The Bill of Rights: A Tale of Constitutional Compromise by R. Scott Alagood

With the Second Amendment debate at the national forefront, I thought it appropriate to take a short historical look into how the Second Amendment came into existence. In researching the issue, I quickly became side-tracked from my initial notion for this article (and hopefully saved myself from becoming a target of opponents on either side of the debate).

As we are all aware, the Bill of Rights represent the first ten Amendments to the U.S. Constitution. Typically, an “Amendment” to a document represents either an “addition” or “revision” to the prior document. Common sense would tell us that an “Amendment” is necessary because the original document either left out an important point or topic which should have been addressed or reflects a change to a point or topic in a prior document which is either incorrect or no longer acceptable to the parties affected by such document. If you take a look at all of the Amendments to the U.S. Constitution other than the Bill of Rights (11th through the 27th Amendment), each one was proposed and ratified at different times and for varying, but specific reasons. Over time, our country found subject and issues which were not adequately addressed or which needed to be completely changed in the Constitution, and made the necessary changes through the Amendment process.

However, the Amendments constituting the Bill of Rights were different. Not only do they enumerate certain individual and states’ rights that we all deem inviolate, they also played a significant role in the Constitution as we know it being approved by the Constitutional Convention of delegates and later ratified by two-thirds of the states.

Following the victory over England for independence, the national government was established under the Articles of Confederation. The Articles of Confederation were a loosely held agreement between the 13 sovereign and independent states. Under the Articles, the states retained most, if not all, of the power to regulate commerce. The national government had no power to tax nor supply any meaningful defense. It had no ability to settle disputes between the states. Effectively, the national government following the Revolution was weak, with most, if any all, of the power remaining with the states.

With each state having its own ability to print money, inflation was ravaging the Country. Supposedly, a pound of tea in some areas of the country could sell for upwards of $100.00. Farms were being forcefully sold to satisfy debts and taxes, and the agricultural economy of the nation was in trouble. With upper-class Americans becoming increasingly afraid of uprisings by the common working class (who on occasion took to the streets with muskets in hand to make known their displeasure with their economic standing and class), the leaders of the time realized something had to change. It seems that some things remain the same even after the passage of two centuries.

In 1786, James Madison and John Taylor had offered a proposal in the Virginia assembly that a national Continental Congress be allowed to regulate commerce throughout that Confederation of states. With the help of a young lawyer from New York named Alexander Hamilton, Madison requested Congress to call to action delegates of the states to meet to revise the Articles of Confederation. Congress followed the wishes of Madison and Hamilton, and the states’ delegates all gathered in Philadelphia in the late spring of 1787 (with the exclusion of Rhode Island, who refused to attend).

The Continental Convention was met with opposition from all sides. Large states squared off against the smaller ones about allocating the states’ representation in Congress by population. The northern states quarreled with the southern states over how to count slaves for the purpose of taxation and representation. The Abolitionists confronted the proponents of those who wished to continue the slave trade. By late summer, the delegates were worn down from the constant debate over these and other issues, but somehow managed to find enough common ground to send a proposed Constitution to the drafting committee. Although the final draft of the proposed Constitution was approved by the delegates, Article 7 of the proposed Constitution required its ratification by two-thirds of the states.

While the fundamental principles enumerated by our Constitution had been agreed to through compromise, throughout the drafting and ratification process, it was still apparent that a great divide continued to exist between those who thought that the new federal government should be strong (the “Federalists”) and those who believed that the individual states should retain the most rights and powers (the “Anti-Federalists”). Interwoven in the struggle between states’ rights versus federal power was the issues of slavery. The southern states continued to believe that a strong federal government would effectively kill the southern economy, or at best southern commerce would be simply dictated by the northern states through the power of the federal government.

With newspapers being the primary method of disseminating news of the country at the time, a battle of articles ensued between the Federalists and the Anti-Federalists over this conflict. The Anti-Federalists wrote articles claiming that the proposed Constitution was nothing more than a mechanism for wealthy and upper class Americans to control the common working folks. The tenor of such articles compared the new Constitution to the kid of government that the Colonies had just fought against the American Revolution.

In response to the Anti-Federalists’ propaganda, the Federalists enlisted Alexander Hamilton John Jay, and James Madison to respond in support of the new Constitution. 85 essays, most of which were written by Hamilton, explained the weaknesses of the Articles of Confederation and why the country needed to have a much stronger form of federal government. These essays were known as the “Federalist Papers”. According to Thomas Jefferson, the Federalist Papers were the “best commentary on the principles of government ever written”.

One of the Anti-Federalists’ principal points in opposition to the proposed Constitution was a lack of all of a “bill of rights” which could protect the individual from an expansive, oppressive, impersonal, and unresponsive federal government. The Federalists countered with the proposition that the new Constitution only gave the federal government the specific powers enumerated therein, with all other powers being reserved by the states. The Federalists believed that the individual rights of citizens were already protected through each of the individual states’ constitutions, and therefore the enumeration of such rights in a federal Constitution would be “superfluous”. However, the Anti-Federalists continued to assault the new document on its vagueness and for its lack of specific protections against tyranny. It was in this argument that the Anti-Federalists held the trump card. Even Thomas Jefferson, who generally favored the new government set out in the Constitution, wrote to James Madison that “a bill of rights” was “what the people are entitled to against every government on earth.” Even James Madison, a staunch Federalists, ultimately came to believe that a “bill of rights” was necessary for the Constitution to be accepted by the population of the Country.

By January of 1788, five of the necessary nine states had ratified the new Constitution – Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut. However, proponents of the Constitution knew that the new government would either pass or fail by what occurred in the conventions of Massachusetts, New York and Virginia. The ratification process seriously stalled in Massachusetts when John Hancock (who was elected to preside over the Massachusetts Convention) came up with a curious case of the gout and left the convention unable to foster the necessary votes to ratify the Constitution. Through a compromise, better known as the “Massachusetts Compromise” (and supposedly with back door promises to Hancock about his potential future as a Vice-President or President of the U.S.), Hancock was miraculously cured of his gout. With the help of Samuel Adams, Hancock convinced the Massachusetts delegates that a “bill of rights” would be added following the ratification of the Constitution. While this “compromise” was a victory for the Anti-Federalists, it also allowed the Federalists to gain the necessary number of states needed for the ratification of the Constitution. In July of 1788, New Hampshire became the ninth state to ratify the Constitution.

In keeping with its promise of compromise, the first Constitutional Congress submitted twelve amendments for ratification by the states. By the end of 1791, three-fourths of the states had ratified the ten amendments that we now call our “Bill of Rights”.

It is interesting to note that when the Constitutional delegates left Philadelphia after the convention, few ever believed that the newly proposed Constitution was the perfect form of government for our country. It had been forged through bitter battles and rancorous debate, with violence or the threats thereof looming at all times. All sides sacrificed certain firmly held and well-founded ideals in order to gain victories on others. Benjamin Franklin once said that the adoption of the new Constitution had been akin to a game of dice, with each of the players being of such diverse prejudices and interests that they were unable to make any move without finding opposition.

Ultimately, it took a “compromise” to gain ratification of the Constitution so that a new government could be established (which Abraham Lincoln would later describe in his famous Gettysburg Address as being “of the people, by the people, and for the people”). Toward the end of his life James Madison wrote that he believed that no government can be perfect, and therefore, “that which is the least imperfect is therefore the best government.” Without “compromise” not only would our current form of government be different, but our history most likely would have been changed as well.

Credit for the factual content of this Article is given to Roger A. Bruns who wrote the Introduction to “A More Perfect Union: The Creation of the United States Constitution. Washington, D.C.” Published for the National Archives and Records Administration by the National Archives Trust Fund Board, 1986, web version published at www.archives.gov.

R. Scott Alagood is a licensed Texas attorney and Board Certified by the Texas Board of Legal Specialization in both Residential and Commercial Real Estate Law and may be contacted by email at [email protected] or www.dentonlaw.com.