Madison’s Hand:  Revising the Constitutional Convention
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Madison’s Hand: Revising the Constitutional Convention

October 15, 2019


>>TOM NASTICK: Welcome to the William G.
McGowan Theater in Washington, D.C. and welcome to those watching on the YouTube channel.
Today our series of noontime lectures continues with with James Madison and Constitutional compromise with our guest, Mary Sarah Bilder, author of Madison’s Hand: Revising the Constitutional Convention. I would like to alert you to a couple of programs that will take place in the Theater. On Tuesday, March 22nd at noon author and historian Mitchell Yockelson will discuss his book “Forty-Seven Days”. On Thursday March 24 at 7:30 p.m. we present the forum on Women in Leadership. This year’s topic is “From the Computer Age to the digital Age” and will be presented in partnership with the White House Office of Science and Technology Policy, moderated by Megan Smith, United States Chief Technology Officer Kathy Kleiman, founder of the ENIAC Programmer’s Project, Telle Whitney, CEO of Anita Borg Institute for Women in Technology, Florence Tan, electrical lead engineer for NASA’s Mars Science Laboratory and Emily Reid, Director Education for Girls Who Code. To find out more about these and all of our public programs, consult the program of events in the Theater lobby or visit us online at www.archives.gov. This is the second program in conjunction with our new exhibit “Amending America” which opens today. If you have time after the lecture and book signing, those of you here in the Theater can be one of the first people to see it. It will be available in the Lawrence F. O’Brien gallery through September 4th of 2017, and the exhibit is just one of the many nationwide activities the National Archives is presenting
in celebration of the 225th Anniversary of the Bill of Rights.
In fact, our speaker today participated in a lively discussion just last evening in this
Theater on the creation of the Bill of Rights. And if you’re interested in seeing that, you
can view that on our YouTube channel. Mary Sarah Bilder teaches in the areas of
property trusts and estates in American, legal, and constitutional history at Boston College
Law School. She received her BA and Honors from the University of Wisconsin in Madison. JD from Harvard Law School and her AM and Phd from Harvard University. Her recent work has focused on
the history of the Constitution, James Madison, and the Founders, the history of judicial
review. She’s the author of “Madison’s Hand: Revising the Constitutional Convention. Our
lives, Our Fortunes and Our Sacred Honor.” and “The Transatlantic Constitution, Colonial Legal Culture and the Empire”. Following her talk and Q and A, she will be
signing copies of her book, “Madison’s Hand,” outside the Archives store.
Will you please help me in welcoming Mary Sarah Bilder back to the National Archives.>>MARY SARAH BILDER: Well, thank you all for coming today. I’m delighted to be here
and very appreciative to the National Archives for inviting me, and to Tom for that generous
introduction. I’ve got a lot of slides, and so hopefully
they look good on YouTube. I’ve never done one where they’re filming for YouTube also.
My rule is if you want to write me, I learned if you show up on things people write you in the middle of the night,
which is when I’m probably watching things on YouTube and C-SPAN, so if you send me your
last name and email address, I write you back. If you just send me your first name, I won’t
write you back. But otherwise I’ve been trying to write people back.
Somehow people in South America seem to watch C-SPAN 2 in the middle of the night, so for
my large following in South America I say hello.
I grew up in Madison, Wisconsin, and I sometimes wonder if that’s how unconsciously I was led
towards thinking about James Madison and the Constitutional Convention. When I was a little
girl growing up in Madison, I never thought about why Madison was named Madison. And the
entire practice of naming cities after Presidents has faded. Presidents are likely and lucky
to end up as airports as people right now. Madison was likely named after Dolley Madison, as much as it was named for James, a young lawyer, James Doty drew up the plans. He had canoed 4200 hundred miles through the Upper Great Lakes, Mississippi, Fox and Wisconsin Rivers, and he learned Sioux, Winnebago and Chippewa along the way and for years he argued that the proper spelling
of Wisconsin was with a K. You can see that on the screen here, Wiskonsin.
In 1836 he laid out the plan for Madison — and Doty knew Dolley, as he put it, very well We all know w hat that means. The plan dated July 1st, 1836, and Madison had just died. Doty may not have known it. Doty might have assumed that James Madison would miraculously live until July 4th 1836. July 4th was the date on which Adams and Jefferson had died miraculously and mysteriously in 1826, precisely 50 years after the Declaration of Independence was signed, as well as James Monroe also dying on July 4th in 1831. Madison, however, refused to
take the necessary stimulant — probably opium — to keep himself alive and died on June
28. You can see for people wanting him to live, you know, six more days and we would
have had this miracle. In Doty’s plan for Madison the radial design of streets, moves out from the capital through the city and they’re all named after signers of the Constitution. So growing up with the signers albeit as street
names has proven useful in studying and teaching the Constitution. I know that Paterson, the
delegate from New Jersey, spelled his name with only one T; and Jenifer, a little known
delegate, spelled his name with only one N. But there’s a larger problem. The names that
are important in Madison, Wisconsin, turn out to be irrelevant or troubling names with
respect to the Convention itself. Take Mifflin, where the Mifflin Street block party in Madison was held during the Vietnam War in 1969. Thomas Mifflin was actually the Pennsylvania delegate to the Convention. I don’t think he appears once in Madison’s Notes, but the street is terribly
important. Landon Street and its neighbor Gilman Street, as university students know, they are the big party streets. They were actually
named after the two New Hampshire delegates who arrived late at the Convention having
had to pay their own way from New Hampshire. And one of the most important streets in Madison, Pinckney Street, was named after one of the the two Pinckneys whose interest was to ensure slavery. So my sense of the names bears little resemblance to the standard story of the convention. Maybe in some way this junction has helped me think about the framers and the Convention in new ways. So my book, Madison’s Hand: Revising the Constitutional Convention, explores the
difference between Madison’s Notes and the actual Convention. His Notes are the most
prominent source for the Philadelphia Convention, and they’re labeled a top treasure by the
Library of Congress, and you can see that right there. And you can see its top Treasury
number, and the Library won’t allow me to tell anybody what that number is. They won’t
allow me to tell anybody. The book itself is a biography of the Notes, and I argue that
they don’t date in their entirety to the summer of 1787, that they weren’t taken for us but
as a working legislative diary for Madison, and more importantly for Thomas Jefferson who was in Paris, and they
were revised as he changed his understanding of the Constitution, the Convention and his
own role. And there’s invisible revisions like you see
here on the first page of the Notes, as well as additional slips like this, as well as
arguing that the last part from late August to September was actually composed in 1789.
Today I’m not going to tell you the story of the book. You can buy it, and then I can
take my kids out for pizza on the royalties, which is about what I get on it.
In honor of the exhibit, I’m going to focus on Madison’s relationship to the amendments. In the Notes, I argue they existed in the summer of 1787, they tell a story of his deepest aspirations and commitments for the Convention. I’m going to focus on Madison and three compromises made at the Convention that wrote the Constitution.
The first background about Madison and the Convention, James Madison looms large in our stories of the constitutional founding in the summer of 1787 our Constitution was written. What do we have left? We have an engrossed Constitution, a building, a Chippendale chair, the ink stand that was used to sign
it, and quite a bit of paper of which this institution holds quite a lot. Thomas Jefferson famously said it was an assembly of demigods. He liked puns, so I wonder if
it might not have been a play on a different word he loved, which was demagogue. Which sounds an awful lot like demigods. They can be hard to identify with if we want to understand what happened that summer. So George Washington is our completely beyond our reach. Very few of us were ever Commander in Chief of our country’s Army at 43, and I think it’s equally hard to imagine one’s
self as Ben Franklin with his Renaissance interest and talent for one-liners, although Steve Jobs did, because he picked Walter Isaacson who had written a biography to write his own, so that tells
you something of Jobs’ perception. Two of the most famous Americans were not at the convention. John Adams was in London, Thomas Jefferson was in Paris, where he looked somewhat like this. Not what we always think of as Jefferson. Both men had no idea that
they were missing out on the most important event of their lifetime, and in many respects
the mess they made of the country in the 1790s probably had to do with their own insecurities
from having been absent. Other important players are either too exciting,
Hamilton, who now has his own show, never mind being killed in a duel by a vice president. and James Wilson, who is always configured boringly, always wearing little glasses like my own; or tainted their connections to slavery, Charles Pinckney, and this is an image you see all over the web. This is a slave sale from South Carolina in the 1780’s. This is contemporaneous when the Pinckneys were in South Carolina. So not surprisingly perhaps, people stumble on to James Madison. They think of Madison in someways that they can relate to him. He was short; he had an 18th century comb-over, he only wore black suits, he was reportedly unlucky as a young man in romance and then married later in life the irrepressible Dolley Madison, and the only wife to be shown with cleavage on coinage. And you have the image there, so I’m not just
saying that. At various times in his life he was for states’
rights against the national government, and for national government’s rights against states’
rights, for majority rights against the minority, and minority rights against the majority.
He wrote many of the federalist papers, is singularly responsible for the Bill of Rights,
was a two-term President. In the 1836 eulogy, John Quincy Adams praised him as the Father of the Constitution. But it was his note-taking for which he has been most famous. Now, Madison wasn’t the only note-taker at the Convention, but he left the only seemingly complete set of notes and he outlived every other member. This wasn’t surprising.
His mother lived to be 97 and died in 1829 long after he retired from the Presidency
and only a few years before his own death in 1836. And as the framers died Madison actually kept track of their deaths. When everyone was gone, he got the last
word with what the historian McCoy term as “The Last of the Fathers.”
Over 600 books and numerous articles have been written on the Convention, and almost
every one has relied on Madison’s Notes. Because of Madison’s Notes, because he was the only
one who recorded what happened that summer, and because he was a consummate American politician, he’s at the center of the three crucial compromises of the framing period.
I’m going to talk about these three compromises and their relationship to this wonderful new
exhibit. In American political culture, we talk about compromise as it is, in and of
itself, an important value. We seem to believe that American politics should always proceed
by inevitable compromise, even if it encourages and gives voice to extreme political groups.
This rhetoric about the value of compromise as a national good comes from the story we
tell about the founding. The Conventional story about the creation
of the Constitution recounts how the delegates made three brilliant compromises. In the Conventional
story, the first was over federalism. Without the compromise over representation embodied
in the Senate, the small states, so the story goes, would have left the Convention.
The second was over slavery. The story tells how without the compromise over slavery embodied
in the Three-Fifths clause and other provisions, the southern states would have left the Convention.
And the third was over rights. Without adding the Bill of Rights to the Constitution, the
story goes, the opponents of the Constitution would have refused to ratify the Constitution.
In short, Conventional wisdom holds that the Constitution would not have been possible
but for these three compromises. Now, don’t get me wrong; I find compromise attractive
because I grew up as four siblings five years apart, top to bottom. I still feel sorry for
my mother. I think we sometimes overvalue compromise as a political end in and of itself
instead of being willing to engage in a national debate about good and bad compromises.
And similarly, I believe we often see compromises as inevitable because of political forces.
Instead, individuals play critical roles in creating and shaping compromises.
So let me explain how Madison’ original Notes reveal a different lesson about these three
compromises that there are good and bad compromises. And that compromise has as much to do with
individuals as with inevitable forces, and so I’m going to focus on James Madison.
Let me begin with a compromise over federalism. Precisely, the compromise that results in
the division of voting power in Congress such that the House represents the U.S. population
and the Senate represents the states, and this compromise is at the heart of every narrative
of the Constitutional Convention. It even bears the name “The Great Compromise,” often
called the Connecticut Compromise. These are all off the web so this is the standard story.
To understand this compromise, it helps to understand that our Constitution was really
the second Constitution. The first Constitution was the Articles of Confederation written
by the same Congress that wrote the Declaration of Independence.
Under the Articles there was only one branch of government, Congress. And in Congress there
was only one House. And in Congress each state had one vote. Nine states were required to
agree on most matters. All 13 states required to amend. Basically, a few states could prevent
anything from being accomplished, and they did.
One state, importantly, Virginia, could prevent any amendment to make the system work, and
it did. And by this mid 1780s the Articles were a complete and utter failure.
For James Madison and others, including George Washington, a new Constitution needed to wrestle
power away from the state legislatures. Madison and others proposed a draft of a national
government in which votes in both Houses of Congress would be based on proportional representation.
National government would then be about individuals, not the state or state legislatures, and by
this they aimed to fix the central problem with the Articles.
As Madison and other advocates pushed this plan forward in June of 1787, delegates of
small states saw a problem. I think historians and constitutional law folks misunderstand
the nature of the small states’ problem. It wasn’t about an essential idea of state sovereignty
as the basis for American politics. Many of them also wanted a powerful, national government,
but they were concerned about the practical issue of political power.
They argued that proportional representation would place control in the large states alone,
and there were three large states: Virginia, Massachusetts and Pennsylvania.
Virginia was by far the largest. On any issue in which Virginia would see their interest
in common with other large states, the individuals who lived in the other 10 smaller states would
be repeatedly outvoted. Virginia was the problem. More than any other commitment, James Madison
wanted to block equal state suffrage. In a comment that he later struck from his
Notes, he wrote: He was fixed in opposition to such suffrage; and he was prepared for
anyone that might follow from ending the states’ suffrage in Congress.
Now this obsession was in part personal. He hated the Virginia legislature. When he had
served– and that’s the Virginia legislature up there. When he served as a state legislator, they had blocked legislation that Madison had championed and when he served in Congress they had refused to cooperate. And for Madison, proportional representation promised freedom from his state, from the Virginia political powers he despised. But what he fundamentally could not see was that for everyone else at the Convention, Virginians were all first Virginians — on any issue with regional implications — slavery, the location of the capitol, treaties about the Mississippi, national taxes based
on land value or commerce, proportional representation — guaranteed Virginian dominance regardless
of whether it was Madison or Patrick Henry who ended up showing up in Congress.
So from the end of May to July 1787, the Convention argued and argued and argued and argued and
argued and argued over this issue. On one side stood advocates of proportional reputation
in both Houses, on the other stood advocates for one branch continuing to represent equal
state suffrage. They debated other aspects of the national government, but open any page
of the Notes, and you will find the only real issue fundamentally at dispute was whether
the state legislatures would continue to play a role in the future United States Government
or whether the largest three states could dominate national government.
And you’ll notice — let me point this out — Virginia doesn’t look like we think it
was. Right? Here’s Virginia, and at that time it includes Kentucky, which they knew is going
to go, and of course also West Virginia which split at the time of the Civil War. And here’s
Virginia on the population of the 1790 census, and you can see this is the Virginia population
if you include all enslaved persons. This is the Virginia free population. So they just
far outstrip every other state. On July 16th, almost two months after they
were first convened, the Convention finally voted for the report and configuration that
creates our modern Congress. Proportional representation would govern the House. Equal
state suffrage would govern the Senate. Even then Madison refused to accept this compromise.
In his Notes he records that the very next morning before the Convention began, members
of large states met to consult over what should be done, but nothing was done. Madison complains
the time was wasted in vague conversations without any specific proposition or agreement.
So Madison’s frustration of proportional representation in both houses was dead. And the Convention
went on to address all aspects of the Constitution rather quickly: How to create a President,
how to get him elected, what his powers were going to do, everything like that.
Now, this compromise was no small compromise. It cannot be altered by Amendments. It’s one
of two provisions in the Constitution that is unamendable. No state without its consent
can be deprived of equal suffrage in the Senate. It’s the only remaining provision in the Constitution.
Now, I think this was a good compromise, not because any compromise that pacified the states
would have been a good, nor because I believe in state sovereignty, and I don’t, I think
the framers were much more comfortable with the states in the subordinate capacity than
we often imagine, but because I believe this compromise recognized a fatal flaw with proportional
representation in a large nation. We are a nation that is properly committed
to proportional representation as one person, one vote. But we’re also an enormously large
nation in terms of geography. And the framers were conscious of the growing size of the
nation, of a challenge facing a country where people would be unevenly distributed.
The challenge with one person, one vote is that it inadvertently gives more political
power to people in larger concentrated states. The same anxiety that the small state delegates
feared remains true. Proportional representation unwittingly favors a fictional aggregate identity
of a group of people, whether that be a state or a city.
So a few statistics show this reality. The 8 million people of New York City are actually
equivalent to the 12th largest state, behind New Jersey and ironically just ahead of Virginia.
The 3.7 million people in Los Angeles rank 28th in size. And conversely, the slightly
over half a million people in Wyoming have as much political power in a proportional
representation system as a city ranked Number 32 between Oklahoma City and Albuquerque.
The 38 million people in California can outvote the people in the 21 smallest states.
Now, equal states suffrage is an imperfect corrective to be sure, and this is a wonderful
imaginative exercise in which the states are reconceptualized based on equal populations,
but what the Great Compromise ensures, and this is why it is great, is that the desire
of Americans to live in cities and farms, in crowded places and wide open spaces, remains
part of our national politics; that large states and large cities don’t completely control
American politics. And, in essence, I think it’s good that Madison failed and that his
failure is unamendable. Now, the second compromise linked to the Convention
is the 1787 Constitution’s protection for slavery and acceptance of states that legally
permitted people to own people. This compromise eventually brought about the Civil War, and
although the Thirteenth Amendment ended the Constitution’s legal recognition of slavery, the nation continues to struggle with the legacy of the constitutional compromise over race. This is one of my favorite photos of President Obama while he was on the Rosa Parks bus. I think it is a wonderful image of the President. The 1787 Constitution protected slavery and did so without using the word slave. It uses euphemisms. “Persons held to service escaping” “All other persons than free persons,” “the importation
of persons.” In five places in the 1787 Constitution slavery was protected. Two provisions related
to representation in the House. These contain the Three-Fifths Clause, the decision that
representation would be determined by counting individuals; every free person counting as
one person; every enslaved person counting as three-fifths of a person.
Two provisions related to the Constitution’s acceptance of the International Slave Trade
into the United States. One provision stated that Congress could not ban the slave trade
until after 1808. The other made that provision unamendable. And the fifth gave protection
to individuals who claimed that an enslaved person had escaped into another state. This
Fugitive Slave Clause, and the laws passed under it would, more than any other constitutional
provision, bring about the Civil War. Now, even when I was in graduate school, the
conventional wisdom remained that the Founders had not thought that much about slavery. And
over the past few years, books have disproved this claim. In fact, Madison’s Notes make
it apparent that slavery permeated the Convention. The focus of slavery at the Convention is
not surprising. Looking to the North, the new nations seemed
to be rapidly moving to abolish slavery. In 1787 Massachusetts and New Hampshire abolished
slavery based on the new state Constitutions and the provisions that all men were free
and equal and the case in which Massachusetts does that. Pennsylvania, Connecticut, Rhode
Island had adopted gradual abolition plans by which people born into slavery would be
freed when they turned 28. New York and New Jersey were considering similar legislation.
And even in Virginia efforts to end slavery were being considered. The state banned the
slave trade. The vast majority of people held in slavery had been born in the United States.
Nonetheless Virginia political leaders were acutely aware of how the faltering tobacco
economy moved some of them and hesitatingly tried to imagine their world without enslaved
people. But south of Virginia abolition seemed a threat
to growing states’ economies. South Carolina leaders perceived the continuation of slavery
as necessary for the state and the economy. And North Carolina openly permitted the International
Slave Trade. For African Americans living as the property of a white person, the regional
divide was the one that mattered. 90 percent of people held as property lived south of
Delaware. Now, stop for a moment and count. There were
12 states at the Convention. Rhode Island never showed up. Unlike the first compromise
I talked about, where nine or ten small states pushed three states to compromise. Here, according
to the traditional story, three states pushed nine or ten states to compromise the life
and future of enslaved people. Now, why? In part, of course, the protections for slavery
incurred because every delegate knew they would personally never be a slave. What slavery
involved to them was whether or not they lived in a state that permitted other people to
own people or for themselves to own people. They could not be owned themselves.
But that doesn’t explain how the Convention came to persuade itself that it had to placate
the states and compromise on slavery. And here I believe we should place significant
responsibility in the hands of one man, James Madison.
James Madison introduced the idea of a compromise over slavery at the Convention to try and
win proportional representation in both branches. Madison thought he could keep together a coalition
favoring proportional representation that included Massachusetts and Pennsylvania, large
states; and South Carolina a small state that had slavery.
Initially at the Convention he tried to avoid slavery being discussed in order to hold this
coalition together. But by the end of June, as he desperately tried to prevent equal states
suffrage, he proposed constitutionalizing the difference over slavery, the regional
difference over slavery. He explains in his Notes: He — speaking about
himself — was so strongly impressed with this important truth. And the truth he’s talking
about is that there’s a regional divide over slavery, that he had thought of any expedience that would answer the purpose. And the plan he proposed was to of give, as he called it,
the southern scale the advantage in one House, and the Northern in the other. And what he
planned was that one branch would represent free inhabitants; the second branch would
represent all inhabitants, as he wrote, counting the slaves as free. Counting them as free
was, of course, was a fiction, designed to increase the political power of southern slaveholding
states and ignoring the reality that they were denied all rights, never mind being permitted
to vote. And you can see by the chart who that would have given power to.
I mean, you can see how that plays into this Virginia power. Madison hopes that self-interest
and the allure of ever-increasing political power, more political power for every
person held as a slave would lead the three southern states to join the three large states
to finally end state suffrage. Madison gets it completely wrong. Equal state
suffrage in the end won. But Madison’ willingness to constitutionalize the power of the slave
states and his implicit suggestion to that and then explicit suggestion to them that
the slave states needed to ensure that the Constitution would protect their interests
altered the Convention. The Three-Fifths Clause which had been rejected earlier by the Convention was adopted, and
from mid-July onward, South Carolina , North Carolina and Georgia made additional threats and deals as a new voting block to
ensure that slavery would be protected. This second compromise was a bad compromise.
It was not inevitable to be sure the Constitution would not have abolished slavery, but I believe
that the multiple protections for slavery were not for-ordained.
Madison was so obsessed with winning proportional representation in both branches and Congress
that he was willing to sacrifice the future of nearly 3/4 of a million people held as
property, about 20% of the population of the United States. Had he expected state representation
in the Senate at the outset in early June, the political dynamic which produced the Three-Fifths
Clause might never have occurred, and without it the rise of the southern slave power and
national politics our entire national history would be different.
In the 1790s the slave states gained 10 or 11 extra seats because of this compromise.
In the 1830s, they had 24 additional seats because of this compromise. Five of our first
seven Presidents owned people. Madison made a difference here. He was personally
ambivalent about slavery. He did not like slavery. He understood that slavery violated
every idea of freedom and liberty, but he accepted and repeated ideas about racial inferiority.
He could not imagine a multiracial society. Later in his life he became a leader in the
effort to remove African Americans to Liberia, and the profits from the sale from the Notes
of the Convention were supposed to go to the American Colonization Society.
Unlike Washington or even Jefferson, Madison at his death freed no person that he held
as a slave. His former secretary was so horrified by this fact that he wrote inquiring whether
Madison’s will could be forged. It was not. Madison could not imagine a nation without
slavery. And then Madison made this compromise even worse. After the Convention, as national fights over slavery grew stronger, Madison became
committed to telling a story about the Convention in which there had been seemingly no choice
on slavery. He obscured his own rule by insisting that the southern states would otherwise have
left the Convention. And you can see that this is an abolitionist tract, proslavery
compact. Over time, Madison’s claim about inevitable
compromise over slavery became part of a national belief that the Constitution required compromise
over slavery and in Supreme Court cases like Dred Scott, and this is the famous portrait
of Dred Scott, and the Missouri Compromise. This commitment to a fictional compromise
eventually led to almost 4 million people, 90% of African Americans in the United States
being held in slavery. A history that only began to be resolved with the Civil War and
the 13th Amendment and the 14th Amendment and the 15th Amendment and the 24th Amendment
and continues today. Now, if Madison stood in the way of the first
compromise and can be blamed in large part for the second, he actually deserves credit
for the third. The third compromise is the decision to add Amendments relating rights to the
Constitution. And ironically because Madison deserves so much praise, the story is shorter.
When the Constitution was completed in 1787, it included no Bill of Rights. There was no
Bill of Rights in any draft presented to the Convention. The idea was eventually formally
proposed, but not until September 12th, 1787, and
to appoint a committee, the Convention ends
on the 17th, which is Monday after a weekend. So this is pretty late in the day. Quite frankly,
the suggestion for a Committee to write a Bill of Rights was likely intended as a disruptive
delaying tactic, and the motion was rejected 0 to 10.
We don’t know anything more, because Madison’s Notes for these final weeks were composed
two weeks after the Convention after he had actually written the Amendments. Now the conventional
story and the one I used to teach was that the Bill of Rights was added to the Constitution because opponents of the Constitution could not otherwise ratify it. But recent work by Jack Rakove and others has shown that without James Madison, Amendments about rights would never have been added to
the Constitution. When the Constitution was sent to the states
for ratification, the absence of a Bill of Rights did not initially bother everyone.
Six states did not have Bills of Rights in their own state Constitution. And across the
states only two rights appeared in a majority of Constitutions. The vast majority included
a jury trial in criminal cases, and most had some recognition of religious liberty stated
in various ways. But gradually the absence of a Bill of Rights
became a debating point in the ratification Conventions, and it proved a particularly
annoying problem for the Constitution’s defenders. At first they tried to argue that the government
was enumerated and could not violate anyone’s rights because the national government only
had the powers granted to it. Rights did not need national protection. The problem with
this argument was the drafters had not believed it themselves.
In fact, the Constitution contains rights. Indeed, it contained some of the most important
rights. Article III ensured there would be a right to trial by jury in criminal cases,
and this was long part of Magna Carta and the right most often included in state Constitutions.
Important limits on the power of legislature against individuals was established by provisions
that barred the suspension of habeas corpus, bills of attainder and ex post facto laws.
Article IV guaranteed a bar on monarchical governments. And perhaps most dramatically Article VI barred religious tests for office and importantly guaranteed the right to affirm instead of swear when taking Office. Jews, Catholics,
Deists and others, the Constitution in this regard represented a dramatic divergence in
ensuring the national government they could take without regard to religious belief. These
rights in the Constitution imply that the government might indeed threaten rights through
the expansive powers given to the national government.
Nonetheless, the absence of a Bill of Rights was actually not the most common complaint
about the Constitution. Pauline Mayer points out that the Number 1 complaint was basically
taxing provisions, and that was far greater than any concern over rights. Probably true
today. Once the Constitution was ratified, no one cared about rights. The state ratifying conventions had sent Amendments but they were recommended by June, nine states had ratified, and the
Constitution was in effect. The ratification by Virginia and New York in late June and
July sealed the deal. Two states were pokey, but they faced the threat of being excluded,
and eventually came around. Even Rhode Island finally ratified in May of 1790.
In the new Congress in the spring of 1789 other business seemed far more pressing than
amending the Constitution. What should they call the President? His Excellency? And watching
everybody in their fancy dresses yesterday, you can see why people worried would we get
the right respect. The no-longer-slim John Adams wanted his most benign highness, and
no more popular then than today, he was called behind his back his Rotundity.
At this moment when compromise was no longer necessary at all, James Madison plays his
crucial role. He ran for the Senate in Virginia and lost. He then ran for the House seat,
but his district had been drawn to favor Monroe. And opponents told people that Madison was
against the rights of the people, so he scurried back to Virginia and he campaigned, which
meant he wrote letters to people and newspapers. And he said he was for all essential rights,
and he won. And then he went on to fulfill his campaign
promise. In Congress he drafted and proposed Amendments to be added to the Constitution.
He worried people would think that the list didn’t include all rights, and so he added
what we know of as the 9th Amendment. His original planned Amendments were radically
different than with which we were familiar. First he thought they should be interwoven
into the Constitution, but then he said lets add them to the end.
In fact, when the Amendments were sent to the states for ratification, there were 12
of them. And this is the original 12. The first two related to the ratio of representation
and Congressional compensation. Our first amendment was actually originally Number 3.
Only because of the fortuity that two Amendments failed to be ratified in 1791 did that Amendment
be first. And the 2nd Amendment on compensation was ratified in 1992 when it became the 27th
Amendment. Madison believed that rights were important.
And his arguments to Congress on June 8th, 1789, remain true today. He admitted that
people considered rights as barriers and they were next to worthless sometimes. But he predicted
in the new government, independent tribunals of justice will consider themselves the guardians
of rights. And even more importantly, he began to believe that the people would believe in
rights. If the rights impressed some degree of respect,
he said, they would establish the public opinion and control the majority from those acts with
which they might otherwise be inclined. Without Madison I believe we would have no
Bill of Rights in our Constitution. Now, 225 years later, the compromise about equal state
suffrage is useful, but we don’t think about it very much. The compromise over slavery
has fortunately been abolished, but we continue to wrestle with its terrible legacy. For us in the 21st century it is the third compromise that matters.
Constitutional rights have become part of our national culture. We have bills of rights
for patients in hospitals, airplane passengers, for pets, most of them on crinkly yellow paper.
I even have this placemat from Burger King with the advertisement, “You have the right
to hold the pickles and the lettuce.” Madison might be turning in his grave, or maybe not.
In the end, in the long arc of history, individuals matter, and compromises may on occasion be
good or they may be bad, but they’re rarely inevitable in working to amend the Constitution
in the end ensured that the Constitution itself could be changed.
Thank you very much. I’m delighted to have joined you here at the opening of this wonderful
exhibit. (Applause)
>>MARY SARAH BILDER: So I think I’m supposed to say, if we have time for questions, you’re
supposed to go to the mic so that you can also be on a YouTube video. Yes, sir?
>>(Inaudible) — 2nd Amendment, and another group of colleagues said that there was distinctively
an individual right and there was a disagreement, and you didn’t have time to voice your view
on that related to the Heller case, and I was hoping you would share that with us.
>>MARY SARAH BILDER: I was hoping no one would notice I didn’t have a view on that.
I happen to be a person who I think, like many people who do constitutional history,
see the origins of the 2nd Amendment in the concern with militia and that when people
used the phrase “bear arms” at that time they meant have weapons for the purpose of serving
in the militia, and I think when you read there’s an enormous amount of places where
those words come from, and I think I end up closer on that side. How it plays out in the
21st century, I don’t think everybody should follow tooth and nail now what was said in
1787. I think it’s very hard to argue that they in 1787 saw it the way we see it, and
I think part of that story is that the story of the militia is something that we don’t
follow any longer. Yes, sir?
>>Yes, thank you. Excellent talk. I was wondering if you could talk about why there wasn’t a
protocol in that time to have an official note-taker who was neutral rather than being
one of the participants.>>MARY SARAH BILDER: Excellent question.
There actually was a person, there was a Secretary for the Convention, and the Secretary’s Notes,
the Archives actually has them, they’ve got a few of them digitized. You can see most
of them on — I don’t know what Fold3, whatever that’s become. You can see the official
Journal of the Convention. Let me step back. We assume legislature is supposed to be open.
At the time the Constitution was written, the opposite notion was in place, that the
legislature was supposed to be closed and what the public had the right to was the official
Journal and sort of the consequences of the discussion, much like we still think of the
Supreme Court. Where we don’t get to see their deliberations; we get the opinion. This was
more pervasive than we realize in the new Congress. The House opened to the public with
galleries, but the Senate remained closed into the 1790s, and only under pressure did
they admit it’s a new era; we need to let the public in. So there was an official record.
William Jackson did take Notes. And then at the end of the Convention he burned all the
extra paper, and what he kept was the official journal, basically, the official record.
And in the Washington Administration, this story is in the books, because my book talks
about the manipulations of the record with respect to Madison and Jefferson. Washington
gets upset that Madison and Jefferson have begun to argue things that are counter to
the Constitution’s record of the Convention. He’s in possession of the journal, and he
goes down and deposits in the, basically, Department of State, and they record it, deposit
it, and everything. And he goes and gives a big speech on the Jay Treaty, and he says
you can see the journal. And Madison freaks out, like what? What’s going on here? But
it’s too late because now the journal is part of the record. So that story is important,
and I love that story.>>In other words, you don’t know the answer.
>>MARY SARAH BILDER: Oh, why they didn’t have —
>>I’m kidding.>>I have a couple of questions Madison revised
his Notes after having taken them at the Convention. And I’m wondering if there’s any possibility
that in revising those Notes he was thinking that they might be used at some point and
he wanted to basically change history. And my second question is whether it’s possible
that in pushing for proportional representation at the expense of provisions that protected
slavery he was thinking that what actually happened would happen, which is to say that
we got rid of slavery much, much earlier than we got rid of equal Senate representation
— equal state representation in the Senate.>>MARY SARAH BILDER: Yes, two good questions.
The first one I happen to believe that in the late 1790s Jefferson pushed Madison to
publish his Notes. Jefferson thought they would be useful in thinks push towards the
government. Jefferson actually makes his own copy of the Notes of Madison’s Notes. Madison
declines that and tells differ actually a very funny statement where Madison says, you
really ought to look at every page because he was suspicious that Jefferson hadn’t looked
at everything. So Madison’s Notes and his revisions at some part are — I argue in the
book for some of them are part of a plan with Jefferson towards Republican government, and
that Madison basically gets cold feet and they back away from it and eventually he decides
to — (inaudible) I think I’m tougher on Madison than probably
your question. I really think Madison has been given a pass on the slavery issue in
the 1790 Congress. This is nicely written in the book about Founders, among other places.
Madison works very hard behind the scenes to make sure that the petitions to abolish
slavery are sunk and that there is Committee report that basically says the Constitution
doesn’t have the ability to end slavery, and so Madison wanted the United States out of
the International Slave Trade. Lots of people did. But that had nothing to do with slavery.
It’s an interesting question, and I don’t know what the answer would be about how Madison
would have felt about what becomes the 17th Amendment. My own guess is he would have liked
it because he would have loved to have stood the chance of being a Senator without having
to have been elected by the Virginia state legislature, which was never going to elect
him. So, personally he thought of the 17th amendment>>Terrific talk. Thank you. My question is
about Thomas Jefferson’s role if any in the development of the Bill of Rights. I’ve read
interpretations that it was really Jefferson writing to Madison who twisted his arm and
talked him into it. If it was something that Madison didn’t think was necessary and Jefferson
said you really, really ought to have a Bill of Rights, and Jefferson talked him in to
it. What’s your take on that?>>MARY SARAH BILDER: This was actually on
the panel last night we talked about this. Madison is already moving on his own towards
favoring Amendments. He wanted to — he wanted ratification to be sort of cleaned up and
over. He think he thought if he wrote them, he would be in control of them, so there weren’t
going to be any problems. He took it as an opportunity to amend the Constitution in other
ways. I personally believe that this very famous exchange of letters that he has with
Jefferson are useful in him thinking through what the arguments would be to support favoring
that, and the two that I give here, Jefferson also very much agreed that the judiciary,
the new judiciary would be important in a Bill of Rights. And in that sense that rights
wouldn’t just be something nice like the Declaration of Independence, but that judges could actually
use them in specific cases. And so I think their relationship was very important in that.
In fact, there’s a very funny moment in ratification where Madison in the ratification process,
where Jefferson has written Madison, hey, I like the Constitution, but you guys screwed
up a bunch of things and one of them is there is no Bill of Rights but, you know, whatever.
And Madison goes and tells people, you know, a friend of mine, so everybody knows that’s
Jefferson in the Virginia ratifying Convention, is favorable towards the Constitution and
that’s leaving out the fact that he knew perfectly well that Jefferson had written him but it
was a mess-up, so he manipulated that relationship himself.
>>Another religion question. When I started at the Census Bureau, we had to take an oath,
and the oath included “So help me God.” And when we had our legal update later, the guy
said, well, you know you don’t have to say that but technically you can be fired because
you didn’t take the oath and the oath is in the federal law. How does that —
>>MARY SARAH BILDER: I don’t know the practices of any particular government agency, but you
actually are allowed to affirm. It’s just very few people affirm. But you don’t have
to — you can say ahead of time that you’re going to if I remember. Just as a matter of
things over years and ears, I’ve always affirmed because of my own private religious beliefs.
So whenever I would take oaths recently I got sworn into another Bar. And I always say
ahead of time I don’t take oaths because of my religious positions, and so I would prefer
to affirm. And they’re always like, oh, yeah, okay. Okay. Don’t worry. And then they’re
like blah, blah, blah, blah. So help me God. And the last time I did this, the person is
like, no, no let’s do it all over again. And I was just like I’ll just not say that part.
It’s just my own thing. So I think you can look this up on Wikipedia. I think there’s
one or two Presidents who affirmed. No one in the recent position. I think Pierce may
have affirmed. But you can imagine — imagine, talk about a radical thing in American politics
so stand up and affirm which the Constitution gives you the right to say, because many religions
don’t believe you should say, “So help me God,” out loud. And anxieties ran deep at
the time of the Convention. So yeah, in theory, this is a small thing if you cared about fulfilling
the Constitution, we could go around and insist on affirming in your few chances of taking
oaths. Or you might just want to keep your job, so. —
>>Relative to the Three-Fifths Clause, I believe you put on the screen the fact that
that clause pertained not only to representation in Congress but also to direct taxation.
>>MARY SARAH BILDER: Right.>>Which would obviously be not as beneficial
to the South as the part providing representation, and concomitantly be advantageous to the North. To what extent was the Three-Fifths compromise aided by Northern wishes to reduce their taxation?>MARY SARAH BILDER: The history of the Three-Fifth’ s Compromise, Madison is responsible for it;
it’s invented as a part of the revenue measures in the Confederation Congress beforehand.
Madison in his own — he kept notes of his activities in that Congress, and Madison suggested
the three-fifths idea as a way of taxing when they were trying to figure out how to tax,
if they could imagine how to create a revenue bill, they would do that. And in the beginning
of the Convention the Three-Fifths Clause is voted up, voted down, and then it’s finally
voted up again. It’s a complicated history. And in the beginning of the Convention the
two provisions are linked, and what’s interesting is in Madison’s Notes, as the Convention goes
on, there are people who increasingly say we could abandon the taxing part of the Three-Fifths
Clause and simply keep the representation part of the Three-Fifths Clause. So there’s
actually efforts to take those two pieces apart.
And the Three-Fifths Clause is fascinating, and I think the people who are in some ways
most troubling are the people who voted for it from states which were abolishing slavery,
and I think one of the most interesting people is (Inaudible) King, who comes to a decision
personally somehow that he has to side with the Three-Fifths Clause. He’s close to Madison at that point. But by the end of the Convention has begun, along with other people like Governor
Morris, that slavery issue is far worse than he could have understood, that there is never going to be abolition and people like King and others leave the convention and go on to become anti-slavery advocates. So in some ways more than we understand the fight over the Three-Fifths Clause in some ways begins this discussion over national slavery. (Applause)

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