The Four Stages of Approval of the Bill of Rights

INTRODUCTION

A Select Committee considered the 39 proposals contained in Madison’s June 8 speech. The Committee dropped Madison’s attempt to attach the prefatory natural rights language found in the existing Preamble to the Constitution, in the Declaration of Independence, and the Virginia Declaration of Rights. The Select Committee, however, left his other proposals pretty much intact.

COLUMN ONE

The House agreed on 12 amendments to the Constitution on August 24 after debating the Select Committee Report. The whole House basically agreed with the Select Committee Report except, thanks to Roger Sherman, Madison’s proposals as altered by the Select Committee were extracted from their location within the body of the Constitution and presented as 17 amendments at the end of the Constitution. Suffice it to note here, that this is the first time, in the American context, that a declaration of rights has been annexed to a constitution rather than being a preface to the constitution or incorporated in the very constitution itself.

COLUMN TWO

The second column shows what the Senate did, and did not do, to the House Report. The most obvious alteration was the reduction, by omission and consolidation, of the number of amendments from 17 to 12.

The most glaring omission is the elimination of House Amendment XIV. This amendment was among Madison’s favorites because it applied the three essential rights conscience, press, and jury to the states as well as the nation. At the Constitutional Convention, Madison argued that the major reason for the delegates being there to alter the Articles of Confederation in the first place was to provide a more effective way to control majority faction in the state legislatures. And House Amendment XIV reminds the reader of the consistency in Madison’s project from the Vices all the way through to the First Congress.

The most important consolidation that the Senate made was to combine House Amendments III and IV into Senate Amendment III. The Senate thus put under one roof, as it were, the two religion clauses, the two expression clauses, and the two association clauses. That this amendment eventually emerged as the First Amendment is due to politics and accident rather than deliberation and choice. Nevertheless, this Senate Third Article goes far to express the American contribution to the development of the Bill of Rights.

But there were also less obvious, but still important, Senate alterations to the House Amendments. 1) The Senate further altered the language of Madison’s religion clauses and in the process dropped the Madison claim that the right of conscience was one of the most essential rights. As an aside, it was a 25-year-old Madison who was responsible for the addition of the natural right of individual conscience at the end of the Virginia Declaration of Rights in 1776. The Senate also dropped the Madisonian attempt to accommodate those not inclined to bear arms for religious reasons. The Senators are also responsible for 2) adding the grand jury and the due process clauses to House Amendment VIII, 3) dropping House Amendment XVI reaffirming an attachment to the separation of powers, and 4) rather oddly, adding the following language to XVII, namely, that the powers not granted to the general government are reserved to the powers reserved to the States “or to the people.” Why would a Senate that had eliminated House Amendment VIV, add “or to the people” in House Amendment XVII?

The House, by a 2/3 majority, agreed to 17 Amendments and the Senate, by a 2/3 majority, agreed to 12 Amendments.

COLUMN THREE

A Conference Committee of three House members and three Senators were chosen to iron out the differences between the House version and the Senate version. This Conference Committee Report was then agreed to by the House and the Senate. This signing of the Bill of Rights occurred on September 25, 1789. Column Three captures the compromises each side made to provide a Congressional adoption of amendments that would be sent to the states for ratification.

On the surface it might appear that the Conference Committee simply accepted the Senate additions and subtractions from the House version.

The House conferees, however, did manage to secure alterations to the language of the religion clauses as well as to the original House Amendment IX on the location requirements for establishing impartial juries.

Not as important in practice but very important in theory, is the final language of the First Amendment on the census and representation. The House version reflects Madison’s concern in Federalist 55-58 that the House be large enough to represent a variety of opinions, passions, and interests but not so large that it seemingly have a countenance of more democracy while actually becoming more oligarchic in practice. That’s because as the House acquires more and more members, decision making will have to be delegated to fewer and fewer members. Madison listened to the Antifederalist concern that the size of the House might be too small while hanging on to his deeper concern about the dangers of too large a House. Madison wanted the language to read not less than AND not more than a certain number. The House removed the “more than” language. The Senate removed the “less than” language. The Conference Committee reintroduced the language of BOTH “not less than” AND “not more than.”

COLUMN FOUR

Despite the surface similarity, The Ratification process for the Bill of Rights was actually different than that followed for the ratification of the Constitution two years earlier. To be sure, both ratifications required a 3/4 vote of the states. The ratification of the Constitution actually required the approval of 9/13 and that amounted to 3/4 of the states then existing. The Constitution was ratified by specially elected state ratifying conventions. And the affirmative votes would bind only those so voting. Put differently, if Rhode Island and three other states voted not to ratify, and nine other states voted to ratify, then the Constitution would go into effect among the nine states. Not so with the Bill of Rights. It was up to the state legislatures to ratify the Bill of Rights and the 3/4 affirmative vote was binding on the potentially 1/4 who might not agree.

Between November 20, 1789 (New Jersey) and June 11, 1790 (Rhode Island) nine states ratified 10 or more of the 12 Bill of Rights amendments. But by then, however, Vermont had entered the union. Thus the required number for ratification was now 11/14. Vermont ratified on November 3, 1791 and Virginia was the final state to ratify on December 15, 1791. Massachusetts, Georgia, and Connecticut ratified in 1939 on the 150th anniversary of the signing of the Bill of Rights by the First Congress.

One of the fascinating questions is why did Virginia, the birthplace of the Bill of Rights in 1776, delay two years before ratifying the Bill of Rights? The answer lies in the important distinction that emerged at the Virginia Ratifying Convention in 1788 between amendments to alter the structure and powers of the new government and a Bill of Rights that would restrain that government. This distinction is critical to understanding the political activities of the First Congress. But on September 25, the Bill of Rights Antifederalists prevailed over the Structural Antifederalists.

Nevertheless, the Structural Antifederalists still carried some clout in Virginia. Thus the delay by Virginia in ratifying the Bill of Rights although it is tempting to think of Virginia as the state that brought us the Bill of Rights. Edward Carrington in a letter dated December 20, 1789, confirmed the reasons for the delay: “Somewhat later in the session the subject of the amendments was taken up. They were accepted in the House by a pretty good Majority thus the whole were adopted in the lower house. They went to the Senate in one resolution where they remained long the resolution at length returned with a proposition to amend by striking out the 3d. 8th. 11th. & 12.” Madison confirmed the delay in a January 4, 1790 letter to Washington: “You will probably have seen by the papers that the contest in the Assembly on the subject of the amendments ended in the loss of them. The House of Delegates got over the objections to the 11 & 12, but the Senate revived them with an addition of the 3 & 8 articles, and by a vote of adherence prevented a ratification.”

Commentary and compilation of chart by Gordon Lloyd and Roger Beckett.

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17 Amendments Passed by the United States House of Representatives (August 24, 1789)	12 Amendments Passed by the United States Senate (September 9, 1789)	12 Amendments Submitted to the States – following a Senate and House Conference Committee (September 25, 1789)	10 Amendments Adopted by the States (December 15, 1791)
ARTICLE THE FIRST.After the first enumeration, required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor less than one Representative for every fifty thousand persons.	ARTICLE THE FIRST.After the first enumeration, required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred; to which number one Representative shall be added for every subsequent increase of forty thousand, until the Representatives shall amount to two hundred, to which number one Representative shall be added for every subsequent increase of sixty thousand persons.	Article the first…After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
ARTICLE THE SECOND.No law varying the compensation to the members of Congress, shall take effect, until an election of Representatives shall have intervened.	ARTICLE THE SECOND.No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.	Article the second…No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.	Note: Later ratified as the XXVII Amendment on May 7, 1992.
ARTICLE THE THIRD.Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.	ARTICLE THE THIRD.Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition to the government for a redress of grievances.	Article the third…Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.	Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
ARTICLE THE FOURTH.The Freedom of Speech, and of the Press, and the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.	See Article the Third above.
ARTICLE THE FIFTH.A well regulated militia, composed of the body of the People, being the best security of a free State, the right of the People to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms, shall be compelled to render military service in person.	ARTICLE THE FOURTH.A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.	Article the fourth…A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.	Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
ARTICLE THE SIXTH.No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.	ARTICLE THE FIFTH.No soldier shall, in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.	Article the fifth…No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.	Amendment III No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
ARTICLE THE SEVENTH.The right of the People to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.	ARTICLE THE SIXTH.The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.	Article the sixth…The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.	Amendment IV The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
ARTICLE THE EIGHTH.No person shall be subject, except in case of impeachment, to more than one trial, or one punishment for the same offense, nor shall be compelled in any criminal case, to be a witness against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.	ARTICLE THE SEVENTH.No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witnesses against himself, nor be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation.	Article the seventh…No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.	Amendment V No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
ARTICLE THE NINTH.In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.	ARTICLE THE EIGHTH.In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence.	Article the eighth…In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.	Amendment VII In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
ARTICLE THE TENTH.The trial of all crimes (except in cases of impeachment, and in cases arising in the land or naval forces, or in the militia when in actual service in time of War or public danger) shall be by an Impartial Jury of the Vicinage, with the requisite of unanimity for conviction, the right of challenge, and other accustomed requisites; and no person shall be held to answer for a capital, or otherways infamous crime, unless on a presentment or indictment by a Grand Jury; but if a crime be committed in a place in the possession of an enemy, or in which an insurrection may prevail, the indictment and trial may by law be authorised in some other place within the same State.	See Article the Seventh above.
ARTICLE THE ELEVENTH.No appeal to the Supreme Court of the United States, shall be allowed, where the value in controversy shall not amount to one thousand dollars, nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable, than according to the rules of common law.	ARTICLE THE NINTH.In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by Jury shall be preserved, and no fact, tried by a Jury, shall be otherwise re-examined in any court of the United States, than according to the rules of the common law.	Article the ninth…In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.	Amendment VIII In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
ARTICLE THE TWELFTH.In suits at common law, the right of trial by Jury shall be preserved.	See Article the Ninth above.
ARTICLE THE THIRTEENTH.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.	ARTICLE THE TENTH.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.	Article the tenth…Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.	Amendment VIII Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
ARTICLE THE FOURTEENTH.No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.
ARTICLE THE FIFTEENTH.The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.	ARTICLE THE ELEVENTH.The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.	Article the eleventh…The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.	Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
ARTICLE THE SIXTEENTH.The powers delegated by the Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative shall never exercise the powers vested in the Executive or Judicial; nor the Executive the powers vested in the Legislative or Judicial; nor the Judicial the powers vested in the Legislative or Executive.
ARTICLE THE SEVENTEENTH.The powers not delegated by the Constitution, nor prohibited by it, to the States, are reserved to the States respectively.	ARTICLE THE TWELFTH.The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.	Article the twelfth…The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.	Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.)