George Mason Refused to Sign, and His Objections Became the Bill of Rights

Every so often a man loses the vote, refuses to go along, gets called a crank by his oldest friends, and turns out to be right. History is not always kind to such men. Their names end up on a highway exit or a university while the people who signed the document get the statues. George Mason has a university. He also has the first ten amendments to the Constitution, though the National Archives does not put his name on them.

Mason was the author of the Virginia Declaration of Rights of 1776, one of the most influential documents of the Revolution. He spent the summer of 1787 in Philadelphia helping to draft the Constitution, speaking as often as almost anyone. And on September 17, 1787, he refused to sign it, because it had no bill of rights. Four years later it had one, drawn heavily from his work. Here is his public career, what he stood for, and what his refusal teaches.

A Virginia planter who disliked public life

George Mason was born in 1725 in Virginia and spent most of his life at Gunston Hall, his plantation on the Potomac in Fairfax County, not far from Mount Vernon. He had no formal university education. He read law and history in his family's library and became one of the most learned men in the colony.

He served in local offices, as a vestryman, a justice of the county court and, briefly, in the House of Burgesses. But he disliked public life, and he said so often. He suffered from gout and preferred his estate to legislative chambers. He held office mostly when he thought duty required it.

When the quarrel with Britain sharpened, Mason became one of Virginia's leading thinkers on rights and representation. In July 1774 he drafted the Fairfax Resolves, a set of resolutions adopted at a Fairfax County meeting at which his neighbour George Washington presided. The resolves argued that the colonies could be taxed only by their own representatives and called for a boycott of British trade. Washington carried them to Williamsburg.

The Virginia Declaration of Rights, June 1776

In May 1776 Virginia's revolutionary convention met in Williamsburg, instructed its delegates in Congress to propose independence, and set out to write a constitution for an independent state. It assigned Mason to draft a declaration of rights. The convention adopted the Virginia Declaration of Rights on June 12, 1776, three weeks before Congress approved independence.

Its first section reads:

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Its second:

That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

Mason's draft was printed in newspapers in June 1776, and the resemblance between his first section and the second paragraph of the Declaration of Independence is hard to miss: equal by nature, inherent rights, life, liberty, the pursuit of happiness. For the Declaration's version, see The Declaration's Second Paragraph Is a Complete Theory of Government.

The Virginia Declaration went on to list specific protections: trial by jury, the right of the accused to know the charge and confront accusers, a ban on general warrants, freedom of the press, the principle that a well-regulated militia is the proper defence of a free state, and the separation of the legislative and executive powers from the judicial. Its ninth section reads:

That excessive bail ought not to be required, nor excessive fines imposed; nor cruel and unusual punishments inflicted.

Hold on to that sentence. You will see it again.

Its section on religion has its own story. Mason's draft provided for the fullest toleration of religion. A young delegate named James Madison objected that toleration implies a government permission that could be withdrawn, and he proposed language that the convention adopted: that all men are equally entitled to the free exercise of religion, according to the dictates of conscience. It was the first public appearance of the two men who would later shape the federal Bill of Rights together, and it shows Mason's draft improving through debate, as good drafts do.

Mason also did much of the drafting of Virginia's first constitution, adopted on June 29, 1776.

In Philadelphia, 1787

Virginia sent a strong delegation to the Federal Convention: Washington, Madison, Randolph, Mason and others. Mason was one of the most active members. He supported much of the Virginia Plan, including a strong national government acting on individuals, and he contributed to many provisions in the final text.

Three of his contributions are worth naming.

Impeachment. On September 8, the draft allowed impeachment of the President for treason or bribery. Mason objected that this would not reach many great and dangerous offences and moved to add "maladministration." Madison objected that so vague a term would make the President serve at the pleasure of the Senate. Mason withdrew it and substituted "other high crimes and misdemeanors," which passed. That phrase, now so familiar, is his. For the full story, see George Mason Lost the Word Maladministration and Impeachment Was Born Narrow.

The slave trade. In August Mason denounced the slave trade with unusual force, arguing that slavery debased the character of masters and brought the judgment of heaven on a country. He was himself a slaveholder at Gunston Hall, and the contradiction should be stated plainly; he never freed the people he held. But in the Convention he argued against allowing the trade to continue and later listed the twenty-year protection for it among his objections.

Popular election of the House. Mason strongly supported having the first branch of the legislature chosen directly by the people, so that it would understand and share their circumstances.

September 12: the motion that failed

On September 12 the Committee of Style reported its draft. Mason rose and said he wished the plan had been prefaced with a bill of rights. He said he would second a motion for one, that it would give great quiet to the people, and that with the help of the state declarations a bill of rights could be prepared in a few hours.

Elbridge Gerry of Massachusetts moved for a committee to prepare one, and Mason seconded. Roger Sherman of Connecticut answered that the state declarations of rights were not repealed by the Constitution and were sufficient. The motion failed. Not one state delegation voted for it; ten voted no, and Massachusetts was absent.

The delegates were tired. They had been in session nearly four months. Most of them believed, with Sherman, that a government of enumerated powers had no authority to violate rights it was never given power over, so a list of rights was unnecessary. Hamilton would later make that case in Federalist 84; see Hamilton Argued in Federalist 84 That a Bill of Rights Could Be Dangerous.

Mason thought this was a fatal mistake, and he said why.

The Objections

Mason wrote out his objections and circulated them; they were soon printed. The first sentence is the one that matters most:

There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitutions of the several States, the Declarations of Rights in the separate States are no security.

That sentence answers Sherman directly. Sherman said the state declarations were enough. Mason pointed to the Supremacy Clause. If federal law is supreme over state constitutions, then a state's bill of rights cannot protect a citizen against a federal law. Only a federal bill of rights can.

Mason's other objections ranged widely. He thought the House too small to represent the people well, the Senate too powerful and too entangled with the executive through treaties and appointments, and the federal judiciary so broad that it would swallow the state courts. He objected that the President had no constitutional council of advisers, that commercial laws could pass by simple majority and let one region oppress another, and that the necessary and proper clause gave Congress room to extend its powers. He warned that the new government would begin as a moderate aristocracy and could end in monarchy or a corrupt and tyrannical aristocracy.

Some of those objections were overstated. A few were mistaken. But the first one was right, and the country came to agree.

Richmond, June 1788

Mason carried his fight to the Virginia ratifying convention, which met in Richmond in June 1788. With Patrick Henry he led the opposition; Madison, with Edmund Randolph, who had now come around, led the defence. For the full story of that debate, see Patrick Henry Against James Madison, the Richmond Debate That Decided Virginia.

The opponents lost the main vote. On June 25, 1788 the convention ratified, 89 to 79. But they won something important. Virginia, like Massachusetts and other states before it, ratified while recommending amendments, including a full declaration of rights modelled closely on the Virginia Declaration that Mason had written twelve years earlier. The Federalists had to promise that amendments would follow. Madison, who had once considered a bill of rights unnecessary, now committed himself to securing one.

The price for Mason was personal. His opposition strained his long friendship with Washington, and the two men grew apart. He held no office in the new government and lived out his years at Gunston Hall.

How his demands shaped the first amendments

On June 8, 1789, Madison introduced proposed amendments in the House of Representatives. He drew on the state conventions' recommendations, and many of those recommendations, Virginia's above all, descended from Mason's 1776 Declaration.

The clearest example is the Eighth Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Compare it to Section 9 of the Virginia Declaration of Rights above. It is nearly word for word. Mason, in turn, took the language from the English Bill of Rights of 1689. The line runs from 1689 to Williamsburg in 1776 to New York in 1789 to us.

The same lineage appears elsewhere. Mason's ban on general warrants anticipates the Fourth Amendment's particularity requirement. His guarantees for the accused, to know the charge, confront accusers, call witnesses and have a speedy trial by an impartial jury, reappear in the Sixth. His press protection anticipates the First. The ten amendments ratified on December 15, 1791 are not Mason's text alone. But the demand that produced them was his, and much of their substance was his first.

Mason died at Gunston Hall on October 7, 1792, having lived to see the Bill of Rights ratified.

The objection to Mason, answered

The strongest case against Mason goes this way. He was a planter who held people in bondage while writing that all men are by nature equally free. He refused to sign a Constitution that most of his colleagues rightly saw as the country's best chance. His Objections contained exaggerations and predictions that did not come true. Why make a hero of an obstructionist?

Here is the answer.

1. His central objection was right. The Supremacy Clause did make federal law superior to state bills of rights. Every state ratifying convention that recommended amendments, and the First Congress that adopted them, agreed with him in effect.
2. His refusal produced the Bill of Rights. Opposition from Mason and others is what forced the Federalists to promise amendments. Without that pressure, the first ten amendments might not have been written.
3. The contradiction is real and should be named, not hidden. Mason's words outran his life. That is true of several Founders and it is a moral failure. But the words themselves, "all men are by nature equally free," became the tools later generations used to end slavery.
4. Dissent is part of a republic's health. Mason lost and did not take up arms; he went to the ratifying convention and argued. That is how losing is done in a free country.

The verdict: Mason was wrong about some things and right about the most important one. Signing was not the only way to serve the Constitution. His refusal helped complete it.

The case in brief

1. George Mason drafted the Virginia Declaration of Rights, adopted June 12, 1776, whose first section anticipates the Declaration of Independence.
2. At the 1787 Convention he gave us "high crimes and misdemeanors," and on September 12 he seconded Gerry's motion for a bill of rights, which failed with no state voting yes.
3. His written Objections began with the point that federal supremacy made state bills of rights no security, and he refused to sign.
4. He fought ratification at Richmond in June 1788 and lost, but Virginia's recommended declaration of rights, modelled on his own, shaped Madison's amendments.
5. The Eighth Amendment repeats his 1776 text almost word for word; his objection became the Bill of Rights.

What you can do: read the Eighth Amendment on the Constitution page beside Section 9 of the Virginia Declaration of Rights, and if you live in Virginia, look up your state legislators on My Representatives and ask whether they have read Article I of the state constitution, which descends from Mason's Declaration.