You are using an outdated browser.
Please upgrade your browser
and improve your visit to our site.
Skip Navigation

The Spirit of ’89

Wikimedia Commons

The drafter of George Washington’s address to Congress on April 30, 1789, which was also the first presidential inaugural, was James Madison. The House of Representatives, feeling its way, responded after the custom of parliamentary bodies: having been formally addressed by the executive (elsewhere kings and queens), it formally replied. Its reply was drafted by—James Madison. The president, on May 8, responded to the House’s response. And who drafted that presidential response? No peeking. Right, James Madison.

Madison was living a ghostwriter’s dream, carrying on what the editor of his Papers calls a “dialogue with himself.” And for good measure Madison drafted the president’s response, on May 18, to the Senate’s response to the president’s address. Madison was like E. B. White’s two-headed lamb, who could sing in two part harmony and cross-question herself for hours.

In 1789 Congress was for a time all there was to the government of the United States. The House of Representatives was for a time almost all there was to Congress. And James Madison was for a time almost all there was to the House of Representatives. Madison in the summer of 1789 was the leading member of the House; and the House had seized the initiative from the Senate, which was bogged down in a seriocomic debate over whether the president should be called “His Most Benign Highness,” “His Elective Highness,” “His Highness, the President of the United States, and Protector of the Rights of the Same,” or “Mr. President.” Madison spent his days dominating the legislative branch, his evenings advising the executive. The Constitution was only a sketch in a few broad lines. The United States of America, it has been said, consisted of a piece of paper and George Washington. Everything remained to be filled in. Madison, having been chief among those who produced the piece of paper, was now to be chief among those who filled it in. His ghostwriters’ pen, deployed throughout the government, was mightier than any sword. 

And what did Madison say in his exalted indirect conversation with himself 200 years ago? President Washington’s Madison-drafted address suggested that Congress might want to exercise the power delegated by the Fifth Article of the Constitution—the power to propose amendments to the Constitution. The House’s Madison-drafted response to the Madison-drafted presidential address said yes, we just might do that. President Washington’s very short Madison-drafted response to the House’s Madison-drafted response to President Washington’s Madison-drafted address did not disagree. 

But this intra-Madisonian dialogue did not recommend just any amendments; it suggested that Congress consider enacting—perhaps not surprisingly—Madison-style amendments. The president’s address recommended amendments that would protect liberty—but not amendments that would endanger “an United and effective government.” And Congress cheerfully responded to the president that it would consider amendments “under the influence of all the considerations to which you allude.” 

Eventually, Congress did that, but not without prodding from Madison. The first House of Representatives dealt first, understandably, with the sources of money for the new government, specifically in “imposts,” and second, understandably again, with the organization of the executive departments. Madison took the initiative in both of these matters, doing research on the imports, exports, and shipping of the several states and introducing a motion to establish the first Cabinet departments—of foreign affairs, the treasury, and war. But while the debates on these large matters were winding though the first weeks of the new government, he kept reminding his colleagues of the importance of a still larger matter—the amendments that would constitute a Bill of Rights. Without Madison’s persistence the amendments would not have come before the nation, in those days of Firstness. 

Madison had, of course, prepared carefully. He always prepared carefully. He used a pamphlet that had been published in Richmond that brought together in a handy way the more than 200 amendments proposed by state ratifying conventions, and he sifted them down to 19. On June 8, 1789, an important date in American history, James Madison rose in the House of Representatives and presented these 19 as his version of a Bill of Rights.

At exactly the same time the Americans were writing their Bill of Rights the French were writing their Declaration of the Rights of Man and of the Citizen, adopted by the French National Assembly on August 26, 1789. Where the French declaration was heavy on Ought and Ought Not and Should Be and high aspiration, the American bill was made of homelier stuff: concrete protections and specific commands. They are not speculative or hortatory but mandatory: Congress shall make no law, no soldier shall be quartered, no person shall be held. The American document is not a hope but a law, written by experienced legislators and intended to be enforceable in court, as Americans are still finding out 200 years later. 

When the French adopted the constitution of the First Republic, in 1792, it was supposed to be so perfect that it made no provision for amendment. The Americans had made the same mistake in 1781 with the highly imperfect Articles of Confederation. Upon ratifying the Constitution, therefore, their first step was to amend it. And to amend their ideas about amending it: Madison himself had not originally favored amendments so soon. He had his mind changed by the merits of the opposing arguments, the realities of power, and the pressure of public opinion. That change of mind was a fitting sample of his own ideas, which in turn were the epitome of the American spirit of ‘89.

Madison had worked out an understanding of pluralism and of checks on power and had planted that understanding in the Constitution that was now creaking into action. At the core of this understanding was an acceptance of the persistence of differences among human groups. There was not going to be a “New Humanity” on the “other side” of the revolution; when you got to the other side, as the Americans had already long since done by ‘89, you found humanity still loaded with self-interest, and with differing attachments and values. In “republican” politics—in its American, Madisonian variety—those differences were not something to be excoriated, dismissed, or stamped out in the name of “the People” or “the Revolution” or “Justice” or “Virtue.” They were not even much to be regretted, these human differences. They were rather to be taken for granted—and turned to the support of liberty and of republican government. 

What one reads about the leaders of the French Revolution differs markedly on that decisive point. They did not seem, to put it mildly, to rejoice in the differences among factions. R. R, Palmer wrote this about the influence of Rousseau upon them: 

In the philosophy of [Rousseau’s] Social Contract the “people” or “nation” is a moral abstraction. It is by nature good; its will is law. It is a solid indivisible thing. That the people might differ among themselves was a thought that Rousseau passed over rather hurriedly. . . . All struggles were between the people and something not the people, between the nation and something antinational and alien. On the one hand was the public interest, self-evident, beyond questioning by an upright man; on the other hand were private interests, selfish, sinister, and illegitimate. The followers of Rousseau were in no doubt which side they were on. 

The American leaders did not view “the People” as a simple, solid, indivisible thing, always right, so that human beings who disagreed were somehow non-people. On the contrary, Madison was particularly wary of “the people” in their guise as the majority, and of what they might do to those who disagreed. That was a main reason he became the chief sponsor of the Bill of Rights. 

The American leaders did not set about “unmasking the enemies of the country,” as Robespierre and St. Just did. What the key Americans—Madison in particular—did in 1789 was the opposite. They set about bringing their opponents into the fold. 

The initiation of the Bill of Rights in the summer of ‘89 was exactly that (among other things): a device to satisfy “the minds of well meaning opponents” of the Constitution. Madison wanted “the doubting part of the population” to know that “those who have been friendly to the adoption of this constitution” are “as sincerely devoted to liberty” as those who opposed it. While the explosions that rocked Europe were erupting in Paris, Madison was plugging away in New York, trying to get his 59 colleagues in the first House of Representatives to attend to his proposed list of rights. 

On August 24 the House sent its version of the amendments, still resembling Madison’s original proposals, to the Senate, and the two houses bounced the proposals back and forth until the Senate agreed to the conference report on September 25, which is another of the dates celebrated as the anniversary of the Bill of Rights. 

Congress requested that the “President of the United States,” as it had been agreed to call that official, transmit the proposed amendments to the governors of the states, in order that the governors might submit them to the state legislatures. Then came some further bouncing until the legislature of the tenth state—Virginia, fittingly—ratified ten of the 12 proposed amendments more than two years later. 

There were some important changes as these proposed amendments passed from Madison’s hand on June 8, 1789, through the complicated processes of the House, the Senate, the conference committee, and the state legislatures into the Constitution of the United States on December 15, 1791. But I believe one can say that all these accumulated choices and refinements put together were not as important as those that Madison had made in the first place, sitting alone at his desk in New York, with the amendments suggested by state ratifying conventions before him, picking, omitting, choosing, editing, adding. He left out amendments that were likely to be seriously controversial because, as he scribbled in his notes for his June 8 speech, enactment required “passage by 2/3 of congs. and 3/4 of Sts.” He left out most of the technical amendments. And, of course, he left out amendments that were in effect efforts to fight the ratification battle all over again by emasculating the new federal government— such as the amendment Patrick Henry most wanted, which would have removed the direct taxing power. 

Madison proposed to weave the amendments into the body of the Constitution, but the House, wisely, made them attachments rather than sprinkled insertions. Questions of form aside, not everything Madison proposed would make it. He proposed to put a 100-word philosophical statement at the beginning of the whole Constitution—a preamble to the preamble—that would have echoed the Declaration of Independence (in somewhat less graceful language), declaring that all power rests in and derives from the people. This idea was dropped early in the debate in the House, more as a matter of a literary than political judgment: it was already clear that “We the people” was an incomparable lead. Madison also proposed an amendment specifying the separation of powers; this one too got dropped in congressional deliberations. 

What has become known as Madison’s “lost amendment”—taken out by the Senate on September 7— would have protected the freedom of the press, the equal rights of conscience, and trial by jury in criminal cases “against the states,” as lawyers say, where Madison particularly felt they needed to be protected. This would have anticipated the 14th Amendment and its 20th-century interpretation. Madison’s provision that “no person religiously scrupulous of bearing arms shall be compelled to render military service in person” would have given religiously grounded conscientious objection the status of a constitutional right, and would have created some ingenious jurisprudential argumentation in our own time about what religion is. Even so, what James Madison proposed is mostly what we have today, and mostly in his language—or rather the language he borrowed from the states.

Many of the proposals that came to Madison’s desk, by way of the recommendations of the state ratifying conventions, had been grounded in colonial experience. You have a right to be “secure,” as the Fourth Amendment says, in your person, house, papers, and effects, against unreasonable searches and seizures—like when the British customs agents ripped open your trunks and boxes, and invaded your house or boat to see whether you were smuggling anything. Your premises and effects are not to be invaded without a warrant—and it can’t be some “general” warrant or writ of assistance, like those James Otis spoke against in 1761. It has to be a specific warrant. The American colonials, particularly in Boston and New York, had reason to specify the right (laid down in the Third Amendment) not to have soldiers quartered in one’s house. As for the rights of the accused that are protected in the later articles, today it is mostly criminal lawyers, their clients, and writers of courtroom dramas who focus on them. One can picture a creative writing class requiring each student to outline a movie script derived from a different provision: unreasonable searches and seizures, double jeopardy, excessive bail, cruel and unusual punishment, trial by jury, a speedy trial, indictment by grand jury, a public trial, the right to have a lawyer, the right to be informed of charges and confront accusers. But these were not just plot devices for the first-generation republicans who shaped the American government. They identified with the accused sufficiently to feel deeply about these protections. Many of them knew what it was to be the accused, to be treated unfairly in the courts, to suffer from the high-handedness of the royal administration. (In those days, the people forced these protections on the elite. Now that a giant middle-class democracy has grown on these foundations, the broad populace, across the barriers of class and race, no longer identifies as clearly with the accused. Today, one might almost say, the situation is reversed: the elite forces these protections on the people.) 

In the most important provision of the later amendments, the provision that the powers that be may not deprive you of “life, liberty, or property,” Madison made what has proved to be an enormously important choice from the terms that were available. He quarried a phrase from New York’s long and rambling list of recommended amendments: “without due process of law.” That phrase moved the protection up a notch. Now something more than bare-bones legality was required: a process of law, which includes the care and protection afforded by fair and formal procedures, meeting a criterion of “due-ness.” Here as throughout the American Bill of Rights the principle of restraint upon government was introduced within government—again, something the other revolutionaries across the water seemed not very good at. 

The most important rights and liberties of all were collected by the Senate into one amendment, which, when the winnowing by the ratifications was complete, became the First Amendment. When James Madison first proposed these items on June 8 they had come in three separate paragraphs. Madison’s original draft of the one on religious freedom said that “the Civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established ...” and included another clause, which got dropped by the Senate: “... nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.” This last was Madison shaking his fist—not just rights but full and equal rights, to be protected not just from abridgement but abridgement in any manner, on any pretext; and conscience at the root of the entire structure.

The other two Madisonian paragraphs that were to become the First Amendment went like this: 

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. 

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

Madison made the subject of the sentence not, as in the version that became our First Amendment, “Congress,” which is abjured to make no law abridging these rights, but rather “the people,” who shall not be deprived of them. That beginning, and the slightly fuller elaboration of the rights we call free speech and free press—the people’s “right to speak, to write, or to publish their sentiments”—gives the guarantee a coherence, a clear link to the process of public argument, and a solid location in the people as the agent to whom these rights are assured. Madison gave the freedom of the press—in the context of these people’s rights—an extra emphasis with his description of it as “one of the great bulwarks of liberty.” (“Bulwark” was one of the Founders’ favorite words for these protections; “palladium” was another.) And peaceful assembly is given a reason and a purpose: “consulting for the common good.” 

Madison’s sentences have the advantage over the First Amendment into which they were squeezed, philosophically if not legally, of a little more space and a few more words, which are able therefore to convey, as the terse phrases of the First Amendment may not, the civic and communal as well as the personal aspect of these most fundamental of all liberties, their interconnection, their location in “the people,” and their role in the great tournament of reason by which a republic was to conduct its life. But the formula adopted by the Senate—“Congress shall make no law...”—had the advantage of directly restricting the holders of power, those who might be most tempted, and most able, to menace the people’s rights. 

What happened then? The American Revolutionaries did not proceed to cut off each other’s heads on the glorious guillotine or to kill each other in glorious purges. If they had lived in the age of the photograph it would not have been necessary for them to keep airbrushing out of the group pictures those revolutionaries who later lost political struggles. Two of the greatest collaborators from the earliest days of the American Revolution, John Adams and Thomas Jefferson, both of whom returned from Europe in 1789 to take part in the new government, later bitterly opposed each other. But they did not lead insurgent forces or banish each other to the hills of Kentucky or have each other liquidated. They lived on through each other’s depredations and settled down in old age to a renewed correspondence—full of reminiscences but also full of ideas, pounding away still on thoughts about government. They were able to live long enough to astonish their countrymen by dying, both of them, with breathtaking symbolic audacity, on July 4, 1826, the 50th anniversary of the Declaration of Independence. 

In 1836, ten years later, eager patriots tried to persuade James Madison to round out that miracle. He was 86 years old and failing, and they wanted him to take stimulants to keep himself alive until the 60th anniversary of the Fourth. But the modest Madison, never strong on gloire, said no thanks and died a week early.