Playing Politics with the Bill of Rights

If there were public opinion polls in the late 18th century, they would probably show strong public support for adding a Bill of Rights to the US Constitution. The people who were the foot soldiers of the American Revolution had learned to distrust authority.   Why should they trust a document aimed at strengthening federal power that made no mention of the rights they had fought for just a decade before?

In the absence of opinion polls, people still had a way of making their views known.  And politicians still paid attention. 

Take James Madison – a Federalist (supporter of strong government) from Virginia, who took such elaborate notes at the Constitutional Convention that we have a good idea of what the debates were like.  He was solidly on record against adding a bill of rights to the Constitution.  He did not think it would work.  In his view, the real danger to individual rights came not from the absence of a bill of rights, but from popular majorities, who might use their legislative power to trample on liberty.

But Madison also had political ambitions.  He wanted to be a US Senator from the state of Virginia .  To get there, he had to reckon with the arguments of the Anti-Federalists, who threatened to push for a new drafting convention and start from scratch unless the Constitution was amended to include a bill of rights. 

One of the Anti-Federalists was the Virginia patriot, Patrick Henry.  In 1775, he had helped build support for the Revolution with these dramatic words: "I know not what course others may take; but as for me, give me liberty or give me death."

A dozen years later, Patrick Henry was equally flamboyant and persuasive in his arguments for a bill of rights:

"This proposal of altering our federal government is of a most alarming nature!.... You ought to be watchful, jealous of your liberty; for, instead of securing your rights, you may lose them forever... I beg gentlemen to consider that a wrong step made now will plunge us into misery, and our republic will be lost, and tyranny must and will arise...

"The necessity of a Bill of Rights appears to me to be greater in this government than ever it was in any government before... All rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from the delegated powers...

"This is the question. If you intend to reserve your unalienable rights, you must have the most express stipulation; for, if implication be allowed, you are ousted of those rights. If the people do not think it necessary to reserve them, they will be supposed to be given up."

After two Anti-Federalist candidates beat Madison in the election to represent the State of Virginia in the US Senate, he recognized that he was running against a popular growing tide.  And so he switched sides.  He ran again, this time for the House of Representative, and campaigned in favor a bill of Rights.  He won the election.  At Jefferson 's urging, he then put together the draft that made him the "father of the Bill of Rights."

Read more about Madison an the Bill of Rights: