James Madison wasn’t a fan of Bills of Rights. He wasn’t alone. His notes toward the end of the Federal Convention of 1787 are sketchy, but one thing is clear; every State (though not every delegate) voted against a Bill of Rights (BOR).
Less than a year later, at the wild Virginia Ratification debates of June 1788, the Federalist team lead by Madison and Anti-Federalists by Patrick Henry went back and forth as to the pro and con of a BOR in the Constitution. The Anti-Federalists were furious, and they worked to withhold Virginia’s ratification until their amendments were ratified by the other states.
Why the Federalist resistance to a BOR?
Madison explained why in an October 1788 letter to Thomas Jefferson. He had in his hands a pamphlet that contained all of the amendments proposed by the various state ratification conventions. He was not against a BOR; he could support those that did not imply unenumerated powers. At the same time, he did not think their “omission (from the Constitution was) a material defect.” No, he would support amendments because they were anxiously desired by Constitutional opponents. He did not need to tell Jefferson there was no guarantee of actual, practical union despite ratification by eleven of thirteen states.
Madison outlined four reasons he was lukewarm toward a BOR.
- The Constitution did not grant power to infringe on our natural rights.
- Rights would probably be expressed narrowly rather than expansively.
- The senate of the states would both participate in law making and keep a watchful eye on the operations of the new government.
- Lastly,” repeated violations of these parchment barriers have been committed by overbearing majorities in every State.”
Experience showed that a BOR was ineffective when needed most. Sound familiar?
In Virginia, he saw its Declaration of Rights “violated in every instance where it had been opposed to a popular current.” Referring to the mid-1780s controversy over a state supported church bill, he said it was only narrowly defeated, despite a freedom of conscience guarantee in the Virginia Declaration of Rights. In other words, recent history showed that a state BOR alone was an ineffective barrier to majoritarian abuse.
“Wherever the real power in a government lies, there is the danger of oppression. In our (state) 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.”
Post-revolutionary states did not reliably enforce their various BOR.
Madison reasoned that BOR were necessary in monarchies, as limits demanded by the people, as powers taken from the prerogatives of the sovereign power, the King. When violated, the multitude of people had not only the raw power of any mob to resist, but legitimate authority to physically fight back against encroachments of the rights granted them.
But in American republican governments, the people and sovereign are identical. When the people themselves overrun the rights of the minority, to whom can the minority appeal? “What use then it may be asked can a BOR serve in popular Governments?”
Madison identified two. The political truths in a BOR could, over time, become such powerful maxims that they overpower ill-considered, mass impulses. Secondly, and though remote, if evil springs not from the people but from the Government, a BOR would be good grounds for appeal.
Adapted from James Madison Writings, pgs 420-421.
James Madison touched on two ways in which we may be oppressed. One is via majoritarian abuse. The other is from government diktats entirely isolated from the popular political process. A recent example of the first would be Obamacare. It was passed by Congress and signed by Obama into law. As for the second, oppression from the government outside of the constitutional process include, for instance, EPA diktats over coal fired electrical generation plants and CAFÉ’ standards for autos.
In both situations, our BOR proved ineffective; they failed as firewall protection of our individual rights.
James Madison was prescient, for the Supreme Court has eviscerated much of our Bill of Rights and rendered the 9th & 14th Amendments into catch-all baskets from which to draw phony and dangerous social justice whims that violate the Laws of Nature and Nature’s God.
It is past time to take back our nation and society.