Information

Bill of Rights


Antipathy toward a strong central government was only one concern among those opposed to the Constitution. Of equal concern to many was the fear that the Constitution did not sufficiently protect individual rights and freedoms.

The concern for possible encroachment of personal liberties by state governments had already been manifested in the various state constitutions. That of Massachusetts,written by John Adams, adopted on June 15, 1780, and still today, as amended, the governing document of the commonwealth, began with a "Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts," which ran to thirty articles and began with:

Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

Virginian George Mason, author of Virginia's 1776 Declaration of Rights, was one of three delegates to the Constitutional Convention who refused to sign the final document because it did not enumerate individual rights. Together with Patrick Henry, he campaigned vigorously against ratification of the Constitution in Virginia. Indeed, five states, including Massachusetts, ratified the Constitution on the condition that such amendments be added immediately.

The first Congress convened in New York City in March, 1789. It was something of a role reversal when James Madison introduced the proposed amendments on June 8, 1789. It had been the position of Madison and the other Federalists that a bill of rights in the constitution was unnecessary, but there had been a clamor for one during the ratification process. Realizing that ratification would be difficult and perhaps impossible without pledging to add immediate amendments, the Federalists had switched their position.On September 25, 1789, twelve amendments were proposed by Congress. The first state to ratify the ten that became the Bill of Rights was New Jersey on November 20. On December 15, 1791, Virginia became the 11th state to ratify them and the Bill of Rights came into force. The final ratification from the 14 states then in existence came on April 19, 1792, when Connecticut approved the ten amendments. Vermont had both become a state and ratified the constitution with the amendments before this date.

The Bill of Rights comprises the first 10 amendments to the U.S. Constitution. Among their provisions:

  • the freedoms of speech, press, religion, and the right to assemble peacefully, protest and demand changes (Amendment I)
  • the right to bear arms (Amendment II)
  • the protection from quartering of troops (Amendment III)
  • the protection against unreasonable searches, seizures of property, and arrest (Amendment IV)
  • due process of law in all criminal cases (Amendment V)
  • the right to a fair and speedy trial (Amendment VI)
  • civil trial by jury (Amendment VII)
  • the protection against cruel and unusual punishment (Amendment VIII)
  • the provision that the people retain additional rights not listed in the Constitution (Amendment IX)
  • Powers of States and people.(Amendment X)

The Bill of Rights is a series of Amendments to the Constitution and, therefore, is not subject to repeal by Congressional action.

Over the years, the Supreme Court has refined the precise meaning of the Bill of Rights through many court cases that established precedents. The First Amendment right to "free speech" has been extended to artistic expression and political demonstrations such as burning the American flag. Freedom of religion has been interpreted as denying the routine preference for Christianity that was universal in 1789. The right to bear arms is controversial at both the low end (handguns) and high end (assault weapons). The powers reserved to the states have been interpreted more narrowly since the New Deal.The two amendments proposed at the same time were not properly concerned with individual rights. One concerning representation in the House of Representatives has never been ratified. The other, regarding increases in salaries during terms of office, was ratified as the 27th amendment two centuries after being proposed by Congress.


Congress and the Bill of Rights in History and Today

Students will explore the protections and limitations on authority contained in the Bill of Rights and the process by which the First Congress created it. They will do this by compiling a list of their rights as students, analyzing the Bill of Rights, and studying primary source documents to trace the origin and development of the first ten amendments. Students will then consider how the Bill of Rights might be updated to reflect 21st century circumstances.

Rationale:

By taking stock of their rights as students and studying the development of the Bill of Rights through antecedent documents, students will be better able to understand the protections it provides and how James Madison and the First Congress crafted amendments to win support for the Constitution. This will help students understand the importance of the Bill of Rights today.

Guiding Questions:

  1. What rights do students have in class?
  2. What rights are protected by the Bill of Rights, and what powers are limited?
  3. How and why did the First Congress create the Bill of Rights?
  4. How might the Bill of Rights be updated for today?

Materials:

Recommended Grade Levels:

Courses:

American History U.S. Government Civics

Topics included in this lesson:

The Bill of Rights, James Madison, constitutional amendments, Federalists, Anti-Federalists

Time Required:

The time needed to complete each learning activity is presented in parentheses at each step. The activities can be done in sequence or each can be done separately.

Vocabulary:

  • Federalists
  • Anti-Federalists
  • Ratification
  • Grievances
  • Vested
  • Due process of law

Documents:

Senate Revisions to the House-Passed Amendments to the U.S. Constitution, September 9, 1789 Records of the U.S. Senate NAID 3535588

Proposed Amendments to the U.S. Constitution as passed by the Senate, September 14, 1789 Records of the U.S. Senate NAID 2173242

Historic Overview:

The struggle over the states' ratification of the Constitution in 1787 and 1788 made a deep impression on James Madison, who witnessed firsthand the contentious battles in Virginia and New York. Madison understood that in order for the new government to be successful it needed the overwhelming allegiance of the people rather than the narrow majority support won in many of the state ratification conventions. Madison began to see how the addition of a bill of rights might calm some of the fears about the powers invested in the new national government.

James Madison worked to gain support for the Constitution by creating a list of proposed amendments drawn from various Anti-Federalist and Federalists sources. Elected as a representative to the First Congress in 1789, he took the lead in writing and speaking on behalf of legislation to amend the Constitution. By August of 1789, the House of Representatives passed a list of proposed amendments derived from Madison's list. Due in large measure to his leadership, Congress passed the Bill of Rights in 1789, and the states ratified it by 1791.

Learning Activities:

1. Rights in the classroom: (45 Minutes)

Begin a class discussion about rights in which students consider two dimensions of rights: specific protections for individuals and general limits on authority.

Discussion questions should include:

  • What specific protections for individuals apply to students?
  • What specific protections for individuals apply to teachers?
  • Are these sets of protections distinct from one another or shared to some degree?
  • What limits are placed on the authority of teachers?
  • What limits are placed on the authority of students?
  • What limits on authority do they share? (For instance, school rules and class policies limit student's authority to decide certain issues, while contracts and school policies limit certain actions by teachers.)

Ask students to summarize the discussion by completing Worksheet 1.

Direct the class to draw from information they listed on Worksheet 1 to create a bill of rights for the classroom.

Important topics to consider include:

  • What specific protections for individuals should be guaranteed?
  • What limitations on authority should be included?
  • How will the class determine what to include in this Bill of Rights? Simple majority? Super-majority? Unanimous vote? What vote does the teacher or administration have?

2. Analyzing the Bill of Rights (30 minutes)

Ask students to draw upon their work in Activity 1 as they analyze the list of amendments ratified by the states in 1791. Divide the students into small groups and assign each group to carefully read the text of the Handout 3. Have each group complete Worksheet 2 to delineate the individual protections and limits on authority contained in the Bill of Rights. Begin a discussion in which the class compares or contrasts their class Bill of Rights with the amendments ratified by the states.

3. Exploring the History of the Bill of Rights from Conventions to Ratification: (90 minutes)

Divide the class into small groups and distribute copies of the Senate Revisions to the House-Passed Amendments to the U.S. Constitution (Senate Mark-up). This facsimile shows the Bill of Rights in the middle of its creation during the legislative process. The printed text shows the amendments as they were passed by the House and the handwritten markings show changes made by the Senate.

Drawing from the Senate Mark-up, assign each small group to study one or two of the 17 amendments passed by the House and marked up by the Senate. Provide one copy of Worksheet 3 to each group for each amendment the group is assigned. Using the Worksheet, the students will analyze their assigned amendment(s) and translate each into an 8-12 word "tweet." Amendments should be studied as they were passed by the House.

Direct each small group to study the historical context of their proposed amendment. The students will analyze several other versions of the Bill of Rights which came before and after the Senate Mark-up to determine when the main idea of their assigned amendment was introduced. For this step, distribute Handout 1, Handout 2, Handout 3, and the Proposed Amendments to the U.S. Constitution as passed by the Senate.

Each group will scan these four documents to determine if the main idea identified in their tweet was also present in the other versions of the Bill of Rights. Students mark their finding on Worksheet 3 by putting an X in the appropriate box in the chart. Students will also mark the final box in the chart with an R or L to indicate whether that amendment deals mostly with rights or limitations of government. The groups should answer the questions on Worksheet 3 to prepare for class discussion. Worksheet 4 should be posted or projected on an overhead so that all groups can report their findings and share with the class.

The groups will present to the class their answers to questions on Worksheet 3 and their findings marked on Worksheet 4. When all groups have presented, hold a class discussion using the following questions:

  • Which proposed amendments were present from the Anti-Federalist report to the Bill of Rights as ratified by the states?
  • Which Anti-Federalist ideas were also proposed by Madison but not present in the final Bill of Rights?
  • Which proposed amendments originated with James Madison? Which of those were not present in the final Bill of Rights?
  • Which proposed amendments were merged at various points in the process?

4. Applying the Bill of Rights to today's world (45 minutes)

The Constitution has been amended twenty-seven times, including the Bill of Rights. The ability to amend the Constitution is critical to adapt to a changing society. However, the Founders understood that revisions to the founding charter should not be undertaken lightly, and they designed the amendment process to require a very high level of agreement for amendments to be ratified (2/3 of both Houses of Congress and 3/4 of state legislatures).

Divide students into groups to propose new amendments to the Constitution to better serve the nation in the 21st Century and "form a more perfect union." In groups, students will identify rights deserving protection but not currently contained in the Bill of Rights and additional powers of government that should be limited.

Each group may compose one amendment (or several amendments) to the Constitution and share with the class why they think each amendment is needed.

Post all amendments on the wall and allow students to speak for or against the amendments as if they were members of Congress. Hold a vote on each amendment to see which ones, if any, can get 2/3 of the votes of all class members.

5. Lesson Extension (45 minutes for preparation and 45 minutes to implement)

Debating changes to the Bill of Rights:

The Bill of Rights was created by process of debate in the First Congress and ratified by debate in the legislatures of the states. This history reminds us of the importance of civic discourse in the life of the nation. Learning to advocate for ideas persuasively and respectfully was as vital a lesson for America's first legislators as it is for students today. This debate challenges students to assess the call to update the Bill of Rights by speaking for and against the idea. Organize the class into two teams and have each team spend 45 minutes organizing their arguments and evidence prior to debating.

Debate Topic: The Bill of Rights should be updated to match 21st Century American life.

Pro position: The Bill of Rights should be updated.

Con position: The Bill of Rights should be preserved as it is.

  • Each debate features five participants on each side of the issue.
  • Each speaks for no more than two minutes.
  • Teams alternate speakers.
  • One speaker on each team delivers the opening giving an overview of the team's position.
  • Three speakers on each team gives supporting arguments—one argument per speaker.
  • One speaker on each team delivers the closing argument.

Additional Resources

Congress Creates the Bill of Rights is an eBook, a mobile app for tablets, and online resources for teachers and students to exploring how the First Congress proposed amendments to the Constitution in 1789.

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This page was last reviewed on October 13, 2020.
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Bill of Rights - History

Bill of Rights Day, December 15

The National Archives and Records Administration joins in the national celebration of the Bill of Rights, the first 10 amendments to the Constitution, which spell out our rights as Americans. It guarantees civil rights and liberties such as freedom of speech, press, and religion. It sets rules for due process of law and reserves all powers not delegated to the Federal Government to the people or the states. The original joint resolution proposing the Bill of Rights is on permanent display at the National Archives in Washington, DC.

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Preamble to the Bill of Rights

Video Resources

Historical Video

The video at this link shows the Constitution and the Declaration of Independence loaded in an armored truck at the Library of Congress, taken to the National Archives Building in a procession, and carried up the building's steps on December 13, 1952. Two days later, on Bill of Rights Day, President Harry Truman and Chief Justice Fred M. Vinson speak on the importance of the document in a ceremony at the National Archives.

Amending America Exhibit

Take a virtual tour of our Amending America exhibit, which highlights the remarkably American story of how we have amended, or attempted to amend, the Constitution in order to form a nation that more closely mirrors our ideals

Amending America: How Do We Amend?

This animated short, made for the Amending America exhibit, describes how an amendment can be proposed and ratified. It also illustrates how our Founders included Article V to make it possible to amend our Constitution

Why the Bill of Rights?

A panel discusses the story behind the Bill of Rights, the ratification of the Constitution, and the First Federal Congress. Panelists include Joseph Ellis, Jack Takeover, and Kenneth Bowling.

The Charters of Freedom

On Bill of Rights Day in 1952 the Charters of Freedom—the Constitution, Declaration of Independence, and Bill of Rights went on display together for the first time.

The Bill of Rights and the First Federal Congress​

In this video, Charlene Bickford, Director of the First Federal Congress Project, discusses the NHPRC-funded project and the anniversary of the ratification of the Bill of Rights by the First Federal Congress.


Introduction

On September 25, 1789, the First Federal Congress of the United States proposed to the state legislatures twelve amendments to the U.S. Constitution. The first two, concerning the number of constituents for each Representative and the compensation of Congressmen, were not ratified.* Articles three through twelve&mdashknown as the Bill of Rights&mdashwere ratified by the states on December 15, 1791, and became the first ten amendments to the U.S. Constitution. The Bill of Rights contains guarantees of essential rights and liberties omitted in the crafting of the original Constitution.

Use the navigation menu on the left to access sections of this guide on digital collections, related online resources, external websites, and a bibliography of books providing more information on the Bill of Rights.

Printed by Thomas Greenleaf. [Twelve articles, the Bill of Rights as submitted to the states]. 1789. Library of Congress Rare Book and Special Collections Division.

The Bill of Rights. [between ca. 1920 and ca. 1930]. Library of Congress Prints and Photographs Division.

A bill of rights as provided in the ten original amendments to the constitution of the United States in force December 15, 1791 . 1950. Printed Ephemera Collection. Library of Congress Rare Book and Special Collections Division.

*Note: The original second amendment proposed by the First Federal Congress dealt with the compensation of members of Congress. Although rejected at the time, it was eventually ratified on May 7, 1992, as the 27th Amendment.


2d. The Bill of Rights


By working to get the Bill of Rights passed, James Madison continued his support of Jefferson's policies. Jefferson supported the Constitution under the condition that basic human rights would be protected through a series of amendments.

Understandably, any people that fought a revolution over "taxation without representation" would be cautious about the new Constitution created in 1787. For example, famous Virginian Patrick Henry refused to attend the Convention because he "smelt a rat."

States cherished their new freedom from British control, and ratification of the Constitution by state legislatures was by no means certain. All thirteen states finally ratified by 1790, but only with the addition of ten amendments, known as the Bill of Rights, that guaranteed citizens' rights and freedoms.

The Debate over Ratification

The debate polarized the new nation. Those who supported the Constitution became known as federalists and those who opposed its ratification were called antifederalists . The federalists supported a strong national government to preserve order. The antifederalists favored strong state governments and believed that the national government created by the Constitution was too strong.

In many ways the argument was the same old debate about the proper balance between order and liberty. Alexander Hamilton, James Madison, and John Jay wrote compelling arguments in favor of ratification in a series of essays known as the Federalist Papers . There were probably more antifederalists in America, but the federalists were better organized, controlled more newspapers, and were in greater positions of power. The two sides finally reached an acceptable compromise when they agreed to add some amendments to the Constitution that protected individual liberties and rights.

The Bill of Rights


The piece of parchment that is called the Bill of Rights is actually a joint resolution of the House and Senate proposing twelve amendments to the Constitution. The final number of accepted amendments was ten, and those became known as the Bill of Rights.

In 1789 Virginian James Madison submitted twelve amendments to Congress. His intention was to answer the criticisms of the antifederalists. The states ratified all but two of them &mdash one to authorize the enlargement of the House of Representatives and one to prevent members of the House from raising their own salaries until after an election had taken place. The remaining ten amendments, known as the Bill of Rights , were ratified in 1791.

They put limits on the national government's right to control specific civil liberties and rights, many of which were already protected by some of the state constitutions. Liberties protected included freedom of speech, press, religion, and assembly ( First Amendment ). The Bill of Rights also provided safeguards for those accused of crimes. Two amendments &mdash the right to bear arms ( Second Amendment ) and the right to refuse to have soldiers quartered in your home ( Third Amendment ) &mdash were clearly reactions to British rule. The antifederalists were pleased by the addition of the Tenth Amendment, which declared that all powers not expressly granted to Congress were reserved to the states.


George Mason was one of the leading figures in creating the Bill of Rights. After storming out of the Constitutional Convention because the Constitution didn't contain a declaration of human rights, he worked to pass amendments that would protect citizens from an intrusive government.

Over the years the Bill of Rights has become an important core of American values. The compromise that created the Bill of Rights also defined what Americans would come to cherish above almost all else. Together with the Declaration of Independence and the Constitution, the Bill of Rights helps to define the American political system and the government's relationship to its citizens.


The Economic Bill of Rights

Excerpted from Franklin Delano Roosevelt's message to Congress on the State of the Union. This was proposed not to amend the Constitution, but rather as a political challenge, encouraging Congress to draft legislation to achieve these aspirations. It is sometimes referred to as the "Second Bill of Rights."

It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishment of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people &mdash whether it be one-third or one-fifth or one-tenth &mdash is ill-fed, ill-clothed, ill-housed, and insecure.

This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights &mdash among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty.

As our nation has grown in size and stature, however &mdash as our industrial economy expanded &mdash these political rights proved inadequate to assure us equality in the pursuit of happiness.

We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. "Necessitous men are not free men." People who are hungry and out of a job are the stuff of which dictatorships are made.

In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all &mdash regardless of station, race, or creed.

  • The right to a useful and remunerative job in the industries or shops or farms or mines of the nation
  • The right to earn enough to provide adequate food and clothing and recreation
  • The right of every farmer to raise and sell his products at a return which will give him and his family a decent living
  • The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad
  • The right of every family to a decent home
  • The right to adequate medical care and the opportunity to achieve and enjoy good health
  • The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment
  • The right to a good education.

All of these rights spell security. And after this war is won we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being.

America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens.


There is a strong temptation to consider the story of the U.S. Bill of Rights as part of a larger narrative that starts with Magna Carta in 1215 and continues into the twenty-first century with concerns about human rights across the globe, touching briefly on how Americans introduced and passed a bill of rights. The chronological focus of these twenty-six selections is narrower: the context is primarily between 1776 and 1791.

Thus the larger question of how the British and colonial heritage fits into the American story is covered only briefly (Documents 1–2). Of considerable importance in this brief account is that the rights included in the Massachusetts Body of Liberties (1641) are, numerically, more significant than those found in Magna Carta (1215) and the English Bill of Rights (1689). And so too are the rights enumerated in the Maryland Toleration Acts. We include these two colonial documents to remind the reader that Americans were concerned about rights, especially religious rights, even before the founding era of 1776–1791. Three rights are unanimously represented in all the state constitutions: the right of conscience/free exercise of religion the right to have one’s case heard by a local impartial jury and the due process rights of the common law. The framers of the new state documents decided these last rights were no longer secure under the traditional governmental arrangements. We consider it significant that the new states declared themselves to be republican and that the purpose of a republican government was to secure rights.

Seven states attached a prefatory declaration of rights to the frame of government: Virginia (June 1776), Delaware (September 1776), Pennsylvania (September 1776), Maryland (November 1776), North Carolina (December 1776), Massachusetts (March 1780), and New Hampshire (June 1784). These declarations were, in effect, a preamble stating the purposes for which the people had chosen the particular form of government. There was a remarkable uniformity among the seven states with regard to the kinds of civil and criminal rights they sought to secure.

Four states decided not to preface their republican constitutions with a declaration of rights: New Jersey (July 1776), Georgia (February 1777), New York (April 1777), and South Carolina (March 1778). Nevertheless, each incorporated individual protections in their constitutions.

Virginia entered unfamiliar territory with the disestablishment of the Anglican Church in 1779. Nevertheless, there were two competing models to which legislators could turn. The Massachusetts model endorsed the establishment of the Christian Protestant religion and, to that end, the legislature was constitutionally mandated to tax inhabitants for the support of public religious instruction. The taxpayer, nevertheless, was free to name the specific religion that was to receive the assessment. On the other hand, the Pennsylvania model warned that such taxation threatened the right of an individual to the free exercise of religion. In December 1784, the Virginia Assembly considered an assessment bill, consistent with the Massachusetts model, that would financially support the propagation of Christianity as the state religion. James Madison objected. The author of a protest addressed to the Virginia Assembly (Document 7), Madison urged the legislators to reject the proposed legislation. In the process, Madison pushed the national conversation even further in the direction of individual free exercise of religion and away from community-endorsed religion. The practical manifestation of Madison’s efforts was the Virginia Assembly’s adoption in 1785 of Jefferson’s Statute of Religious Liberty introduced in 1779. The Virginia Senate passed the statute in January 1786. It is also important to note how these rights made their way into the Northwest Ordinance (Document 8).

A year after the passage of the Virginia statute at the Constitutional Convention (May to September 1787), the first of George Mason’s ten objections to the Constitution began: “There is no declaration of rights” (Document 9). In particular, “there is no declaration of any kind for preserving liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in times of peace.” Mason’s position was that a federal bill of rights was both imperative and valuable. He was concerned that Congress might abuse the supremacy and the necessary and proper clauses of the Constitution (Articles 6 and 1, section 8, respectively). The supremacy clause made federal laws “paramount to the laws and constitutions of the several states.” Thus, “the declaration of rights, in the separate states, are of no security.” The necessary and proper clause enabled Congress to “grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they should think proper.”

Throughout the nine-month ratification campaign, proponents of the Constitution defended the absence of a bill of rights. James Wilson’s State House Speech (Document 10), delivered in Philadelphia three weeks after the Constitutional Convention adjourned, articulated what came to be known as the Federalist position: a bill of rights is unnecessary and dangerous. Wilson argued that at the state level, a bill of rights was necessary and salutary because “everything which is not reserved, is given,” but “superfluous and absurd” at the federal level because “everything which is not given, is reserved.” Wilson’s speech became the foil for the Antifederalist opposition literature in the fall of 1787 (Documents 11–15). Near the end of the ratification campaign, Federalist 84 (Document 19) repeated Wilson’s insistence that a republican form of government had no need for a bill of rights because such bills “are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.”

By early January 1788, the ratifying conventions in Delaware (voting 30–0), Pennsylvania (46–23), New Jersey (38–0), Georgia (26–0), and Connecticut (128­–40) had ratified the Constitution. The report issued by the twenty-three Pennsylvania opponents had a considerable impact on the subsequent campaign (Document 15). The report proposed two different kinds of amendments. On the one hand, the minority called for amendments that would re-establish the principles of the Articles of Confederation. These were unfriendly to the Constitution. On the other hand, they proposed that a declaration of rights be annexed to the Constitution. These were friendly amendments. What became drafts of the first, fourth, fifth, sixth, seventh, and eighth amendments to the Constitution were included in their list, although the origin of these amendments can be traced to colonial documents and state constitutions.

The fate of the Constitution was determined in the Massachusetts, New Hampshire, Virginia, and New York ratifying conventions in the first half of 1788. Antifederalist literature in the fall of 1787 had had an adverse effect on the campaign for ratification. A compromise—“ratify now, amend later”—was needed in each of these four states to secure ratification (Documents 17–18). In Massachusetts, ten delegates switched their votes and a 187–168 majority ratified the Constitution. A switch of five votes ensured ratification in both New Hampshire (57–47) and Virginia (89–79). In New York, the Antifederalists outnumbered the Federalists by a margin of 46–19 going into the convention but in the end, the Constitution was ratified by a vote of 30–27.

The Antifederalist opposition and friends of the Constitution made two different kinds of recommendations. First, some called for an alteration in the very structure and powers of the new federal government. Second, others sought to protect the rights of individuals with respect to the federal government. All nine of Massachusetts’s recommendations are of the first kind. New Hampshire was the first to add a brief declaration of the rights of citizens to the list of amendments. In Virginia and New York, the two kinds of amendments were explicitly separated.

With the ratification of the Constitution, James Madison (1751–1836), who had done so much to bring it into existence, [1] supported the adoption of a bill of rights, while objecting to amendments that would radically alter the new government’s structure and power (Document 22). He did so for both theoretical and prudential reasons. Madison distanced himself from Wilson’s argument that a bill of rights might be dangerous as well as unnecessary. He overcame the danger of listing rights—the list might be seen as definitive and thus limit the rights of citizens rather than protect them—by declaring that the enumeration “of certain rights, shall not be construed to deny or disparage others retained by the people.” This eventually became the Ninth Amendment and is a wholly Madison contribution. The prudential reasons included conciliating “honorable and patriotic” opponents who wanted to “revise” the Constitution by including a bill of rights and defeating the call for a second convention that would “abolish” the Constitution (Document 21). He saw the First Congress as the “proper mode” to accomplish the objective of revision. What joined together the theoretical and prudential reasons was that Madison did not want a second convention to take place.

The correspondence between Madison in the United States and Thomas Jefferson in Paris is a critical part of the story of the adoption of the Bill of Rights, from the signing of the Constitution through the ratification campaign and into the First Congress (Documents 16, 20, and 21). In his October 24, 1788 letter, Madison summarized the political and ethical problem that was to be solved by the Constitution: “To prevent instability and injustice in the legislation of the states.” What Madison was able to achieve, he explained to Jefferson, was the creation of an extended republic that would secure the civil and religious rights of individuals from the danger of majority faction. Jefferson responded favorably toward the proposed Constitution two months later. He was troubled, however, by Wilson’s argument that a bill of rights was unnecessary. He reminded Madison 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.” He listed six essential rights that should be declared: “freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters.” Jefferson reiterated the importance of including his list of six rights upon being informed by Madison that the Constitution had been adopted.

In his first Inaugural Address (April 30, 1789), George Washington addressed only two particular issues: his compensation, which he declined, and Congress’ “exercise of the occasional power delegated by the fifth article of the Constitution,” the power to amend the Constitution. He asked that “whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, a reverence for the characteristic rights of freemen will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.” Madison followed Washington’s recommendation of proposing a bill of rights that, at the same time, did not alter the work of the Constitutional Convention. That became Madison’s challenge in the First Congress (Document 22).

The House of Representatives debate on Madison’s propositions is not without irony (Document 23). Roger Sherman, arguably Madison’s leading and most persuasive opponent during the structural phase of the 1787 Philadelphia Convention, objected to Madison’s attempt to incorporate the bill of right additions “neatly” within the body of the Constitution. If the revisions are added as “supplements,” or amendments to the Constitution, argued Madison, “they will create unfavorable comparison” with the original Constitution. Sherman, however, prevailed. The original work of the framers, he argued, should remain intact. Moreover, Sherman urged his colleagues to reject incorporating the Declaration of Independence into the Preamble: “The words ‘We the people,’ in the original Constitution, are as copious and expressive as possible any addition will only drag out the sentence without illuminating it.” On the other hand, Sherman proved to be an important ally in defeating the attempts of the South Carolina delegation to introduce amendments that would “change the principles of the government.” The Senate reduced the number of amendment proposals from seventeen to twelve. In doing so, the Senate defeated Madison’s House-backed proposal to protect freedom of conscience and the press at the state and national levels, restricting the protection to the national level only. The Senate also combined the protection of conscience and the press into one amendment (Document 24). The Senate version was adopted, with slight revision, by the whole Congress and submitted as twelve amendments to the states for approval (Document 25). Ten were ratified by three-fourths of the state legislatures (Document 26).

Very important from Madison’s perspective, Richard Henry Lee and William Grayson—both radical Antifederalists and the only Antifederalists in the United States Senate—were totally unsuccessful in their effort to move the power and structure of the Constitution back in the direction of the Articles of Confederation. They preferred this to adopting a bill of rights that would reinforce the idea that the Constitution was a limiting as well as an empowering document.

For his part, Madison was less than completely successful with his bill of rights proposals. Few members shared Madison’s urgent feeling that friendly alterations must be sent to the states by the end of the first session. The rights did not end up located in the Constitution where he wanted them to be. The number of rights was reduced from Madison’s original list (Document 22) and several clauses, the religion clauses in particular, underwent close scrutiny and major alteration. Madison’s attempt to have the states as well as the nation restrained in the area of conscience, press, and jury was defeated in the Senate. The Bill of Rights, as adopted, applied only to the federal government. So the appellation “Father of the Bill of Rights” ought to be cautiously used. Yet it is certainly true that Madison’s persistence was critical to twelve amendments being sent to the states for adoption by the end of the first session and, not coincidentally, for the subsequent adoption of the original Constitution by North Carolina and Rhode Island.

The adoption of the Bill of Rights was a mixture principle and politics. [2] It did not just fall from the sky in one whole and intelligible form. True, the Bill of Rights incorporated much of the English common law and the colonial due process tradition, but it also shed much of this tradition’s feudal and monarchical features. Also, Americans between 1776 and 1791 appealed beyond their traditions to support freedom of conscience, free speech, and enhanced rights of due process of law.

Madison, known as “the Father of the Constitution,” is at the heart of our documentary account of the origin and politics of the Bill of Rights, from Virginia in 1776 to the First Congress in 1789. During this time, Madison’s position on the Bill of Rights changed, at least in part because of his relationship with Jefferson. To see the importance of this relationship, we must place it in the context of Virginia politics, which provide the bookends to the story of the Bill of Rights. George Mason wrote the Virginia Declaration of Rights in June 1776 (with Madison’s suggested alteration to the right of conscience clause). The Declaration of Rights was one influence on Jefferson as he wrote the Declaration of Independence. Mason also proposed to the Constitutional Convention that a bill of rights be adopted. Madison opposed Mason in the Convention on the issue. A few years later, in December 1791, Virginia finally adopted the Bill of Rights, with Madison as the leader of those favoring adoption and Mason in opposition. Why did Virginia start the process, take the lead in the debates, and then delay so long to ratify the Bill of Rights? The answer is an irreconcilable divide among Antifederalists. There were those who wanted to change fundamentally the new American system and those who were friendly to the Constitution. The latter wanted to restrain the new government with a bill of rights. Between 1787 and 1791, Mason became one of those who wanted fundamental change, while Madison, always a friend to the Constitution, became one of those willing to amend it by adding a bill of rights. He made this change with the help of Jefferson (Documents 16, 20–22).

[1] See the companion volumes The American Founding: Core Documents (Ashland, Ohio: Ashbrook Press, 2017) and The Constitutional Convention: Core Documents (Ashland, Ohio: Ashbrook Press, 2018), both edited by Gordon Lloyd.

[2] James Madison to Richard Peters, August 19, 1789. This letter, organized around seven themes, is a model of principled leadership at its best it joins that which is necessary with that which is proper.

Study Questions

For each of the documents in this collection, we suggest below in section A questions relevant for that document alone and in section B questions that require comparison between documents.

1. The Massachusetts Body of Liberties, December 1641
A. What rights are protected in this colonial document? How are they protected?
B. What differences and similarities exist in the Massachusetts Body of Liberties and the early state constitutions as far as the type of rights are concerned? For example, does the Massachusetts Body of Liberties refer to freedom of conscience and freedom of the press? See Documents 3, 5, and 6.

2. The Maryland Act Concerning Religion, April 21, 1649
A. Does it strike you as odd that the Maryland Act can simultaneously proclaim the establishment of the Christian religion and the toleration of religion as central principles?
B. Compare the Maryland Act with the early state constitutions and Madison’s Memorial and Remonstrance. See Documents 3, 4, 5, 6, and 7.

3. Virginia Declaration of Rights and Constitution, June 12 and 29, 1776
A. Does it seem curious that a) the Virginia Declaration and the Virginia Constitution were written two weeks apart and that b) both preceded the passage of the Declaration of Independence? According to these two documents, what is the purpose of government? What is the role of the legislature, executive, and judiciary in the newly adopted Virginia Constitution? What sort of “republicanism” do these two documents express? Is it surprising that the Declaration of Rights precedes the Constitution?
B. By what authority was the Virginia Declaration of Rights and Constitution initiated and adopted? Compare and contrast the content of the Virginia Declaration of Rights with colonial and other state based documents. See Documents 1, 2, 4, and 6.

4. The New Jersey Constitution, July 3, 1776
A. New Jersey was the first state to incorporate a declaration of rights within the body of the constitution itself. Does it matter where the declaration is located in the constitution? What does the New Jersey Constitution have to say about religious rights?
B. What difference, if any, does it make if the declaration of rights is at the beginning or inserted into the document? Compare with Documents 3, 5, and 6. Is it odd that both the Virginia and New Jersey declarations were written before the Declaration of Independence?

5. The Pennsylvania Declaration of Rights and Constitution, September 28, 1776
A. To what extent does the Pennsylvania document embrace both the common law tradition and the new natural rights tradition?
B. John Adams judged that the Pennsylvania Bill of Rights “is taken almost verbatim from that of Virginia.” Is Adams correct? See Document 3.

6. The Massachusetts Declaration of Rights and Constitution, March 2, 1780
A. How is it possible that the people have a right to require of the citizens to support, financially, the establishment of public religion? No one particular sect was given preference over another all were “equally under the protection of the law” and, thus, the “free exercise” of religion was protected. Explain this explicit association between free exercise of religion and equality under the law.
B. Following Virginia and Pennsylvania, the need for “piety, justice, moderation, temperance, industry, and frugality” was listed in the Bill of Rights. Are these six virtues compatible with the two religion clauses? See Documents 3, 5, and 7.

7. James Madison’s Memorial And Remonstrance, June 20, 1785
A. How does Madison remind the legislators of 1783 that they were undermining the very principles of freedom of conscience that Virginians adopted in 1776?
B. Is Madison’s Memorial and Remonstrance out of touch with the religion clauses of the state constitutions? See Documents 3–6.

8. The Northwest Ordinance, July 13, 1787
A. What sort of country do the framers of the Northwest Ordinance envision for the next generation of Americans?
B. How do the statements on behalf of individual religious rights and the public support of religion compare with the statements found in Documents 3–6?

9. Objections at the Constitutional Convention, September 10, 12, 15, and 17, 1787
A. Are there similarities among the objections to the Constitution listed by Edmund Randolph, Elbridge Gerry, and George Mason? Does their dissent demonstrate an admirable feature of the American experiment? Other delegates had reservations, yet they still signed.
B. Does it strike you as odd that Edmund Randolph, who introduced and defended the Virginia Plan, objected to signing the Constitution? How do these dissents on behalf of a bill of rights compare and contrast with earlier the documents in this collection? See Documents 3–7.

10. James Wilson’s State House Speech, October 6, 1787
A. This speech by Wilson upset a lot of prominent opposition politicians and writers. What is so provocative about this speech?
B. What is the central argument of the Antifederalist opposition? See Documents 11–14.

11. The Federal Farmer IV, October 12, 1787
A. The Federal Farmer emphasizes the importance of a bill of rights right at the start of the ratifying campaign. What are his arguments in favor of a bill of rights?
B. What are the objections of the Federal Farmer to James Wilson’s State House speech? See Document 10. See also Document 19.

12. Richard Henry Lee to Edmund Randolph, October 16, 1787
A. What rights are essential to Richard Henry Lee? Why does the proposed Constitution contain the potentiality to make these rights vulnerable?
B. How do Lee’s essential rights compare with those revealed in the Thomas Jefferson–James Madison exchanges? See Documents 16, 20, 21– 22.

13. An Old Whig IV, October 27, 1787
A. What are An Old Whig’s arguments on behalf of a small republic and a bill of rights?
B. Compare the Old Whig’s argument with the argument of Federalist 10. See Document 19 in the American Founding Document. Is there a coherence to the Antifederalist argument? See Documents 9, 11, 12, 14, 15.

14. Brutus II, November 1, 1787
A. Brutus makes the absence of the Bill of Rights a key issue in the ratification campaign. Does his argument make sense? What rights does Brutus deem “essential”?
B. Are there good reasons why James Wilson and The Federalist dismiss the absence of a bill of rights as a vital issue in the proposed Constitution? See Documents 10–12, 19.

15. The Dissent of the Minority of the Convention of Pennsylvania, December 18, 1787
A. What rights did the Pennsylvania Minority consider to be essential?
B. Compare the objections to the Constitution expressed by the Pennsylvania Minority to those raised at the Virginia and New York Ratifying Conventions. See Documents 17 and 18.

16. Thomas Jefferson to James Madison, December 20, 1787
A. What are the six essential rights that Thomas Jefferson states should be included in a Declaration of Rights?
B. Why does Thomas Jefferson disagree with the approach taken by James Wilson in his State House Speech? Which of the six rights mentioned by Jefferson does James Madison endorse? See Documents 10, 21 and 22.

17. The Virginia Ratifying Convention, June 24–June 27, 1787
A. What is the difference between an adoption of the Constitution with previous amendments and adoption with subsequent amendments? Do previous amendments open the door to the possibility of secession? How does the discussion over how to adopt the Constitution enhance our understanding of what is and is not a republican and a federal government?
B. How do the amendment and bill of rights proposals compare and contrast with those listed in the New York ratifying document? See Document 18. Is James Madison’s argument against a bill of rights the same as that articulated by James Wilson? See Document 10.

18. New York Ratifying Convention, June 17–July 25, 1788
A. What is the difference between the adoption of the Constitution with previous or conditional amendments and adoption with subsequent or recommended amendments? What are the differences between the content of the twenty-five items in the Bill of Rights proposed at the New York convention and the thirty-one items in the proposed amendments?
B. How do the amendment and bill of rights proposals compare and contrast with those listed in the Virginia ratifying document? See Document 17. How many of the amendment proposals and the Bill of Rights proposals make their way into the Bill of Rights adopted in 1791? See Document 26.

19. Federalist 84, July 16, 1788
A. What are the rights that Publius claims are listed in the proposed Constitution? Why does Publius think the Constitution is a bill of rights?
B. To what extent does Publius repeat, or enlarge upon, the arguments made by James Wilson in his State House Speech? See Document 10.

20. Thomas Jefferson to James Madison, July 31, 1788
A. What rights does Thomas Jefferson think that the general voice of America is calling for?
B. Which of these rights does James Madison include in his proposals to Congress? See Document 22. How does Thomas Jefferson’s list of rights compare with those requested at the Virginia and New York Ratifying Conventions? See Documents 17 and 18. Has his list expanded or contracted from those contained in Document 16?

21. James Madison to Thomas Jefferson, October 17, 1788
A. Why did James Madison not view the absence of a bill of rights from the proposed Constitution “in an important light”? How did Madison answer his own question: “What use then it may be asked can a bill of rights serve in popular governments”?
B. Compare James Madison’s less than enthusiastic support for a bill of rights with James Wilson’s State House Speech and Alexander Hamilton’s argument in Federalist 84. See Documents 10 and 19.

22. Representative James Madison Argues for a Bill of Rights, June 8, 1789
A. What is James Madison’s case for the adoption of a bill of rights? Where would he place these thirty-nine constraints on the reach of the federal government? Before the Constitution? Within the Constitution? Or after the Constitution?
B. Compare James Madison’s case here for a bill of rights with his exchange with Thomas Jefferson, Did Madison flip-flop? Are there any surprises in his list of thirty-nine rights? Compare with Documents 16, 20, and 21.

23. The House Version, July 28, August 13–24, 1789
A. Why did the House reject James Madison’s proposal to incorporate the Bill of Rights into the main body of the original Constitution? What alterations did the House make to Madison’s version?
B. How is the House version similar to and different from Madison’s June 8 proposals? See Document 22.

24. The Senate Version, August 25–September 9, 1789
A. Why do we know so little about the debates that took place in the Senate? What important contribution, if any, did the Senate make?
B. How is the Senate version similar to and different from the House version and James Madison’s June 8 version? See Documents 22 and 23.

25. The Congress sends Twelve Amendments to the States, September 25, 1789
A. Are the changes in the religion clauses significant in the final Congress version?
B. What changes took place in the religion clauses over the course of the First Congress? See Documents 22–24.

26. Amendments I–X: The Bill of Rights, December 15, 1789
A. To what extent is the Bill of Rights an individual rights, a group or associational rights, or a states rights document? Why are there ten rather than twelve or seventeen amendments?
B. Why does the Bill of Rights appear as amendments at the end of the Constitution rather than in the Preamble or in Article I, Section 9 of the Constitution? See Documents 3, 4, 15, 17, 18, 22 and 23.


Who wrote the Bill of Rights?

The Bill of Rights was written by James Madison and submitted to Congress in 1789. Madison is regarded as having the greatest influence on drafting and interpreting the U.S. Constitution. None of the Founding Fathers can compete with the immense contribution Madison made to ensure that the United States became a functioning and democratic republic.

Madison was first and foremost a federalist. He is credited with penning down the majority of the Federalist Papers. In those publications, Madison argued in favor of the separation of powers. He also supported having a republic that gave some level of autonomy to states. He called on the federal government to work in harmony with the various states. Madison believed that the Bill of Rights was crucial in ensuring the survival of the relationship between the federal government and the states in a large republic.


The Bill of Rights

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Preamble to the Bill of Rights

The Bill of Rights

The document on permanent display in the Rotunda is the enrolled original Joint Resolution passed by Congress on September 25, 1789, proposing 12-not 10-amendments to the Constitution.

Read a Transcript | View in National Archives Catalog

The Constitution might never have been ratified if the framers hadn't promised to add a Bill of Rights. The first ten amendments to the Constitution gave citizens more confidence in the new government and contain many of today's Americans' most valued freedoms.


A Brief History of the Bill of Rights

“The original Constitution, as proposed in 1787 in Philadelphia and as ratified by the states, contained very few individual rights guarantees, as the framers were primarily focused on establishing the machinery for an effective federal government. A proposal by delegate Charles Pinckney to include several rights guarantees (including "liberty of the press" and a ban on quartering soldiers in private homes) was submitted to the Committee on Detail on August 20, 1787, but the Committee did not adopt any of Pinckney's recommendations. The matter came up before the Convention on September 12, 1787 and, following a brief debate, proposals to include a Bill or Rights in the Constitution were rejected. As adopted, the Constitution included only a few specific rights guarantees: protection against states impairing the obligation of contracts (Art. I, Section 10), provisions that prohibit both the federal and state governments from enforcing ex post facto laws (laws that allow punishment for an action that was not criminal at the time it was undertaken) and provisions barring bills of attainder (legislative determinations of guilt and punishment) (Art. I, Sections 9 and 10). The framers, and notably James Madison, its principal architect, believed that the Constitution protected liberty primarily through its division of powers that made it difficult for oppressive majorities to form and capture power to be used against minorities. Delegates also probably feared that a debate over liberty guarantees might prolong or even threaten the fiercely-debated compromises that had been made over the long hot summer of 1787.

In the ratification debate, Anti-Federalists opposed to the Constitution, complained that the new system threatened liberties, and suggested that if the delegates had truly cared about protecting individual rights, they would have included provisions that accomplished that. With ratification in serious doubt, Federalists announced a willingness to take up the matter of a series of amendments, to be called the Bill of Rights, soon after ratification and the First Congress comes into session. The concession was undoubtedly necessary to secure the Constitution's hard-fought ratification. Thomas Jefferson, who did not attend the Constitutional Convention, in a December 1787 letter to Madison called the omission of a Bill of Rights a major mistake: "A bill of rights is what the people are entitled to against every government on earth."

James Madison was skeptical of the value of a listing of rights, calling it a "parchment barrier." (Madison's preference at the Convention to safeguard liberties was by giving Congress an unlimited veto over state laws and creating a joint executive-judicial council of revision that could veto federal laws.) Despite his skepticism, by the fall of 1788, Madison believed that a declaration of rights should be added to the Constitution. Its value, in Madison's view, was in part educational, in part as a vehicle that might be used to rally people against a future oppressive government, and finally--in an argument borrowed from Thomas Jefferson--Madison argued that a declaration of rights would help install the judiciary as "guardians" of individual rights against the other branches. When the First Congress met in 1789, James Madison, a congressman from Virginia, took upon himself the task of drafting a proposed Bill of Rights. He considered his efforts "a nauseous project." His original set of proposed amendments included some that were either rejected or substantially modified by Congress, and one (dealing with apportionment of the House) that was not ratified by the required three-fourths of the state legislatures. Some of the rejections were very significant, such as the decision not to adopt Madison's proposal to extend free speech protections to the states, and others somewhat less important (such as the dropping of Madison's language that required unanimous jury verdicts for convictions in all federal cases).

Some members of Congress argued that a listing of rights of the people was a silly exercise, in that all the listed rights inherently belonged to citizens, and nothing in the Constitution gave the Congress the power to take them away. It was even suggested that the Bill of Rights might reduce liberty by giving force to the argument that all rights not specifically listed could be infringed upon. In part to counter this concern, the Ninth Amendment was included providing that "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage other rights retained by the people".


Watch the video: A 3-minute guide to the Bill of Rights - Belinda Stutzman (January 2022).