A week from today, the nation will celebrate the 225th anniversary of the ratification of the Bill of Rights, the collective name for the first ten amendments to the Constitution.

To commemorate this occasion, the Supreme Court Historical Society and the Georgetown Center for the Constitution invited Villanova University professor Colleen Sheehan to lecture about James Madison, who first presented to Congress what became the Bill of Rights and about whom Sheehan has written multiple books.

Justice Stephen Breyer, who introduced Sheehan, called the Bill of Rights “the document that helps 320 million Americans live a reasonably civilized life even though they think all kinds of different things.” Seeking to understand the genesis of this document, Breyer elaborated, is therefore “a very fine thing,” even “the most important thing we can do” – “tell the next generation and the generation after that a little bit about our … constitutional history.”

In her lecture, Sheehan explored the development of Madison’s thinking about the Bill of Rights, which he originally opposed. According to Sheehan, Madison feared that a written catalogue of rights would narrow the scope of essential liberties, giving a later government a basis for arguing that “rights not listed were not possessed.”

Sheehan explained that, in Madison’s initial view, a listed catalogue of rights made sense within the English legal system, because the sovereign monarchy had, over time, bestowed on its subjects new rights they had not previously possessed – “charters of liberty granted by power.” In the nascent United States, however, the people themselves were sovereign; a bill of rights would be superfluous in a system in which political authority derived from the consent of the governed – “charters of power granted by liberty.” The American people already enjoyed the liberties the Bill of Rights would presume to bestow on them, Madison believed.

Madison argued that the best protections against the partial interests or prejudicial zeal of a majority faction came from the Constitution’s “inventions of prudence”: the separation of powers (sorting the federal government into executive, legislative and judicial branches), bicameralism (splitting the legislative function between the House of Representatives and the Senate), and federalism (allocating authority between the federal government and the states). These checks and balances would serve to promote civic discourse and make it difficult for invidious bills to become law.

Politically, Sheehan explained, Madison faced significant opposition from anti-Federalists, including fellow-Virginian George Mason, one of the few delegates to the constitutional convention in Philadelphia who refused to sign the final document because of its lack of protections for individual liberty. Some anti-Federalists called for a second convention, which Madison feared would fail to produce a cohesive political document. He did not want to disturb the development of so recent a union, Sheehan elaborated.

At the same time, Madison was worried that the dispute over the need for a bill of rights might divide the young nation. As a result, he and George Washington – Sheehan said the pair always “worked in tandem” – changed their positions on the issue, announcing their wish to “cement the union.” Speaking from Federal Hall in New York, Washington acknowledged the concern people felt about the lack of a bill of rights and conveyed his support for the people’s judgment should they choose to ratify one. Shortly thereafter, at the outset of the first Congress, Madison introduced amendments to the Constitution.

According to Sheehan, Madison came to believe that the Bill of Rights would help unify the new country not only out of acquiescence to a more popular political position, but because of the role he thought the Bill of Rights could play in civil society. Madison feared that a majority faction determined to infringe the rights of a minority could not be stopped, whether or not the Constitution included a list of protected rights. The Bill of Rights would have a negligible impact on an unjust majority once formed, he believed, but the listed protections could help forestall the development of such a majority in the first place. In Madison’s view, the declaration of rights – such as the freedom of speech, the freedom of religion or the right to a fair trial – could play a didactic role in society, educating citizens about the mutual respect they owed each other and their shared responsibility to maintain the civic order. Over time, these precepts would become instilled in the public consciousness. Through the Bill of Rights, the people would develop control over their biases and prejudices as they began to “know moderation as the measure of liberty.”

Has Madison’s hope for a didactic Bill of Rights come to fruition? Sheehan closed by quoting the poet Robert Frost, speaking more than 150 years after Madison first introduced his amendments. Frost identified in the Bill of Rights the basic tenets of citizenship, and he singled out Madison, of all the leading figures of the young United States, for his vision of America – “a dream of a new land to fulfill with people in self-control.”

Posted in Supreme Court history

Recommended Citation: Andrew Hamm, Colleen Sheehan explores Madison’s vision for the Bill of Rights to commemorate 225th anniversary of ratification, SCOTUSblog (Dec. 8, 2016, 3:34 PM), http://www.scotusblog.com/2016/12/colleen-sheehan-explores-madisons-vision-for-the-bill-of-rights-to-commemorate-225th-anniversary-of-ratification/