At a time of unyielding polarization in Congress, when even the solemn task of filling a vacancy on the Supreme Court triggers a rigid partisan response from Senate Republican leadership, the musical Hamilton reminds us, in the words of historian R. B. Bernstein, of a time when “people of fundamentally clashing political views tried to work together to create a shared constitutional enterprise.”
That in 2016 a hugely popular Broadway musical is about “writing constitutions,” is a measure of the lasting fascination Americans have with the Founding Fathers and the US Constitution. Shelves creak with thousands of books written about the men — and women — who won independence from Great Britain and designed a brand new government. Is there anything new to be said?
In The Bill of Rights: The Fight to Secure America’s Liberties, Carol Berkin, the presidential professor of History at Baruch College and a member of the history faculty of the Graduate Center of CUNY, Emerita, combines prodigious research and an engaging writing style to provide a fresh look at the fierce political battles over amending the brand new Constitution to add express protections for individual rights. In a relatively brief but erudite account of this pivotal period in American history, Berkin has mastered key source materials to present a nicely paced story laced with lively wit and sure-footed assessments of her important subject.
Berkin considers the Declaration of Independence and the Bill of Rights “the two greatest written legacies of the Revolutionary generation.” She insists that the “men who produced the Bill of Rights were neither demigods nor visionaries. They were mere mortals, some brilliant, some quite ordinary, most of them wealthier and better educated than their neighbors.” Berkin’s most powerful insight is to place readers in the very specific circumstances the Founders faced. For them there was no guarantee that the new government they were building would last. Instead of viewing the Bill of Rights as just a lofty statement of high-minded principles, Berkin demonstrates through contemporaneous letters and speeches how these 10 amendments helped quell widespread opposition to the new Constitution and ensure popular support for the new and more energetic federal system of government.
In her previous book A Brilliant Solution: Inventing the American Constitution, Berkin told the extraordinary story of how the delegates to the Constitutional Convention in 1787 in Philadelphia overcame sectional rivalries and the intractable issue of slavery to create a new democratic government. In her new book, she briefly reminds readers of that dramatic story in order to set the stage for the creation of the Bill of Rights.
On September 12, 1787, late in the Convention, after the weary delegates had reached difficult compromises and hammered out the allocation of powers among the legislative, executive, and judicial branches, George Mason, a well-respected delegate, who had written the impressive Virginia Declaration of Rights, proposed that a bill of rights be added to the Constitution to ensure Americans that the central government they had designed would not introduce a new tyranny in place of the one they had successfully rebelled against. But instead of embracing Mason’s idea, the delegates overwhelmingly rejected it.
Many delegates, impatient to get back home to their families and businesses, argued that since the new Constitution did not grant the federal government the power to violate people’s rights, there was no need to include a guarantee of those rights. Mason was so deeply disappointed that he became one of only three delegates who refused to approve the Constitution. He declared “he would sooner chop off his right hand than put it to the Constitution as it now stands.”
James Madison came to see the refusal of the convention to include a bill of rights in the new Constitution as a serious mistake, one which posed the real possibility that the states would refuse to ratify the Constitution. Mason and many like-minded individuals, including fellow Virginian Patrick Henry (who had refused to be a delegate to the Convention because he “smelt a rat in Philadelphia, tending toward the monarchy”), became known as the Anti-Federalists and actively campaigned against ratification.
Fearing that all his handiwork as a principal architect of the Constitution was at risk, Madison, now a leader of the Federalists who supported ratification, announced that amendments guaranteeing the people’s rights and liberties would “serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty.”
Alexander Hamilton joined Madison (and John Jay) in writing the highly influential series of essays collectively known as The Federalist Papers (pseudonymously published under the name “Publius”) in support of ratification. Yet in the 84th installment, Hamilton insisted that in a Lockean republic a bill of rights was redundant. Guarantees of rights, he declared, might be valuable as stipulations between kings and subjects, but in a constitution “founded upon the power of the people, and executed by their immediate representatives and servants [...] the people surrender nothing, and as they retain everything they have no need of particular reservations.” Of course, Hamilton’s faith in elected leaders would prove naïve.
Nevertheless, Madison’s strategy worked. Opposition to the Constitution failed and ratification was officially recognized on September 13, 1788. Madison was elected to a seat in the First Congress, which convened in New York City on April 1, 1789. While the rest of the representatives busied themselves with the creation of a federal court system, setting tariffs and excise taxes and the myriad of details necessary to establish the new government, Madison went to work drafting a bill of rights. The centerpiece of Berkin’s book is a vivid account of how Madison masterfully navigated the Bill of Rights through Congress. His allies and opponents come alive as Madison’s proposals are debated, revised, and debated again.
So as not to slow her splendid narrative, Berkin includes a highly informative 60-page appendix containing short colorful biographies of the 26 members of the First Senate and the 65 members of the First House of Representatives. Readers would be foolish to skip these fascinating sketches, which reveal the remarkable accomplishments and surprising idiosyncrasies of the men who served in the seminal First Congress. (Unfortunately, in a rare slip up, Berkin attributes the famous adage “Patriotism is the last refuge of a scoundrel” to Senator William Samuel Johnson [1727–1819], when in fact it was coined by the British man of letters Samuel Johnson [1709–1784]).
According to Berkin, as Madison sought approval for the Bill of Rights, he
had come to a profound, and much broader, understanding of the value of a bill of rights: it might be able to directly shape — and regulate — the behavior of the community itself. If its contents were presented as “fundamental maxims of free government” then, over time, “as they become incorporated with the national Sentiment” they might serve to “counteract the impulses of interest & passion.” In other words, as these maxims became a vital part of the nation’s political culture, as they came to define American ideals and to stand as an American credo, the conscience of the majority would curb its impulse to oppress others. Men, Madison was arguing, could be shamed into behaving like angels.
But now that the Constitution had been ratified and the Federalists enjoyed healthy majorities in both the Senate and House, many members had lost interest in writing a bill of rights. In a letter to Thomas Jefferson, one senator from South Carolina wrote: “I hope we shall not be wasting time with Idle discussions about amendments of the Constitution; but that we shall go to work immediately about the Finances & endeavour to extricate ourselves from our present embarrassed, & disgraceful situation.” Another senator urged Congress to wait 20 years before considering any amendments: “The Constitution is so good & excellent, that I do not wish to have it shaken by any speedy Alterations.”
After several delays, Madison finally took the floor on June 8, 1789, and urged the House that adopting a bill of rights would help bring in the two remaining states (North Carolina and Rhode Island) which had rejected ratification into the union; fortify popular support for the success of the new government; and establish principles that might curb the majority’s impulse to abuse the minorities. He distilled over 100 suggested amendments into nine proposals (which covered 49 distinct rights) and added two of his own, including one which would prove highly controversial which would broadly prohibit not only the federal government but also the individual states from infringing on their citizens’ freedom of conscience, or the press, or the right to trial by jury in criminal cases.
Anyone who has ever tried to navigate through a group’s parliamentary procedures when its members are far more interested in other issues will feel great sympathy for what Madison faced in trying to grab his colleagues’ attention away from their endless debates over taxing Caribbean molasses, exempting cotton from excise duties, and establishing lighthouses, beacons, and buoys.
Madison persisted. Finally, in July 1789, he convinced the House to appoint a Committee of Eleven to review his proposals. Berkin, with a highly readable and accessible style, traces how the Committee and later the entire House grappled with the wide range of complicated issues addressed in Madison’s draft including the right to bear arms, quartering soldiers in time of war, protections against unreasonable searches and seizures, the right against self-incrimination, due process, the right to a speedy trial, the right to a jury trial, and the prohibitions on excessive bail and cruel and unusual punishments.
Readers will be most intrigued by the struggles over what would become the First Amendment. Madison’s draft guaranteed that the:
civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner or on any pretext infringed. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.
Fearing that, in the hands of the majority, state governments might run roughshod over the rights of minorities, Madison also included a separate proposal, in which he was deeply invested: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” Anti-Federalist House members recognized this for what it was: a challenge to the sovereign authority of the individual states. According to Berkin, Madison believed this proposal “was the most important amendment of all. These rights, he argued, deserved protection from all levels of government, federal and state.” Backed by his Federalist majority, Madison overcame the opposition and won House approval for his favorite amendment.
Following further days of debate and last minute attempts by the Anti-Federalists to block the entire enterprise and demand a second constitutional convention, the House approved the rest of Madison’s proposals and sent them to the Senate. With no official record of the debates in the Senate, Berkin is limited in what she is able to report. But we know it only took the Senate a week to condense and refine the proposals and send a set of 12 amendments back to the House. For Madison, it was a mixed blessing. His goal of creating a bill of rights was one step closer to being accomplished, but it came at a high price. The Senate completely eliminated the federal prohibition on the individual states infringing on personal liberties. Berkin postulates that, since senators were elected by state legislatures, “few of them were eager to endorse the principle that the federal government could dictate specific policy to the states.” Consequently, what would become the First Amendment would begin with the limiting words “Congress shall make no law …” (It would not be until the adoption of the Fourteenth Amendment in the wake of the Civil War and a series of subsequent Supreme Court decisions, that the protections of the Bill of Rights would be incorporated among the rights guaranteed by the states.)
On September 24, 1789, the House approved the final set of proposed amendments, which now needed to be ratified by at least 11 state legislatures. Despite the fact that it was the Anti-Federalists who had pushed for a bill of rights in the first place, in the end six Anti-Federalists were the only representatives to vote against the measure. Anti-Federalist Richard Henry Lee fumed to fellow Virginian Patrick Henry that in writing the amendments, the “english language has been carefully culled to find words feeble in their Nature or doubtful in their meaning.”
In the ratification process, the claims of localism clashed with the imperatives of nationalism, as a new federalism was forged. Berkin strikes an optimistic chord: whether “Federalist or Antifederalist, nationalist or provincial,” she writes, “the men who led the new nation had much more in common than they might have conceded in the heat of their political and ideological struggles.”
On December 30, 1791, President George Washington informed Congress that the requisite 11th state, Virginia, his home and the home of Madison, Jefferson, Mason, Lee, and Henry, had ratified 10 of the 12 proposed amendments — the first two, on apportionment of representatives in the House and congressional pay, having failed to be ratified by a sufficient number of states. The rest of the amendments were simply renumbered with the happy result that the historic guarantee of separation of church and state, free speech, free press, peaceable assembly, and petitioning the government for redress of grievances was installed in its hallowed place as the First Amendment.
Berkin sensibly makes no attempt to tell the subsequent 225-year history of the Bill of Rights. Perhaps she will devote her considerable skills to that task in her next book. She does briefly note that it would take only seven years for Congress to pass the draconian Alien and Sedition Acts, which made it a crime for newspapers to criticize the government. So much for the reassuring words of those who opposed a bill of rights because there was no risk the new federal government would violate precious individual rights. The ink on the Bill of Rights was barely dry when the John Adams’s administration did just that.
Madison responded by drafting the Virginia Resolution, which condemned Congress for exercising “a power not delegated by the Constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto.” Madison used the occasion to invoke his beloved Bill of Rights.
Berkin concludes her splendid book by noting that while could not have envisioned the importance these 10 amendments would have to future generations of Americans, “the Bill of Rights has fulfilled James Madison’s fervent hope that this ‘parchment barrier’ would benefit the civic and moral development of the nation.” She observes that it “has proved a strong bulwark for our liberties and a safeguard against the majority’s abuse of minorities” and “has established the vocabulary for our most critical discussions of, and fiercest debates over, who we are and what we think it is best to do.”
Stephen Rohde is a constitutional lawyer, lecturer, writer, and political activist.