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Background Essay: The Creation of the Bill of Rights

Background Essay: The Creation of the Bill of Rights

Guiding Questions: How does the Bill of Rights protect individual liberties and limit the power of government? How is this seen in our everyday lives?

  • I can identify the arguments for and against adding a bill of rights to the Constitution.
  • I can explain James Madison’s role in the development and passage of the Bill of Rights.

The history of the Bill of Rights stretches back centuries before the American Founding. Many previous declarations of rights influenced the Bill of Rights. The purpose of these documents was fundamentally twofold: to protect the rights of individuals and to limit government power.

Essential Vocabulary

Vocabulary Text
Anti-Federalists a group who opposed the ratification of the Constitution
blemish flaw
moderation self-control
Federalists a group who supported the ratification of the Constitution
First Continental Congress a meeting of leaders from the American colonies to create a list of complaints about Britain
Stamp Act Congress the first joint colonial action against the British, formed in opposition to the Stamp Act

English Tradition

Three particularly influential declarations from England were the Magna Carta (1215), the English Petition of Right (1628), and the English Bill of Rights (1689). Each of these defined basic rights such as trial by jury, no taxation without consent, free elections, due process of law, and no cruel and unusual punishment. By doing so, the documents limited the power of the government, which was a monarchy.

Copy of the Magna Carta made in 1894
A copy of the text of the Magna Carta, made in the United States in 1894

The American colonists were highly influenced by the English tradition and created declarations of rights. Americans declared their rights against British oppression during the revolutionary period of the 1760s and 1770s. For example, the Stamp Act Congress of 1765 issued a Declaration of Rights and Grievances, the First Continental Congress of 1774 also proclaimed a Declaration of Rights, and the Declaration of Independence was the foundational statement on natural rights. Over the next decade, most of the states created their own bills of rights protecting individual rights and limiting government.

A Bill of Rights Is Proposed

On September 12, 1787, during the last days of the Constitutional Convention, Virginia delegate George Mason, lead author of the Virginia Declaration of Rights, rose and proposed a bill of rights, a list of rights belonging to the people that government could not violate. The delegates were wrapping up their business and worried that a long debate on a bill of rights could endanger agreement on the final document. The convention unanimously rejected Mason’s idea.

When the Constitution was sent to popular state conventions for ratification, or approval, the Anti-Federalists, who opposed the new Constitution, argued for a bill of rights to protect the liberties of the people. Several Federalists, who supported the new constitution, disagreed about the need for a bill of rights. On October 6, Pennsylvanian James Wilson stated that a bill of rights was unnecessary because the new national government was already limited in its powers by the new Constitution and had no authority to violate liberties in the first place. Therefore, a bill of rights was not necessary with a limited government controlled by the people. In Federalist No. 84, Alexander Hamilton warned that defining certain rights would mean some were left out and endangered. He also was concerned that some rights would be vaguely written and misinterpreted. Most importantly, Hamilton argued that “the constitution is itself . . . A BILL OF RIGHTS” because of the principle of limited government. In various Federalist Papers, Madison had cautioned against the notion that rights are protected best by mere “parchment barriers,” or words written down on paper, which could be violated. Instead, Madison insisted that a properly formed constitutional government with a separation of powers offered the best protection of rights.

The looking glass for 1787. A house divided against itself cannot stand. Mat. chap. 13th verse 26

This cartoon focuses on the debate between the Federalists and the Anti-Federalists over the ratification of the Constitution in Connecticut. The state is represented by the wagon being pulled in two different directions.

Madison Supports the Bill of Rights

As the debates continued, it became clear that a compromise on a bill of rights was needed to win the support of the Anti-Federalists. As a result, the Federalists promised to pass a bill of rights after the Constitution had been ratified. One Federalist, who was concerned about these additions to the Constitution, was Virginian James Madison, who called them a blemish [flaw].

James Madison bust portrait miniature

James Madison

Madison exchanged several letters with his friend Thomas Jefferson, who was a diplomat in Paris at the time. Jefferson thought the Constitution should contain a bill of rights because “a bill of rights is what the people are entitled to against every government on earth.” Madison explained that such declarations were often just “parchment barriers” that would not stop a government bent on violating them. However, he began to change his mind.

After being elected to the House of Representatives, Madison ironically became the champion for a bill of rights in the First Congress, but most other members were opposed. They thought the Congress had more important work to do setting up the new government. Madison persisted and dedicated himself to the cause of protecting the people’s liberties.

On June 8, 1789, Madison delivered a speech in favor of a bill of rights. He wanted to achieve a united political order with harmony and justice. A bill of rights would promote the civic virtues of friendship and moderation, or self-control, because the Anti-Federalists would support the new government. In addition, he thought that the Federalists had made a sacred promise to pass a bill of rights during the ratification debate. He also wanted to win over Rhode Island and North Carolina, which were refusing to ratify the Constitution until a bill of rights was added. Most importantly, a bill of rights would “expressly declare the great rights of mankind secured under this constitution.”

Madison then skillfully guided the amendments through the Congress. He sat down to make a list of 19 amendments that protected essential liberties. He wanted them to be woven into the text of the Constitution, not just placed at the end of the document. He also wanted the Bill of Rights to limit state governments and protect liberties in states.

The Bill of Rights Is Ratified

On August 24, the House approved 17 amendments by the required two-thirds vote and sent them to the Senate for consideration. By September 14, two-thirds of the Senate approved 12 of those amendments. President Washington sent the amendments to the states, endorsing them even though the president does not have a formal role in creating amendments.

Over the next two years, 11 states, including North Carolina and Rhode Island, ratified 10 of these 12 amendments, meeting the constitutionally required three-fourths majority and establishing the Bill of Rights. Virginia became the last state to ratify on December 15, 1791. The Bill of Rights fulfilled Madison’s goals of reconciling opponents of the Constitution and protecting individual liberties. However, he did not achieve two of his goals. The Bill of Rights applied only to the federal government, not to the states. And the Bill of Rights was a separate list of amendments, not woven into the text of the Constitution. Regardless, the amendments were successful in limiting government action and protecting the people’s rights.

The Bill of Rights became recognized as one of the most important guarantees of rights and liberties. Americans have increasingly appealed to the Bill of Rights as the source of their rights. This fulfills one of the Anti-Federalists’ desires regarding of a bill of rights: that it would help educate the people about their rights. However, people should remember that the Bill of Rights is not the only protection for their rights. The Declaration of Independence is an assertion of the natural rights of every individual, which come from a higher source than government. Moreover, the Constitution itself limits government through several principles, such as federalism and the separation of powers. These principles also serve to protect individual rights.

A bill of rights as provided in the ten original amendments to the constitution of the United States in force December 15, 1791

Bill of Rights

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