We think of the U.S. Constitution as about rights, but mostly it isn’t. It is about the powers of the federal government that the framers created, and it is a fundamental rule book for the operation of that government.
The 55 (or so, they kept coming and going from Philadelphia during the Constitutional Convention summer of 1787) white men who drafted the Constitution didn’t write the Bill of Rights . And most of them opposed including any such section in their document.
As soon as the Constitutional draft was finalized, Madison sent Jefferson a copy for his reaction. Jefferson’s biggest objection — described in a letter back to Madison — was “the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws and trials by jury.”
Patrick Henry, the preeminent Virginia politician/tactician of the time, conceived a strategy to defeat the draft without directly calling for “no” votes.
So Henry asked his allies to seek a vote that would ratify the Constitution conditionally. The “condition” was the Constitution couldn’t take effect until it was amended to correct its flaws.
The pro-ratification forces immediately realized that a conditional ratification was no ratification at all. Unless at least nine states ratified unconditionally (see Article VII), the first congressional and presidential elections could not be held and the new government could not begin operations and a new convention would have to be called to deal with changes to satisfy the “conditional” ratifications.
And so, a compromise was reached and Americans were given a Bill of Rights.
The First 10 Amendments to the
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Madison proposed, and pushed through the House, 13 amendments. The Senate killed one of them (interestingly, it would have required the states to respect freedom of religion and expression; Madison argued that it was the most important one on the list). The other 12 were referred to the states for consideration.
After the Senate killed one of Madison’s original 13 amendments, 12 were referred to the states. But the Bill of Rights consists of the first 10 amendments to the Constitution. Two others failed of ratification, at least for a couple of centuries, and they were the first two on the list as referred to the states.
The long lost First Amendment (you’ll find the text, under “Article the first” on this link) is a mind-numbingly boring provision attempting to regulate how many members of the House there would be and how much population per district until certain thresholds are reached after which different numbers apply.
The long lost Second Amendment was simpler. Congress could not pass a pay raise for its own members that would take effect until after the next election. And that one has a fairly amazing (and very touching) history of its own that you may have missed unless you pay very close attention to the news.
In the blog posts that follow each of the ten amendments that constitute the Bill of Rights will be examined.
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