Why Does the Constitution Include the Bill of Rights?

Why Does the Constitution Include the Bill of Rights?

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Freedom of speech, religion and the press. The right to assemble, bear arms and due process. These are just some of the first 10 amendments that make up the Bill of Rights. But they weren’t included in the original U.S. Constitution, and James Madison, the bill’s chief drafter, had to be convinced they belonged in the country’s supreme law.

Madison was actually once the Bill of Rights’ chief opponent. In his book, The Oath and the Office: A Guide to the Constitution for Future Presidents, Corey Brettschneider, a political science professor at Brown University, writes that when the founding father entered the race for Congress as a candidate for the state of Virginia in 1788, the issue of whether America needed a Bill of Rights was a dominating campaign issue. George Mason, a fellow Virginian, had refused to sign the Constitution without a Bill of Rights. But Madison argued it was unnecessary and perhaps even harmful.

His reasoning? “Madison might have felt like a master chef watching a patron pour ketchup all over his perfectly cooked steak,” Brettschneider writes. “He considered his work crafting the Constitution so thorough that there was nothing to amend: Article I limited the powers of Congress, and Article II constrained the president. A Bill of Rights was redundant at best—and dangerous at worst.”

READ MORE: 8 Founding Fathers and How They Helped Shape the Nation

Madison and many of the framers also worried that an explicit guarantee of rights would be too limiting, Brettschneider adds.

“They believed the structure of the new Constitution by itself placed limits on government, so they were concerned that by listing some rights, the government might think it had the power to do anything it was not explicitly forbidden from doing,” he says.

Virginians, however, didn’t trust that Article I and Article II would protect their rights, and demanded such a bill, according to Brettschneider. Madison, partly for political survival, eventually campaigned on introducing a Bill of Rights, and won his election against James Monroe.

Tony Williams, senior teaching fellow at the Bill of Rights Institute, says Thomas Jefferson, through a series of letters written from Paris, helped persuade Madison to change his mind, as well.

“A bill of rights is what the people are entitled to against any government on earth, general or particular, and what no government should refuse, or rest on inference,” Jefferson wrote to Madison in a letter from December 20, 1787.

But more importantly, Williams says, Madison wanted to quell the opposition of the anti-Federalists to the new government by proposing a Bill of Rights in the First Congress.

“The Federalists had also promised the anti-Federalists amendments protecting rights during the ratification debate, and he wanted to fulfill that promise,” he says.

Madison, tasked with writing the new amendments, addressed some of his concerns by including the Ninth Amendment, that states rights are not limited to those listed in the Constitution, and the 10th Amendment, which limits the federal government’s powers to those granted specifically in the Constitution and its amendments.

“The Bill of Rights are important assertions of natural and civil rights of the individual, and the critical Ninth Amendment is a reminder that the people have other rights not listed in the first eight amendments,” Williams says.

Drawing on Mason’s Virginia Declaration of Rights, as well as Britain's Magna Carta and other documents, Madison introduced the Bill of Rights in Congress on June 8, 1789, and it was ratified on December 15, 1791.

Democracy, Brettschneider says, is often thought to mean majority rule, but the Bill of Rights includes many guarantees of minority rights that are equally necessary to self-government.

“The First Amendment right to free speech means that citizens can criticize their leaders without facing criminal punishment,” he says. “The right to assembly, also in the First Amendment, means citizens can protest government policies we disagree with.”

Other rights declared in the document ensure that citizens are not treated arbitrarily by the state. Under the Fifth Amendment, all citizens are guaranteed “due process” in the legal system. The Eighth Amendment, meanwhile, by banning “cruel and unusual” punishment, ensures the government can’t use criminal law to, as Brettschneider says, “make citizens docile and afraid.”

"It is sufficiently obvious, that persons and property are the two great subjects on which Governments are to act," Madison said in an 1829 speech in Virginia, "and that the rights of persons, and the rights of property, are the objects, for the protection of which Government was instituted."

The first Constitution in America’s history left a lot to be desired when it came to the central government. It was called the Articles of Confederation. Its focus was on the states, almost as if each state was its own country, with its own currency and even its own foreign policies.

There were several issues that kept the federal government, as it were then, from being successful and in some cases, from being useful at all. It was almost impossible to adjust this first constitution because any changes at all had to be agreed upon unanimously. It didn’t allow for any financial support from the central government, either. For all these reasons and many more, the Constitutional Convention met in May of 1787, in Philadelphia, in order to make some much-needed changes to the document.

Why Was the Bill of Rights Added to the United States Constitution?

The Bill of Rights was added to the United States Constitution to guarantee the protection of the people from a strong central government. It served as a compromise between the Federalists and Anti-Federalists to achieve the ratification of the Constitution.

The Bill of Rights was the first 10 amendments to the U.S. Constitution. It is one of the most historical and treasured documents that is the foundation of basic American liberties. The Bill of Rights officially became part of the Constitution on December 15, 1791. Its laws specified the fundamental rights of the American citizens.

The original Constitution of the United States, which was proposed in 1787, provided very few individual rights for the people. During the Constitutional Convention, some delegates, known as the Anti-Federalists, clamored for the addition of a bill of rights to the Constitution. They feared that a strong federal government would abuse its citizens unless guarantees of basic rights and liberties were provided. They argued for several amendments including religious freedom, freedom of speech and of the press, the right against excessive bail and fines and for protection against unreasonable searches and seizures. Many of the proposed provisions limited the powers of the federal government.

Although the Federalists deemed the addition of the Bill of Rights unnecessary, they were forced to pledge their support so that the Constitution can be ratified.

There is a strong temptation to consider the story of the U.S. Bill of Rights as part of a larger narrative that starts with Magna Carta in 1215 and continues into the twenty-first century with concerns about human rights across the globe, touching briefly on how Americans introduced and passed a bill of rights. The chronological focus of these twenty-six selections is narrower: the context is primarily between 1776 and 1791.

Thus the larger question of how the British and colonial heritage fits into the American story is covered only briefly (Documents 1–2). Of considerable importance in this brief account is that the rights included in the Massachusetts Body of Liberties (1641) are, numerically, more significant than those found in Magna Carta (1215) and the English Bill of Rights (1689). And so too are the rights enumerated in the Maryland Toleration Acts. We include these two colonial documents to remind the reader that Americans were concerned about rights, especially religious rights, even before the founding era of 1776–1791. Three rights are unanimously represented in all the state constitutions: the right of conscience/free exercise of religion the right to have one’s case heard by a local impartial jury and the due process rights of the common law. The framers of the new state documents decided these last rights were no longer secure under the traditional governmental arrangements. We consider it significant that the new states declared themselves to be republican and that the purpose of a republican government was to secure rights.

Seven states attached a prefatory declaration of rights to the frame of government: Virginia (June 1776), Delaware (September 1776), Pennsylvania (September 1776), Maryland (November 1776), North Carolina (December 1776), Massachusetts (March 1780), and New Hampshire (June 1784). These declarations were, in effect, a preamble stating the purposes for which the people had chosen the particular form of government. There was a remarkable uniformity among the seven states with regard to the kinds of civil and criminal rights they sought to secure.

Four states decided not to preface their republican constitutions with a declaration of rights: New Jersey (July 1776), Georgia (February 1777), New York (April 1777), and South Carolina (March 1778). Nevertheless, each incorporated individual protections in their constitutions.

Virginia entered unfamiliar territory with the disestablishment of the Anglican Church in 1779. Nevertheless, there were two competing models to which legislators could turn. The Massachusetts model endorsed the establishment of the Christian Protestant religion and, to that end, the legislature was constitutionally mandated to tax inhabitants for the support of public religious instruction. The taxpayer, nevertheless, was free to name the specific religion that was to receive the assessment. On the other hand, the Pennsylvania model warned that such taxation threatened the right of an individual to the free exercise of religion. In December 1784, the Virginia Assembly considered an assessment bill, consistent with the Massachusetts model, that would financially support the propagation of Christianity as the state religion. James Madison objected. The author of a protest addressed to the Virginia Assembly (Document 7), Madison urged the legislators to reject the proposed legislation. In the process, Madison pushed the national conversation even further in the direction of individual free exercise of religion and away from community-endorsed religion. The practical manifestation of Madison’s efforts was the Virginia Assembly’s adoption in 1785 of Jefferson’s Statute of Religious Liberty introduced in 1779. The Virginia Senate passed the statute in January 1786. It is also important to note how these rights made their way into the Northwest Ordinance (Document 8).

A year after the passage of the Virginia statute at the Constitutional Convention (May to September 1787), the first of George Mason’s ten objections to the Constitution began: “There is no declaration of rights” (Document 9). In particular, “there is no declaration of any kind for preserving liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in times of peace.” Mason’s position was that a federal bill of rights was both imperative and valuable. He was concerned that Congress might abuse the supremacy and the necessary and proper clauses of the Constitution (Articles 6 and 1, section 8, respectively). The supremacy clause made federal laws “paramount to the laws and constitutions of the several states.” Thus, “the declaration of rights, in the separate states, are of no security.” The necessary and proper clause enabled Congress to “grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their power as far as they should think proper.”

Throughout the nine-month ratification campaign, proponents of the Constitution defended the absence of a bill of rights. James Wilson’s State House Speech (Document 10), delivered in Philadelphia three weeks after the Constitutional Convention adjourned, articulated what came to be known as the Federalist position: a bill of rights is unnecessary and dangerous. Wilson argued that at the state level, a bill of rights was necessary and salutary because “everything which is not reserved, is given,” but “superfluous and absurd” at the federal level because “everything which is not given, is reserved.” Wilson’s speech became the foil for the Antifederalist opposition literature in the fall of 1787 (Documents 11–15). Near the end of the ratification campaign, Federalist 84 (Document 19) repeated Wilson’s insistence that a republican form of government had no need for a bill of rights because such bills “are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince.”

By early January 1788, the ratifying conventions in Delaware (voting 30–0), Pennsylvania (46–23), New Jersey (38–0), Georgia (26–0), and Connecticut (128­–40) had ratified the Constitution. The report issued by the twenty-three Pennsylvania opponents had a considerable impact on the subsequent campaign (Document 15). The report proposed two different kinds of amendments. On the one hand, the minority called for amendments that would re-establish the principles of the Articles of Confederation. These were unfriendly to the Constitution. On the other hand, they proposed that a declaration of rights be annexed to the Constitution. These were friendly amendments. What became drafts of the first, fourth, fifth, sixth, seventh, and eighth amendments to the Constitution were included in their list, although the origin of these amendments can be traced to colonial documents and state constitutions.

The fate of the Constitution was determined in the Massachusetts, New Hampshire, Virginia, and New York ratifying conventions in the first half of 1788. Antifederalist literature in the fall of 1787 had had an adverse effect on the campaign for ratification. A compromise—“ratify now, amend later”—was needed in each of these four states to secure ratification (Documents 17–18). In Massachusetts, ten delegates switched their votes and a 187–168 majority ratified the Constitution. A switch of five votes ensured ratification in both New Hampshire (57–47) and Virginia (89–79). In New York, the Antifederalists outnumbered the Federalists by a margin of 46–19 going into the convention but in the end, the Constitution was ratified by a vote of 30–27.

The Antifederalist opposition and friends of the Constitution made two different kinds of recommendations. First, some called for an alteration in the very structure and powers of the new federal government. Second, others sought to protect the rights of individuals with respect to the federal government. All nine of Massachusetts’s recommendations are of the first kind. New Hampshire was the first to add a brief declaration of the rights of citizens to the list of amendments. In Virginia and New York, the two kinds of amendments were explicitly separated.

With the ratification of the Constitution, James Madison (1751–1836), who had done so much to bring it into existence, [1] supported the adoption of a bill of rights, while objecting to amendments that would radically alter the new government’s structure and power (Document 22). He did so for both theoretical and prudential reasons. Madison distanced himself from Wilson’s argument that a bill of rights might be dangerous as well as unnecessary. He overcame the danger of listing rights—the list might be seen as definitive and thus limit the rights of citizens rather than protect them—by declaring that the enumeration “of certain rights, shall not be construed to deny or disparage others retained by the people.” This eventually became the Ninth Amendment and is a wholly Madison contribution. The prudential reasons included conciliating “honorable and patriotic” opponents who wanted to “revise” the Constitution by including a bill of rights and defeating the call for a second convention that would “abolish” the Constitution (Document 21). He saw the First Congress as the “proper mode” to accomplish the objective of revision. What joined together the theoretical and prudential reasons was that Madison did not want a second convention to take place.

The correspondence between Madison in the United States and Thomas Jefferson in Paris is a critical part of the story of the adoption of the Bill of Rights, from the signing of the Constitution through the ratification campaign and into the First Congress (Documents 16, 20, and 21). In his October 24, 1788 letter, Madison summarized the political and ethical problem that was to be solved by the Constitution: “To prevent instability and injustice in the legislation of the states.” What Madison was able to achieve, he explained to Jefferson, was the creation of an extended republic that would secure the civil and religious rights of individuals from the danger of majority faction. Jefferson responded favorably toward the proposed Constitution two months later. He was troubled, however, by Wilson’s argument that a bill of rights was unnecessary. He reminded Madison that “a bill of rights is what the people are entitled to against every government on earth, general or particular and what no just government should refuse, or rest on inference.” He listed six essential rights that should be declared: “freedom of religion, freedom of the press, protection against standing armies, restriction of monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters.” Jefferson reiterated the importance of including his list of six rights upon being informed by Madison that the Constitution had been adopted.

In his first Inaugural Address (April 30, 1789), George Washington addressed only two particular issues: his compensation, which he declined, and Congress’ “exercise of the occasional power delegated by the fifth article of the Constitution,” the power to amend the Constitution. He asked that “whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, a reverence for the characteristic rights of freemen will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted.” Madison followed Washington’s recommendation of proposing a bill of rights that, at the same time, did not alter the work of the Constitutional Convention. That became Madison’s challenge in the First Congress (Document 22).

The House of Representatives debate on Madison’s propositions is not without irony (Document 23). Roger Sherman, arguably Madison’s leading and most persuasive opponent during the structural phase of the 1787 Philadelphia Convention, objected to Madison’s attempt to incorporate the bill of right additions “neatly” within the body of the Constitution. If the revisions are added as “supplements,” or amendments to the Constitution, argued Madison, “they will create unfavorable comparison” with the original Constitution. Sherman, however, prevailed. The original work of the framers, he argued, should remain intact. Moreover, Sherman urged his colleagues to reject incorporating the Declaration of Independence into the Preamble: “The words ‘We the people,’ in the original Constitution, are as copious and expressive as possible any addition will only drag out the sentence without illuminating it.” On the other hand, Sherman proved to be an important ally in defeating the attempts of the South Carolina delegation to introduce amendments that would “change the principles of the government.” The Senate reduced the number of amendment proposals from seventeen to twelve. In doing so, the Senate defeated Madison’s House-backed proposal to protect freedom of conscience and the press at the state and national levels, restricting the protection to the national level only. The Senate also combined the protection of conscience and the press into one amendment (Document 24). The Senate version was adopted, with slight revision, by the whole Congress and submitted as twelve amendments to the states for approval (Document 25). Ten were ratified by three-fourths of the state legislatures (Document 26).

Very important from Madison’s perspective, Richard Henry Lee and William Grayson—both radical Antifederalists and the only Antifederalists in the United States Senate—were totally unsuccessful in their effort to move the power and structure of the Constitution back in the direction of the Articles of Confederation. They preferred this to adopting a bill of rights that would reinforce the idea that the Constitution was a limiting as well as an empowering document.

For his part, Madison was less than completely successful with his bill of rights proposals. Few members shared Madison’s urgent feeling that friendly alterations must be sent to the states by the end of the first session. The rights did not end up located in the Constitution where he wanted them to be. The number of rights was reduced from Madison’s original list (Document 22) and several clauses, the religion clauses in particular, underwent close scrutiny and major alteration. Madison’s attempt to have the states as well as the nation restrained in the area of conscience, press, and jury was defeated in the Senate. The Bill of Rights, as adopted, applied only to the federal government. So the appellation “Father of the Bill of Rights” ought to be cautiously used. Yet it is certainly true that Madison’s persistence was critical to twelve amendments being sent to the states for adoption by the end of the first session and, not coincidentally, for the subsequent adoption of the original Constitution by North Carolina and Rhode Island.

The adoption of the Bill of Rights was a mixture principle and politics. [2] It did not just fall from the sky in one whole and intelligible form. True, the Bill of Rights incorporated much of the English common law and the colonial due process tradition, but it also shed much of this tradition’s feudal and monarchical features. Also, Americans between 1776 and 1791 appealed beyond their traditions to support freedom of conscience, free speech, and enhanced rights of due process of law.

Madison, known as “the Father of the Constitution,” is at the heart of our documentary account of the origin and politics of the Bill of Rights, from Virginia in 1776 to the First Congress in 1789. During this time, Madison’s position on the Bill of Rights changed, at least in part because of his relationship with Jefferson. To see the importance of this relationship, we must place it in the context of Virginia politics, which provide the bookends to the story of the Bill of Rights. George Mason wrote the Virginia Declaration of Rights in June 1776 (with Madison’s suggested alteration to the right of conscience clause). The Declaration of Rights was one influence on Jefferson as he wrote the Declaration of Independence. Mason also proposed to the Constitutional Convention that a bill of rights be adopted. Madison opposed Mason in the Convention on the issue. A few years later, in December 1791, Virginia finally adopted the Bill of Rights, with Madison as the leader of those favoring adoption and Mason in opposition. Why did Virginia start the process, take the lead in the debates, and then delay so long to ratify the Bill of Rights? The answer is an irreconcilable divide among Antifederalists. There were those who wanted to change fundamentally the new American system and those who were friendly to the Constitution. The latter wanted to restrain the new government with a bill of rights. Between 1787 and 1791, Mason became one of those who wanted fundamental change, while Madison, always a friend to the Constitution, became one of those willing to amend it by adding a bill of rights. He made this change with the help of Jefferson (Documents 16, 20–22).

[1] See the companion volumes The American Founding: Core Documents (Ashland, Ohio: Ashbrook Press, 2017) and The Constitutional Convention: Core Documents (Ashland, Ohio: Ashbrook Press, 2018), both edited by Gordon Lloyd.

[2] James Madison to Richard Peters, August 19, 1789. This letter, organized around seven themes, is a model of principled leadership at its best it joins that which is necessary with that which is proper.

Study Questions

For each of the documents in this collection, we suggest below in section A questions relevant for that document alone and in section B questions that require comparison between documents.

1. The Massachusetts Body of Liberties, December 1641
A. What rights are protected in this colonial document? How are they protected?
B. What differences and similarities exist in the Massachusetts Body of Liberties and the early state constitutions as far as the type of rights are concerned? For example, does the Massachusetts Body of Liberties refer to freedom of conscience and freedom of the press? See Documents 3, 5, and 6.

2. The Maryland Act Concerning Religion, April 21, 1649
A. Does it strike you as odd that the Maryland Act can simultaneously proclaim the establishment of the Christian religion and the toleration of religion as central principles?
B. Compare the Maryland Act with the early state constitutions and Madison’s Memorial and Remonstrance. See Documents 3, 4, 5, 6, and 7.

3. Virginia Declaration of Rights and Constitution, June 12 and 29, 1776
A. Does it seem curious that a) the Virginia Declaration and the Virginia Constitution were written two weeks apart and that b) both preceded the passage of the Declaration of Independence? According to these two documents, what is the purpose of government? What is the role of the legislature, executive, and judiciary in the newly adopted Virginia Constitution? What sort of “republicanism” do these two documents express? Is it surprising that the Declaration of Rights precedes the Constitution?
B. By what authority was the Virginia Declaration of Rights and Constitution initiated and adopted? Compare and contrast the content of the Virginia Declaration of Rights with colonial and other state based documents. See Documents 1, 2, 4, and 6.

4. The New Jersey Constitution, July 3, 1776
A. New Jersey was the first state to incorporate a declaration of rights within the body of the constitution itself. Does it matter where the declaration is located in the constitution? What does the New Jersey Constitution have to say about religious rights?
B. What difference, if any, does it make if the declaration of rights is at the beginning or inserted into the document? Compare with Documents 3, 5, and 6. Is it odd that both the Virginia and New Jersey declarations were written before the Declaration of Independence?

5. The Pennsylvania Declaration of Rights and Constitution, September 28, 1776
A. To what extent does the Pennsylvania document embrace both the common law tradition and the new natural rights tradition?
B. John Adams judged that the Pennsylvania Bill of Rights “is taken almost verbatim from that of Virginia.” Is Adams correct? See Document 3.

6. The Massachusetts Declaration of Rights and Constitution, March 2, 1780
A. How is it possible that the people have a right to require of the citizens to support, financially, the establishment of public religion? No one particular sect was given preference over another all were “equally under the protection of the law” and, thus, the “free exercise” of religion was protected. Explain this explicit association between free exercise of religion and equality under the law.
B. Following Virginia and Pennsylvania, the need for “piety, justice, moderation, temperance, industry, and frugality” was listed in the Bill of Rights. Are these six virtues compatible with the two religion clauses? See Documents 3, 5, and 7.

7. James Madison’s Memorial And Remonstrance, June 20, 1785
A. How does Madison remind the legislators of 1783 that they were undermining the very principles of freedom of conscience that Virginians adopted in 1776?
B. Is Madison’s Memorial and Remonstrance out of touch with the religion clauses of the state constitutions? See Documents 3–6.

8. The Northwest Ordinance, July 13, 1787
A. What sort of country do the framers of the Northwest Ordinance envision for the next generation of Americans?
B. How do the statements on behalf of individual religious rights and the public support of religion compare with the statements found in Documents 3–6?

9. Objections at the Constitutional Convention, September 10, 12, 15, and 17, 1787
A. Are there similarities among the objections to the Constitution listed by Edmund Randolph, Elbridge Gerry, and George Mason? Does their dissent demonstrate an admirable feature of the American experiment? Other delegates had reservations, yet they still signed.
B. Does it strike you as odd that Edmund Randolph, who introduced and defended the Virginia Plan, objected to signing the Constitution? How do these dissents on behalf of a bill of rights compare and contrast with earlier the documents in this collection? See Documents 3–7.

10. James Wilson’s State House Speech, October 6, 1787
A. This speech by Wilson upset a lot of prominent opposition politicians and writers. What is so provocative about this speech?
B. What is the central argument of the Antifederalist opposition? See Documents 11–14.

11. The Federal Farmer IV, October 12, 1787
A. The Federal Farmer emphasizes the importance of a bill of rights right at the start of the ratifying campaign. What are his arguments in favor of a bill of rights?
B. What are the objections of the Federal Farmer to James Wilson’s State House speech? See Document 10. See also Document 19.

12. Richard Henry Lee to Edmund Randolph, October 16, 1787
A. What rights are essential to Richard Henry Lee? Why does the proposed Constitution contain the potentiality to make these rights vulnerable?
B. How do Lee’s essential rights compare with those revealed in the Thomas Jefferson–James Madison exchanges? See Documents 16, 20, 21– 22.

13. An Old Whig IV, October 27, 1787
A. What are An Old Whig’s arguments on behalf of a small republic and a bill of rights?
B. Compare the Old Whig’s argument with the argument of Federalist 10. See Document 19 in the American Founding Document. Is there a coherence to the Antifederalist argument? See Documents 9, 11, 12, 14, 15.

14. Brutus II, November 1, 1787
A. Brutus makes the absence of the Bill of Rights a key issue in the ratification campaign. Does his argument make sense? What rights does Brutus deem “essential”?
B. Are there good reasons why James Wilson and The Federalist dismiss the absence of a bill of rights as a vital issue in the proposed Constitution? See Documents 10–12, 19.

15. The Dissent of the Minority of the Convention of Pennsylvania, December 18, 1787
A. What rights did the Pennsylvania Minority consider to be essential?
B. Compare the objections to the Constitution expressed by the Pennsylvania Minority to those raised at the Virginia and New York Ratifying Conventions. See Documents 17 and 18.

16. Thomas Jefferson to James Madison, December 20, 1787
A. What are the six essential rights that Thomas Jefferson states should be included in a Declaration of Rights?
B. Why does Thomas Jefferson disagree with the approach taken by James Wilson in his State House Speech? Which of the six rights mentioned by Jefferson does James Madison endorse? See Documents 10, 21 and 22.

17. The Virginia Ratifying Convention, June 24–June 27, 1787
A. What is the difference between an adoption of the Constitution with previous amendments and adoption with subsequent amendments? Do previous amendments open the door to the possibility of secession? How does the discussion over how to adopt the Constitution enhance our understanding of what is and is not a republican and a federal government?
B. How do the amendment and bill of rights proposals compare and contrast with those listed in the New York ratifying document? See Document 18. Is James Madison’s argument against a bill of rights the same as that articulated by James Wilson? See Document 10.

18. New York Ratifying Convention, June 17–July 25, 1788
A. What is the difference between the adoption of the Constitution with previous or conditional amendments and adoption with subsequent or recommended amendments? What are the differences between the content of the twenty-five items in the Bill of Rights proposed at the New York convention and the thirty-one items in the proposed amendments?
B. How do the amendment and bill of rights proposals compare and contrast with those listed in the Virginia ratifying document? See Document 17. How many of the amendment proposals and the Bill of Rights proposals make their way into the Bill of Rights adopted in 1791? See Document 26.

19. Federalist 84, July 16, 1788
A. What are the rights that Publius claims are listed in the proposed Constitution? Why does Publius think the Constitution is a bill of rights?
B. To what extent does Publius repeat, or enlarge upon, the arguments made by James Wilson in his State House Speech? See Document 10.

20. Thomas Jefferson to James Madison, July 31, 1788
A. What rights does Thomas Jefferson think that the general voice of America is calling for?
B. Which of these rights does James Madison include in his proposals to Congress? See Document 22. How does Thomas Jefferson’s list of rights compare with those requested at the Virginia and New York Ratifying Conventions? See Documents 17 and 18. Has his list expanded or contracted from those contained in Document 16?

21. James Madison to Thomas Jefferson, October 17, 1788
A. Why did James Madison not view the absence of a bill of rights from the proposed Constitution “in an important light”? How did Madison answer his own question: “What use then it may be asked can a bill of rights serve in popular governments”?
B. Compare James Madison’s less than enthusiastic support for a bill of rights with James Wilson’s State House Speech and Alexander Hamilton’s argument in Federalist 84. See Documents 10 and 19.

22. Representative James Madison Argues for a Bill of Rights, June 8, 1789
A. What is James Madison’s case for the adoption of a bill of rights? Where would he place these thirty-nine constraints on the reach of the federal government? Before the Constitution? Within the Constitution? Or after the Constitution?
B. Compare James Madison’s case here for a bill of rights with his exchange with Thomas Jefferson, Did Madison flip-flop? Are there any surprises in his list of thirty-nine rights? Compare with Documents 16, 20, and 21.

23. The House Version, July 28, August 13–24, 1789
A. Why did the House reject James Madison’s proposal to incorporate the Bill of Rights into the main body of the original Constitution? What alterations did the House make to Madison’s version?
B. How is the House version similar to and different from Madison’s June 8 proposals? See Document 22.

24. The Senate Version, August 25–September 9, 1789
A. Why do we know so little about the debates that took place in the Senate? What important contribution, if any, did the Senate make?
B. How is the Senate version similar to and different from the House version and James Madison’s June 8 version? See Documents 22 and 23.

25. The Congress sends Twelve Amendments to the States, September 25, 1789
A. Are the changes in the religion clauses significant in the final Congress version?
B. What changes took place in the religion clauses over the course of the First Congress? See Documents 22–24.

26. Amendments I–X: The Bill of Rights, December 15, 1789
A. To what extent is the Bill of Rights an individual rights, a group or associational rights, or a states rights document? Why are there ten rather than twelve or seventeen amendments?
B. Why does the Bill of Rights appear as amendments at the end of the Constitution rather than in the Preamble or in Article I, Section 9 of the Constitution? See Documents 3, 4, 15, 17, 18, 22 and 23.

Why was the Bill of Rights Added to the Constitution?

Since the most powerful states in the Union would not have ratified the Constitution if not for the Bill of Rights, the Founding generation would be its most ardent defenders. Gun control should never be considered the “Fairness Doctrine” should never reach the floor of Congress for a vote the Patriot Act, which allows the government to use unconstitutional powers, should be revised, amended, or placed in the trash-can religious liberty, including the free expression of religious faith during government functions and prayer in public schools, should be defended the burden of proof in a case involving “violations “of federal “regulations” should be placed on the government, not the accused federal disregard for private property should cease. In short, federal activity should be severely curtailed

Why is the Bill of Rights Important?

Why is the Bill of Rights important? Because even though many Founding Fathers thought they would be assumed and not need constitutional protection, they could be infringed upon if not guaranteed. Among those who thought that constitutional protection was not necessary was Roger Sherman, an early American lawyer and statesmen, along with being a Founding Father who signed the Declaration of Independence, the Articles of Confederation, and the United States Constitutuion.

Sherman’s states’ rights convictions led him to oppose the inclusion of a bill of rights with the Constitution. He believed that by insisting on “federal” guarantees of individual liberty, the new central government could exclude all other rights not listed and thus greatly reduce liberty. He argued that the states already had specific guarantees of rights, and because the new central government would not have the delegated authority to infringe upon those rights, the states could easily protect individual liberty from federal usurpation. His objections were sophisticated and duly noted and ultimately led to the Ninth Amendment to the Constitution.

Why is the Bill of Rights Important?

Sherman was immediately elected as an at-large member of the United States House of Representatives in 1788, where he served one term from 1789 to 1791. He supported a Bank of the United States and the retirement of the federal debt and helped hammer out the compromise that led to the assumption of state debts in return for planting the federal capital along the Potomac, otherwise known as the “assumption scheme.” He was chosen to serve in the United States Senate in 1791 and served there until his death in 1793 at the age of 72.

Sherman can be seen as an Anti-Federalist Federalist. Sherman believed the Constitution granted the federal government limited, delegated authority he believed it maintained states’ rights, and he would not have signed it and supported it otherwise. He was a Connecticuter to the end, the representative and defender of his state, and one who believed that the executive power should be limited because “no one man could be found so far above all the rest in wisdom.” Sherman knew that an unchecked executive is “the very essence of tyranny,” and that the best check on the power of the executive branch of the federal government was the authority of the sovereign states—an observation that seems very distant from where we are now.

Creating the United States Creating the Bill of Rights

Amending the federal Constitution to include a bill of rights was the essential political compromise in the creation of the United States government. Even though Federalists believed that individual rights were fully protected by state and common law, they knew that Anti-Federalists would never embrace the new Constitution until amendments protecting specific rights were adopted.

Therefore, in 1789 Congress passed proposed amendments to the Constitution as one of its first orders of business. Viewed as unnecessary by many and a mere diversion by others, the first ten amendments, which are known as the “Bill of Rights,” became the bedrock of individual rights and liberties.

&ldquoThe 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.&rdquo

The Bill of Rights

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.

Preamble to the Bill of Rights

The Bill of Rights

The document on permanent display in the Rotunda is the enrolled original Joint Resolution passed by Congress on September 25, 1789, proposing 12-not 10-amendments to the Constitution.

Read a Transcript | View in National Archives Catalog

The Constitution might never have been ratified if the framers hadn't promised to add a Bill of Rights. The first ten amendments to the Constitution gave citizens more confidence in the new government and contain many of today's Americans' most valued freedoms.

U.S. Constitution

The Constitutional Topics pages at the USConstitution.net site are presented to delve deeper into topics than can be provided on the Glossary Page or in the FAQ pages. This Topic Page concerns The Bill of Rights. The Bill of Rights is the common name for Amendments 1 through 9 (the 10th Amendment is usually included under the heading of "Bill of Rights," since it was ratified with the other nine, but it does not technically recognize any rights).

Americans have been concerned with their rights for hundreds of years. The right to practice religion however they wished was one of the primary reasons the first settlers came to America from England. The right of representation and self-determination was one of the primary reasons the Revolutionary War was fought. The right for all persons to be free was one of the reasons the Civil War was fought. American history is replete with bills of rights, from the most famous included in our Constitution, to the Declaration of Rights prompted by the Stamp Act to the Virginia Declaration of Rights written by George Mason for his state. Even today we speak of the apparently elusive Patient's Bill of Rights.

What is interesting to note is that when the Constitutional Convention finished its work, it did not find it necessary to include a bill of rights in the final version. Several members, notably George Mason, were very disappointed by this decision and refused to sign the document over the issue. The argument was that the Constitution did not give the new federal government the ability to restrict inherent rights, so no list of those rights was necessary. Others worried that if the rights were listed, they would invariably forget some and the list would ever be incomplete. Finally, the argument was that the states each had their own constitutions, too, and that rights were best protected at a state level.

Of all the issues that the Anti-Federalists gave for rejecting the new constitution, the lack of a bill of rights was the most compelling for many people. In the ratifying documents of five states, requests or demands for a bill of rights were included in the text, along with suggested lists (see the ratifying documents of Massachusetts, South Carolina, New Hampshire, Virginia, and New York. Rhode Island also included a list, but they ratified the Constitution after the first Congress approved the Bill of Rights).

The Federalists were opposed to adding a bill of rights, expounding on the reasons why in Alexander Hamilton's Federalist 84. Among the reasons listed was a list of the personal protections the new constitution did contain, such as the prohibition of ex post facto laws, the inviolate habeas corpus, prohibition of a religious test to hold office, and restrictions on a conviction of treason. Federalist 85 addressed the subject, too, noting that amendment is always a possibility after ratification. It turns out, once the process of ratification was complete, that this was exactly the route taken.

The first Congress under the Constitution had a lot to accomplish. It had many new powers not available to the Congress under the Articles of Confederation, and every state had interests it wanted to protect. James Madison, seen by many as the father of the Constitution, had won a seat in the House of Representatives, running partly on a platform that included a fight for a bill of rights. This may seem odd since Madison was one of those who advocated the omission of such a list of rights, but he eventually became convinced of the necessity.

Madison tried to get the debate moving, but debate on tariffs and other pressing issues always pushed the debate on a bill of rights to the back burner. Madison finally had enough and on June 8, 1789, he presented his draft of a bill of rights to get the discussion moving.

From June to September, both houses of Congress debated Madison's list, along with the lists presented by the states. Rights were enumerated, removed, modified, tweaked. Eventually, both houses agreed on twelve articles of amendment and sent them to the states. Two years later, in 1791, the last ten of these original twelve were ratified by the states and they became a part of the Constitution. By custom, the amendments were added to the end of the original document, rather than inserted in the text, as Madison had envisioned. All ten of the original amendments are referred to as The Bill of Rights, though only the first nine pertain to the people (Amendment 10 pertains to the states, though it mentions the people in parallel).

Bar to Federal Action

The Bill of Rights was understood, at its ratification, to be a bar on the actions of the federal government. Many people today find this to be an incredible fact. The fact is, prior to incorporation, discussed below, the Bill of Rights did not apply to the states. This is, however, quite in line with what the Constitution was originally designed to be: a framework for the federal government. In other words, though the federal government was banned from violating the freedom of the press, states were free to regulate the press. For the most part, this was not an issue, because the state constitutions all had bills of rights, and many of the rights protected by the states mirrored those in the federal Bill, and many went further than the federal Bill.

This point is best illustrated by one of the amendments that Madison proposed in his initial speech:

Fifthly, That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

This clause, seemingly innocuous to us today, was rejected by the Senate in its final draft of the Bill, and the concept that any part of the Bill of Rights would apply to the states was still 100 years away. Several cases that came before the Supreme Court in the 19th century attempted to have the Court establish that the Bill should apply to the states, to no avail:

In Barron v Baltimore (32 U.S. 243 [1833]), the Court ruled that the Takings Clause of the 5th Amendment did not apply to the City of Baltimore and the State of Maryland by extension. Succinctly, the Court wrote: ". the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states."

In Pervear v Massachusetts (72 U.S. 475 [1866]), the Court was asked to rule on fines imposed upon a liquor dealer by the state. Pervear was licensed by the United States under the current internal revenue code to keep and sell liquor. He was fined and sentenced to three months of hard labor for not maintaining a state license for his liquor business. Part to the defense attempted to invoke the 8th Amendment's Excessive Fines and Cruel and Unusual Punishment clauses. The Court, again quite succinctly, said: "Of this proposition it is enough to say that the article of the Constitution relied upon in support of it does not apply to State but to National legislation."

As to the Bill of Rights being a bar to federal acts, the Bill took some knocks in the first years of the new nation. The 1798 Alien and Sedition Act, for example, made nationals of countries the United States was at war with subject to summary arrest, and also made "false, scandalous and malicious" writings about the government a crime, with the burden of proof placed squarely on the shoulders of the defendant rather than the state. Madison and Thomas Jefferson were both adamantly opposed to the Act, and said that being unconstitutional, states were free to ignore (or nullify) the law. The Act, repealed in 1801, was never ruled unconstitutional.

One of the greatest changes in the interpretation of the Constitution came with the passage of the 14th Amendment after the conclusion of the Civil War. It was designed to assist newly freed slaves in the transition to freedom and to protect them from acts of the Southern states, and also to overturn the decision in the Dred Scott case that ruled that persons of African descent could not be citizens of the United States even if they were born in the United States. The amendment was successful in this endeavor, legally, if not in reality.

But this sentence had and continues to have long-lasting implications on the application of the Bill of Rights to the states:

The "Due Process Clause" has been interpreted as applying the Bill of Rights, which lists the rights (or privileges and immunities) of the citizens, to the states. Known as "incorporation," the application of the Bill to the states did not come all at once, nor is incorporation complete. Even today, there are some parts of the Bill which have not been incorporated. The process began unsuccessfully in the late 1800's and continued unsuccessfully right up until the 1930's. In 1947, however, in Adamson v California (332 U.S. 46 [1947]), the Supreme Court began to accept the argument that the 14th Amendment requires the states to follow the protections of the Bill of Rights. Historians both agreed and disagreed with the Court's contention that the framers of the 14th Amendment intended incorporation since its passage . but historians do not sit on the Court. Their opinions were less important than those of the Justices.

The process of selectively incorporating the clauses of the Bill of Rights is agreed to have begun in Twining v. New Jersey (268 U.S. 652 [1925]) which contemplated the incorporation of some of the aspects of the 8th Amendment - not because they were a part of the Bill of Rights but because they seemed to be fundamental to the concept of due process. This process of incorporating parts of the Bill of Rights because of their connection to due process began to run in parallel with the selective incorporation doctrine, where parts of the Bill of Rights were ruled to be enforceable on the states by virtue of the 14th Amendments, whether or not due process applied.

Thus in the early 1960's, the Establishment Clause, the right to counsel, the rights of free speech, assembly, and petition, and the right against unreasonable searches and seizures were quickly incorporated. Since the early 60's, almost every clause in the Bill of Rights has been incorporated (notable exceptions are the 2nd and 3rd Amendments, the grand jury indictment clause of the 5th Amendment, and the 7th Amendment).

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Congress and the Bill of Rights in History and Today

Students will explore the protections and limitations on authority contained in the Bill of Rights and the process by which the First Congress created it. They will do this by compiling a list of their rights as students, analyzing the Bill of Rights, and studying primary source documents to trace the origin and development of the first ten amendments. Students will then consider how the Bill of Rights might be updated to reflect 21st century circumstances.


By taking stock of their rights as students and studying the development of the Bill of Rights through antecedent documents, students will be better able to understand the protections it provides and how James Madison and the First Congress crafted amendments to win support for the Constitution. This will help students understand the importance of the Bill of Rights today.

Guiding Questions:

  1. What rights do students have in class?
  2. What rights are protected by the Bill of Rights, and what powers are limited?
  3. How and why did the First Congress create the Bill of Rights?
  4. How might the Bill of Rights be updated for today?


Recommended Grade Levels:


American History U.S. Government Civics

Topics included in this lesson:

The Bill of Rights, James Madison, constitutional amendments, Federalists, Anti-Federalists

Time Required:

The time needed to complete each learning activity is presented in parentheses at each step. The activities can be done in sequence or each can be done separately.


  • Federalists
  • Anti-Federalists
  • Ratification
  • Grievances
  • Vested
  • Due process of law


Senate Revisions to the House-Passed Amendments to the U.S. Constitution, September 9, 1789 Records of the U.S. Senate NAID 3535588

Proposed Amendments to the U.S. Constitution as passed by the Senate, September 14, 1789 Records of the U.S. Senate NAID 2173242

Historic Overview:

The struggle over the states' ratification of the Constitution in 1787 and 1788 made a deep impression on James Madison, who witnessed firsthand the contentious battles in Virginia and New York. Madison understood that in order for the new government to be successful it needed the overwhelming allegiance of the people rather than the narrow majority support won in many of the state ratification conventions. Madison began to see how the addition of a bill of rights might calm some of the fears about the powers invested in the new national government.

James Madison worked to gain support for the Constitution by creating a list of proposed amendments drawn from various Anti-Federalist and Federalists sources. Elected as a representative to the First Congress in 1789, he took the lead in writing and speaking on behalf of legislation to amend the Constitution. By August of 1789, the House of Representatives passed a list of proposed amendments derived from Madison's list. Due in large measure to his leadership, Congress passed the Bill of Rights in 1789, and the states ratified it by 1791.

Learning Activities:

1. Rights in the classroom: (45 Minutes)

Begin a class discussion about rights in which students consider two dimensions of rights: specific protections for individuals and general limits on authority.

Discussion questions should include:

  • What specific protections for individuals apply to students?
  • What specific protections for individuals apply to teachers?
  • Are these sets of protections distinct from one another or shared to some degree?
  • What limits are placed on the authority of teachers?
  • What limits are placed on the authority of students?
  • What limits on authority do they share? (For instance, school rules and class policies limit student's authority to decide certain issues, while contracts and school policies limit certain actions by teachers.)

Ask students to summarize the discussion by completing Worksheet 1.

Direct the class to draw from information they listed on Worksheet 1 to create a bill of rights for the classroom.

Important topics to consider include:

  • What specific protections for individuals should be guaranteed?
  • What limitations on authority should be included?
  • How will the class determine what to include in this Bill of Rights? Simple majority? Super-majority? Unanimous vote? What vote does the teacher or administration have?

2. Analyzing the Bill of Rights (30 minutes)

Ask students to draw upon their work in Activity 1 as they analyze the list of amendments ratified by the states in 1791. Divide the students into small groups and assign each group to carefully read the text of the Handout 3. Have each group complete Worksheet 2 to delineate the individual protections and limits on authority contained in the Bill of Rights. Begin a discussion in which the class compares or contrasts their class Bill of Rights with the amendments ratified by the states.

3. Exploring the History of the Bill of Rights from Conventions to Ratification: (90 minutes)

Divide the class into small groups and distribute copies of the Senate Revisions to the House-Passed Amendments to the U.S. Constitution (Senate Mark-up). This facsimile shows the Bill of Rights in the middle of its creation during the legislative process. The printed text shows the amendments as they were passed by the House and the handwritten markings show changes made by the Senate.

Drawing from the Senate Mark-up, assign each small group to study one or two of the 17 amendments passed by the House and marked up by the Senate. Provide one copy of Worksheet 3 to each group for each amendment the group is assigned. Using the Worksheet, the students will analyze their assigned amendment(s) and translate each into an 8-12 word "tweet." Amendments should be studied as they were passed by the House.

Direct each small group to study the historical context of their proposed amendment. The students will analyze several other versions of the Bill of Rights which came before and after the Senate Mark-up to determine when the main idea of their assigned amendment was introduced. For this step, distribute Handout 1, Handout 2, Handout 3, and the Proposed Amendments to the U.S. Constitution as passed by the Senate.

Each group will scan these four documents to determine if the main idea identified in their tweet was also present in the other versions of the Bill of Rights. Students mark their finding on Worksheet 3 by putting an X in the appropriate box in the chart. Students will also mark the final box in the chart with an R or L to indicate whether that amendment deals mostly with rights or limitations of government. The groups should answer the questions on Worksheet 3 to prepare for class discussion. Worksheet 4 should be posted or projected on an overhead so that all groups can report their findings and share with the class.

The groups will present to the class their answers to questions on Worksheet 3 and their findings marked on Worksheet 4. When all groups have presented, hold a class discussion using the following questions:

  • Which proposed amendments were present from the Anti-Federalist report to the Bill of Rights as ratified by the states?
  • Which Anti-Federalist ideas were also proposed by Madison but not present in the final Bill of Rights?
  • Which proposed amendments originated with James Madison? Which of those were not present in the final Bill of Rights?
  • Which proposed amendments were merged at various points in the process?

4. Applying the Bill of Rights to today's world (45 minutes)

The Constitution has been amended twenty-seven times, including the Bill of Rights. The ability to amend the Constitution is critical to adapt to a changing society. However, the Founders understood that revisions to the founding charter should not be undertaken lightly, and they designed the amendment process to require a very high level of agreement for amendments to be ratified (2/3 of both Houses of Congress and 3/4 of state legislatures).

Divide students into groups to propose new amendments to the Constitution to better serve the nation in the 21st Century and "form a more perfect union." In groups, students will identify rights deserving protection but not currently contained in the Bill of Rights and additional powers of government that should be limited.

Each group may compose one amendment (or several amendments) to the Constitution and share with the class why they think each amendment is needed.

Post all amendments on the wall and allow students to speak for or against the amendments as if they were members of Congress. Hold a vote on each amendment to see which ones, if any, can get 2/3 of the votes of all class members.

5. Lesson Extension (45 minutes for preparation and 45 minutes to implement)

Debating changes to the Bill of Rights:

The Bill of Rights was created by process of debate in the First Congress and ratified by debate in the legislatures of the states. This history reminds us of the importance of civic discourse in the life of the nation. Learning to advocate for ideas persuasively and respectfully was as vital a lesson for America's first legislators as it is for students today. This debate challenges students to assess the call to update the Bill of Rights by speaking for and against the idea. Organize the class into two teams and have each team spend 45 minutes organizing their arguments and evidence prior to debating.

Debate Topic: The Bill of Rights should be updated to match 21st Century American life.

Pro position: The Bill of Rights should be updated.

Con position: The Bill of Rights should be preserved as it is.

  • Each debate features five participants on each side of the issue.
  • Each speaks for no more than two minutes.
  • Teams alternate speakers.
  • One speaker on each team delivers the opening giving an overview of the team's position.
  • Three speakers on each team gives supporting arguments—one argument per speaker.
  • One speaker on each team delivers the closing argument.

Additional Resources

Congress Creates the Bill of Rights is an eBook, a mobile app for tablets, and online resources for teachers and students to exploring how the First Congress proposed amendments to the Constitution in 1789.

If you have problems viewing these images, please contact [email protected]

This page was last reviewed on October 13, 2020.
Contact us with questions or comments.

Watch the video: Why wasnt the Bill of Rights originally in the US Constitution? - James Coll


  1. Yohance

    Bravo, your phrase is just great

  2. Hiero

    I fully share her point of view. I think this is a great idea.

  3. Riddoc

    I totally agree!

  4. Edwald

    For your information, this has already been discussed many times and has always caused heated discussions, but no sensible consensus has been found. Clarify your thoughts for readers

  5. Quaid

    I'm sorry, but I think you are wrong. I can prove it.

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