This day in history: Congress passes the Bill of Rights

Two-hundred and thirty-five years ago, on September 25, 1789, Congress passed 12 historic amendments to the U.S. Constitution. Ten of those amendments were ratified by the states, comprising what we know as the Bill of Rights. Although we now view those first ten amendments as synonymous with the original Constitution itself, many of the Framers opposed having a bill of rights, and the process of procuring one nearly jeopardized the Constitution. This is the surprising story of how it happened:

The Father of the Constitution initially opposed the Bill of Rights. The Father of the Bill of Rights did not sign the Constitution.

The irony behind the story behind the first ten amendments to our nation’s governing charter is more than just amusing. It also highlights the utter seriousness with which the Founders formed our politics: deeply skeptical of the human lust for power, they aimed to ensure that no seed of oppression would ever be allowed to take root in the new nation. Every move they made — from opposing the Bill of Rights to even, in the case of the anti-Federalists, opposing the Constitution — was calculated with this end in mind. 

George Mason is remembered as the Father of the Bill of Rights. He was also the Father of the Article V convention process. Yet, he did not sign the Constitution.

In “Objections to This Constitution of Government,” the 1787 pamphlet that formed the basis for the anti-Federalist movement, the delegate who represented Virginia at the Constitutional Convention laid out his reasons for refusing to sign the finished document:

“There is no Declaration of Rights, and the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.”

Among other lesser quibbles, Mason’s primary concern was that the proposed Constitution did not include a bill of rights, an enumerated catalog of the freedoms afforded to a citizen of the United States. 

And while his protest may seem valid, the counter-argument is almost equally compelling. 

James Madison, the Father of the Constitution believed that a bill of rights was not only unnecessary but dangerous in precedent. “It has been objected,” he said, “against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure.” In other words, an enumerated list of freedoms, which inevitably could not be exhaustive, might eventually be misconstrued to dismiss those unspecified. By reciting a few rights, Mason risked losing the rest. 

Therefore, the Federalists did not believe, as their opponents’ critique might have suggested, that a bill of rights was unnecessary because rights were not worth protecting but because they believed it would do the opposite.

“For why declare that things shall not be done which there is no power to do?” Alexander Hamilton asked in Federalist No. 84. “Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” Such needless measures would simply “afford a colorable pretext to claim more [powers] than were granted.” 

The two factions stalled at an impasse, both convinced that the other’s position posed a serious threat to fundamental rights in America. But for all the Federalists’ brilliant exposition, the nation never could quite escape its lingering fear about the absence of a bill of rights. Several states agreed to ratify the Constitution solely on the condition that the First Congress would consider new amendments. 

Elected to serve in the First Congress, which initially met in New York City, Representative Madison shifted his opinion on a bill of rights, becoming, ironically, arguably its most important proponent in a less than enthusiastic legislature. Having changed his mind, he blossomed almost overnight into an avid supporter.

“It appears to me that this House is bound by every motive of prudence, not to let the first session pass over without proposing to the State Legislatures, some things to be incorporated into the Constitution, that will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them,” he declared to Congress. “I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this Constitution, may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a Republican Government, as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.”

But Madison’s former reservations were not for naught. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people,” he clarified in the Ninth Amendment. The Tenth Amendment concurred: “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.”

With his qualms assuaged, Madison, who had once opposed the “enumeration … of certain rights,” emerged as a competitor to Mason for the title of “Father of the Bill of Rights,” and on December 15, 1791, these crucial first ten amendments were ratified. 

Today, 235 years later, as we reflect on the crucial Mason/Madison debates that led to the single most important declaration of rights in human history, we can be grateful that our Founding was spearheaded by men so deeply committed to the preservation of freedom. Their work might not have been perfect, but it propelled us into exceptional political success, and more than two centuries later, we still stand on the bedrock they built.

To join us in preserving that bedrock, exercising our responsibility as citizens of the United States to keep the republic, sign the Convention of States petition below and join us in fulfilling George Mason’s dream for an Article V convention.