Bill of Rights

blackirish

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The Constitutional Convention officially ended on September 17, 1787. It was by no means a foregone conclusion that the newly adopted Constitution born in this convention would be adopted as the members of the Convention were by no means sure they even had the authority to write the Constitution rather than attempt to amend the Articles of Confederation which had formerly bound the seperate states together. New Hampshire was the Ninth state to ratify the Constitution, thereby making it an officially binding document. Virginia and New York soon followed and by June 17, 1788 eleven states had ratified the Constitution and began organizing the First Congress. The Bill of Rights, or first ten amendments were not part of the Constitution at that time. Several state conventions called to ratify or reject the Constitution had suggested the need for such a document but it was not part of the Constitution when it was officially adopted. (Incidently, North Carolina and Rhode Island were the last 2 holdouts and Rhode Island refused to even call a convention to consider its ratification until Congress intitiated steps to exclude the state's products from United States ports.)
On June 8, 1789 James Madison rose in the House of Representatives of the First Congress to propose the Bill of Rights be adopted in deference to the state conventions that had asked for such a document to be included in the Constitution. He proposed 12 Amendments which were largely representative of the some 200 hundred such amendments that had been proposed in 7 of the state conventions that ratified the Constitution the year before. As the amendments made their way through committees in both the House and the Senate and a further joint conference committee they were inevitably amended. Two of these changes worried Madison considerably. The first was the elimination of a provision whereby the STATES were prohibited from infringing on freedom of conscience, speech, press, and trial by jury in criminal cases. The amended version imposed these limits on the Federal Government only. The states were not limited in their power to infringe on individual liberties until the Fourteenth Amendment; an oversight Madison unsuccessfully attempted to correct in 1789. The second change Madison was more successful in combatting. The Tenth Amendment had the word "expressly" inserted in the amended version so that it would read: "The powers not expressly delegated to the federal government would be reserved to the states." Madison pointed out that the failure of the Articles of Confederation as a basis for government was largely due to the fact that a similar clause had been inserted into the Articles at the last minute and the states had constantly invoked this clause to refuse to accede to the rulings of the Continental Congress. It was this failure that had led to the need for the Constitutional Convention and Madison warned a similar inclusion of the word "expressly" would lead to another failure in the same manner; "it was impossible to confine a Government to the exercise of express powers. There must neccessarily be admitted powers by implication, unless the Constitution descended to recount every minutiae." Madison made his point and the word "expressly" was removed. Unfortunately, this same "implied powers" argument and its relation to the 10th Amendment was to plague the country continously for the next 70 years and is still at the core of many disagreements today.
On September 25, 1789 the Senate officially concurred with the 12 amendments adopted in the House and the 12 amendments were sent to the the states for ratification. On December 15, 1791 Virginia became the 11th state to ratify the 10 amendments we now know as the Bill of Rights making them a part of the Constitution. 2 of the Amendments adopted by Congress were rejected by the States. The first had to do with re-enumeration in the House of Representatives and the second having to do with changing the compensation of senators and representatives.
Interestingly, 3 states refused to ratify the Bill of Rights at all. Connecticut, Georgia, and Massachusetts rejected the amendments completely, but under the provisions for amending the Constitution they became law anyway. In 1939 these 3 states officially ratified the Bill of Rights in a symbolic gesture.

Below are the first 2 amendments of the original 12. The states rejected these two and ratified the remaining ten, which we now refer to as the Bill of Rights.

Article the first. . . After the first enumeration required by the first
Article of the Constitution, there shall be one Representative for every
thirty thousand, until the number shall amount to one hundred, after which,
the proportion shall be so regulated by Congress, that there shall be not
less than one hundred Representatives, nor less than one Representative for
every forty thousand persons, until the number of Representatives shall
amount to two hundred, after which the proportion shall be so regulated by
Congress, that there shall not be less than two hundred Representatives, nor
more than one Representative for every fifty thousand persons.

Article the second. . . No law, varying the compensation for the services of
the Senators and Representatives, shall take effect, until an election of
Representatives shall have intervened.

In general terms the Federalist party had two basic problems with the Bill of Rights. The first was that they didn't think it was neccessary. In the words of Massachusetts congressman Theodore Sedgwick it was like declaring "that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper." The second was that it went to far in declaring states rights in the Tenth Amendment. There was also a considerable contingent of Anti-Federalists who wanted another Constitutional Convention called as they were not too happy with the Constitution as it existed and they correctly realized that the inclusion of the Bill of Rights into the Constitution would take away their best platform for calling such a convention.
Specifically, Connecticut contained a very strong Federalist majority who saw the Bill of Rights as an admission that the Constitution itself was flawed and refused to ratify accordingly. Georgia simply maintained the Bill of Rights wasn't neccessary as the State, not the Federal Government was responsible for protection of the rights of its citizens. In Massachusetts the two houses of the State Legislature couldn't agree as to which specific Amendments they disliked more, but the general consensus agreed they did not like the First Amendment's provisions for separation of church and state. At the time Massachusetts did have state supported churches.

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