The Argument for a Bill of Rights

Signed Without One

The original Constitution did protect some rights. It guaranteed the writ of habeas corpus except in rebellion or invasion, banned bills of attainder and ex post facto laws, required jury trials in criminal cases and barred religious tests for office. But it had no general declaration of rights like the one Virginia had adopted in 1776.

George Mason of Virginia, who had written that declaration, asked the Convention to add one. The motion failed. Mason refused to sign the Constitution, as did Edmund Randolph and Elbridge Gerry. Thirty-nine delegates signed.

Unnecessary and Dangerous

Supporters of the Constitution had an answer. The national government only had the powers listed for it, so it had no power to abridge the press or establish a church in the first place. Hamilton made the case in Federalist No. 84.

He went further, arguing that a list of rights could even be dangerous: by naming some rights, it might suggest that anything left off the list was open to government control.

What the People Are Entitled To

Many Americans were not persuaded. Thomas Jefferson, serving as minister to France, wrote to Madison in December 1787 that he liked much of the new plan but not its silence on rights.

The phrase rest on inference was the heart of it. Hamilton’s argument depended on reading the limits of federal power correctly forever. Jefferson wanted the most important protections written down where no one could argue them away.

The ratification votes reflected that pressure. Massachusetts, Virginia, New York and others ratified while recommending amendments, and North Carolina and Rhode Island held out until after amendments were proposed.

Madison Keeps a Promise

James Madison, who had shared Hamilton’s doubts, came to support amendments and promised voters in Virginia he would pursue them. On June 8, 1789, as a new member of the House, he introduced them in the first Congress.

Madison answered Hamilton’s danger directly. One of his proposals became the Ninth Amendment, which says that listing certain rights shall not be construed to deny or disparage others retained by the people. The list would not be the limit.

Congress sent twelve amendments to the states on September 25, 1789. Ten were ratified by December 15, 1791. Those ten are the Bill of Rights. Of the other two, one, on congressional pay, was finally ratified in 1992 as the Twenty-seventh Amendment, more than two hundred years after it was proposed.

Read Them Yourself

The Bill of Rights exists because ordinary citizens insisted on it, in town meetings, newspapers and ratifying conventions. It is the clearest proof in American history that the people can change the plan.

Every amendment is short enough to read in a minute. The Rights Reader sets each one beside a plain-English reading, so you can see exactly what the founders wrote and what it means today.