Building Up and Shaving Down the Bill of Rights

When states started debating the new U.S. Constitution of 1787, as Pauline Maier discusses in Ratification, the federalist supporters of the new document insisted that people should accept it as is. Opponents demanded specific changes. For example, the Pennsylvania delegates who lost their state vote issued a series of proposals in December 1787.

As the debate continued, Massachusetts federalists realized that the best way to win over that state’s undecided delegates was to promise that their convention, too, would propose constitutional amendments to the new Congress. Opponents pointed out that there was no way to make the state’s vote conditional on those changes being accepted.

As those negotiating positions changed, so did the Massachusetts politicians’ arguments about whether it was acceptable to consider amendment proposals. Now the federalists were saying that of course it was, and the opponents insisted that delegates needed to vote on the document as is.

Eventually the ratifying constitutions of Massachusetts, South Carolina, New Hampshire, Virginia, New York, and North Carolina proposed specific amendments, as did the minority in Maryland. Some declared rights as well as proposing changes or limits to the Constitution’s language. We can review those suggestions in the Documentary History of the Bill of Rights.

So did those early proposals lead to the Bill of Rights passed by the Congress in September 1789? In a way. They pushed the first Congress to start changing the Constitution shortly rather than waiting to see how it would work. And some of the states’ suggestions have clear links to the final list. For example, Massachusetts’s first proposal would feed into the Tenth Amendment:

That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.

But Massachusetts’s fourth proposal fell by the wayside:

That Congress do not lay direct Taxes but when the Monies arising from the Impost & Excise are insufficient for the publick exigencies nor then until Congress shall have first made a requisition upon the States to assess levy & pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution; in such way & manner as the Legislature of the States shall think best, & in such case if any State shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess & levy such State’s proportion together with interest thereon at the rate of Six per cent per annum from the time of payment prescribed in such requisition

Even with all the recent talk about states’ rights and taxation, I haven’t seen any support for reviving that proposal.

Many of the states were worried about a permanent U.S. military. New York suggested that “That no standing Army or regular Troops shall be raised or kept up in time of peace, without the consent of two-thirds of the Senators and Representatives present, in each House.” New Hampshire proposed a three-quarters majority instead.

Following a suggestion from the minority in Maryland, North Carolina wrote:

That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

But by the time North Carolina made that proposal, nine of the thirteen states had already ratified the Constitution, meaning it was adopted, and the Continental Congress was preparing for the transition to a new form of government.

The Second Amendment grew out of this concern about standing armies, but took a different approach based on “A well regulated Militia, being necessary to the security of a free State.” Indeed, James Madison (shown above) and the first Congress shaved down most of the proposed language so that their Bill of Rights tended to define particular rights rather than explicitly limit how the national government could operate.

Madison’s proposals prompted the same sort of turnaround that had happened at the Massachusetts ratifying convention. Politicians who had opposed the Constitution also voted against those amendments, saying they were too dinky and the federal government still too big, while federalist congressmen voted to change the document they had championed.

TOMORROW: Giving away too much?