The House of Representatives is where the Bill of Rights has a real documentary record. Madison's speech, the floor debate, the votes, the arguments -- all of it survives because the House met in public from the first day of the First Congress. What happened next, in the Senate, did not survive at all. This episode covers what the House record actually shows.
James Madison had opposed adding a bill of rights to the Constitution during the ratification debates, arguing that an enumeration of rights was unnecessary in a government of limited and enumerated powers, and potentially dangerous if it implied that rights not listed were unprotected. He changed his position for practical political reasons: the promise of amendments had been the price of ratification in several key states, and Madison, now a member of the First Congress, understood that delivering on that promise was necessary to secure the new government's legitimacy.
On June 8, 1789, Madison rose on the floor of the House and introduced his proposed amendments. He had compiled them from multiple sources: the amendments proposed by state ratifying conventions, George Mason's Virginia Declaration of Rights, and his own judgment about what protections were necessary. His original proposal contained language for what would become seventeen amendments -- more than the twelve eventually sent to the states, and far more than the ten ultimately ratified.
If we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men.
The House did not adopt Madison's amendments immediately. They were referred to a select committee, debated in the Committee of the Whole, and argued over for more than two months. The Annals of Congress, compiled retrospectively from contemporary newspaper accounts, captures the substance of these debates. Thomas Lloyd's Congressional Register -- a shorthand transcription attempt covering the First Congress -- provides a more direct, if still imperfect, record of specific exchanges.
The debate touched on questions that remain live in constitutional argument today: whether a bill of rights was necessary at all, how broadly to phrase the protection of religious liberty, whether to specify a right to bear arms tied to militia service or as a general right, and how to phrase protections against self-incrimination and double jeopardy. The House version of these debates is documented. Members are recorded by name making specific arguments on specific dates.
Among Madison's seventeen proposed amendments was one that does not survive in the Constitution today. It would have prohibited state governments -- not just the federal government -- from infringing on freedom of conscience, freedom of the press, and the right to trial by jury. Every other amendment in Madison's list, and every amendment in the eventual Bill of Rights, restrained only the federal government. This one would have bound the states as well.
On August 17, 1789, a motion was made on the House floor to strike this amendment. Madison spoke against the motion. The Annals of Congress record his words directly.
There is a clause granting to the people the freedom of speech, freedom of the press, and trial by jury, that no state shall violate these rights, which I consider the most valuable amendment on the whole list. If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against the State Governments.
The House agreed with Madison. The motion to strike failed. The amendment binding state governments to protect conscience, press, and jury trial remained in the package the House sent to the Senate on August 24, 1789. Madison's own words, recorded on the floor and preserved in the Annals of Congress, establish that he regarded this specific protection as more important than any other amendment in his original seventeen.
The House-passed amendments covered substantially more ground than the ten that survive today. They included the state-binding amendment Madison championed, more detailed language on the separation of powers, a provision on congressional pay raises (which would not be ratified until 1992, becoming the 27th Amendment), and more expansive language in several places that the Senate would later condense or eliminate.
On August 24, 1789, the House passed its seventeen amendments and sent them across the Capitol to the Senate. The amendment Madison called the most valuable on the whole list -- the one binding state governments to protect conscience, press, and jury trial -- went with them. The House debate had been public. Members are named. Arguments are recorded. The vote is documented.
The Senate would consider these amendments from September 2 to September 9, 1789. The Senate met in closed session. No journal of the debate was kept. What happened to Madison's most valuable amendment in that room is the subject of the next episode.
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