Copyright National Humanities Center, 2014
What doubts, concerns, and misgivings arose during the development of the Bill of Rights?
The Bill of Rights, considered today a foundation of our liberties, was highly contested at the time of its creation. Some legislators saw a bill of rights as unneeded or unworkable while others saw it as an absolute necessity. Questions of states’ rights, federal rights, and the rights of individuals were all part of the debate.
Letter from James Madison to Thomas Jefferson, 1788.
Find more correspondence at Founders Online from the National Archives.
Letter, Literary nonfiction.
Grade 11–CCR complexity band. In the Text Analysis section, Tier 2 vocabulary words are defined in pop-ups, and Tier 3 words are explained in brackets.
For more information on text complexity see these resources from achievethecore.org.
Click here for standards and skills for this lesson.
Common Core State Standards
- ELA-Literacy.RI.9-10:3 (Determine how an author unfolds an analysis or series of ideas or events.)
Advanced Placement US History
- Key Concept 3.2 – II.C (Development of a Bill of Rights)
In this lesson students will explore some of the doubts and misgivings that arose as the Continental Congress debated whether or not to add a bill of rights to the Constitution. They will investigate a letter James Madison wrote to Thomas Jefferson on October 17, 1788, in which Madison discusses the pros and cons of a bill of rights. It is part of a series of letters these men exchanged on the topic. Jefferson, who was in Paris at the time, strongly supported inserting a list of fundamental liberties into the Constitution, and he asked Madison to keep him abreast of the debate. In this letter Madison not only updates Jefferson on the bill’s progress but also explains his thoughts about a bill of rights and its role in the American Constitution.
We have excerpted three passages from Madison’s letter, each accompanied by a series of close reading analytical questions for students to answer. The first excerpt explains the context of the debate, including reasons why a bill of rights might not be necessary. The second explores Madison’s reasons for supporting a bill of rights, and the third discusses how he believed such a list of rights, if written, should be structured. We have provided a short summary at the beginning of each excerpt. Spellings are retained from the original document.
You will find two interactive exercises in this lesson. The first allows students to review vocabulary found throughout the text. The second, recommended for use after you have conducted the close reading, reviews the central points of the textual analysis. You may want to use its first slide to direct whole class discussion in which you ask students to support their answers with evidence from the text. The second slide provides the correct responses with textual support.
It is important to remember that here the term “majority” refers to large groups of powerful politicians and legislators, not to a mass of voters. Moreover, Madison did not conceive of “minorities” as we do today — groups like women, African-Americans, Latinos, or other social or ethnic groups. Rather, when he uses the word, and when we use it in this lesson, it simply refers to a political group whose numbers are less than the majority.
This lesson consists of two parts, both accessible below. The teacher’s guide includes a background note, the text analysis with responses to the close reading questions, access to the interactive exercises, and an optional follow-up assignment. The student’s version, an interactive worksheet that can be e-mailed, contains all of the above except the responses to the close reading questions and the follow-up assignment.
|Teacher’s Guide (continues below)
||Student Version (click to open)
- What kind of text are we dealing with?
- When was it written?
- Who wrote it?
- For what audience was it intended?
- For what purpose was it written?
Once the American Colonies declared their independence from Great Britain in 1776, the most immediate concern was to develop a plan of government. While it managed the day-to-day conduct of the Revolution, the Second Continental Congress, in session since 1775, worked to create such a plan. It produced the Articles of Confederation, which were ratified in 1781, but by 1787 it became apparent to America’s political leaders that the country could no longer continue to be governed under the Articles. They then set out to reform the Articles in a convention held in Philadelphia, but soon they would scrap them altogether and develop something entirely new, the U.S. Constitution.Writing that document was not easy. The delegates had to work through many issues, one of the most difficult being the division of power between the national government and the state governments. While Federalists pushed for a strong national government, Antifederalists wanted to protect the rights of the states. When the Constitution went to the states for ratification in the fall of 1787, the Federalists assured their colleagues that there would be opportunities for revisions and additions to the document after ratification. Even this, however, did not satisfy some Antifederalists, who insisted on holding another convention to draw up an entirely new document which guaranteed strong protections for states’ rights. James Madison (1751–1836), one of the most influential delegates at the convention and later the fourth president of the United States (1809–1817), strongly opposed the creation of a new document and worked to forge a compromise. While he wanted to maintain strong national control over what he saw were potentially corrupt, inefficient or ineffective state governments, he agreed to the possibility of changes to the Constitution as long as they did not alter the basic structure of the original.
During the ratification process, many states submitted suggestions for additions and amendments. As a member of the House of Representatives, Madison reviewed these propositions and recommended thirty-nine of them to the full Congress. They were combined into twelve amendments to be added to but separate from the body of the Constitution. On September 25, 1789, President Washington sent the twelve congressionally-approved amendments to the states. Although in the state ratification process two of the original twelve suggestions were not approved, amendments three through twelve were adopted by the states over the next thirty months. These ten successful amendments became our Bill of Rights.In this lesson we examine excerpts from a letter Madison wrote to his friend and mentor Thomas Jefferson on October 17, 1788, in which he weighs arguments for and against adding a bill of rights to the Constitution. Today we see the Bill of Rights as an essential part of our founding document, and we often credit Madison as one of its creators. Thus it may come as a surprise to discover in this letter that his support for a bill of rights was at one time rather lukewarm. Madison was not sure that a bill of rights was necessary. States’ rights were, he believed, adequately protected within the Constitution itself, and besides he was sure that the states were quite capable of guarding their rights on their own against the power of a weak federal government. Along with his doubts about the necessity of a bill of rights, he also harbored misgivings about its workability. He was convinced that state legislatures would disregard the liberties guaranteed in such a bill whenever they decided to do so. Keep in mind that Madison was writing in 1788, one year before the Supreme Court was organized and fifteen years before it claimed the power to decide what was Constitutional and what was not. Thus when he wrote there was no enforcement mechanism to see that rights listed in a bill of rights would actually carry the force of law.
In this letter Madison subtly begins to change the purpose of the rights under debate. Originally, they were intended to protect the states from the power of the federal government, and we see that purpose reflected in Madison’s claim that the states are powerful enough to protect their own rights. But here, too, we see the debate expanded to include rights proposed to protect individuals. For example, Madison wanted to insure that any bill of rights was broad enough, possessing the “requisite latitude,” to protect the rights of such people as “Jews, Turks, and infidels.”
It is important to remember that, as Madison uses the term, “majority” refers to large groups of powerful politicians and legislators, not to a mass of voters. Moreover, Madison did not conceive of “minorities” as we do today — groups like women, African-Americans, Latinos, or other social or ethnic groups. Rather, when he uses the word, it simply refers to political groups whose numbers are less than the majority.
Close Reading Questions
Learn definitions by exploring how words are used in context.
Madison tells us that some delegates to the Continental Congress want “further guards to public liberty and individual rights,” but many are opposed. What is the basis of their opposition?
Many of his colleagues think that the additions are unnecessary, and some believe that they should not be part of the Constitution itself.
Note: In sentence 4 Madison states the he favors a bill of rights as long as it is written in such a way that prevents the states from claiming rights beyond those listed (enumerated) for them in the Constitution. However, some scholars believe that Madison may have been less than sincere in stating that he has “always been in favor of a bill of rights” because he immediately questions the need for such a bill.
How would you describe Madison’s attitude toward a bill of rights? Cite evidence from the text to support your answer.
He is lukewarm to the prospect of a bill of rights. He favors it, but he has never thought its omission a serious defect. He can agree to add a bill of rights not out of any strong commitment to one but simply because others desire it. He lamely concludes that it might be “of use,” and if done correctly, would do no harm. In the end, though, he does not see it as important.
Note: In sentence 7 when Madison says “the rights in question are reserved by the means in which the federal powers are granted,” he means that the rights that might appear in a bill of rights are already granted to the states by the way the Constitution has limited the power of the federal government.
In sentence 8, on what grounds does Madison object to a bill of rights?
He worries that if a list of the “most essential rights” were developed, in order to get them passed in the states, those rights could not be defined broadly enough, with “the requisite latitude,” to insure the rights of minorities. In other words, they would have to be defined narrowly to accommodate the prejudices of the majority and to protect only their rights.
How does he support the claim he makes in sentence 8?
He supports it by citing the example of the New Englanders who objected to a definition of freedom of religion that they considered too broad because it allowed Jews, Turks, and infidels to hold public office.
In sentence 11, on what grounds does Madison question the necessity of a bill of rights?
He believes that the federal government is so weak and the state government so fiercely committed to their rights, that the states would have no difficulty protecting their rights from the federal government.
In sentences 12, 13, and 14, on what grounds does he question the practicality of a bill of rights?
He argues that a bill of rights would not work because the states would ignore it when they wanted to.
How does he support the claim he makes in sentences 12, 13, and 14?
He cites the case of Virginia, where a bill of rights has been violated every time it has been “opposed to a popular current.”
What sentence structure does Madison use to set forth his reasons for not viewing a bill of rights “in an important light”?
He uses parallelism based on repetition of the word “because”.
 It is true…that among the advocates for the Constitution there are some who wish for further guards to public liberty and individual rights.
 As far as these [guards to public liberty and individual rights] may consist of a constitutional declaration of the most essential rights, it is probable they will be added; though there are many who think such addition unnecessary, and not a few who think it misplaced in such a Constitution.  There is scarce any point on which the party in opposition is so much divided as to its importance and its propriety.
 My own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.  At the same time I have never thought the omission a material defect, nor been anxious to supply it even by subsequent [emphasis in original] amendment, for any other reason than that it is anxiously desired by others.  I have favored it because I supposed it might be of use, and if properly executed could not be of disservice. I have not viewed it in an important light.
 Because I conceive that in a certain degree…the rights in question are reserved by the manner in which the federal powers are granted.
 Because there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude.  I am sure that the rights of conscience [freedom of religion] in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power [government].  One of the objections in New England was that the Constitution by prohibiting religious tests opened a door for Jews Turks & infidels.
 Because the limited powers of the federal Government and the jealousy of the subordinate [state] Governments, afford [provide] a security [protection] which has not existed in the case of the State Governments, and exists in no other.
 Because experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed.  Repeated violations of these parchment barriers have been committed by overbearing majorities in every State.  In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current…
Madison explains in his letter two very specific purposes that he believes a bill of rights can serve in a popular government. Summarize the purpose he states in sentence 3.
Madison believes that the rights enshrined in a bill of rights would, over time, become so widely and deeply accepted and become so natural a part of the nation’s political thought that they would protect people when those rights were threatened by groups pursuing their own narrow interests or acting out of passion.
In sentence 4 what group does Madison see as the most likely source of oppression?
He sees the greatest threat coming from “interested majorities of the people.” In other words, he fears that majorities, pursuing their own interests, may oppress minorities.
Judging from its context, what do you think Madison means by “interested”?
He is referring to the narrow, specific concerns of individuals or groups that are exclusive to them and would favor only them if promoted by government.
Summarize the purpose for a bill of rights Madison states in sentence 4.
While he believes that “interested majorities of the people” pose the greatest threat of oppression, he admits that oppression may result from “acts of government,” and a bill of rights would give people a basis, “good ground,” on which to rally opposition, “appeal to the sense of the community.”
 What use then it may be asked can a bill of rights serve in popular Governments?  I answer the two following which though less essential than in other Governments, sufficiently recommend the precaution.  The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.  Altho’ it be generally true as above stated that the danger of oppression lies in the interested majorities of the people rather than in usurped [wrongful or illegal] acts of the Government, yet there may be occasions on which the evil may spring from the latter sources [acts of government]; and on such, a bill of rights will be a good ground for an appeal to the sense of the community.
Review the central points of the textual analysis.
What does Madison mean by “absolute restrictions”?
He means definitions of rights that are so inflexible that they cannot be altered in the face of emergencies.
Why does he believe that “absolute restrictions” should be avoided?
They should be avoided because government needs the power to suspend or alter rights in the face of emergencies. If rights are inflexible, the public will simply ignore them when, in the face of an emergency, they feel the need to do so. Should this happen often, the public will disregard rights even in normal times when emergencies do not threaten.
What purpose do sentences 4 and 5 serve in this paragraph?
They offer examples of the sort of emergencies that would cause people to disregard rights spelled out in a bill of rights. If, for example, an emergency called for the suspension of habeas corpus, a fundamental right, it would be suspended regardless of its inclusion in a bill or rights.
…Supposing a bill of rights to be proper[,] the articles which ought to compose it, admit of much discussion.  I am inclined to think that absolute restrictions in cases that are doubtful, or where emergencies may overrule them, ought to be avoided.  The restrictions however strongly marked on paper will never be regarded when opposed to the decided sense of the public; and after repeated violations in extraordinary cases, they will lose even their ordinary efficacy.  Should a Rebellion or insurrection alarm the people as well as the Government, and a suspension of the Hab. Corp.* be dictated by the alarm, no written prohibitions on earth would prevent the measure.  Should an army in time of peace be gradually established in our neighbourhood by Britn: or Spain, declarations on paper would have as little effect in preventing a standing force for the public safety.
*Habeas corpus: a writ of habeas corpus is a court order that requires a government to bring a prisoner before a court and to prove that it has the authority to hold the prisoner. It is a fundamental protection against being held in jail unlawfully and indefinitely.
Madison states, The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion. He believes that the bill of rights, if adopted, will become part of our national culture and limit the powers of those who would only work in their own self-interest. Choose one of the Bill of Rights amendments and in a well-written essay explain how it has or has not become part of our national culture. Use specific evidence to support your ideas.
- propriety: appropriateness
- enumeration: a list
- material: important
- reserved: set apart
- requisite: needed, required
- latitude: breadth, scope
- inefficacy: ineffectiveness
- maxims: principles
- sentiment: opinions
- artful: cunning
- prudent: wise
- melancholy: sad
- absolute: inflexible
- efficacy: effective
- “From James Madison to Thomas Jefferson, 17 October 1788,” Founders Online, National Archives (http://founders.archives.gov/documents/Madison/01-11-02-0218 [last update: 2014-12-01]). Source: The Papers of James Madison, vol. 11, 7 March 1788–1 March 1789, ed. Robert A. Rutland and Charles F. Hobson. Charlottesville: University Press of Virginia, 1977, pp. 295–300.
- Pendleton’s Lithography. James Madison, fourth President of the United States. Lithograph. 1828(?). Library of Congress Prints and Photographs Division Washington, D.C. 20540 USA. Popular Graphic Arts Collection. http://www.loc.gov/pictures/item/96522271/ (accessed August 19, 2014)
- “Virginia’s Ratification of the Bill of Rights, 12/15/1791”. ARC ID: 5721244. File Unit New Hampshire, New York and Virginia Ratifications of the U.S. Constitution. Series: State Ratifications of the Constitution of the United States and the Bill of Rights, compiled 1787–1939 ARC ID: 4243802 / MLR No: A1 2 Record Group 11: General Records of the United States Government, 1778–2006. National Archives at Washington, DC — Textual Reference (RD-DC-1), National Archives Building, 7th and Pennsylvania Avenue NW, Washington, DC, 20408
- Letter from James Madison to Thomas Jefferson, October 17, 1788. Manuscript. Special Presentation. From the Library of Congress, James Madison Papers, Manuscript Division. http://www.loc.gov/exhibits/madison/objects.html#obj7 (accessed August 19, 2014)