Friends, we have arrived at the Bill of Rights. The first ten Amendments to our Constitution were the result of furious debate over the revolutionary document’s scope, mirroring the scope of the Government’s power. A strong contingent of the Founding Fathers wanted a Bill of Rights included from the get-go. And, had there not been a general understanding that Amendments would soon after be added, the original Constitution might never have been ratified.
Central to the debate were the two opposing views of Government at the time, effectively defining the first instance of our familiar (and oft aggravating) two-party system: Federalists and Anti-Federalists. Federalists favored a strong central Government, while Anti-Federalists emphasized power to the states and the people. Many states already had their own bills of rights going into this debate, and expected the Constitution to implement the same. The Anti-Federalists were concerned that without explicit mention of basic rights, America would eventually and effectively become just another monarchy, from which much blood had been spilled to escape. The Federalists strongly felt that a Constitution with limited scope by definition afforded all of those rights to American citizens, and countered that if a Bill of Rights left anything out, it would be interpreted to mean those rights didn’t exist, thereby achieving the opposite of what the Anti-Federalists wanted.
Through the course of this process, James Madison went from an opponent of a Bill of Rights to a supporter, and having seen both sides as such, he became the ideal author – working to achieve a balance that would satisfy the concerns of both sides. Madison leaned heavily on a few key historical examples as he assembled his version of the Bill of Rights, including the Magna Carta (from 1215), the English Bill of Rights (from 1689), and George Mason’s Virginia Declaration of Rights (from 1776). When he submitted his first draft, it was of course immediately attacked by the more extreme Federalists, but Madison and others worked diligently to ensure the Bill of Rights, in whatever form, would survive this process. As Thomas Jefferson noted in correspondence to Madison from his detail as Minister to France, “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”
Madison originally proposed the Bill of Rights as a series of edits to the original Constitution. The ensuing arguments eventually led to a different approach of appending the Amendments after Article VII along with an introductory preamble. From Madison’s initial draft, seventeen Articles were approved by the House in August of 1789. Of those, twelve were approved by the Senate in September, and a slightly modified version was officially approved by Congress that same month. Articles III through XII were ratified by the required number of states on December 15, 1991, and became the first ten Amendments to our Constitution, more lovingly known as the Bill of Rights. Article II would take another two centuries to become the 27th Amendment. Article I, the Congressional Apportionment Amendment, still sits in limbo today – that will be the subject of a future blog post here.
The Bill of Rights begins with the following:
The conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
The first eight Amendments in the Bill of Rights, also topics of future blog posts here, speak to specific types of rights, while the 9th and 10th Amendments serve as a kind of “fine print” to better clarify the scope. The 9th Amendment states:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
This was in direct response to the argument above by the Federalists: a Bill of Rights that failed to mention a specific right might be interpreted to suggest the non-existence of that right. Madison viewed this as one of the better arguments for not having a Bill of Rights, so he endeavored to create text that would directly address it. Nearly two centuries later, the 9th Amendment was cited along with the 14th Amendment as a basis for the final decision of the Supreme Court in Roe v. Wade. That said, I would argue that the 14th Amendment itself, along with several other Amendments that speak to various types of voting rights, suggest a partial failure of the 9th Amendment to achieve its ultimate goal. In fact, that the Supreme Court even got involved in Roe v. Wade is an interesting conundrum: it confirmed a specific type of individual right, but in so doing made the federal Government more powerful.
The 10th Amendment states:
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.
This was in direct response to the concerns of the Anti-Federalists, who wanted to ensure limitation of the federal Government’s powers and protect the rights of the states and the people. Building on others’ modifications to what was originally stated in the Articles of Confederation (which were our “Constitution” of sorts until 1789), Madison somewhat begrudgingly submitted what became the 10th Amendment, noting that it was probably redundant with the original Constitution, but it seemed to do no harm, and ratification seemed to depend on its inclusion. For most of our history, the Supreme Court has effectively viewed the 10th Amendment the same way: unnecessary but harmless. Some nuances of interpretation emerged in the latter half of the 20th Century, typically centered around encouragement of the states to help enforce federal policy, and sometimes tied to the apportionment of federal funding to the states.
However the first ten Amendments may be interpreted today, they are so integral to the original Constitution having been ratified that it’s sometimes difficult to view them as Amendments at all. In that respect, all ten can be viewed as the “fine print” to the document that defines our nation. And, as they say, always read the fine print.