Bill of Rights:
The Senate's Secret

The House debate on the Bill of Rights is documented. Members are named. Arguments are dated. The Senate debate on the same amendments, eight days later, left almost nothing behind. This is the other half of the story -- the half where the record runs out.

The Senate received the House's seventeen amendments on August 25, 1789. It took up the question of the amendments starting September 2 and concluded its consideration on September 9. The First Congress's Senate met in closed session as a standing practice -- the chamber would not open its doors to the public until December 1795, more than six years later. Every Senate proceeding from the republic's first six years, including its handling of the Bill of Rights, occurred behind closed doors.

The Senate Journal for these eight days records votes taken and motions made. It does not record a single word of argument, debate, or explanation. No senator's floor speech survives. No account of who argued for or against any specific change exists in any official document. This is categorically different from the House record, which despite its own limitations preserves named speakers making dated arguments. The Senate record preserves outcomes only.

The primary surviving evidence of the Senate's work is not a transcript but a physical artifact: the engrossed House-passed amendments with the Senate's handwritten revisions marked directly on the document. This markup is held at the National Archives, Record Group 46, Records of the United States Senate. It shows precisely what changed between the House's seventeen amendments and the twelve the Senate ultimately approved. It shows nothing about why.

From this document and the Senate Journal's bare procedural entries, historians can reconstruct what happened with reasonable confidence: the Senate combined several of the House's amendments, tightened language throughout, and eliminated others entirely. The most significant deletion was the amendment Madison had called, on the House floor on August 17, "the most valuable amendment on the whole list."

The House had passed language prohibiting 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 the package restrained only the federal government. This one would have extended the same protection against the states.

The amendment simply does not appear in the twelve articles the Senate sent back to the House on September 9, 1789. There is no recorded vote specifically on this deletion that survives with named senators and stated reasons. There is no speech preserved, no committee report, no letter from a senator explaining the decision while it was being made. The amendment Madison called the most valuable on the whole list was removed in a room with no witnesses and no transcript.

The closest thing to a contemporary explanation comes not from the Senate record but from Madison's private correspondence after the fact. Five days after the Senate finished its work, Madison wrote to Edmund Pendleton, a Virginia judge and political ally, describing his reaction to what the Senate had done.

Madison's letter confirms what the markup document shows and adds his judgment of the consequence: he believed the Senate had struck at the most salutary -- the most beneficial, most necessary -- articles in the entire package. He went along with the result anyway. Madison did not record, in this letter or in any surviving document, which senators argued for the deletion or what reasoning they offered. He reports the outcome. He does not report the debate, because by his own testimony there was no public debate to report.

The 14th Amendment's due process and equal protection clauses extended federal constitutional protection against state action -- substantially the principle Madison's deleted amendment had proposed in 1789. The Supreme Court's doctrine of incorporation, developed gradually over the following century, used the 14th Amendment to apply most of the Bill of Rights against the states piece by piece, amendment by amendment, case by case. The process some scholars argue did not fully complete until the late twentieth century.