Time: Thu Jun 12 18:00:29 1997
	by primenet.com (8.8.5/8.8.5) with SMTP id RAA28636;
	Thu, 12 Jun 1997 17:52:33 -0700 (MST)
Date: Thu, 12 Jun 1997 17:51:31 -0700
To: (Recipient list suppressed)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: How Madison used the Bill of Rights to save the
  Constitution (fwd)

>American Enterprise Institute for Public Policy Research
>Book Summary
>May 1997
>Click here for an index of Book Summary.
>>From Parchment to Power: How James Madison
>Used the Bill of Rights to Save the Constitution
>By Robert A. Goldwin
>This book tells the story of how the Bill of Rights was amended to the
>Constitution and, more important, it explains how that addition completed
>the Constitution by clarifying the status of the American people.
>The author is a resident scholar at the American Enterprise Institute and
>the senior editor of the AEI Press series A Decade of Study of the
>>From Parchment to Power is a book about the making of the Constitution of
>the United States and its Bill of Rights. The book began as a
>straightforward account of why and how the first ten amendments were added
>to the Constitution, but it unavoidably became much more than that. It
>developed into an account of what is required, in thought and action, for a
>people and their political leaders to make an enduring constitution
>establishing a democratic republic. As the story unfolds, we see how James
>Madison thought through, and then implemented, a design to put the
>Constitution on the firmest possible foundation, a foundation of popular
>support so solid that the Constitution has lasted incomparably longer than
>any other in the world.
>The newly constituted government of the United States was just getting
>underway in May 1789. The Constitution had been ratified by eleven states;
>congressional elections had been held; the electoral college had met and
>voted; President George Washington had been inaugurated; and the First
>Congress was in session, with the Federalists, supporters of the
>Constitution, enjoying an overwhelming majority in both houses of
>Congress--five-to-one in the House of Representatives and ten-to-one in the
>Senate. One would think that affairs were off to a splendid start.
>And yet James Madison was deeply concerned that the entire constitutional
>enterprise was in serious danger. The ratification process had produced
>harsh controversies and bitter resentments that had not been resolved or
>softened. In three major states, ratification had been achieved by
>dramatically narrow margins--by 19 votes out of 355 in Massachusetts, by 10
>votes out of 168 in Virginia, and by 3 votes out of 57 in New York. And the
>opponents of ratification had not given up their efforts to make radical
>changes in the Constitution.
>In the first weeks of the first session of the First Congress, the
>legislatures of both Virginia and New York submitted applications to
>Congress to call a new constitutional convention for proposing amendments,
>as provided for in Article V of the Constitution. Madison was seriously
>disturbed that there was strong public opinion in favor of this movement
>for a second convention; a substantial minority of the general public
>supported the movement because they were very uneasy about the safety of
>their individual rights under an unfamiliar new government.
>In the face of this situation, Madison began to implement his plan to save
>the Constitution by proposing his own set of amendments. He had two
>objectives: to block the amendments others were proposing, which would have
>made radical changes in the Constitution; and to win the support of the
>general public by securing the adoption of his own amendments, which he
>carefully designed to change not one word in the original Constitution.
>Drafting and Ratifying the Constitution
>The unresolved controversies threatening the new government had originated
>in the Constitutional Convention in Philadelphia two years earlier and had
>persisted after ratification. The Constitu-tional Convention had been
>established by the Continental Congress, the closest thing the nation had
>at the time, under the Articles of Confed-eration, to a government
>institution. The Conti-nental Congress had instructed the Constitutional
>Convention to recommend alterations of the Articles of Confederation and to
>submit their report to the Congress for approval. But after four arduous
>months, the delegates had produced much more than mere alterations; they
>had recommended an entirely new form of government with a powerful
>legislature that would, among other things, replace the Continental
>Congress. And among their other recommendations were procedures for
>ratification of the new document that violated several of the
>constitutional requirements under the Articles of Confederation.
>Nevertheless, by means of one skillful maneuver after another, the
>proponents of the Consti-tution succeeded in moving the ratification
>process ahead rapidly through the Continental Congress, to the state
>legislatures, and on to quick favorable action by the first five state
>ratifying conventions. But when they arrived at the ratification convention
>in Massachusetts, it looked like they were about to suffer a decisive
>defeat. The outcome in Massachusetts would have a powerful influence on the
>conventions in the remaining states, especially Virginia and New York. If
>the Constitution lost in Massachusetts, it would almost certainly not be
>The Pivotal State
>Massachusetts was politically polarized in January 1788 when the convention
>began. The state was sharply divided, with rich against poor, eastern
>merchants against western farmers, cities and towns against rural areas,
>creditors against debtors, the few against the many. Those divisions
>provided the context for the elections of delegates to the ratifying
>convention, and opponents of the Constitution won a substantial majority of
>the seats in the convention.
>Despite that majority against ratification at the outset of the convention,
>ratification was achieved. The decisive turning point was the winning over
>of the state's two most influential leaders: John Hancock, the governor of
>Massachusetts and also the president of the convention, and Samuel Adams,
>the president of the state senate. These two venerable signers of the
>Declaration of Independence had serious reservations about the
>Constitution, but they had been elected to the convention as declared
>neutrals on the question of ratification.
>The convention had been going on for nearly a month, and a kind of
>stalemate had developed. The opponents did not have enough votes for
>outright rejection of the Constitution; the proponents did not have enough
>votes to win ratification without amendments; and no one knew how to get
>valid amendments before ratification. In the face of this stalemate,
>Hancock proposed a novel solution, a major breakthrough that almost
>certainly saved the Constitution from ultimate defeat. He proposed that the
>convention "assent to and ratify the said Constitution" without conditions
>and simultaneously recommend a set of amendments to the First Congress, to
>be enacted according to the amending provisions in Article V of the
>Constitution. His set of proposed amendments dealt with such things as
>protecting states' powers, restricting congressional powers over elections
>and taxation, limiting the powers of federal courts, and some lesser
>matters. None of them touched on subjects we might have expected, such as
>protection of religion, press, speech, assembly, or petition.
>Enough votes were changed to win ratification, by the slim margin of 19
>votes out of 355 cast, 187 to 168. The Massachusetts formula--unconditional
>ratification accompanied by amendments seeking to diminish the powers of
>the federal government and restore them to the states--was subsequently
>used by six of the remaining seven state ratifying conventions. Amendments
>were expected, and so, despite ratification, active opposition continued to
>be widespread and stubborn in the remaining states. The Constitution was
>clearly still in peril.
>Madison Comes to the Fore
>At this point in the story, James Madison took center stage. Madison had
>played a leading role in the Constitutional Convention, in the Virginia
>ratifying convention, and in influencing public opinion as one of the
>authors of The Federalist. Now, as a congressman from Virginia, he proved
>to be, in the eyes of his congressional colleagues, the most annoying and
>disruptive member of the House of Representatives by insisting on proposing
>amendments to the Constitution in the first few weeks of the first session
>of the First Congress. This was met with a chorus of complaints that
>Madison had his priorities all wrong and that it made no sense to consider
>amendments before there was any experience with the Constitution that might
>reveal what needed to be amended. In addition, there were urgent matters
>such as raising revenue and organizing the government that ought not be
>delayed. Why Madison acted as he did, and how he succeeded in his project
>of amendments against almost unanimous opposition, is a central element of
>the story of the making of the Constitution, and one of the great feats in
>the history of constitution making.
>Madison was a towering figure in the American founding, yet he is forever
>doomed to be less appreciated than he deserves. As the historian Jack
>Rakove has pointed out, he had almost no commanding personal
>characteristics except "the power of his intellect." He lacked the dignity
>of Washington, the charm of Jefferson, the boldness of Hamilton. Thomas
>Paine was a more effective writer, and Patrick Henry a far more stirring
>orator. But Madison was the most profound, original, and far-seeing of all
>his peers.
>Throughout the ratification process, the most strident demand of the
>opposition had been for a bill of rights to be added to the Constitution.
>That the original Constitution did not have a bill of rights was the result
>of a conscious decision, not an oversight, on the part of the framers in
>the Constitutional Convention, including Madison. When a delegate moved
>that a bill of rights be added, the motion was voted down, ten states to
>none. For a variety of reasons, most of the chief authors of the
>Constitution thought a bill of rights was unnecessary in a constitution
>such as theirs, and perhaps even dangerous to the security of rights. There
>is no doubt that all of them were devoted to the cause of the rights of
>individuals, and that they adhered to the principle of the Declaration of
>Independence that governments are established to secure the great rights of
>mankind. But they did not think such a declaration had a place in the
>Constitution, and they had serious doubts about the effectiveness of a bill
>of rights in securing the rights they held precious.
>The central part of the book traces the development of Madison's thought
>from skeptic to advocate of a bill of rights. Madison was devoted to the
>cause of securing private rights, but he had long expressed doubts that a
>bill of rights was the best way to secure them. For him the fundamental
>question was, what truly secures rights? He thought that rights were best
>protected by a properly constructed constitution, and that by itself a bill
>of rights was but a "parchment barrier," especially ineffective in
>protecting the minority against an oppressive majority. How a man of such
>convictions became the chief proponent of the Bill of Rights is a
>fascinating and instructive story.
>In the course of a marvelous correspondence with his illustrious friend
>Thomas Jefferson, then serving as the American minister in Paris, Madison
>overcame his doubts and persuaded himself that a bill of rights could serve
>an essential function in the American constitutional scheme. In a letter to
>Jefferson, he posed this question, more to himself than to his
>correspondent: "What use . . . can a bill of rights serve in popular
>governments?" Only after Madison had satisfied himself that he could answer
>that question did he begin the amending process that ended in his becoming
>"The Father of the Bill of Rights."
>Madison was of the opinion that the task of establishing the Constitution
>could not be considered complete so long as a sizable minority of Americans
>continued to be uneasy about the extensive powers it granted to the new
>federal government. In his view, it was not enough for the new Constitution
>to have the support of the majority. He thought the Constitution had to be
>an extraordinary force in American political life, powerful enough to
>overwhelm and restrain an oppressive majority whenever one might arise, and
>the Constitution could not be that powerful unless it had the universal
>allegiance of "the great mass of the people." Madison saw his amendments as
>the perfect instrument for winning that universal support for the
>Constitution. The task he imposed on himself was a daunting one, to push
>through an uncomprehending Congress the solution to a problem that only he
>seemed to perceive.
>Executing the Plan
>The concluding part of the book picks up the story of "how" it was done, a
>detailed account of the debates in the First Congress, where Madison's
>amendments were proposed, debated, revised, and finally passed by the
>required two-thirds majorities of both houses, and passed on to the state
>legislatures for eventual ratification. After Madison overcame determined
>opposition just to introduce the amendments, he commenced the long and
>grueling task of persuading reluctant congressmen and state legislators to
>adopt his amendments and to reject others proposed by opponents of the
>Constitution, which he did with remarkable legislative skill and dogged
>Many of the facts presented in this book are both well known and little
>known--well known to historians of the founding era, but little known to
>many others. Included among the list of these well-known, little-known
>facts are these: that the Constitution was ratified by a very narrow
>margin, and probably would have been defeated had it been submitted to a
>nationwide popular referendum; that the procedure adopted for ratification
>of the Constitution was a conscious violation of the requirements of the
>Articles of Confederation; that although there was a widespread demand for
>other kinds of amendments, most of the states expressed no concern at all
>for adding provisions protecting freedoms of religion, press, and speech;
>that the resounding phrase "We the People," with which the Preamble of the
>Constitution begins, was something of an accident; that just about every
>congressman in the First Congress, Federalist and Anti-Federalist alike,
>was opposed to consideration of amendments, and that even Madison had
>almost no words of praise for the amendments he himself proposed; that the
>Anti-Federalist leaders, who agitated for a bill of rights throughout the
>ratification struggle, subsequently voted consistently against the Bill of
>Rights in the First Congress, from start to finish; that ratification of
>the Bill of Rights was not a victory for the Anti-Federalists, but a
>crushing defeat for them, from which they never did recover; that the final
>adoption of the Bill of Rights was hardly noticed by the public, and was
>hardly mentioned in the press of the day, and was certainly not celebrated.
>These well-known, little-known facts add spice to a story that would be,
>even without them, an intriguing one.
>We the People
>The book concludes with a reflection on the significance of the Preamble's
>assertion that "We the People of the United States" are the ones who made
>the Constitution the official governing instrument. But what else did the
>original Constitution tell us about this remarkably powerful people,
>capable of constituting a government for themselves? The answer is
>startling: Nothing! After the Preamble, the original Constitution never
>again mentions "the people of the United States." The powers of the several
>branches were spelled out in the legislative, executive, and judicial
>articles, but the Constitution said nothing about the powers (or rights) of
>the people, the people who established this Constitution. But the addition
>of the first ten amendments, which speak of "the people" again and again,
>remedied that omission. With the ratification of the Bill of Rights, which
>emphatically put the people in the Constitution and might properly be
>called the people article, the making of the Constitution was at last
>            From Parchment to Power: How James Madison Used the
>                  Bill of Rights to Save the Constitution
>                            By Robert A. Goldwin
>                ISBN 0-8447-4012-8, cloth, $24.95; 227 pages
>                 Add $3.00 handling charge for first book,
>                      $0.50 for each additional book.
>              Tennessee residents: please add local sales tax.
>                  Send check payable to the AEI Press to:
>                               THE AEI PRESS
>                        c/o Publisher Resources Inc.
>                           1224 Heil Quaker Blvd.
>                  P.O. Box 7001, La Vergne, TN 37086-7001
>                 To order by phone (American Express, Visa,
>                     or MasterCard), call 800/937-5557,
>                 Monday-Friday, 9 a.m.-5 p.m. Eastern time.
>                    To order by fax, call 800/PRI-ORDER.
>///,        ////             Mark A. Smith
>\  /,      /  >.
> \  /,   _/  /.                  * * *
>  \_  /_/   /.
>   \__/_   <          UNITED STATES THEATRE COMMAND  
>   /<<< \_\_           
>  /,)^>>_._ \          email: msmith01@flash.net      
>  (/   \\ /\\\       http://www.flash.net/~msmith01       
>       // ````
>         The Second Amendment was created so that we can sleep good 
>                   at night - so that our politicians can't.

Paul Andrew Mitchell                 : Counselor at Law, federal witness
B.A., Political Science, UCLA;  M.S., Public Administration, U.C. Irvine

tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night
email:   [address in tool bar]       : using Eudora Pro 3.0.2 on 586 CPU
website: http://www.supremelaw.com   : visit the Supreme Law Library now
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best
             Tucson, Arizona state   : state zone,  not the federal zone
             Postal Zone 85719/tdc   : USPS delays first class  w/o this

As agents of the Most High, we came here to establish justice.  We shall
not leave, until our mission is accomplished and justice reigns eternal.
[This text formatted on-screen in Courier 11, non-proportional spacing.]


Return to Table of Contents for

Supreme Law School:   E-mail