The Question of a Bill of Rights

James Madison wrote the following letter in the interval between Constitutional Convention and its ratification by the States.  It’s interesting for a number of reasons.  Historically, it provides insight into Madison’s perspective on The Bill of Rights, why it was not included in the Constitution to start with, and his motivation for championing it after the Convention.  By the time the Constitution was ratified, and the first Congress was in session, much of the political impetus behind it had dissipated.  Nevertheless, Madison persisted and mostly thanks to his efforts, the Amendments became part of the Constitution.

However, some of Madison’s observations are as interesting, if not more so than the actual history.  The letter to Jefferson is one of many of its kind which illustrate the brain power behind the founding of America.  Can you imagine any current member of Congress, corresponding in such a fashion today?

Letter to Thomas Jefferson, October 17, 1788

A Bill of Rights might be of some use!  However, the danger Madison sought to avoid was the perception that rights were granted by government. If listed as part of the enumerated powers, there was a danger that they would be construed as such.

My own opinion has always been in favor of a bill of rights; provided that it be so framed as not to imply powers not meant to be included in the enumeration. At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent amendment, for any other reason than that it is anxiously desired by others. I have favored it because I suppose it might be of use, and if properly executed could not be of disservice.

I have not viewed it in an important light —

A Bill of Rights might be a little redundant – because the government’s powers are explicitly defined in their scope. So, what’s not listed is obviously reserved for the people.

1. because I conceive that in a certain degree … the rights in question are reserved by the manner in which the federal powers are granted.

2. because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.

See Federalist No. 28 by Hamilton for a similar argument proposing that the struggle between State vs Federal power, affording protection to the people

3. because the limited powers of the federal Government and the jealousy of the subordinate Governments, afford a security which has not existed in the case of the State Governments, and exists in no other.

Madison’s reflections about the efficacy of parchment barriers in the face of self-interest, are sobering.

4. because experience proves the inefficiency of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of h rights violated in every instance where it has been opposed to a popular current. … Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to. … Wherever there is an interest and power to do wrong, wrong will generally be done, and not less readily by a powerful & interested party than by a powerful and interested prince. … The difference so far as it relates to the point in question — the efficacy of a bill of rights in controuling abuses of power — lies in this: that in a monarchy the latent force of the nation is superior to that of the Sovereign, and a solemn charter of popular rights must have a great effect, as a standard for trying the validity of public acts, and a signal for rousing & uniting the superior force of the community; whereas in a popular Government, the political and physical power may be considered as vested in the same hands, that is in a majority of the people, and, consequently the tyrannical will of the Sovereign is not [to] be controuled by the dread of an appeal to any other force within the community.

What use then it may be asked can a bill of rights serve in popular Governments? I answer the two following …

Madison’s expectation was that the moderating influence of time would cause the people to revere the Constitution and make them less likely to violate it.

1. The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.

2. Altho it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped acts of the Government, yet there may be occasions on which the evil may spring from the latter source; and on such, a bill of rights will be good ground for an appeal to the sense of the community. Perhaps too there may be a certain degree of danger, that a succession of artful and ambitious rulers may by gradual & well times advances, finally erect an independent Government on the subversion of liberty. Should this danger exist at all, it is prudent to guard ag^st it, especially when the precaution can do no injury. At the same time I must own that I see no tendency in our Governments to danger on that side.

Madison argues that there is a fine line between too little and too much government.  In his view, either case will result in loss of liberty.

It has been remarked that there is a tendency in all Governments to an augmentation of power at the expense of liberty. But the remark as usually understood does not appear to me to be well founded. Power when it has attained a certain degree of energy and independence goes on generally to further degrees. But when below that degree, the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power. With this explanation the remark may be true; and … is … applicable to the Governments in America. It is a melancholy reflection that liberty should be equally exposed to danger whether the Government have too much or too little power, and that the line which defines these extremes should be so inaccurately defined by experience.

Madison warns that expedience will always prevail in times of emergency and that the best way to avoid a loss of liberty is to make certain that the acts of government don’t make it necessary for its self-preservation.

Supposing a bill of rights to be proper … I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy. Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp. be dictated by the alarm, no written prohibitions on earth would prevent the measure. … The best security ag^st these evils is to remove the pretext for them.