our bill of rights--4/13/2026

13 Apr 2026

our bill of rights--4/13/2026

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Today's selection-- from Constitutional Myths by Ray Raphael. Given widespread unease with the Constitution, a Bill of Rights was added. Nineteen were considered, ten were adopted:

“The Constitution of the United States, drafted in 1787 and ratified in 1788, did not follow the precedent set by these state constitutions. Despite spending almost four months drafting their new plan, the framers did not include within it a thoughtful listing of rights but only a scattering of guarantees. On September 12, just five days before the end of the Convention, George Mason finally suggested that delegates add a "Bill of Rights" similar to the state declarations of rights, but his motion failed to garner the support of a single state delegation.”

“Although state conventions ratified the Constitution, several included a caveat: the new plan should be amended as soon as possible. In fact, they proposed scores of amendments, some resembling provisions of what we now know as the Bill of Rights, but many others altering or even deleting structural features of the Constitution. New York's convention coupled its list of proposed amendments with a demand for a second federal convention to consider these various proposals. The profusion of proposed amendments, plus the prospect of a second convention, frightened supporters of the Constitution, who feared that a new convention, if it met, would revise the fledgling Constitution before it could be put into effect and gut some of its major provisions.”

“Most leading Federalists hunkered down. In arguing against a second federal convention, they insisted that a bill of rights was not necessary and could even jeopardize rights that were not included. The job of the Constitution, they said, was to state what government could do, not what it couldn't do. Rights already were secured because the government possessed no power that allowed it to impinge upon them. In fact, any catalog of specified rights would imply that rights were limited to those in the catalog, and not others.”

“James Madison and George Washington agreed with this argument, but they also took an accurate measure of people's displeasure. It was strong and it was widespread. Rather than fight a rearguard action against the wave of discontent, they preferred to channel and control it. Article V of the Constitution stipulated that either Congress or state conventions might propose amendments. If Congress acted first, Madison and Washington reasoned, it could take charge of the issue and protect the substantive features of the new plan–congressional taxation, for instance–while giving ground elsewhere. Madison, meanwhile, pledged to his Virginia constituents that he would work to add a bill of rights if they elected him to represent them in Congress.”

“Once elected, in the First Federal Congress, Madison whittled down the large list of amendments suggested by the states' ratifying conventions. With President Washington's blessing, he proposed nineteen that did not endanger key constitutional components. After considerable debate and some revision, Congress pared Madison's list down to twelve amendments, which it sent to the states for approval. Ten of these, which we call today the Bill of Rights, were ratified by three-quarters of the states, as required by the new Constitution. The genesis of the Bill of Rights, like the origins of the Constitution, was political as well as theoretical.”

“The short-term effect of the framing and ratification of the Bill of Rights was to put a Federalist stamp on the amendments and to doom the attempts by the Constitution's opponents to modify the substantive or structural features of the new plan. The long-term effect was to reinforce America's culture of rights and to infuse specific rights into American jurisprudence. After more than two centuries, the Bill of Rights, which had been so casually dismissed by the framers, figures so prominently in our minds that it often eclipses the Constitution itself. In an era when the word "government" has a bad name, the ten amendments that circumscribe the federal government's authority over individuals are often viewed more favorably than the Constitution the framers created in 1787.”