Empire of Liberty: A History of the Early Republic, 1789-1815 (13 page)

Because of a mix-up in communications the Congress waited an hour and ten minutes for the president. When Washington finally arrived at about two in the afternoon, an awkward silence followed. Adams, who had been so atwitter about the proper way to receive the president, was so overawed that he was uncharacteristically rendered speechless. Eventually Washington, dressed in a dark-brown homespun suit, with white silk stockings and silver shoe-buckles, was led out to a balcony of Federal Hall so that the huge throngs of people outside could witness his being sworn in as president. Robert Livingston, chancellor (the leading judicial official) of New York, administered the oath of office, at the conclusion of which Washington, according to a contemporary newspaper account, kissed the Bible on which he had sworn the oath.
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After Livingston proclaimed “Long Live George Washington, President of the
United States,” the crowd erupted in shouting and cheering, so loud as to drown out the pealing of the church bells. When the president came to deliver his inaugural address he was so overcome by the gravity and solemnity of the occasion that he had a hard time reading his notes. According to Maclay, Washington seemed “agitated and embarrassed more than ever he was by the levelled Cannon or pointed Musket.”
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It was an awful moment for Washington and for the country. Washington told his friend Henry Knox that his assumption of the office of president was “accompanied with feelings not unlike those of a culprit who is going to the place of his execution.”
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T
HE PRESIDENT IN HIS INAUGURAL ADDRESS
offered very little guidance about what the Congress should do. Although the Constitution provided that the president periodically recommend to the Congress such measures as he judged necessary and expedient, Washington in his address actually made only one recommendation for congressional action. Believing that the role of the president was only to execute the laws, not to make them, he was remarkably indirect and circumspect with even this one recommendation. He suggested that the Congress use the amendment procedures of the Constitution in order to promote “the public harmony” and make “the characteristic rights of freemen . . . more impregnably fortified,” without, however, making any alteration in the Constitution that “might endanger the benefits of an United and effective Government.” This recommendation, he said, was in response to “the objections which have been urged against the System” of government created by the Constitution and “the degree of inquietude which has given birth to them.”
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Many of the states had ratified the Constitution on the understanding that some changes would be made in order to protect people’s rights, and popular expectation was high that amendments would be added as soon as possible. Although many members of Congress were not at all eager to begin tampering with the Constitution before they had even tried it out, Congress could not easily evade this concern for the citizens’ rights. It was after all in defense of their rights that Americans had fought the Revolution.

Americans had inherited an English concern for personal rights against the power of the crown that went back centuries. They had prefaced at
least five of their Revolutionary state constitutions in 1776 with bills of rights and had inserted certain common law liberties in four other constitutions. It thus came as something of a surprise to many Americans to discover that the new federal Constitution contained no bill of rights. It was not that members of the Philadelphia Convention were uninterested in rights; to the contrary, the Constitution had been drafted in part to protect the rights of Americans.

But the Constitution was designed to protect the Americans’ rights from the abusive power of the state legislatures. The Constitution had done so by forbidding the states in Article I, Section 10, from certain actions. In fact, the members of the Philadelphia Convention had not seriously considered adding to the Constitution a bill of rights that would restrict the power of the national government. As delegate James Wilson said, a bill of rights had “never struck the mind of any member,” until George Mason, author of the Virginia Declaration of Rights of 1776, brought the issue up almost as an afterthought in the last days of the Convention, when it was voted down by every state delegation.

But the idea of a bill of rights was too deeply embedded in the Americans’ consciousness to be so easily passed over. George Mason and other opponents of the new Constitution immediately stressed the absence of a bill of rights as a serious deficiency, and they soon come to realize that this was the best argument they had against the Constitution.

Because the Federalists believed that the frenzied advocacy of a bill of rights by the Anti-Federalists masked a basic desire to dilute the power of the national government, they were determined to resist all efforts to add amendments. Over and over again they said that the old-fashioned idea of an English bill of rights had lost its meaning in America. A bill of rights, they said, had been relevant in England where the ruler had rights and powers distinct from those of the people; there it had been used, as in the case of the Magna Carta of 1215 and the Bill of Rights of 1689, “to limit the king’s prerogative.”
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But in the United States rulers had no pre-existing independent governmental power; all rights and powers belonged to the sovereign people who parceled out bits and pieces sparingly and temporarily to their various delegated agents. Since the federal Constitution implied that every power not expressly delegated to the general government was reserved in the people’s hands, a declaration reserving specific rights belonging to the people, said James Wilson, was “superfluous and absurd.”
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The Anti-Federalists were puzzled by these arguments. No other country in the world, said Patrick Henry, looked at government as a delegation of express powers. “All nations have adopted this construction—that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers. . . . It is so in Great Britain; for every possible right, which is not reserved to the people by some express provision or compact, is within the king’s prerogative. . . . It is so in Spain, Germany, and other parts of the world.”
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The Anti-Federalists, in other words, continued to presume in traditional terms that governmental powers naturally adhered in rulers with whom the people had to bargain in order to get explicit recognition of their rights.

The Federalists might have eventually been able to carry their case against such conventional thinking about government, had it not been for the intervention of Thomas Jefferson from his distant post as minister to France. Jefferson was not unsympathetic to the new Constitution and to a somewhat stronger national government, but he had little or no comprehension of the emerging and quite original political theory of the Federalists that underlay the new federal political system. For Jefferson, sensitive to the politically correct thinking of “the most enlightened and disinterested characters” of his liberal French friends who still believed that government was something to be bargained with, “a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.”
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No matter that his friend Madison patiently tried to explain to him that attempting to write out the people’s rights might actually have the effect of limiting them.
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Jefferson knew, and that was enough, that “the enlightened part of Europe have given us the greatest credit for inventing this instrument of security for the rights of the people, and have been not a little surprised to see us so soon give it up.”
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Jefferson’s belief that the Constitution was basically deficient because of the absence of a bill of rights was picked up by Anti-Federalists already suspicious of the Constitution and its lack of a bill of rights and used with great effectiveness, especially in Virginia, Maryland, and Rhode Island.
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The Federalists were defensive over the issue, and in several state ratifying conventions they had to agree to add a list of recommended amendments, nearly all of which advocated changing the structure of the new government. The Federalists concluded that it was better to accept these
amendments as recommendations rather than as conditions for ratification. Otherwise they might have seen the Constitution defeated or at least have had to heed calls for a second convention.
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With nearly two hundred suggested amendments coming out of the state ratifying conventions, and with his good friend Jefferson remaining obstinate on the issue, Madison reluctantly began changing his opinion on the advisability of a bill of rights.
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Although in October 1788 he had told Jefferson that he had never believed the omission of a bill of rights to be “a material defect” of the Constitution, he now declared somewhat disingenuously that he had “always been in favor of a bill of rights” and would support its addition, especially since “it is anxiously desired by others.”
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In his hard-fought electoral campaign for the House of Representatives in the winter of 1788–1789, Madison had been compelled to make a public pledge, if elected, to work in the Congress for the adoption of a bill of rights.
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This promise made all the difference. If the Federalists, who dominated both houses of Congress in 1789, had had their way, there would have been no bill of rights. But once Madison’s personal honor was involved, he was stubbornly bent on seeing it enacted. Besides, as he told a friend, a bill of rights would “kill the opposition everywhere, and by putting an end to the disaffection to the Govt. itself, enable the administration to venture on measures not otherwise safe.”
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Yet Madison was determined that his bill of rights would be mainly limited to the protection of personal rights and would not harm “the structure & stamina of the Government.”
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He sifted through the nearly two hundred suggested amendments made by the states, most of which suggested altering the powers and structure of the national government, including such matters as taxation, the regulation of elections, judicial authority, and presidential terms. Madison deliberately ignored these structural proposals and extracted mainly those concerned with personal rights that he thought no one could argue with.

On June 8, 1789, Madison proposed his nine amendments, most of which he believed could be inserted into Article I, Section 9, as
prohibitions on the Congress. He also included one amendment to be inserted into Article I, Section 10, that actually prohibited the states, and not just the federal government, from violating rights of conscience, freedom of the press, and trial by jury in criminal cases.

At first his Federalist colleagues in the House claimed that it was too early to bring up amendments. Discussing amendments would take up too much time, especially since there were other more important issues like collecting revenue that the Congress ought to be considering. They told Madison he had done his duty and fulfilled his promise to his constituents by introducing the amendments, and now he ought just to forget about them. But “as an honest man I
feel
my self bound,” Madison said, and he hounded his colleagues relentlessly.
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In several elegant and well-crafted speeches Madison laid out the reasons why a bill of rights should not be delayed. It would quiet the minds of the people uneasy about the new government, help to bring North Carolina and Rhode Island into the Union, further secure the people’s rights in public opinion without harming the government, and perhaps allow judges to become the peculiar guardians of these declared rights. He answered all the doubts and all the arguments against a bill of rights, most of which were the doubts and arguments he himself had earlier voiced.
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There is no question that it was Madison’s personal prestige and his dogged persistence that saw the amendments through the Congress. There might have been a federal Constitution without Madison but certainly no Bill of Rights. Madison did not get all he wanted and in the form he wanted. His colleagues in the House eliminated his preamble, revised some of his other amendments, and placed them at the end of the Constitution instead of incorporating them into the body as he had wished. The House then sent seventeen amendments to the Senate. The upper house not only significantly altered these amendments, but it also compressed them into twelve, eliminating Madison’s proposal to protect certain rights from the states, which he had considered “the most valuable” of all his amendments.
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Two of the twelve amendments—on apportionment of the House and on congressional salaries—were lost in the initial ratification process.
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Still, when all is said and done the
remaining ten amendments—immortalized as the Bill of Rights—were Madison’s.

The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people to assemble, and to petition the Government for a redress of grievances.” This has been the most important amendment invoked by the courts in modern times, applying not just to the federal government but also to the states.
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