Dimensions: 9.75'' x 6.5'' 225 pages AEI Press  (Washington) Publication Date: January 1998 Paperback ISBN: 0-8447-4013-6 Price: $ 14.95 Add to Cart   Hardcover ISBN: 0-8447-4012-8 Examination Copies

January 1998
From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution
By Robert A. Goldwin

This book tells the story of how the Bill of Rights was amended to the Constitution and, more importantly, it explains how that addition completed the Constitution by clarifying the status of the American people.

The author is a resident scholar at AEI and the senior editor of the AEI Press series A Decade of Study of the Constitution.

From Parchment to Power is a book about the making of the Constitution of the United States and its Bill of Rights. The book began as a straightforward account of why and how the first ten amendments were added to the Constitution, but it unavoidably became much more than that. It developed into an account of what is required, in thought and action, for a people and their political leaders to make an enduring constitution establishing a democratic republic. As the story unfolds, we see how James Madison thought through, and then implemented, a design to put the Constitution on the firmest possible foundation, a foundation of popular support so solid that the Constitution has lasted incomparably longer than any other in the world.

The newly constituted government of the United States was just getting underway in May 1789. The Constitution had been ratified by eleven states; congressional elections had been held; the electoral college had met and voted; President George Washington had been inaugurated; and the First Congress was in session, with the Federalists, supporters of the Constitution, enjoying an overwhelming majority in both houses of Congress--five-to-one in the House of Representatives and ten-to-one in the Senate. One would think that affairs were off to a splendid start.

And yet James Madison was deeply concerned that the entire constitutional enterprise was in serious danger. The ratification process had produced harsh controversies and bitter resentments that had not been resolved or softened. In three major states, ratification had been achieved by dramatically narrow margins--by nineteen votes out of 355 in Massachusetts, by ten votes out of 168 in Virginia, and by three votes out of fifty-seven in New York. And the opponents of ratification had not given up their efforts to make radical changes in the Constitution.

In the first weeks of the first session of the First Congress, the legislatures of both Virginia and New York submitted applications to Congress to call a new constitutional convention for proposing amendments, as provided for in Article V of the Constitution. Madison was seriously disturbed that there was strong public opinion in favor of this movement for a second convention; a substantial minority of the general public supported the movement because they were very uneasy about the safety of their individual rights under an unfamiliar new government.

In the face of this situation, Madison began to implement his plan to save the Constitution by proposing his own set of amendments. He had two objectives: to block the amendments others were proposing, which would have made radical changes in the Constitution; and to win the support of the general public by securing the adoption of his own amendments, which he carefully designed to change not one word in the original Constitution.

Drafting and Ratifying the Constitution

The unresolved controversies threatening the new government had originated in the Constitutional Convention in Philadelphia two years earlier and had persisted after ratification. The Constitutional Convention had been established by the Continental Congress, the closest thing the nation had at the time, under the Articles of Confederation, to a government institution. The Continental Congress had instructed the Constitutional Convention to recommend alterations of the Articles of Confederation and to submit their report to the Congress for approval. But after four arduous months, the delegates had produced much more than mere alterations; they had recommended an entirely new form of government with a powerful legislature that would, among other things, replace the Continental Congress. And among their other recommendations were procedures for ratification of the new document that violated several of the constitutional requirements under the Articles of Confederation.

Nevertheless, by means of one skillful maneuver after another, the proponents of the Constitution succeeded in moving the ratification process ahead rapidly through the Continental Congress, to the state legislatures, and on to quick favorable action by the first five state ratifying conventions. But when they arrived at the ratification convention in Massachusetts, it looked like they were about to suffer a decisive defeat. The outcome in Massachusetts would have a powerful influence on the conventions in the remaining states, especially Virginia and New York. If the Constitution lost in Massachusetts, it would almost certainly not be ratified.

The Pivotal State

Massachusetts was politically polarized in January 1788 when the convention began. The state was sharply divided, with rich against poor, eastern merchants against western farmers, cities and towns against rural areas, creditors against debtors, the few against the many. Those divisions provided the context for the elections of delegates to the ratifying convention, and opponents of the Constitution won a substantial majority of the seats in the convention.

Despite that majority against ratification at the outset of the convention, ratification was achieved. The decisive turning point was the winning over of the state's two most influential leaders--John Hancock, the governor of Massachusetts and also the president of the convention, and Samuel Adams, the president of the state senate. These two venerable signers of the Declaration of Independence had serious reservations about the Constitution, but they had been elected to the convention as declared neutrals on the question of ratification.

The convention had been going on for nearly a month, and a kind of stalemate had developed. The opponents did not have enough votes for outright rejection of the Constitution; the proponents did not have enough votes to win ratification without amendments; and no one knew how to get valid amendments before ratification. In the face of this stalemate, Hancock proposed a novel solution, a major breakthrough that almost certainly saved the Constitution from ultimate defeat. He proposed that the convention "assent to and ratify the said Constitution" without conditions and simultaneously recommend a set of amendments to the First Congress, to be enacted according to the amending provisions in Article V of the Constitution. His set of proposed amendments dealt with such things as protecting states' powers, restricting congressional powers over elections and taxation, limiting the powers of federal courts, and some lesser matters. None of them touched on subjects we might have expected, such as protection of religion, press, speech, assembly, or petition.

Enough votes were changed to win ratification, by the slim margin of nineteen votes out of 355 cast, 187 to 168. The Massachusetts formula--unconditional ratification accompanied by amendments seeking to diminish the powers of the federal government and restore them to the states--was subsequently used by six of the remaining seven state ratifying conventions. Amendments were expected, and so, despite ratification, active opposition continued to be widespread and stubborn in the remaining states. The Constitution was clearly still in peril.

Madison Comes to the Force

At this point in the story, James Madison took center stage. Madison had played a leading role in the Constitutional Convention, in the Virginia ratifying convention, and in influencing public opinion as one of the authors of The Federalist. Now, as a congressman from Virginia, he proved to be, in the eyes of his congressional colleagues, the most annoying and disruptive member of the House of Representatives by insisting on proposing amendments to the Constitution in the first few weeks of the first session of the First Congress. This was met with a chorus of complaints that Madison had his priorities all wrong and that it made no sense to consider amendments before there was any experience with the Constitution that might reveal what needed to be amended. In addition, there were urgent matters such as raising revenue and organizing the government that ought not be delayed. Why Madison acted as he did, and how he succeeded in his project of amendments against almost unanimous opposition, is a central element of the story of the making of the Constitution, and one of the great feats in the history of constitution making.

Madison was a towering figure in the American founding, yet he is forever doomed to be less appreciated than he deserves. As the historian Jack Rakove has pointed out, he had almost no commanding personal characteristics except "the power of his intellect." He lacked the dignity of Washington, the charm of Jefferson, the boldness of Hamilton. Thomas Paine was a more effective writer, and Patrick Henry a far more stirring orator. But Madison was the most profound, original, and far-seeing of all his peers.

Throughout the ratification process, the most strident demand of the opposition had been for a bill of rights to be added to the Constitution. That the original Constitution did not have a bill of rights was the result of a conscious decision, not an oversight, on the part of the framers in the Constitutional Convention, including Madison. When a delegate moved that a bill of rights be added, the motion was voted down, ten states to none. For a variety of reasons, most of the chief authors of the Constitution thought a bill of rights was unnecessary in a constitution such as theirs, and perhaps even dangerous to the security of rights. There is no doubt that all of them were devoted to the cause of the rights of individuals, and that they adhered to the principle of the Declaration of Independence that governments are established to secure the great rights of mankind. But they did not think such a declaration had a place in the Constitution, and they had serious doubts about the effectiveness of a bill of rights in securing the rights they held precious.

The central part of the book traces the development of Madison's thought from skeptic to advocate of a bill of rights. Madison was devoted to the cause of securing private rights, but he had long expressed doubts that a bill of rights was the best way to secure them. For him the fundamental question was, what truly secures rights? He thought that rights were best protected by a properly constructed constitution, and that by itself a bill of rights was but a "parchment barrier," especially ineffective in protecting the minority against an oppressive majority. How a man of such convictions became the chief proponent of the Bill of Rights is a fascinating and instructive story.

In the course of a marvelous correspondence with his illustrious friend Thomas Jefferson, then serving as the American minister in Paris, Madison overcame his doubts and persuaded himself that a bill of rights could serve an essential function in the American constitutional scheme. In a letter to Jefferson, he posed this question, more to himself than to his correspondent: "What use ... can a bill of rights serve in popular governments?" Only after Madison had satisfied himself that he could answer that question did he begin the amending process that ended in his becoming "The Father of the Bill of Rights."

Madison was of the opinion that the task of establishing the Constitution could not be considered complete so long as a sizable minority of Americans continued to be uneasy about the extensive powers it granted to the new federal government. In his view, it was not enough for the new Constitution to have the support of the majority. He thought the Constitution had to be an extraordinary force in American political life, powerful enough to overwhelm and restrain an oppressive majority whenever one might arise, and the Constitution could not be that powerful unless it had the universal allegiance of "the great mass of the people." Madison saw his amendments as the perfect instrument for winning that universal support for the Constitution. The task he imposed on himself was a daunting one, to push through an uncomprehending Congress the solution to a problem that only he seemed to perceive.

Executing the Plan

The concluding part of the book picks up the story of "how" it was done, a detailed account of the debates in the First Congress, where Madison's amendments were proposed, debated, revised, and finally passed by the required two-thirds majorities of both houses, and passed on to the state legislatures for eventual ratification. After Madison overcame determined opposition just to introduce the amendments, he commenced the long and grueling task of persuading reluctant congressmen and state legislators to adopt his amendments and to reject others proposed by opponents of the Constitution, which he did with remarkable legislative skill and dogged persistence.

Many of the facts presented in this book are both well known and little known--well known to historians of the founding era, but little known to many others. Included among the list of these well-known, little-known facts are these: that the Constitution was ratified by a very narrow margin, and probably would have been defeated had it been submitted to a nationwide popular referendum; that the procedure adopted for ratification of the Constitution was a conscious violation of the requirements of the Articles of Confederation; that although there was a widespread demand for other kinds of amendments, most of the states expressed no concern at all for adding provisions protecting freedoms of religion, press, and speech; that the resounding phrase "We the People," with which the Preamble of the Constitution begins, was something of an accident; that just about every congressman in the First Congress, Federalist and Anti-Federalist alike, was opposed to consideration of amendments, and that even Madison had almost no words of praise for the amendments he himself proposed; that the Anti-Federalist leaders, who agitated for a bill of rights throughout the ratification struggle, subsequently voted consistently against the Bill of Rights in the First Congress, from start to finish; that ratification of the Bill of Rights was not a victory for the Anti-Federalists, but a crushing defeat for them, from which they never did recover; that the final adoption of the Bill of Rights was hardly noticed by the public, and was hardly mentioned in the press of the day, and was certainly not celebrated. These well-known, little-known facts add spice to a story that would be, even without them, an intriguing one.

We the People

The book concludes with a reflection on the significance of the Preamble's assertion that "We the People of the United States" are the ones who made the Constitution the official governing instrument. But what else did the original Constitution tell us about this remarkably powerful people, capable of constituting a government for themselves? The answer is startling: Nothing! After the Preamble, the original Constitution never again mentions "the people of the United States." The powers of the several branches were spelled out in the legislative, executive, and judicial articles, but the Constitution said nothing about the powers (or rights) of the people, the people who established this Constitution. But the addition of the first ten amendments, which speak of "the people" again and again, remedied that omission. With the ratification of the Bill of Rights, which emphatically put the people in the Constitution and might properly be called the people article, the making of the Constitution was at last completed.