Madison’s Dilemma, And Ours: “What Use Can a Bill of Rights Serve?”

Let me confess to a certain reluctance to publish criticism of the Bill of Rights, for reasons somewhat akin to the distaste a good citizen should have for a flag-burning on the steps of the Capitol, or a mocking performance of the “Star Spangled Banner” before a stadium crowd. Using a public platform to find fault with a justly revered part of the Constitution smacks of the unpatriotic, even if it may be seen as a scholarly duty.

In this case, however, my reluctance is rather easily overcome, because the source of my criticisms of bills of rights, and doubts about their usefulness, is none other than James Madison, who is considered by many to deserve the title of Father of the Constitution but who even more certainly deserves the title of Father of the Bill of Rights.

That there is a bill of rights in the Constitution we owe in part to the Anti-Federalists, those who opposed ratification of the unamended Constitution; but that we have the Bill of Rights we have, rather than a number of quite different amendments, we owe in larger part to James Madison. The account I will present of Madison’s original reservations about bills of rights, and what he did about them, involves telling the story of how one of the most penetrating critics of bills of rights became the Father of the American Bill of Rights.

Soon after the Constitutional Convention completed its work in September 1787, Madison wrote a long letter from New York to his good friend, Thomas Jefferson, then serving as the American minister representing the United States in Paris, that gave a report of the work of the convention and explained key features of the new Constitution, just then being sent to the states to commence the ratification procedure. In that long letter—it runs 17 handwritten pages—Madison referred just once to the fact that would become central to the ensuing correspondence with Jefferson, and to ratification: the absence of a bill of rights in the Constitution. He mentioned it only in passing while reporting that George Mason had refused to sign the Constitution at the conclusion of the convention.

But his near silence about a bill of rights does not mean that Madison was inattentive to the subject of the protection of the rights of individuals. It helps to keep in mind a Madisonian distinction, between protection of rights and bills of rights; Madison always emphasized the primacy of protecting rights, but he doubted the effectiveness of a bill of rights to do the job.

For example, much of Madison’s long letter to Jefferson was devoted to an account of one of the important setbacks he suffered in the Convention, the defeat of his proposal that Congress be given a power to veto state legislation. He did not speak of it, as we would expect, as a matter concerning federal-state relations. What was at stake, Madison said, was protection of private rights:

A constitutional negative on the laws of the States seems… necessary to secure individuals against encroachments on their rights…. The injustice of [the laws of the states] has been so frequent and so flagrant as to alarm the most steadfast friends of Republicanism…. A reform therefore which does not make provision for private rights, must be materially defective.

We are accustomed to having the Supreme Court exercise a judicial negative on the laws of the states by virtue of the Court’s interpretation of the Fourteenth Amendment, and many would probably be concerned that the security of individual rights would be in jeopardy if the Supreme Court did not exercise that negative over state legislation. Such a negative is what Madison had in mind, except that he intended the power to be in the hands of the Congress rather than of the judiciary.

For Madison, making “provision for private rights” was essential, but that did not mean that a bill of rights was essential. For Madison, the questionable efficacy of the bill of rights was reason to do without one. But Thomas Jefferson disagreed.

Thus, when Madison wrote that experience of the Virginia Bill of Rights showed it was least effective in those dire situations when it was most needed, Jefferson replied that was true, but “tho it is not absolutely efficacious under all circumstances, it is of great potency always, and rarely inefficacious.” And when Madison wrote that a positive declaration of some essential rights, for example religious freedom, “could not be obtained in the requisite latitude,” (meaning, for example, that in some states religious freedom was protected only for Christians or even only for Protestants, and not for others) Jefferson replied that was true, but “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.”

Jefferson’s reply from Paris to Madison’s long letter started by expressing his general approval of the new Constitution, including a list of the features he especially liked. For example, he said, “I like the organization of the government into Legislative, Judiciary and Executive.” “I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting in Congress by persons, instead of that by voting by states.” “I like the power to levy taxes,” he said, because it preserves “inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves.”

After completing the list of constitutional features he liked, Jefferson changed the tone of the letter abruptly with one blunt sentence, “I will now add what I do not like.”

First, the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land.

Jefferson wrote similarly to many others in the weeks and months following, repeating the same list of six articles—religion, press, no standing army, habeas corpus, no monopolies, and trial by jury—in a letter campaign conducted from Paris obviously intended to influence the deliberations of the state ratifying conventions. He also repeated in these letters a recommendation that the first nine states be encouraged to ratify the Constitution, but the last four advised to withhold ratification until a bill of rights be added. As he put it in a letter to one of his other correspondents:

Were I in America I would advocate it warmly till nine should have adopted, and then as warmly take the other side to convince the remaining four that they ought not to come into it till the declaration of rights is annexed to it. By this means we should secure all the good of it, and procure so respectable an opposition as would induce the accepting states to offer a bill of rights. This would be the happiest turn the thing could take.

This imprudent suggestion makes one grateful that Jefferson was safely in Paris rather than in Virginia during the ratification struggle. This plan, which Jefferson communicated to many others before eventually changing his mind and abandoning it, would have been less than helpful to Madison and Hamilton, because New York and Virginia were destined to be among the last four, and without their prompt ratification the cause of the new Constitution would almost certainly have been lost.

Madison had good reason to suspect the motives and intentions of many of those who were insisting on amending the Constitution before giving assent to ratification. The leading advocates of prior amendments were clearly intent on defeating the Constitution or changing it radically. But in his next letter to Jefferson, Madison acknowledged that “not a few” of those demanding prior amendments to the Constitution were acting “from the most honorable and patriotic motives” and that there were “some who wish for further guards to public liberty and individual rights” even among the supporters of the Constitution.

He then made a prediction about amendments that must have been encouraging to Jefferson: “As far as these may consist of a constitutional declaration of the most essential rights, it is probable they will be added,” though he apparently could not refrain from commenting that “there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution.”

Madison then made a statement that ever since has puzzled many, because they think it is simply a lie. He said, “My own opinion has always been in favor of a bill of rights.” I think Madison’s immediate explanation of why and in what respect he favored a bill of rights makes the assertion much less puzzling and closer to the truth:

At the same time I have never thought the omission of a bill of rights a material defect, nor been anxious to supply it even by subsequent amendment, for any reason than that it is anxiously desired by others. I have favored it because I have supposed it might be of use, and if properly executed could not be of disservice.

Madison was impressively consistent in the way he spoke about a bill of rights. In all of his private correspondence and even in his public speeches in support of his own proposals of the amendments that became the Bill of Rights, to the best of my knowledge he was scrupulous in never speaking approvingly of the provisions for their intrinsic worth, or for “any reason” than that others thought them important or useful or reassuring. In addition, he always added qualifications, such as “if properly executed,” and conditional phrasing, “it might be of use,” and double negatives, “could not be of disservice.”

He addressed several of Jefferson’s points directly, primarily Jefferson’s contention that the people are entitled to a bill of rights “against every government on earth.” Madison thought that was too indiscriminate, that there is an important distinction to be made between monarchical and republican governments, and that a bill of rights is needed in the former in a way that it is not in the latter; not because a republican government is necessarily less oppressive than a monarchical government, but because of the different source of probable oppression. Madison wrote:

Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its Constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents. This is a truth of great importance, but not yet sufficiently attended to….

From this factor—that the real danger to individual rights, in a regime where the majority rules, comes not from the legislative or executive branches of the government, but from the majority of the people themselves pushing the government to oppressive policy—Madison drew the consequence that in a popular government a bill of rights is likely to be too weak, a mere “parchment barrier” that will be least effective when most needed. An impassioned majority will ignore an injunction to restrain itself, and in a republic, what other force is there?

The theoretical problem seemed to Madison to be formidable. The majority would dictate policy to the government, and when it ordered oppressive policies, for example persecution of the minority or of certain groups or individuals, it would not be acting against the will of the majority but in full accord with it. The danger of republican oppression, of governmental violation of individual rights, was greater than in other forms of government because it would be more difficult to oppose and stop. For this problem, he saw no chance that a bill of rights could be the remedy. The only chance for justice and security for rights would be to prevent the formation of unjust majorities, and to do that he recommended structural constitutional arrangements that would encourage a multiplicity of interests, and devices such as a congressional veto over state legislation. And so Madison arrived at a simple and daunting question: “What use then it may be asked can a bill of rights serve in popular Governments”

Madison considered the problem of the oppressive majority the most fundamental of all facing a constitution writer for a republic, for a political society governed ultimately by the will of the majority. The greatest danger to individual rights in any political society is the greatest power in that society. But of all forms of government, the only one where the most powerful latent physical force and the political governing force are identical is a republic, and so popular government presents a unique problem for protecting individual rights.

For Madison, three motives that are usually counted on to restrain the oppressive behavior of individuals are unlikely to be effective restraints of large groups. Prudential calculation won’t do it; the principle of a majority is more likely to be “what is politic is honest,” rather than “honesty is the best policy.” Concern about reputation, or what others will think, doesn’t always restrain individuals, and is completely ineffective for a majority, whose opinion is public opinion. As for religion as a restraint on oppressive mass behavior, Madison said, “The inefficacy of this restraint on individuals is well known.” Failing to find a likely restraint to majority oppression once the oppressive majority has formed, Madison summed up the problem and the remedy:

If then there must be different interests and parties in society; and a majority when united by a common interest or passion cannot be restrained from oppressing the minority, what remedy can be found in a republican Government, where the majority must ultimately decide, but that of giving such an extent to the sphere, that no common interest or passion will be likely to unite a majority of the whole number in an unjust pursuit.

There, in compact form, was why Madison thought a bill of rights was too weak a barrier to majority oppression, and why he thought it a matter of less than major importance. Efforts to restrain an oppressive majority were unlikely to succeed, no matter what the solemn wording on parchment. The best chance to protect rights lay in preventing the formation of an oppressive majority in the first place, and that is why he considered the structure of the government and the society fundamental, and the provisions of a bill of rights only secondary and supplemental.

He concluded the discourse—”this immoderate digression,” he called it, begging Jefferson’s pardon—with a formulation that he, prudently, did not use in public: “Divide et impera, the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.”

Having addressed but not disposed of the question whether a bill of rights was proper for a republic, Madison left it temporarily and turned to a second question: If we do have a bill of rights, what articles ought to be included in it?

Of the six articles Jefferson had enumerated as essential for inclusion in a bill of rights, Madison accepted three—freedom of religion, freedom of the press, and jury trials—and later included them in his own proposals to the First Congress, and rejected three—the prohibition of a standing army, the prohibition of monopolies, and the unlimited privilege of the writ of habeas corpus. He commenced by making a general observation about how to think about what articles to include in a bill of rights.

I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided. The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public, and after repeated violations in extraordinary cases they will lose even their ordinary efficacy.

These are lessons from the master bill-of-rights writer. Do not write provisions that will not, perhaps cannot, be obeyed. Jefferson was advocating, in effect, that the habeas corpus clause (which reads: “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”) be amended so that it would say simply, “The privilege of the writ of habeas corpus shall not be suspended.” Period. Madison’s response was that the effect would be twofold: in emergencies when the public was aroused, habeas corpus would be suspended anyway, suspected dangerous characters would be detained and held without trial, and the Constitution would become less effective because less respected each time this provision, or any provision, was ignored or disobeyed.

The demand for prohibiting a standing army was more popular than most people realize today. The ratification conventions of six states had proposed amendments to the Constitution and all six of them had recommended prohibition of a standing army, compared to only three for protection of freedom of the press, and just one for freedom of speech. This recommended prohibition was usually coupled with advocacy of state militia as the appropriate means of defense of “a free State.” Madison did propose an article providing for “A well regulated militia” that became the Second Amendment, but he deleted the clause prohibiting a standing army and fought off efforts in the Congress to restore it. This was consistent with his practice throughout; he picked and chose among the hundreds of amendments recommended by the state ratifying conventions, omitting all provisions intended to diminish the powers of the new government.

As for Jefferson’s third rejected suggestion, the only monopolies sanctioned by the Constitution are in the copyright and patent clause, which empowers Congress to grant to authors and inventors “the exclusive right” to their products “for limited times.” Madison acknowledged that monopolies are a great “nuisance,”

But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced?

And he added the reflection that monopolies are more likely to flourish “where the power is in the few.” “Where the power as with us is in the many not in the few the danger cannot be very great that the few will be thus favored. It is much more to be dreaded that the few will be unnecessarily sacrificed to the many.”

Whether we agree with Madison’s prediction that soak-the-rich taxes imposed on “the few” to finance welfare programs to benefit “the many” are more likely to be enacted than special-interest legislation to benefit “the few” at the expense of “the many,” we see at least the kind of analysis he brought to every aspect of the task of composing a bill of rights. Unlike present-day proponents of civil rights and human rights, who approach rights as a problem of abstract morality, he considered the problem of securing rights by starting always with questions such as these: Where does the power lie? Whose interests are at stake? Whose interests will be served? And what power is available to prevent the oppression before it occurs, or to curb it if measures to prevent it fail?

As for morality in connection with violations of individual rights, he had a clear-eyed view of human nature: “Wherever there is an interest and power to do wrong, wrong will generally be done.” What to do about it? He spent no effort on moralizing about “the interest to do wrong.” His attention focused instead on devising constitutional arrangements that would keep those with an “interest to do wrong” from acquiring the “power to do wrong.”

But it seems clear that Madison’s answers to Jefferson are far from perfect answers to the problems one confronts in writing a bill of rights, which perhaps explains why Madison was so reluctant to include a bill or rights in the Constitution. I doubt that there can be satisfactory answers to the questions he was addressing.

If a prohibition is too sweeping, it is unlikely to fit all future circumstances, especially extraordinary circumstances, that is, those unusual occasions when restraints of power are most needed. If, on the other hand, one adds exceptions, in anticipation of unforeseeable future events, as in our habeas corpus clause, they tend to weaken the prohibition and serve as an open invitation to officials to pretend there is an emergency that requires suspension of the writ in order to detain dissidents without trial. Examples abound. The freedom of the press provisions in many constitutions around the world guarantee freedom of the press except in emergencies when the national security might be endangered. In some there are so many qualifications and exceptions written into the bill of rights that the state of emergency provision runs several paragraphs, sometimes even several pages. These qualifications allow suspension of the press freedom, and many other protected freedoms, by declaring a state of emergency. Should we be surprised that emergencies are declared often, and that they last sometimes for months and even years?

Allowing for exceptions is surely prone to intolerable abuse, and yet we all know that there are indeed certain emergency situations, for instance in time of war, when almost everyone agrees that restrictions on the press are justified; that necessity becomes obvious to the common sense of the citizenry, and we therefore accept legislation that we would not tolerate in ordinary circumstances, even though the First Amendment says that “Congress shall pass no law… abridging the freedom… of the press,” and makes no mention of exceptions.

But even if this problem has no completely satisfactory answer, the approach set out in the First Amendment seems to me preferable to that of the habeas corpus clause, which does enumerate exceptions, because the First Amendment sets a firmer standard—that Congress shall keep its hands off the press—and that erects a more formidable barrier to official action in all but the most compelling situations. The experience of other nations with exceptions written into their constitutions shows that these open invitations are too often accepted, usually at a moment when the people, not the government officials, most need the protection. If the nation is soundly constituted, the emergency occasions will be rare, and the written constitutional exceptions will not be missed.

Therefore, I must come out on the side of Jefferson and against Madison in their dialogue on this point, that in general it is better to have “absolute restrictions” on official action, knowing that there will be times when a prudent official will act anyhow, rather than offer him an engraved invitation to suspend the right. To put it another way, if the provision of habeas corpus had read the way Jefferson suggested, I think President Lincoln would have suspended the writ anyhow during the Civil War, just as he did, and left it to the Supreme Court to settle, if it could, whether he had acted constitutionally.

Having responded to Jefferson’s general and specific suggestions, Madison returned to his own question: “What use… can a bill of rights serve in popular Governments?” And, finally, after all of his arguments against a bill of rights for republics in general, and the United States under the new Constitution in particular, he nevertheless found two reasons for adding a bill of rights. These reasons, “though less essential than in other Governments, sufficiently recommend the precaution.”

The first reason has to do with the effect of a bill of rights on public opinion and the second with the possibility of abuses of power under any form of government. While still insisting that the danger of oppression was greater from “the interested majorities of the people… than in usurped acts of the Government,” Madison was willing to concede that there could be occasions of abuse of power, or the emergence of an “artful” leader with a hidden ambition to subvert liberty, and then a bill of rights could be the basis for “an appeal to the sense of the community.” He was willing to concede that it is prudent to guard against such dangers, “especially when the precaution can do no injury,” but then he apparently could not help adding, “At the same time, I must own that I see no tendency in our Governments to danger on that side,” thus sustaining his consistency in holding that his only reason for agreeing to a bill of rights was that others wanted it, not because of its intrinsic merit or because the Constitution needed correction or improvement.

The effect a bill of rights would have on the public, and perhaps on an interested majority, was the first and more compelling of his two reasons:

The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.

Here we see the beginning of a theoretical formulation developed more fully by Madison a short time later in his speech to the House of Representatives proposing the amendments. It is an important adjunct to his argument for a diversity of interests to divide the citizenry and prevent the formation of an all-powerful, persisting majority faction very likely to oppress the minority.

If we think of certain societies today in advanced stages of chaos and in imminent danger of dissolution from excesses of divisiveness, such as Lebanon for the past several decades, or Yugoslavia now, or the Commonwealth of Independent States in the near future, we realize that encouraging the division of a society into a multiplicity of competing interests, as well as a multiplicity of ethnic groups and religious sects, cannot promote the stability that Madison saw as the bedrock of political liberty unless there are other, equally powerful countervailing factors at work, striving to promote the unity of the whole community.

In a republic of free and independent active citizens, personal liberty depends on a combination and balance of diversity and unity. In Federalist 51, Madison described the benefits of a multiplicity of interests and sects:

In a free government the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other in the multiplicity of sects. The degree of security in both cases will depend on the number of interests and sects; and this may be presumed to depend on the extent of country and number of people comprehended under the same government.

We know from the examples of violent disunity around the world that multiplicity is not enough to assure personal liberty. Multiplicity works for freedom only in the context of a stable society with sufficient unity. Did Madison ignore this? No, I don’t think so. National unity was the reason he was for a bill of rights when all was said and done, and national unity was why he put so much weight on adding provisions just because others desired them.

Starting almost from the moment the Constitutional Convention ended, Madison grew increasingly aware that there was a genuine constitutional problem to be addressed, but the problem was not in the document; it was in the widespread public mistrust of the document and of the powers of the new government it established. Madison was confident that mistrust was mistaken, but for a constitution establishing popular government—based on consent of the people and majority rule, with powers limited so as to secure the rights of the minority and of individuals—it is not enough to have majority support, even a majority strong enough to carry every vote. Such a constitution, he came to realize, must have the allegiance of “the great mass of the people,” of “the whole community,” or else the power of the majority cannot be limited on those occasions when it is tempted to deny the rights of the minority by the exercise of excessive or abusive power. Thus Madison found in public opinion another facet of the remedy for the great republican problem, the oppressive majority.

Despite his misgivings about the intrinsic merits of bills of rights, Madison saw the necessity to act to gain the support of “the whole community” for the Constitution. He saw a bill of rights, his Bill of Rights, as the perfect solution. If he wrote the amendments, he could win the support of those who were still uneasy, without making any change at all in the constitutional structure. His primary objective was to keep the Constitution intact, to save it from radical amendments, and he did it by proposing in their place his own amendments, taking great care to be certain that they changed nothing in the original Constitution. In place of provisions put forth in the state ratifying conventions and supported by popular demand, he proposed seemingly similar but quite different amendments, to which, as it turned out, the same public gladly gave its consent, thus establishing the Constitution as the focus of national unity, to which the whole community, regardless of faction, could pledge their allegiance.

“Divide and rule” can be the principle of republics only to a point. If we think of countless nations all around the globe on the edge of self-destruction because of internal strife, we realize that division can lead to deprivation of all rights, especially the right to physical safety under lawful authority. Diversity based on a multiplicity of interests can be the basis of personal liberty only if there is an underlying foundation of unity in support of the fundamental principles of the regime. In our case, those principles include limited government and security of individual rights.

A concluding observation, not one of Madison’s or Jefferson’s, just one of my own: The Bill of Rights and the Constitution can be effective only for a people of a certain character. Other countries in the past adopted constitutions very close to, if not identical to our Constitution, to no avail, because those constitutions had little or nothing to do with the way those other peoples were in fact constituted.

But what does the Constitution tell us about the character of “the people” who so proudly proclaim that we “do ordain and establish this Constitution”? It tells us nothing, or practically nothing. A table of contents of the Constitution would read something like this: After the Preamble, the first four articles deal with the legislature, the executive, the judiciary, and the states. The three remaining articles provide for amending the Constitution, establish the supremacy of the Constitution and the laws pursuant to it, prescribe the ratification procedure, and finish with the signatures. That leaves some things out, but a table of contents doesn’t claim to tell the whole story. But nowhere in the Constitution is there an article dealing with “the people,” the people who announce themselves in the Preamble as the true authors of the Constitution.

Although Madison did not intend to append the amendments at the end of the document, that is where the Congress decided to place them, all together in one place rather than dispersed and interwoven in the body of the text, as Madison preferred. One way to regard the Bill of Rights, then, is as an added article, “the People” Article; unlike the first three articles, which enumerate the legislative, executive, and judicial powers, this article enumerates the People’s rights, suggesting that the individual rights of the People are somehow analogous to the delegated powers of the legislature or the executive.

What does the Bill of Rights tell us about the People by and for whom this Constitution is ordained? This is a People who take religion seriously enough to insist on being free to choose how they will worship, if they do, and not just follow either ancient custom or governmental instruction. This is a People who insist that their voices will be heard, in speech and print, who have things to say about the running of their own lives and the life of the community, and will gather together if and when they choose to speak their individual and collective minds. A People who will live under laws they expect to be enforced and who insist on participating in judging and being judged by peers; that is, a people who acknowledge no superiors, only equals. A People who insist on their right to participate in the defense of their community, not to be defended by others not of their community. A People composed of homeowners who do not welcome uninvited guests, certainly not troops in time of peace. And so on.

In his seminal essay written years ago on the Bill of Rights, Herbert Storing said that “the Bill of Rights provides a fitting close to the parenthesis around the Constitution that the Preamble opens.” Perhaps looking at it as “the People” Article is what he had in mind. In this sense it might be argued that the amendments were a completing of the Constitution, not by repairing a defect, not by correcting an imbalance, not by introducing elements in tension or opposition to the body of the text, but by closing a parenthesis that had been left open.

Author

  • Robert A. Goldwin

    Robert Allen Goldwin (1922 – 2010) was an American political scientist specializing in the study of the Constitution, who left academia to enter government at the invitation of his friend Donald Rumsfeld, serving as adviser and "intellectual-in-residence" for the presidential administration of Gerald Ford. He was subsequently a scholar at the American Enterprise Institute.

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