been hard-won in the English law during the political conflicts of the seventeenth and early eighteenth centuries (see forms of ratification of the named states; ‘Amendments Proposed by North Carolina (November 21, 1789), Consource, available at https://www.consource.org/document/amendments-proposed-by-north-carolina (incorporating the objections raised by the state convention of 1788)). Rhode Island, at the time of the debate, was yet to call a ratification convention, but would issue a similar declaration when it finally ratified in May 1790. For these people, the conflicts of this not too distant history must have seemed experience enough. Madison gave voice to this mindset when he responded to the opponents of taking up amendments: ‘I believe that the great mass of the people who opposed [the Constitution], disliked it because it did not contain effectual provisions against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercises the sovereign power…’ (Annals of Congress, 1st Cong., 1st sess., 450). Like Smith's motion, it is unclear whether Jackson made a formal motion, and, if so, it did not receive a second. Once again the debate proceeded unimpeded, and Smith and Jackson were but the first interveners in a protracted debate that would occupy the House on this day.

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Jackson's Proposal to Postpone Discussion of Amendments to 1 March 1790 was decided on 08 June 1789

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

Jackson’s opposition to amendment elicited responses from Benjamin Goodhue of Massachusetts and Aedanus Burke of South Carolina, both supporting the proposition of amendment, but arguing that the present was not the proper time. Goodhue stated that Jackson had a right to move to postpone consideration of amendment until March 1790, but that Goodhue believed that the issue should be dealt with earlier. He noted that many constituents desired ‘that something should be added to the constitution, to secure in a stronger manner their liberties from the inroads of power.’ ‘Yet’, he continued, ‘I think the present time premature; inasmuch as we have other business before us…essential to the public interest.’ When that business is complete, he said, he would ‘concur in taking up the subject of amendments’. Similarly, Burke stated that he thought amendments necessary, ‘but this was not the proper time to bring them forward.’ Therefore, he desired that the matter be postponed, pledging to bring the matter forward later himself, if necessary. (Annals of Congress, 1st Cong., 1st sess., 443.) With these affirmations of the necessity of undertaking amendment while urging delay, Madison again entered into the debate. He noted that Jackson was correct in opposing his motion ‘because he is unfriendly to the object….’ But those who claimed to support amendments being proposed in that session, do not ‘stand on good ground when they object to the House going into committee on this business.’ Madison acknowledged the pressing nature of the business before the House, ‘But if we continue to postpone from time to time, and refuse to let the subject come into view, it may occasion suspicions, which, though not well founded, may tend to inflame or prejudice the public mind against our decisions….’ He stated that, although pressing business remains before the house, he ‘wish[ed] to commence the consideration at the present moment.’ He ‘only wish[ed] to introduce the great work’ and did not expect all to be done immediately. Showing a proper attention to the appeals for such amendments would ‘inspire reasonable hope in the advocates for amendments, that full justice will be done to the important subject.’ Madison concluded, ‘I hope the House will not decline my motion for going into a committee.’ (Ibid. 443-44) Roger Sherman of Connecticut then intervened, pleading again that the present was not the proper time to enter into the matter. Many members felt a duty to attend to the subject, he contended. Thus, ‘there is no apprehension it will be passed over in silence’. Sherman observed that the people primarily desired a functioning government, which is why they ratified the Constitution first rather than rejecting it until amendments were made, like North Carolina. (See, Resolution of the North Carolina Convention, 1 August 1788, in 1 Elliot’s Debates, 331-32 (rejecting ratification until ‘a declaration of rights, asserting and securing from encroachments the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptional parts’ of the Constitution be ‘laid before Congress, and the convention of the states’)). Despite the more important pressing concerns of organising the the executive and judiciary and completing the system of revenue, Sherman would consent to going into committee ‘for the purpose of receiving his propositions’ but he objected to having the important work still outstanding interrupted, which would ‘alarm the fears of twenty of our constituents where it will please one.’ (Ibid. 444-45) Alexander White of Virginia, ‘hoping that the House [would] not spend much time on this subject, till the more pressing business is despatched’, noted however that he believed that a majority of those that ratified the Constitution did so with the belief that the it would be examined ‘at some convenient time’ with the intent that it might be ‘judiciously amended.’ Whether this could be done without experience of its operation was an open question. He hoped consideration would proceed ‘with all convenient speed.’ Although, he did not believe there were many in his district that desired alteration, but there were ‘people in other parts who will not be satisfied unless some amendments are proposed.’ Accordingly, he would support going into a committee of the whole to receive the proposals and to refer them to a special committee to report on them. ‘Mature consideration’ would at least lessen the complaints of critics. (Ibid. 445) At this point, William Smith of South Carolina, who had previously opposed Madison’s motion to go into a committee of the whole to consider the proposed amendments, spoke and allowed that he would support going into committee merely to accept the proposals and dismiss them. (Ibid. 445-46. See previous Commentary, 'Smith of South Carolina Opposes...') Smith’s dismissiveness and the train of speakers in opposition seems to have prompted John Page of Virginia to rise in support of Madison’s motion. Noting that the matter probably would have been concluded already ‘[i]f no objection had ben made to his motion’, Page stated that Madison had shown him some of the proposed amendments. ‘[T]hey are very important, and I sincerely wish the House may receive them.’ Page opined that, after the proposals were published, those who were demanding amendment would be more inclined to wait until the House had more time to adequately deal with them. He stated, however, ‘Putting myself into the place of those who favor amendments, I should suspect Congress did not mean seriously to enter upon the subject.’ In that event people would begin to look to ‘the alternative contained in the fifth article’ and join in the call for a new convention. ‘How dangerous such an expedient would be I need not mention; but I venture to affirm, that unless you take early notice of this subject, you will not have power to deliberate.’ Page argues that going into the committee to receive the proposals would not take much time, nor would it distract from other matters if the House would accept Madison’s motion. (Ibid. 446) Regardless of Page’s assurance that Madison’s proposals touched important points and that the matter could be concluded relatively quickly, John Vining of Delaware spoke against the House going into a committee of the whole. ‘The great amendment which the Government wants is expedition in the despatch of business.’ Vining pointed out that, although they were urged that the matter would take a short time, none could say that it ‘may not be procrastinated into days, weeks, nay, months[.] It is not the most facile subject that can come before the Legislature of the Union.’ If going into committee was only to inform the House, this could be done by tabling or publishing the propositions. Vining opposed the motion on two further points. First, he, like Jackson, cautioned against amendments based on speculation. Second, he raised the concern that the Constitution’s text did not permit entering into consideration unless two-thirds of both houses first deemed it necessary. Vining continued that the best way to quieten ‘the public mind, [would] be to pass salutary laws.’ He notes that thus far Congress has completed very little in way of legislation. He asks with some justification how amendments might be proposed relating to the judicial branch when the bill regulating it was still being formed in the Senate. Madison knows the importance of finishing the outstanding business before taking up new matters, he states. ‘[Madison] will not, therefore, persist in a motion which tends to distract our minds, and incapacitates us from making a proper decision on any subject.’ Although, Vining is strongly in favor of the Constitution’s present form, if convinced, he would ‘cheerfully assist in correcting’ any imperfections. The present, however, was not the proper time; important business lay before the House and the lack of experience of the new government means that such amendments were as likely to harm as correct it. (Ibid. 446-48) With these speakers in opposition to his motion, Madison rose and withdrew the motion to go into a committee of the whole, and instead moved that a select committee be formed to receive them. Yet, in so doing, Madison took the opportunity to present each of his proposed amendments one by one—delivering what one assumes to be the entirety of the speech he had planned at the outset to deliver to the committee of the whole. (Ibid. 448-59) This hightlights the fact that up to this point in the proceedings none of the speakers knew the substance of Madison’s proposals with the exception of Page, who spoke in Madison’s favor. Yet, ignorance of their substance does not explain the seeming intransigent reluctance to enter into the matter, which would recur many times during the session when the subject was raised. Some speakers, such as Jackson, even alluded to the fact that substantial criticisms had been levelled at the ratified document due to lack of protections for certain liberties, such as trial by jury. And indeed, even after Madison presented his proposals, and it was evident that most dealt with basic civil safeguards, which would have been commonly shared as basic indicia of a free government even in those states that had not proposed amendments, many in the House continued to oppose entering into open discussion. These arguments generally pleaded lack of time. As the summary above indicates, however, more time was expended in pleading lack of time than would have been had certain members of the House simply relented. The insistence of the several speakers against receiving the proposals, or that the committee be formed merely to receive them for information, probably indicates a deep aversion on the part of some members to entering into what many may have foreseen as a potentially destructive process that would undermine the nascent federal government.

Associated event:

None was debated on 08 June 1789

On 13 August, Richard Bland Lee of Virginia moved that the House resolve itself into a Committee of the Whole to consider the Committee of Eleven’s draft of proposed amendments. Once again, a debate broke out concerning the propriety of taking up the matter at that time. As in previous debates, most opponents of the motion argued that consideration of amendments would consume too much time and that more pressing business remained before the House (Annals of Congress, 1st Cong., 1st sess., 730-34). Bland Lee’s motion, however, was successful. But immediately as the Committee of the Whole’s began to consider the first proposed amendment, a second extended debate began that, perhaps, sheds some light on the more fundamental concerns of the opponents of taking up amendments. This second debate focused on whether the proposed amendments should be incorporated into the text of the Constitution or whether they should be added by way of supplement. This debate contained discussion of the underlying theories of the source of authority of the Constitution and the legal effect of the amendment process. Immediately upon the introduction of the Committee of Eleven’s first proposed amendment—a declaration to be added before ‘We the People’—Roger Sherman of Connecticut interjected, ‘I believe, Mr. Chairman, this is not the proper mode of amending the constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric’ (Annals of Congress, 1st Cong., 1st sess., 734.) In his motion, Sherman refers to the method adopted in the Committee of Eleven’s draft of proposed amendments to incorporate the amendments into the body of the Constitution’s text. This method, the same as originally proposed by Madison when he introduced his proposals on 8 June (See Annals, 451-53), is in accord with methods of statutory legislation familiar both then and now. The Committee of Eleven’s method of incorporating amendments into the text affected the way the proposed amendments were phrased. For example, one proposed amendment read, 'ART. 1, SEC. 6—Between the words "United States," and "shall in all cases," strike out "they," and insert, "But no law varying the compensation shall take effect until an election of Representatives shall have intervened. The members”' (Report of the Committee of Eleven on Amendments to the Constitution, The Bill of Rights, Quill Project at Pembroke College (Oxford, 2019), Session 567 (high resolution photograph from the Library of Congress, available at https://www.loc.gov/resource/rbpe.21101200)). Thus, the draft proposals were not intended to stand alone, either grammatically or conceptually, but only within the context of the text into which the amendment was to be inserted. Furthermore, incorporation of the amendments into the text affected the position within the Constitution where each discrete provision would be found. For example, the Committee of Eleven’s proposed amendment that read, ‘No religion shall be established by law, nor shall the equal rights of conscience be infringed’, was the first of eight clauses (all of which eventually would be adopted in substance, with modifications, in the final Bill of Rights) intended to be inserted into the Constitution’s original text at Article I, section 9, between paragraphs 2 and 3 (ibid.). As should be evident already to one with even the most casual knowledge of the U.S. Constitution, ultimately Sherman’s method of adding amendments supplementary to the original text—each standing alone—would be adopted. Yet, Sherman’s motion was defeated in the Committee of the Whole after the extensive debate on 13 August, as it, apparently, also had been defeated in the Committee of Eleven (Annals, 740 (See statement of Egbert Benson.)) The proposition that amendments would be appended to the end of the original text was adopted only on 19 August upon the House’s taking up consideration of the Committee of the Whole’s report, when ‘Mr. SHERMAN renewed his motion for adding the amendments to the constitution by way of supplement’ (ibid., 795). Even then, however, ‘ensued a debate similar to what took place in the Committee of the whole’, which, regrettably, the sources do not record (ibid.). Interestingly, the proposition was defeated only a week before it found the approval of two-thirds of the House on 19 August. Perhaps, the extended debates and contentions during the Committee of the Whole’s consideration of amendments swayed some members’ opinions. The character of the debate, not to mention the repeated introduction of the motion, indicate that the opponents of incorporating amendments believed that the manner by which amendments would be made to the Constitution’s original text went to more than mere form. As noted above, Sherman in introducing the motion contended that incorporating amendments into the body of the text would ‘be destructive of the whole fabric’ of the Constitution (Annals, 734). Although Sherman first states that he fears incorporating ‘heterogeneous articles’ which would contradict one another, he soon moved to a position that touches the source of the Constitution’s authority itself (ibid., 734-35). Sherman questions whether Congress has authority to modify the original text in the manner proposed because ‘The constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments.’ (ibid., 735). He continues, highlighting a fundamental concern: ‘all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new constitution, we remove the basis on which we mean to build’ (ibid., 735). In the course of the debate, Sherman would elaborate his position. Sherman explained that far from being merely formal concerns, he believed that ‘the amendments made in the way proposed by the committee are void’ (Annals, 742). Sherman contended that '[n]o gentleman ever knew an addition and alteration introduced into an existing law, and that any power of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance, in every case where the two were not incompatible' (ibid., 742). ‘[C]onsider the authorities upon which the two constitutions are to stand’, he urges (ibid.). He reasons, ‘The original was established by the people at large, by conventions chosen by them for the express purpose. The preamble to the constitution declares the act: but will it be a truth in ratifying the next constitution, which is to be done perhaps by the State Legislatures, and not conventions chosen for the purpose?’ (ibid.). Sherman asserts, ‘for by the present constitution, we, nor all the Legislatures in the Union together, do not possess the power of repealing it’ (ibid.). Although, some argued that for ease of understanding, the amendments should be incorporated into the body, Sherman contended that the amendments proposed by the Committee of Eleven were but a declaration of rights—‘the people are secure in them, whether we declare them or not’ and the governmental structure established in the original text already protected against one branch from encroaching upon the powers of the others. Thus, the proposed amendments ‘would not lessen the force of any article in the constitution’ (ibid.). Therefore, contrary to the arguments of proponents of incorporating the amendments into the text, there would be no difficulty in comprehending the amendments if they were set out in supplement (ibid., 743). Thus, he argues that the benefit of incorporating the amendments into the text is slight, but, on the other hand, may serve to undermine the authority of the whole Constitution: ‘The gentlemen who oppose the motion say we contend for matter of form; they think nothing more. Now we say we contend for substance, and therefore cannot agree to amendments in this way’ (ibid., 744). Similar sentiments were repeatedly expressed by others who joined the debate opposing the Committee’s method of incorporating the amendments. Samuel Livermore of New Hampshire asserts that Congress had ‘no right…to alter a clause, any otherwise than by a new proposition…. [I]t is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the constitution of the United States, by making a new one to substitute in its place…' (Annals, 737). Livermore pointed out the logical loop one would enter were Congress to attempt to repeal the very source of its power to act at all (ibid.). Indeed, Livermore saw the potential delegitimization of all Congressional acts taken under the original Constitution, assuming that the original Constitution would be suspended from the time of the amended text’s adoption by Congress until the time it would be ratified by the states (ibid., 736-37). John Laurance of New York would echo these grave concerns (ibid., 740). While Livermore allowed that the proposed method may be proper for drafting a new instrument, he would not allow that such a method was appropriate for a law already passed (Annals, 738). Yet, later in the debate he placed the Constitution on a separate, higher plane, unlike regular legislation, arguing ‘that neither this Legislature, nor all the Legislatures in America, were authorized to repeal a constitution; and that must be an inevitable consequence of an attempt to amend it in a way proposed by the committee’ (ibid., 741). Michael Jenifer Stone of Maryland argued that any steps in altering the Constitution should proceed with transparency unless those that signed the original be made out to have ‘signed an instrument which they never had in contemplation’ (Annals, 737). He urged that incorporating the proposed amendments into the body of the text would be to say that the Constitution adopted in Philadelphia ‘was defective’ (ibid., 738). The method proposed was, in effect, ‘to repeal the old and substitute a new one in its place’ (ibid.). Due to the precedential nature of the circumstances, Congress should proceed with caution, leaving the original text intact: ‘This perhaps is not the last amendment the constitution may receive; we ought therefore to be careful how we set a precedent which, in dangerous and turbulent times, may unhinge the whole’ (ibid.). Furthermore, ‘we have no authority to repeal the whole constitution’ as the Constitution only permitted Congress to propose amendments (ibid.). As he stated later in the debate, ‘He did not see how it was practicable to propose amendments, without making out a new constitution, in the manner brought forward by the committee’ (ibid., 739). Similarly, James Jackson of Georgia urged that the original Constitution should ‘remain inviolate, and not be patched up, from time to time…’ (Annals, 741). Although he, like those discussed, believed that incorporating the amendments into the text would operate as a repeal of the original, he does not seem to hold that that fact alone would intrinsically abrogate the Constitution’s authority. But Jackson urged against incorporating amendments no less strongly. If the original Constitution were repealed and substituted with another, ‘we may go on from year to year, making new ones…we shall render the superstructure the most fluctuating thing imaginable, and the people will never know what the constitution is’ (ibid.). Jackson rejected the contention that it is necessary for the people to have the amendments situated within the body of the Constitution to understand the system. He drew an illustration from British constitutional history to support his point. The British constitution was not contained in a single document. Magna Charta still stood in its original form, although other rights and liberties had been acquired over time and were embodied in other statutes (Annals, 741-42). Despite the fact that the British constitution was not in a single document, ‘an Englishman would be ashamed to own that, on this account, he could not ascertain his own privileges or the authority of the Government’ (ibid., 742). ‘The constitution of the Union,’ he concludes, ‘has been ratified and established by the people; let their act remain inviolable; if any thing we can do has a tendency to improve it, let it be done, but without mutilating and defacing the original’ (ibid.). The concerns that these speakers expressed that incorporating the amendments’ text into the Constitution would destroy its authority were founded upon the concept of implied repeal. Implied repeal is a fundamental concept in common-law statutory interpretation that states that when two statutes contradict one another, the later enactment controls and earlier enactments are held to be repealed by implication in so far as they are inconsistent with the later enactment. The U.S. Constitution, it was argued, drew its authority from its enactment by the people themselves in the various state ratifying conventions. The people as source of the authority of the Constitution loomed large in the minds of the Constitution’s proponents, even at the Philadelphia Convention that drafted the Constitution, where significant discussions about the proper mode of ratification occurred (see M. Farrand (ed.), The Records of the Federal Convention of 1787 (New Haven, London, & Oxford, 1911), vol. II, p. 88-94, available at https://oll.libertyfund.org/titles/farrand-the-records-of-the-federal-convention-of-1787-vol-2). Although the people ratified the original Constitution in the popular conventions, Article V’s mode of amendment provided that Congress could propose amendments that would become part of the Constitution upon ratification by three-fourths of the state legislatures. Therefore, incorporating amendments into the text of the Constitution could be seen as submitting an essentially new Constitutional text. Ratification of the amended text could operate to repeal by implication the Constitution drafted at Philadelphia and supplant it with another. When viewed this way, it follows that this process would vest authority in the states as corporate entities rather than in the body of the people of the United States. Thus, Sherman’s declaration that those of his view ‘cannot agree to amendments in this way,’ and the arguments rejecting any notion that Congress could repeal the Constitution reflect the fundamental importance that this question of ‘form’ had to those advocating amending the Constitution by supplement (Annals, 745). Incorporation of the amendments’ texts into the original Constitution was, or could be seen as, a profound shifting of the essential basis upon which the Constitution commanded legitimacy and authority. For those, like Sherman, who strongly advocated the system contained in the Constitution as drafted, the prospect of amendments represented a potential existential threat to that system. In this debate, one sees that they perceived this threat as coming not only from discrete proposals that would reconfigure that system in practical terms, but also from potential perceptions of that system’s authority, whether of a popular or legal nature.

Associated event:

Sherman's Amendment to the First Proposition was proposed on 13 August 1789

Fisher Ames’s motion to revise the proposed amendment setting the proportion of representation at 1 to 40,000 drew a significant discussion on the floor. The Constitution provided: ‘The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made…’ And then the Constitution set a preliminary number of representatives for each state pending the return of the first census (U.S. Const. Art. 1, sec. 2, par. 3). Ames’s arguments relied in no small part on the fact that this preliminary representation was set on a ratio of 1 to 40,000. Thus, he argued that the people had reconciled themselves to this ratio of representation, and the smaller number would be more efficient and would encourage a cohort of representatives with better capabilities than if the number were increased. Ames’s own state of Massachusetts had proposed an amendment ‘[t]hat there shall be one representative to every thirty thousand persons, according to the census mentioned in the Constitution, until the whole number of the representatives amounts to two hundred’ (see Massachusetts Form of Ratification). Ames noted that the Massachusetts ratifying convention, which had proposed this amendment, sought not the increase of the ratio of representation, but certainty against Congress reducing the the whole number of representatives below ‘a point of security’ (Annals of Congress, 1st Cong., 1st sess., 748). Madison immediately followed Ames and opposed his motion. Madison disagreed with Ames that the concerns of the people that called for amendment were simply to set a limitation, ‘because they have rather wished for an increase…’ (ibid. 749). He notes that some amendments calling for such a limitation have increased the floor of that limitation significantly beyond the number of representatives in the first Congress—‘some have required an increase as far as two hundred at least’ (ibid.). Therefore, Madison concludes, ’This does not look as if certainty was their sole object (ibid.). While conceding certain advantages of a smaller body of representatives, Madison asserts that, with the rate of increase in the U.S. population, the issue would be moot following the second census, when the likelihood would be that the number of representatives would expand beyond the floor limitations proposed by the states. In this case the people’s desire for a more numerous body should not be sacrificed ‘for a momentary advantage’ (ibid.). Theodore Sedgwick of Massachusetts next spoke opposing Ames’s motion. Sedgwick referred to Massachusetts’s proposed amendment and noted that the proposal was fully debated in the convention and afterwards was adopted by the legislature, which had recommended the proposals to the House delegation from that state: ‘From these two circumstances he was led to believe, that his and his colleague’s constituents were generally in favor of the amendment as stated in the [Committee of Eleven] report’ (ibid. 749-50). He thought, however, that the report’s floor of 175 too few, which accorded with the Massachusetts proposal’s recommendation of 200 (ibid. 750). Elbridge Gerry then addressed the issue, also in opposition, rebutting Ames’s points in turn. Gerry contradicted Ames’s assertion that the present Congress, with its small ratio of representation, lacked adequate knowledge, either general or local. He stated that the difficulties in carrying through the revenue bill illustrated this fact. Moreover, Gerry asserted that Ames certainly could not contend that there was as much security from having fewer, rather than more, representatives. Further, as to Ames’s contention that fewer representatives would reduce expenses, Gerry notes that Congressional pay accounted for significantly less in the federal budget than the civil lists, and that an increase as slight as the one proposed would account for relatively little added expense. ‘Is this,' he queried, 'such an object as to induce the people to risk every security which they ought to have in a more numerous representation?’ (ibid.). Ames had asserted that increasing the amount of representation would proportionally reduce the dignity of the individual representative. Ames contended that the greater the number of citizens that the legislator represented, a greater ‘risk’, and, thus, a greater sense of duty would be imposed upon that legislator. Consequently, the legislator would be induced to attend to the constituents’ needs with greater industry. Thus, he argued that such a representative much have ‘more dignity of character’ to work in the service (ibid. 748). Gerry, however, took this argument to be one of aggrandisement: ‘One observation which I understood fell from him, was, that multiplying the number of representatives diminished the dignity and importance of the individuals who composed the House. Now I wish to know, whether he means that we should establish our own importance at the risk of the liberties of America; if so, it has been of little avail that we successfully opposed the lordly importance of a British Parliament’ (ibid. 750.) Accordingly, he hoped that ‘gentlemen will be inclined to give up some part of their consequence to secure the rights of their constituents’ (ibid.). Finally, Gerry rebutted Ames’s contention that large bodies are prone to excitement or confusion in their proceedings. This characteristic, Ames contended, made them more susceptible to falling prey to faction. The members would ‘cabal to carry measures which they would be unable to get through by fair and open argument’ (ibid. 748). Gerry – building upon his previous point about aggrandising the dignity of members at the expense of representation, no doubt – noted that this point was true but could also be true of smaller bodies, especially when those small bodies were composed of ambitious members (ibid. 750). Large legislative bodies in America were most likely to be made up of ‘gentlemen who represent the landed interest of the country’, and such members ‘are generally more temperate in debate than in others, consequently, by increasing the representation we shall have less of this fermentation than on the present establishment.’ The other points that Ames raised were ‘not of sufficient weight to induce the House to refuse adopting the amendment recommended by so large a body of our constituents’ (ibid. 750-51). Samuel Livermore of New Hampshire opposed the amendment stating that he had not heard a single person argue that the representation under the Constitution was too great, but many that thought the representation was too small. Many, he argued, felt that a proportion of 1 to 20,000 or 25,000 ought to be had. Thus, he said, such an amendment had no probability of being ratified (ibid. 751). Ames intervened again. He hoped that this process of taking up amendments was with a design to improving the workings of the Constitution. Replying to Madison, he noted that if the process were simply limited to considering the proposals of the states, then they ought to simply read off those proposed amendments ‘without exercising our judgment upon them’ (ibid.). That his amendment would be an improvement was evident, if for no other reason than that it would facilitate deliberations. The House, however, would provide a better check upon the Senate ‘if filled with men of independent principles, integrity, and eminent abilities, than if consisting of a numerous body of inferior characters.’ As to the opposition from his fellow Massachusetts delegates, he noted that Massachusetts’s primary concern could not be simply increasing representation ‘because they were convinced of its impropriety in their own Legislature.’ This point was particularly salient because the state required extensive local knowledge, ‘for their deliberation extended to minute and local regulations.’ Congress, on the other hand, needed knowledge which touched only national subjects (ibid.). As to the other points, Ames noted that increasing the ratio of representation would not insulate Congress from corruption (‘because no one will presume to think a body composed like this, and increased in a ratio of four to three, will be much less exposed to sale than we are’), nor could a greater number of representatives better secure the people’s rights. Indeed, he says, ‘the representative of a great body of people, is likely to be more watchful of [the people’s] interests than the representative of a lesser body’ (ibid. 751-52). James Jackson of Georgia replied to Ames. Jackson had been one of the most vocal opponents of taking up amendments: ‘I have always been afraid of letting this subject come before the House, for I was apprehensive that something would be offered striking at the very foundation of the constitution, by lessening it in the good opinion of the people’ (ibid. 752). Ames’s motion would do just that. Ames’s argument, Jackson noted, could be used to justify giving the public business into the hands of ‘one, two, or three men, as to a body of sixty or a hundred.’ Such restriction of representation is incompatible, not only with the practicalities of governing so diverse a country, but with the spirit of the Constitution. People had complained that the current representation was too small, so no attempt should be made to reduce it. ‘In a republic,' he said, 'the laws should be founded upon the sense of the community…it is only in aristocracies, where the few are supposed to understand the general interests of the community better than the many. I hope I shall never live to see that doctrine established in the country’ (ibid.). Michael Jenifer Stone of Maryland spoke, noting that the United States had an estimated population of three million. Under the ratio of 1 to 30,000 that made a House of 100 members. Fifty-one could form a quorum, and a mere 26 could carry a bill by majority. In the Senate, it required only seven members to form a majority on a bare quorum. Stone contended that this was a sufficiently small body: ‘He was satisfied that gentlemen, upon mature reflection, would deem it inexpedient to reduce that number one-fourth’ (ibid.). The final speaker, Joshua Seney of Maryland, rose and simply noted that in regard to Ames’s contention about reducing the public expense of maintaining a greater body, ‘he considered this object very inconsiderable when compared with that of having a fair and full representation of the people of the United States’ (ibid.). As the Annals dryly notes, ‘Mr. Ames’s motion was now put, and lost by a large majority’ (ibid. 753).

Associated event:

Ames's Amendment to the Second Proposition was proposed on 14 August 1789

On 17 August 1789, the Committee of the Whole considered the Committee of Eleven’s draft of the provision referred to as the ‘seventh clause of the fourth proposition’, also called the tenth amendment in some sources. The Committee of Eleven’s draft read, ‘The right of the people to be secured in their persons, houses, papers, and effects, shall not be violated by warrants issuing without probable cause, supported by oath or affirmation, and not particularly describing the place to be searched, and the persons or things to be seized’ (Annals of Congress, 1st Cong., 1st sess., 783). A member moved to amend the proposed amendment because ‘he presumed there was a mistake in the wording of this clause’, moving that the first part of the clause read, ‘the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable seizures and searches’ (Annals, 783). The sources, however, differ with regard to who made this motion and the motion immediately following it, inverting the proponents of the two amendments. The contemporary newspaper sources report that Egbert Benson made this motion (Gazette of the United States, edition of 19 August 1789, 147, and edition of 22 August 1789, 149; New-York Daily Advertiser, edition of 18 August 1789; New-York Daily Gazette, edition of 19 August 1789, 802). Thomas Lloyd, however, reports in the Congressional Register that Elbridge Gerry made the motion, and Gales and Seaton would later adopt this report in compiling the Annals of Congress (Annals, 783; Congressional Register, 2nd edn (3 vols., New York, 1790), vol. ii, 226, available at: https://catalog.hathitrust.org/Record/008587722). Further, the sources differ on the exact wording of the proposed language. As seen in the quote above, some sources indicate that the motion proposed to insert the phrase ‘unreasonable seizures and searches’ (Annals, 783; Congressional Register, 226; Gazette of the United States, edition of 22 August 1789, 149), while other sources indicate that the motion inserted the more familiar phrase ‘unreasonable searches and seizures’ (Gazette of the United States, edition of 19 August 1789, 147; New-York Daily Gazette, edition of 19 August 1789, 802; New-York Daily Advertiser, edition of 18 August 1789). Regardless of whether Benson or Gerry moved the amendment, the motion reintroduced the phrase ‘unreasonable searches and seizures’ (or ‘unreasonable seizures and searches’) into the proposed amendment. James Madison’s original proposal contained the phrase ‘unreasonable searches and seizures’, which was omitted in the Committee of Eleven’s draft (Annals, 452). Whether the Committee of Eleven intended to discard the phrase is unclear in the record. Nevertheless, the motion made in the Committee of the Whole appears simply to reintroduce Madison’s phrase, and the possible inversion of the words probably was not intended to have substantive import in the proposal’s operation. The reintroduction of the phrase does not appear to have elicited any debate, and all sources report that this amendment was adopted. Immediately after the successful motion to reintroduce ‘unreasonable searches and seizures’, the other of either Benson or Gerry moved that the second part of the clause, rather than reading ‘by warrants issuing’, should be strengthened to read instead ‘and no warrant shall issue’ without probable cause (Annals, 783; Gazette of the United States, edition of 22 August, 149). The proponent of the motion indicated that he desired stronger language proscribing warrants issuing without probable cause, asserting that the Committee of Eleven’s ‘declaratory provision was good as far as it went, but he thought it was not sufficient…’ (Annals, 783; see also Gazette of the United States, edition of 22 August, 1789, 149). This motion failed, however, 'lost by a considerable majority’ (Annals, 783). Next, Samuel Livermore moved to strike out the words '"and not" between "affirmation” and “particularly[]”…in order to make it an affirmative proposition’ (Annals, 783; Congressional Register, 226). This motion was also defeated (ibid.). All of these motions bring the proposed amendment’s language closer to the familiar text of what eventually would be adopted as the Constitution’s Fourth Amendment. Yet, the successful motion possibly contained an unfamiliar word order (‘seizures and searches’), and the other two motions were defeated at this time. The House considered the Committee of the Whole’s revisions only a few days later, and the text of the provision adopted by the House reported in the House Journal on 21 August reveals that the House adopted the text that eventually would be adopted as the Fourth Amendment: ‘The right of the People to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and persons or things to be seized’ (Compare U.S. House Journal, 1st Cong., 1st sess., 21 August 1789 with U.S. Const. amend. IV). Unfortunately, no source reports any debates or discussion in the House surrounding the changes, but the changes must have been effected during the House’s consideration of the Committee of the Whole’s report between 19-21 August (See U.S. House Journal, 19-21 August 1789). The provision appears to have come before the House’s consideration on 20 August, yet the Congressional Register’s and the Annals’s accounts pass over any discussion of the provision, merely noting that the ‘seventh…clause[] of the fourth proposition’, among other provisions, was agreed to on that day (Annals, 796; Congressional Register, 243). Surprisingly, the substance of the second motion – adding ‘and no warrant shall issue' – and of Livermore’s motion are in the final text. Livermore’s motion to change the clause dealing with warrants to an affirmative proposition may have been dependent upon the adoption of the ‘no warrant shall issue’ language. Yet, the adoption by two-thirds of the House of the ‘no warrant shall issue’ language is surprising in itself, having ‘lost by a considerable majority’ only days before. The ultimate adoption of the final text’s specific language after failing in the initial attempts to introduce the terms in the Committee of the Whole reveals that these alterations must have been reintroduced when the House considered the amendments mere days later. It is likely that the different outcome was the result of some discussion, debate, or compromise not reported in the contemporary sources. The discrepancies and lacunae in the contemporary reports are regrettable, as they leave scholars with glimmers of a lost discourse and ample room to speculate.

Associated event:

Report of the House - Fourth Proposition, Seventh Clause was proposed on 20 August 1789

The varying terminology used to identify the various provisions in the Committee of the Whole report is somewhat confusing beginning with the fourth amendment. The discussions in the Annals and the Congressional Register, owing to the fact that the proposed amendments were intended to be incorporated into specified portions of the Constitution's text, refer to all the proposed alterations of a discrete section of the Constitution as a single amendment. The various propositions contained within that section are referred to individually as clauses or propositions. Thus, all the propositions intended to be inserted into Article 1, section 9, between paragraphs 2 and 3, are referred to as the fourth amendment. This includes eight separate clauses or propositions (for example, first: 'Congress shall make no laws touching religion...'; second: 'The freedom of speech, and of the press...'; third: 'A well regulated militia...'; etc.). The House, just like the Committee of the Whole, examined each of these provisions individually. The newspaper accounts, on the other hand, itemized each individual provision as a separate amendment (thus, by that reckoning, the fourth amendment: 'Congress shall make no laws...'; the fifth amendment: 'The freedom of speech...'; the sixth amendment: 'A well regulated milita...'; etc.). This means that with the adoption of the first provision of the fourth amendment, the provision may be identified in different sources as either 'the first provision' or 'the fourth amendment'. This fact also means that by the time the provision that the Annals refers to as the fifth amendment is taken up, by the itemized reckoning, the same provision is referred to as the tenth amendment. The fact that none of the sources tend to be overly precise in the term used for a provision (alternatively referring to 'proposition', 'clause', or 'amendment' at various points) increases the potential confusion. Further, the fact that all sources become much less detailed in reporting discussions on the floor during this portion of the negotiation process also increases the potential for confusion. In general, however, the discussions on the floor proceed down the list compiled in the Committee of the Whole report in order, allowing one, generally, to gather which provision is under discussion. At a couple of points, however, precisely which provision is under discussion is uncertain. These uncertainties will be discussed individually as they become relevant.

Associated event:

Report of the House - Fourth Proposition, First Clause was proposed on 20 August 1789

On 9 September, the Senate took up consideration of the House’s proposed fifth amendment reading: ‘A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person’ (See Committee of Three Report). The Senate Journal records that a successful motion altered the phrase ‘being the best security of a free state’ to read ‘being necessary to the security of a free State’ (U.S. Senate Journal, 1st Cong., 1st sess., 9 September 1789). Immediately afterward, however, the Journal records that a successful motion reworded the entire article to read: ‘A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed’ (Ibid.). Thus, the phrase ‘necessary to’ dropped out of the documentary record. A comparison with the original manuscript Journal reveals the same language (U.S. Senate Journal, 1st Cong., 1st sess, 9 September 1789, 243-44). Therefore, the disappearance of the phrase was not simply a printer's error (although, the possibility that it may have been a scrivener's error in copying the Journal manuscript remains). The phrase ‘necessary to’, however, reemerges in the Senate’s final approved amendments as they were transmitted to the House, as evidenced by Oliver Ellsworth's draft of the amendments of 9 September and by the printed copy of the amendments dated 14 September 1789 (Oliver Ellsworth’s Draft, ‘Senate Amendments (September 9, 1789)’, Consource, available at: https://www.consource.org/document/senate-amendments-1789-9-9, accessed 13 December 2018; ‘Articles of Amendment, As Agreed to by the Senate (September 14, 1789)’, Consource, available at: https://www.consource.org/document/articles-of-amendments-as-agreed-to-by-the-senate-1789-9-14, accessed 13 December 2018). The version that left the Senate, including the phrase ‘necessary to’, would ultimately be the version approved for transmission to the states for ratification, and, consequently, would be fixed in the Constitution as the Second Amendment. Yet, when and how the phrase came back into the article in the Senate, or, indeed, if it really dropped out at all, seem to be unattested in the documentary record.

Associated event:

Amendment to Fifth Article was proposed on 09 September 1789