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Interview: Carol Berkin, The Bill of Rights That Nobody Wanted

By Richard Ernsberger Jr.
5/6/2015 • American History Magazine

AMERICANS TAKE THE BILL OF RIGHTS for granted, but as Carol Berkin, emerita professor of history at Baruch College, explains in her new book, The Bill of Rights: The Fight to Secure Ameri­ca’s Liberties, neither the writers of the Constitution nor the politicians at America’s first Congress had much enthusiasm for amendments protecting basic civil rights. The idea was greeted with indifference and opposition. Only Federalist James Madison saw the value in a bill of rights—and as Berkin notes, only his “doggedness” created what became the bulwark of our democracy.

At the Constitutional Convention in 1787, Antifederalist George Mason proposed that a bill of rights, protecting basic civil liberties, be added to the document. Why did the Antifederalists want that?
From the beginning, the Antifederalists’ goal was to defeat the Constitution and preserve the sovereignty and power of state governments. Their critiques were founded on the conviction that only local governments, made up of men elected by their neighbors, could and would protect the rights, liberties and economic interests of the people who placed them in office. A central government, with the fundamental powers to tax, to regulate commerce and to call out an army, was a recipe for tyranny. They felt that the Articles of Confederation fulfilled the American Revolution by insuring that the goal of “no taxation without representation” would be met through the preservation of local government authority. Their most effective argument in the ratification struggle would be that the absence of a bill of rights was proof that the framers had either failed to build in safeguards against tyranny or, worse, had intentionally laid the groundwork for tyranny.

It is important for modern Americans to realize how anxious the Federalists of 1787 were that the Constitution would not be ratified; that even if it were ratified, the people might rise up against it, as they had against the British; or that the new government might suffer the same fate as the Confederation if it failed to fulfill its promises of economic stability and the protection of the country’s borders. The acceptance and survival of the Constitution and the government it created was deeply uncertain in the 1780s and ’90s. The framers, as I tell my students, had not read ahead in the textbook and so didn’t know the government they proposed would endure.

What prompted James Madison, 
a staunch Federalist, to reconsider the idea of a bill of rights?
Madison, like Alexander Hamilton, Roger Sherman and other supporters of the Constitution, knew that the federal government had been given no authority to define, defend or deny the people’s rights and liberties. That power lay with the state governments. Madison, however, saw clearly that this did not matter. In failing to reassure the people that the new government would respect and vow to protect their liberties, the Federalists had made a serious, perhaps fatal, political mistake. The remedy was to promise to amend the Constitution to include these guarantees. Only a bill of rights could assuage the fears of what today we would call the Antifederalist “base” and thus separate them from the Antifederalist leadership. A bill of rights, in other words, was simply good politics.

Although the Constitution was ratified, Madison still had concerns about Antifederalist schemes to weaken it.  
The Antifederalists did not go quietly. Leaders like Samuel Adams and Patrick Henry made no secret that their goal, once the Constitution was ratified, was to amend out of existence its powers to tax and regulate commerce. They wanted, as Federalists then and historians today realize, to alter the extent of the government’s authority and power. They were ready to do this by calling a second constitutional convention, if possible. It was this threat that disturbed Madison most.

At the first federal Congress in 1789, you write, even Madison’s Federalist colleagues were puzzled by his fixation on a bill of rights.
The Federalist majority in the House thought a federal bill of rights was meaningless: The Constitution did not give the federal government power to protect or threaten freedom of speech, the press, religion, etc. These were state matters. And, many states had, in fact, passed their own bills of rights. They felt the most critical issues were economic—setting trade regulations, establishing impost rates on commodities, dealing with the staggering debts the Confederation had been unable to do anything about—and structural, creating the federal judicial system. They were, in fact, more worked up about deciding where the federal capital would be located than about what they considered empty declarations in support of freedom of the press. They grasped that Madison was trying to assuage popular anxiety about a new tyranny, but most thought the election of a Federalist majority in both houses of the first Congress and the choice of an ardent nationalist as president had already dealt the deathblow to the Antifederalist opposition. Madison, they believed, was needlessly worrying, and his insistence on a discussion of a bill of rights was annoying. Only gradually, as the discussion of Madison’s proposals continued, did many Federalist congressmen begin to see some wisdom in Madison’s plan.

Madison feared that no “paper barrier” would protect minority groups from oppression by the popular majority—and yet that 
really fueled his desire to get a 
bill of rights, didn’t it?
There has been much debate over Madison’s motivation, then and now. Was he trying to secure his popularity in his home state, a state dominated by Antifederalists? Few of his contemporaries fully realized that Madison was struggling with one of the central problems in a republic: how to protect the liberties of minorities against the tyranny, not of the government, but of the majority of its citizens. He was far less worried at this moment in his career about an abuse of power by Congress or the executive than about the potential for tyranny by the majority. He came slowly to the belief that a bill of rights, as a clear statement of principles, had the potential to become an internalized national credo, an internalized standard for behavior that could check any impulse the majority might have to abuse the rights of others. If the “paper barrier” embodied the values of the nation, the majority would strive to live up to its expectations.

Madison gets a bill of rights passed, despite strong opposition, bitter dispute and personal attacks on him. How did he manage the feat?
Persistence. Doggedness. And the fact that he was sufficiently respected by his peers for them to finally hear him out. He justified his actions with three basic arguments: The citizens expected and wanted a federal bill of rights; it would be wiser for the Federalists to propose amendments focused narrowly on rights and liberties than to let Antifederalists propose amendments that altered the powers of the new government; and finally, the adoption of a bill of rights would clear the way for ratification of the Constitution by the two hold-out states, Rhode Island and North Carolina. Begrudgingly, House Federalists agreed to debate his proposals.

There was much debate about the wording of what became the 10th Amendment, which distinguishes federal powers from states’ rights.  
The fight over the inclusion of a single word—“expressly”—was the crux of the battle between states’ rights advocates and the nationalist vision of the Federalists. The Antifederalists wanted to limit the powers of the federal government to those expressly stated in the Constitution—no implied powers, no policy, program or action justified by the “necessary and proper” clause. The Federalists believed this would cripple the government, and they exerted their power as a majority in the House and the Senate to prevent the inclusion of this limitation in the 10th Amendment.

Should we be surprised that a Bill of Rights nobody wanted would later become such a fundamentally important pillar of our system?
History is full of surprises, unexpected consequences, unpredicted outcomes—contingency marks every generation’s path. That is what keeps historians researching and writing.

 

Originally published in the June 2015 issue of American History magazine.

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