Freedom of speech, religion and the press. The right to assemble, bear arms and due process. These are just some of the first 10 amendments that make up the Bill of Rights. But they weren’t included in the original U.S. Constitution, and James Madison, the bill’s chief drafter, had to be convinced they belonged in the country’s supreme law.
Madison was actually once the Bill of Rights’ chief opponent. In his book, The Oath and the Office: A Guide to the Constitution for Future Presidents, Corey Brettschneider, a political science professor at Brown University, writes that when the founding father entered the race for Congress as a candidate for the state of Virginia in 1788, the issue of whether America needed a Bill of Rights was a dominating campaign issue. George Mason, a fellow Virginian, had refused to sign the Constitution without a Bill of Rights. But Madison argued it was unnecessary and perhaps even harmful.
His reasoning? “Madison might have felt like a master chef watching a patron pour ketchup all over his perfectly cooked steak,” Brettschneider writes. “He considered his work crafting the Constitution so thorough that there was nothing to amend: Article I limited the powers of Congress, and Article II constrained the president. A Bill of Rights was redundant at best—and dangerous at worst.”
Madison and many of the framers also worried that an explicit guarantee of rights would be too limiting, Brettschneider adds.
“They believed the structure of the new Constitution by itself placed limits on government, so they were concerned that by listing some rights, the government might think it had the power to do anything it was not explicitly forbidden from doing,” he says.
Virginians, however, didn’t trust that Article I and Article II would protect their rights, and demanded such a bill, according to Brettschneider. Madison, partly for political survival, eventually campaigned on introducing a Bill of Rights, and won his election against James Monroe.
Tony Williams, senior teaching fellow at the Bill of Rights Institute, says Thomas Jefferson, through a series of letters written from Paris, helped persuade Madison to change his mind, as well.
“A bill of rights is what the people are entitled to against any government on earth, general or particular, and what no government should refuse, or rest on inference,” Jefferson wrote to Madison in a letter from December 20, 1787.
But more importantly, Williams says, Madison wanted to quell the opposition of the anti-Federalists to the new government by proposing a Bill of Rights in the First Congress.
“The Federalists had also promised the anti-Federalists amendments protecting rights during the ratification debate, and he wanted to fulfill that promise,” he says.
Madison, tasked with writing the new amendments, addressed some of his concerns by including the Ninth Amendment, that states rights are not limited to those listed in the Constitution, and the 10th Amendment, which limits the federal government’s powers to those granted specifically in the Constitution and its amendments.
“The Bill of Rights are important assertions of natural and civil rights of the individual, and the critical Ninth Amendment is a reminder that the people have other rights not listed in the first eight amendments,” Williams says.
Drawing on Mason’s Virginia Declaration of Rights, as well as Britain's Magna Carta and other documents, Madison introduced the Bill of Rights in Congress on June 8, 1789, and it was ratified on December 15, 1791.
Democracy, Brettschneider says, is often thought to mean majority rule, but the Bill of Rights includes many guarantees of minority rights that are equally necessary to self-government.
“The First Amendment right to free speech means that citizens can criticize their leaders without facing criminal punishment,” he says. “The right to assembly, also in the First Amendment, means citizens can protest government policies we disagree with.”
Other rights declared in the document ensure that citizens are not treated arbitrarily by the state. Under the Fifth Amendment, all citizens are guaranteed “due process” in the legal system. The Eighth Amendment, meanwhile, by banning “cruel and unusual” punishment, ensures the government can’t use criminal law to, as Brettschneider says, “make citizens docile and afraid.”
"It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act," Madison said in an 1829 speech in Virginia, "and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted."
