James Madison: Speech to the House of Representatives Proposing a Bill of Rights

Explanation and Analysis of the Document

During the state-by-state debates over ratification of the Constitution, Antifederalist opponents highlighted the absence of a bill of rights. Leading Federalist supporters, including Madison, initially argued that such a bill was unnecessary and might even be dangerous. In time, however, Madison recognized that support for such a bill was so strong that it could lead to a second constitutional convention that would potentially undo some of the hard work of the first. In seeking a seat in the first House of Representatives, Madison faced stiff opposition from James Monroe, who had distinguished himself in the Revolutionary War. Under pressure from Baptists and members of minority religious groups who feared religious persecution, Madison agreed that he would work for a bill of rights once the Constitution was ratified.

Madison subsequently compiled amending proposals made by the states and presented them to the First Congress, carefully focusing on amendments that would protect individual rights rather than on any rearranging of the structure of the proposed government. To his surprise, he found that some of the earlier advocates of a bill of rights had turned their attention to matters they considered more pressing with regard to getting the new government on its feet.

In his speech to the House of June 8, 1789, on behalf of a bill of rights, Madison cites “the duty which I owe to myself and my constituents” as well as the “prudence” of adopting such a bill in a timely fashion. Madison argues that the adoption of a bill of rights would be a way of convincing those who had opposed the adoption of the Constitution that the founding document's advocates “were as sincerely devoted to liberty and a republican government” as their opponents. He duly notes that the new Union will not be complete until Rhode Island and North Carolina ratify and join. At the time, the position of the new government remained precarious. Madison expresses the fear that should Congress fail to act, the door might be opened “for a re-consideration of the whole structure of the government—for a re-consideration of the principles and the substance of the powers given.”

In contrast to Federalists who argued that the introduction of a bill of rights might be dangerous, Madison claims that adoption presented the opportunity for “something to gain” and “nothing to lose.” He appeals to Federalist allies in observing that he is not proposing anything “which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens.” He further observes that the primary opposition to the Constitution had come from those who “disliked it because it did not contain effectual provision against encroachments on particular rights.”

Madison next introduces his proposed amendments. His initial suggestion for a preamble declaring that the government was instituted for the people and that they had “an indubitable, unalienable, and indefeasible right to reform or change their government” was eventually deleted. Perhaps more notably, Madison proposed inserting individual amendments within the constitutional text rather than appending them to the end of the document as Congress eventually voted to do (following the suggestion of Roger Sherman of Connecticut).

After outlining most of the provisions that would eventually make their way into the adopted Bill of Rights, Madison addresses specific arguments against them. Recognizing the implicit weakness of “paper barriers,” he acknowledges that some thought a listing of rights was “unnecessary, because the powers [of Congress] are enumerated, and it follows that all that are not granted by the constitution are retained.” Yet Madison thinks it is especially important to guard against legislative excesses. Effectively admitting the truth behind some Antifederalist criticisms, he acknowledges that some powers granted to Congress might be extended under the “necessary and proper” clause to embrace improper objects; he specifically notes that Congress might consider issuing “general warrants” for such purposes. It was just as logical, then, to restrict the national government on such matters as it was to restrict the states. As to relying on state bills of rights alone, they would be quite variable, and firmer security of rights would be needed.

As to the Federalist argument that a bill of rights could prove dangerous if its enumeration of particular rights was thought to “disparage those rights which were not placed in that enumeration,” Madison points to the positive recognition of such unenumerated rights in the provision that would eventually become the Ninth Amendment. Relying in part on arguments that Thomas Jefferson had made to him in personal correspondence, Madison further answers the argument that provisions of the Bill of Rights would be ineffective paper barriers by asserting that, once enumerated, the rights would be enforced by the courts: “Independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Moreover, state legislatures would also use such rights as rallying points against national oppression.

Madison's speech led to effective action. Congress proposed the Bill of Rights on September 25, 1789, and on December 15, 1791, the requisite number of states had ratified ten of twelve proposed amendments. Also by then, Rhode Island and North Carolina had joined the Union. Time would test the effectiveness of these provisions.