Madison Changed His Mind on a Bill of Rights, and His Reasons Still Teach

There is a rare species in American politics: the public official who changes his mind for good reasons and then explains them in writing. Most change their minds for bad reasons and explain nothing, or change for good reasons and pretend they always held the new view. James Madison did the rare thing. He began as a sceptic of bills of rights, became the author of ours, and left a paper trail showing exactly how and why. Every American who values free speech, a free press and the rest of the first ten amendments should read that paper trail, because Madison's reasons are still the best answer to the question of what written rights are for.

The story runs from the fall of 1787 to the summer of 1789. It involves a letter to Paris, a reply from Thomas Jefferson, a winter campaign against James Monroe, and a speech on June 8, 1789 to a House of Representatives that mostly wanted to talk about something else. Here it is in order.

The sceptic of 1787 and 1788

When the Convention rejected George Mason's proposal for a bill of rights on September 12, 1787, Madison did not object. He shared the view of most Federalists: the new government had only the powers listed in the Constitution, so it had no authority to violate rights it was never given power over. A list of rights was unnecessary and might even be dangerous, because listing some rights could imply that unlisted ones were surrendered.

Madison had a second, deeper reason for scepticism, which he had already put in print. In Federalist 48 he asked whether it would be enough to mark the boundaries of the branches in the constitution and to trust to "these parchment barriers against the encroaching spirit of power." His answer was no. Written limits alone do not restrain power; only structure does, with each branch given the means and the motive to resist the others.

Madison's experience in Virginia supported that view. The Virginia Declaration of Rights of 1776 was a fine document, and the Virginia legislature had still passed laws that Madison thought violated it. Paper had not stopped a determined majority.

The letter of October 17, 1788

By the fall of 1788 the Constitution had been ratified, but several state conventions had ratified only while recommending amendments, and the opponents were calling for a second convention. Madison's friend Thomas Jefferson, then the American minister in Paris, had written to him on December 20, 1787 that "a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference."

On October 17, 1788, Madison answered at length. It is one of the most important letters in American constitutional history. It opens with a careful statement of where he stood:

My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others.

He then gave his doubts. Among them was the experience of the states:

Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.

And the core of his analysis:

Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.

That is a profound point. In a monarchy, a bill of rights protects the people against the king. In a republic, the danger is not a king. It is the majority itself, using the government as its tool. A paper declaration addressed to the government is weak protection against a majority that controls the government.

But then Madison turned. Even so, he wrote, a bill of rights could do real good, and he named two uses. First, the political truths declared in so solemn a way would gradually acquire the character of fundamental maxims of free government, and as they became part of the national sentiment, they would counteract the impulses of interest and passion. Second, if the government itself ever usurped power against the people's wishes, a bill of rights would be a good ground for an appeal to the sense of the community.

In other words: written rights teach. They shape what a people believes is owed to it, and that belief becomes a barrier stronger than parchment.

Jefferson's reply of March 15, 1789

Jefferson answered on March 15, 1789, and added a reason Madison had left out:

In the arguments in favor of a declaration of rights, you omit one which has great weight with me, the legal check which it puts into the hands of the judiciary.

That reply matters. Madison had thought about a bill of rights as a teacher of the public and a rallying point against usurpation. Jefferson pointed to courts. A written right gives an independent judge something to enforce. A citizen hauled before a tribunal can point to the text and say: this law is void.

Madison absorbed the point. When he spoke in the House a few months later, he made the same argument himself.

The race against Monroe

Between the letter and the reply came politics. The Virginia legislature, dominated by Patrick Henry and the Constitution's opponents, refused to send Madison to the new Senate; in November 1788 it chose Richard Henry Lee and William Grayson instead. Madison then ran for the House in a district drawn, his supporters believed, to make his election difficult. His opponent was James Monroe, a respected veteran of the Revolution and an opponent of the Constitution as written.

The central issue was amendments. Opponents said Madison would never support them. Madison, who had been sceptical, now committed himself in writing. In a letter of January 2, 1789 to George Eve, a Baptist minister in his district, he wrote that it was his sincere opinion that the Constitution ought to be revised and that the First Congress ought to prepare and recommend to the states the most satisfactory provisions for all essential rights, especially the rights of conscience, the freedom of the press, trials by jury and security against general warrants. Baptists in Virginia had good reason to care about the rights of conscience, and Madison had long been their ally.

Madison and Monroe campaigned through the winter, sometimes debating side by side before the same crowds. They remained friends throughout. On February 2, 1789, Madison won by a few hundred votes. He went to New York bound by a public promise, and he meant to keep it.

June 8, 1789: the speech

The First Congress had plenty to do: revenue laws, the executive departments, the federal courts. Many members, Federalists and Anti-Federalists alike, did not want to spend time on amendments. The Federalists thought them unnecessary. Many Anti-Federalists wanted not Madison's modest amendments but structural changes that would weaken the national government, and they feared his proposals would take the wind out of their sails, which was exactly the point.

On June 8, 1789, Madison rose anyway and introduced his amendments. His speech made several arguments.

He said the great mass of the people who had opposed the Constitution disliked it because it lacked effective protection against encroachments on particular rights, and that Congress could reassure them without endangering anything essential in the government.

He answered the danger he himself had raised, that listing some rights would imply others were surrendered, by proposing a clause stating that the enumeration of particular rights should not be construed to diminish others retained by the people. That proposal became the Ninth Amendment. See The Ninth Amendment Is Neither a Blank Check for Judges Nor a Dead Letter.

And he adopted Jefferson's argument about courts. If the rights were incorporated into the Constitution, he said, independent tribunals of justice would consider themselves in a peculiar manner the guardians of those rights and would be "an impenetrable bulwark against every assumption of power in the Legislative or Executive."

His proposed language on speech and press was broad: the people should not be deprived or abridged of their right to speak, to write or to publish their sentiments, and the freedom of the press, as one of the great bulwarks of liberty, should be inviolable. Congress later compressed it into the First Amendment's familiar words: "Congress shall make no law... abridging the freedom of speech, or of the press." The compression lost some of Madison's eloquence and none of his meaning. For how the press clause was understood, see Freedom of the Press Meant No Prior Restraint, and Then It Meant More.

The fight in Congress

Madison wanted to weave the amendments into the body of the Constitution, inserting each one at the relevant clause. Roger Sherman of Connecticut insisted that they be added at the end as separate articles, so that the original text signed in 1787 would remain intact. Sherman won, and that is why we have a list of amendments rather than a revised document.

Madison also proposed an amendment that applied to the states: no state should violate the equal rights of conscience, the freedom of the press or trial by jury in criminal cases. He called it the most valuable on the whole list, because he believed the states, not the national government, were the likeliest violators. The House approved it. The Senate struck it out. It would take the 14th Amendment and more than a century of court decisions to apply most of the Bill of Rights to the states. See How the Bill of Rights Came to Bind the States, One Right at a Time.

The House approved seventeen amendments in August 1789. The Senate reduced and combined them to twelve. On September 25, 1789, Congress sent twelve to the states. Madison, worn out, complained privately of the nauseous project of amendments, which tells you how hard the work was. Ten of the twelve were ratified, and the Bill of Rights took effect on December 15, 1791.

Why he changed: the arguments that persuaded him

Put the pieces together and Madison's change of mind rests on five reasons.

1. The people wanted it. Several ratifying conventions had recommended amendments. A republic's government must take its citizens' settled wishes seriously, especially when granting them costs nothing essential.
2. It would secure the Union. Opponents were calling for a second convention that might unravel the whole Constitution. Moderate amendments protecting rights would answer the honest critics and isolate those who wanted to weaken the national government.
3. Written rights teach. Solemn declarations become maxims of the national sentiment, and a people that believes in its rights is the best defence against a majority that would trample them.
4. Written rights arm the courts. Jefferson's point: an enumerated right gives judges a legal check to enforce.
5. The enumeration problem could be solved. A clause stating that listing some rights does not deny others removed the main danger Madison had feared.

Notice what did not change. Madison never abandoned his view that structure comes first. The separation of powers and federalism remained, in his view, the primary protection of liberty. The Bill of Rights was a second line of defence, not a substitute. For that argument, see Structure Protects Minorities Before the Bill of Rights Ever Does.

The objection, answered

The strongest objection to Madison's turn comes from his own earlier self, and from Hamilton in Federalist 84. A bill of rights in a government of enumerated powers is unnecessary and dangerous. Unnecessary, because the government has no power to abridge the press in the first place. Dangerous, because declaring that Congress shall not abridge the press implies that, absent the declaration, it could, and so invites the claim that the government holds powers beyond those listed.

The answer comes in three parts.

1. History proved enumerated powers alone insufficient. Within a decade, in 1798, Congress passed the Sedition Act, punishing criticism of the government. Madison and Jefferson attacked it as unconstitutional, and the First Amendment was their strongest ground. Without the text, the argument would have rested on inference alone.
2. The Ninth and Tenth Amendments answer the danger. The Ninth says the enumeration of rights does not deny others. The Tenth says powers not delegated remain with the states or the people. Together they block the inference Hamilton feared.
3. Courts need text. Since the founding, the rights that have proved most durable in court are the ones written down. A right resting on an inference from enumerated powers is a right that a clever lawyer can reason away.

The verdict: Madison's first instinct about structure was right, and his second instinct about written rights was also right. The two are not opposed.

The case in brief

1. Madison first doubted bills of rights, calling them "parchment barriers" in Federalist 48 and noting that state declarations had not stopped overbearing majorities.
2. In his letter to Jefferson of October 17, 1788 he located the danger in majorities, yet conceded that written rights could become maxims of the national sentiment.
3. Jefferson's reply of March 15, 1789 added the judicial check, and Madison made that argument himself on June 8, 1789.
4. Bound by his promise in the race against Monroe, Madison pushed amendments through a reluctant Congress; ten were ratified on December 15, 1791.
5. His reasons still teach: structure first, written rights second, and both needed.

What you can do: read the First, Ninth and Tenth Amendments on the Constitution page, then write to your representative, whom you can find on My Representatives, asking which of those amendments guides their votes.