How the Founders Decided to Add the Bill of Rights

By Rich Tucker

Do we really need a list of the rights Americans enjoy? That was the question the Founders debated before the Bill of Rights was ratified 222 years ago this weekend.

Many of those who framed the Constitution, including Alexander Hamilton and James Madison, believed that a separate Bill of Rights was unnecessary. Hamilton’s view was that the people already have their rights, and attempting to list them would only serve to artificially limit them. “The truth is, after all the declamations we have heard, that the Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS,” he wrote in Federalist 84.

But others, including Thomas Jefferson, argued for the addition of a specific bill “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.” Most of that, which Jefferson called for in letter he wrote to Madison after the Constitutional Convention, indeed ended up in the Bill of Rights.

Madison eventually embraced the idea. He recognized that by listing specific rights, the Constitution would remind citizens and members of government that those rights were inalienable. He ended up drafting the Bill and introducing it as a Member of Congress from Virginia. Of the 17 rights Madison included, 12 were sent to the states for ratification by Congress and the 10 amendments in the Bill of Rights were added to the Constitution when Virginia became the ninth state to ratify on December 15, 1791.

Over the centuries, the rights have been limited in some ways and expanded in others—often too far. For example, misguided laws have limited donations to political campaigns, a key aspect of free speech.

But, like the Constitution itself, the most important thing is that the Bill exists. Its rights are written down for all to see. And we can always return to them if we can build the political momentum.

That means that even though the growth of the federal government in recent decades seems to have made the 10th Amendment (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”) a dead letter, in reality it isn’t. As programs such as Obamacare implode, reformers can turn to the actual written words of that amendment for guidance and return important powers to the states.

A better America, one that’s true to our history, remains politically possible. Happy birthday to the Bill of Rights.