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The Bill of Rights : An Orphan Document : For Madison: a ‘Nauseous Project’

<i> Jack N. Rakove, a professor of history at Stanford University, is the author of "James Madison and the Creation of the American Republic" (HarperCollins)</i>

Today, we would call James Madison’s decision to support the adoption of a federal bill of rights a campaign conversion. In a tough race against his friend, James Monroe, for election to the first House of Representatives, Madison issued public letters declaring his support for adding a bill of rights to the new Constitution. After his election, Madison made good on his pledge by preparing a suitable set of amendments and then shepherding the Bill of Rights through the first session of Congress, in 1789.

Yet privately, Madison described his labors as “a nauseous project.” So it indeed seemed to many congressmen who felt they had more urgent issues to resolve, and who sensed that the clamor for a bill of rights, which had accompanied debates over ratification of the Constitution, could now be safely ignored. Even those who had opposed the Constitution showed little enthusiasm for Madison’s project, because they understood it was designed to thwart more important changes they sought in the new government’s structure and powers.

Two centuries later, this lack of zeal for the Bill of Rights seems as puzzling as the initial failure of the Federal Convention of 1787 to include a declaration of rights in the Constitution. After all, many of the most sharply contested issues in American politics revolve around questions about the modern interpretation of the Bill of Rights: school prayer, pornography, capital punishment, the rights of criminal suspects and defendants, even abortion--as an unenumerated right protected under the Ninth Amendment.

Because these issues matter so today, we want the story of the adoption of the Bill of Rights to be equally momentous--to provide useful, even binding, lessons that will illuminate our choices. Instead, we have to wrestle with an ambiguous political history in which even a committed libertarian like Madison remained skeptical about the lasting value of his amendments.

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Why did the framers omit a bill of rights from the Constitution? And why did Madison take on the burden of badgering a reluctant Congress to accept his amendments? To answer this, we have to ask how Americans thought about rights generally.

In the 18th Century, as now, “rights talk” was very much a part of the language of American politics. First, as English colonists, and then, as citizens of a new republic, Americans drew their ideas of rights from a rich body of legal doctrine and constitutional history. But within this tradition, they could point to no single source as the origin of the range of rights they claimed. Ideas of natural right, common law, local custom and great acts of state, such as the Magna Carta, were all sources of rights.

When Americans declared independence, they naturally added declarations of rights to new constitutions that the separate states wrote to restore legal government in 1776. But were these the source of the rights Americans claimed, or did they merely recognize the existence of rights they had always enjoyed? In 1776, there was no pressing need to ask, much less resolve, this question. It became a serious issue only after Americans began to consider what it meant to live under written constitutions.

Resting rights on the authority of a written constitution promised to remove the ambiguity of their origins. But if a constitution was regarded as the source of rights, what about rights not explicitly mentioned? Would they be relegated to an inferior status, rendered less authoritative even if equally fundamental?

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This was the first theoretical objection that the framers of the Constitution and their Federalist supporters held against the idea of adopting a bill of rights. The problem that some rights would be diminished when others were enumerated was a real one, because Americans believed they literally “owned” a staggering array of rights. Was it so absurd to worry where a catalogue of rights might end when one group of Antifederalists wanted their customary right of “fowling and hunting” recognized in the Constitution?

But the skepticism about a federal bill of rights had a deeper source. More important than the dilemma of identifying which rights most deserved protection was the concern with locating where the greatest dangers to rights would arise.

Before the Revolution, the great danger to rights was believed to come from the executive branch--from the Crown and its agents, including judges. For this reason, representation and trial by jury were the crucial rights protecting liberty against the government’s arbitrary power. But after independence, executive power withered--at least until the framers restored it in the presidency--as legislatures emerged as dominant institutions of government, and the greatest danger to rights.

Could bills of rights meant to restrain monarchs work equally well against the people’s representatives? Madison’s doubts on this head were linked to his most acute insights into the nature of republican government. Not only was legislative power itself so open-ended and “plastic” as to defy limitation, Madison realized, but also the very fact that legislators could claim to speak for the people meant they would never feel constrained by the “parchment barrier” of a bill of rights. Nor would a politically weak judiciary dare to assert its decisions as superior to the considered judgment of the people’s elected representatives.

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In reaching this position, Madison made it possible to define rights in a modern way. Where rights were once thought of as something the people as a whole had to defend against their rulers in government, Madison argued that the new problem was to protect minorities and individuals against the dominant power of popular majorities acting through government. In a brilliant letter to Thomas Jefferson, the leading advocate of a bill of rights, Madison reminded his close friend that, in a republic, the real danger to rights came “from acts in which the government is the mere instrument of the major number of the constituents.” Because these majorities acted out of “passion” and “interest,” no paper declaration of rights could deter them from injustice.

Madison carried this analysis one crucial step farther. These majorities could form far more easily within individual states than nationally, and, in any case, most of the ordinary business of government would be conducted at the state level. That was where the recurring danger to rights would be found. Unless a federal bill of rights reached the states, it would have little practical effect.

Madison held on to these private reservations even as he grudgingly accepted the political need to add a bill of rights to the Constitution. His principal defense of the Bill of Rights was not that it was necessary, but simply that its adoption would persuade moderate Antifederalists that the Constitution was not a formula for tyranny. While forcing his “nauseous project” down the throat of Congress, Madison suggested its adoption would encourage the judiciary to act more boldly in defense of the rights he wanted to protect. But he continued to believe the “efficacy” of the Bill of Rights would depend less on judicial enforcement than on the moderating influence it might gradually acquire over the public opinion he still feared.

In its origin, then, the Bill of Rights was a more ambiguous document than we would often care to admit. A powerful case can be made that only Madison’s perseverance guaranteed its adoption. Once adopted, it became nearly a dead letter in American jurisprudence for the better part of a century and a half. Only in our own century has it gained the influence its principal author desired but doubted it would acquire.

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THE VIEW FROM ABROAD: Six perspectives on whether the Bill of Rights has inspired freedom around the world. Page 2.

TIMES INTERVIEW: “All we’ve got now to hang on is the Bill of Rights,” according to Gore Vidal. Page 3

EDITORIAL: A document America must have--but barely understands. Page 6.


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