A Bill of Rights or a Bill of Goods? (1)

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Now that comes from Jonathan Swift, Tale of a Tub, 1704. Now to go to Sentinel, and who was Samuel Bryan, and Sentinel number 19, and he said, Like a barrel thrown to the whale, the people were to be amused with fancied amendments, until the harpoon of power should secure its prey and render resistance ineffectual. Unquote. Well folks, that's my description. I'll trust old Samuel Bryan to describe exactly where we are today. Any resistance is ineffectual. Well, the constitutional role of the Federal Bill of Rights has been monumental. This fact would surprise most members of the First Federal Congress, the body which reluctantly proposed to the states the constitutional amendments, which were later called the Bill of Rights. Well, pardon me, the majority considered amendments an unnecessary political expedient, and of no constitutional importance, and that's why it was voted down unanimously. And they also thought that any time spent on even discussing a Bill of Rights was wasted time for a government. Well, the Anti-Federalists saw them as an impediment to the changes in the structure and the power of the new Federal Government that they wanted. They wanted these changes in that new Constitution. Many law clerks and scholars have searched in vain through the Congressional debate over the First Ten Commitments for a comment on their constitutional or philosophical implications. Instead of inspiring rhetoric and thoughtful analysis about the rights of man, they find only political fights, the most important between James Madison of Virginia and his fellow Federalists in the House of Representatives, the most bitter between the Federalists and the Anti-Federalists in the House of Representatives, and finally the least divisive between the House and the Senate. Well, we have to remember here that the First Senate was all in secret, their proceedings. The only thing we know from the Senate is what we can garner from letters sent by especially Richard Henry Lee and William Grayson, the two Senators from Virginia, and their thoughts and their actual reporting from the scene on what happened to none other than the Governor of Virginia, the President of the United States. Well, Leonard Levy aptly states that Madison is even more entitled to be known as the father of the Bill of Rights than of the Constitution. According to him, without Madison's commitment, there would have been no Federal Bill of Rights in 1791, but even he did not envision a separate Bill of Rights. Although he had long been convinced of the necessity of Bills of Rights to protect civil liberties, and that's kind of a BS line, and I'll call it as such, practical political concerns were his primary motivation, and that is true. He believed that rights-related amendments would satisfy enough Anti-Federalists to protect the new Constitution from both any of the structural amendments offered, how many of you knew that there were structural amendments offered, and the second Federal Convention, which Anti-Federal leaders were now demanding. So folks, when it comes right down to it, the only reason a Bill of Rights was written up was to prevent a second amendment, I'm sorry, a second convention, which would have absolutely dismantled the Constitution that these Federalist founders had been able to conjure together in secret. Well, they all, pardon me, I'm so sorry, but they had also to secure ratification by Rhode Island and North Carolina, who had rejected ratifying the Constitution in their first conventions. In addition, he had to consider his political survival in Virginia, which I think is the crucial issue here, because if Madison would have gone into that first Congress and not supported a Bill of Rights, which he had campaigned on heavily in his election against James Monroe for that seat in the U.S. House of Representatives, he knew that if he did not support this, he was a nothing in Virginia, after campaigning on something and then not producing it. But forced upon Madison more by the political climate of late 1788 than by the arguments of his friend Thomas Jefferson, Madison's proposals as both a Federalist and an Anti-Federalist quickly declared tossed a tub to the wheel, and that's exactly what they did. Now, Noah Webster, although not a member of Congress, expressed the point of view of many of its Federalist members in an anonymous attack on Madison, published while Madison was leading the floor fight for amendments. Now, here's what Noah Webster, the great expounder, had to say, and I quote, And that the people regret that the Congress should spend their time in throwing out an empty tub to catch people, either factious or uninformed, who might be taken more honorably by reason and equitable laws. They regret particularly that Mr. Madison's talents should be employed to bring forward amendments which at best can have little effect upon the merits of the Constitution and may, in fact, sow seeds of discord from New Hampshire to Virginia. See, folks, these Federalists feared a true Bill of Rights, but they feared even more a new convention which would disassemble and maybe cast aside this Constitution which they had created for them to run. Well, Madison and other leaders in the fight to strengthen the Federal government during the 1780s made a critical but an almost fatal error at the Federal convention by not attaching a Bill of Rights to the proposed Constitution when Anti-Federalist George Mason of Virginia and Elbridge Geary of Massachusetts called for one. Even in the face of Mason's advice that, and I quote, it would give great quiet to the people, unquote, all the states in attendance voted against adding a Bill of Rights. Now that is a rather absurd statement. The states did not vote against it. The delegates representing those states voted against it. And they had already violated the law by creating a new Constitution anyway, so what difference did that make to them that they would prevent a Bill of Rights? But Anti-Federalist Richard Henry Lee of Virginia unsuccessfully attempted to attach several hastily drafted amendments to the Constitution in September of 1787 before the Confederation Congress submitted it to the states for ratification. But the Federalist-controlled Congress was not going to allow that to happen, so his recommendations were not confined to guarantees of personal liberty, but he wanted to change the structure and to curtail the power of this new Federal government. Thus, an ambiguity in the meaning of the word amendment arose at the start of the ratification debate and remained throughout the entire process. Support for amendments could indicate either a desire that personal liberties be protected or that fundamental changes in the balance of power between the state and federal governments and in the structure of the federal government be made. As time passed, some participants in the debate over the Constitution sought to clarify the confusion by replacing the word amendment with the words Bill or Declaration of Rights for the former sense an alteration for the latter. Each of the last four states to ratify the Constitution proposed their amendments in two lists to reflect this distinction between rights and the restriction of power within the government. Well, having failed to attach amendments in the Confederation Congress, the Anti-Federalists demanded them from the ratifying conventions. Party leaders stressed the absence of a Bill of Rights similar to those which existed in the states themselves. Many Federalists considered the eloquent demands of Anti-Federal leaders for a Bill of Rights during the ratification campaign as simply a ruse to cover their opposition to the Constitution entirely, which totally restricted any sovereignty of the states and thereby threatened their political bases, which were in the states. Such a motive cannot be attributed to George Mason, who was the author of the 1776 Virginia Declaration of Rights, which preceded our Declaration of Independence, to suggest it for Patrick Henry, the chief opponent of Madison and Jefferson in their ten-year struggle for religious liberty in Virginia, although that's another story. Well, in reply to Anti-Federal demands for a Bill of Rights, the Federalists asserted that since all powers not delegated to the federal government remained with the states, there was no need for a Federal Bill of Rights, because Congress had no power to interfere with personal liberties. Yeah, right. Further, some argued a Federal Bill of Rights might endanger liberties not only because it protected only certain specified rights, but also because it implied that the central government had the power to decide which rights to guarantee. Well, no one pushed this harder than did James Wilson, who widely had a speech which he reprinted in October of 1787. It's probably the first statement of this critical Federalist argument, but it had been used earlier by both Roger Sherman of Connecticut in the Federal Convention and Madison in the Confederation Congress. It was a shrewd argument, but hardly convincing to men who knew history and who found in the necessary improper and in the supremacy clauses of the Constitution a multiple of scenarios directed straight to tyranny. In the Federal Convention, and in his objections, George Mason countered that since the laws of the United States were paramount to the State Bill of Rights, the state protections provided no security. The two sides repeated their positions ad infinitum during the months after the Constitution was before the states. Well, Delaware, New Jersey, Georgia, and Connecticut ratified without the issue of amendments even being discussed to any great extent. In Pennsylvania, Anti-Federalists unsuccessfully proposed the ratification convention actually acquire 15 rights-related amendments in conjunction with its adoption. But although published by the minority, the proposals had no legal standing whatsoever. But in February, the Massachusetts Convention became the first to adopt amendments, proposing nine amendments and alterations, which were basically the latter and did not even include protection for the freedom of the press, speech, assembly, or religion. Folks, that's important. The people in Massachusetts wanted to restrict the government. They felt like restricting the government was more important than basic rights. And, you know, we're never taught this. No one has ever really presented this to our own detriment. But the idea of a conditional ratification requiring that the amendments be adopted by the necessary number of states prior to Massachusetts ratification becoming effective was in fact rejected in favor of amendments merely recommended. Like Pennsylvania, Maryland's convention rejected the efforts of its Anti-Federalists to adopt amendments, and the minority then published them. Although many of the 28 proposals were alterations, those included far more individual rights-related amendments than either those of Massachusetts or the Pennsylvania minority. The South Carolina Convention recommended four alterations. Its decision to omit rights-related amendments may have arisen from the warning of one member that bills of rights generally began with a statement that all men were born free and equal, a condition which was not the case in South Carolina, obviously, with the institution of slavery. When, at the end of June in 1788, New Hampshire became the critical ninth state to ratify, its convention adopted the nine Massachusetts amendments almost verbatim, and then added three protecting individual personal liberty, and defeated an attempt to make its ratification conditional on their subsequent adoption. Now, four states remained out of the new union under this new constitution. Each of those four states had large Anti-Federalist constituencies, perhaps even in some cases majorities, and their conventions proposed fundamental alterations. Virginia Federalists had to accept such recommendations as the price for securing ratification without the demand for prior amendments. Virginia proposed 20 alterations and a separate Bill of Rights consisting of 20 items, so 40 altogether. Modeled on George Mason's 1776 Virginia Declaration of Rights, the proposed Federal Bill of Rights, which Virginia recommended, was the first complete and integrated bill. The New York Convention in July called for 22 alterations and a Bill of Rights of 23 provisions. In addition, New York Federalists, in order to avert a conditional ratification or an outright rejection, bowed to the Anti-Federalist demands for a circular letter to all of the states calling for a second Federal Convention to propose and adopt amendments. The movement for a second convention, an Anti-Federalist goal from the very beginning, now became a huge threat to these Federalist monarchists. The North Carolina Convention adopted all of Virginia's amendments, added six of its own, insisted that these amendments be added to the Constitution prior to ratification, provided for delegates to a second state convention, and adjourned in August without ratifying the Constitution. Rhode Island Anti-Federalists defeated the Constitution in an election sent out to the entire population, which was rejected overwhelmingly, and they also prevented the calling of a convention several times. What was the nature of the alterations which the Federalists so feared and which threatened to overturn the Constitutional revolution they had accomplished in 1787 in Philadelphia? The majorities and minorities of eight of the twelve state ratifying conventions that met prior to the first Federal Congress put forth 210 amendments. Now, while there were duplicates among them, some varied significantly in detail, enough so that one Federalist newspaper predicted that if the absurd and contrary proposals ever came to the floor of Congress, they would, and I quote, immediately like swift books, give battle to each other and soon destroy themselves, unquote. About 100 separate proposals can be distinguished from those 210 once the duplicates are removed. Now, the alterations formed a clear majority of both the 210 and the 100. Alterations in government of this proposed Constitution were more important to the people than were their individual rights. What does that tell you at this juncture? A precise division is impossible because certain amendments protected political and or personal rights while altering the powers of the central government. For example, the prohibition of standing armies in peacetime. The alterations expressed a decentralist, truly Republican political philosophy rooted in English tradition and taking into effect the American experience up to this time. First and foremost, they sought to alter the balance of power in this new system in order to make the states more equal with the Federal government because the Constitution destroyed states' rights and the Bill of Rights did not replace that. The states have no rights. The Supremacy Clause, folks. One New York amendment succinctly expressed this. All Federal officials should be bound by oath not to violate the rights and the constitutions of the states. Now, why didn't that make it into the Bill of Rights? Secondly, the alterations aimed at a pure separation of powers between the judicial, executive, and legislative branches with the latter being dominant. Finally, the Southern Anti-Federalists sought to further institutionalize sectionalism into the new system. The Federal Convention did not make the difficult decisions necessary to flesh out Article 3 creating the Federal Judiciary because they knew if they put their true wishes in there, it would never be ratified. So, they left that responsibility to the First Congress. The Anti-Federalists consequently proposed amendments designed to limit the options of Congress and to, you know, just totally take over or at least neuter the vast powers of the Federal Judiciary. Its original jurisdiction would be limited to cases involving the United States as a party, two or more states, foreign nations, and admiralty and maritime law only. Admiralty courts were to be the only inferior federal courts of original jurisdiction. State courts would hear all of the other issues with only certain ones appealable to the Federal Judiciary. Finally, if a decision of the Supreme Court dissatisfied a litigant, the President, under Congressional regulations, could appoint a commission to review the decision. This was proposed as one of the Bill of Rights. We didn't get it. Why not? Anti-Federalists found the President and the Executive Branch created by Article 2 to be far too powerful. Their proposal sought to limit both its monarchical trappings and the possibility of the President assuming dictatorial powers, either on his own or in collusion with the Senate, to which he had a connection in violation of the doctrine of separation of powers. There is no separation of powers in the Constitution, folks. The Senate and the Executive are combined in many ways. Why else would the Vice President be sitting in the Senate as a tie-breaking vote? They're combined. And there is no separation of powers, except for if you think of the Federal Judiciary, which makes its own decisions and which, as Brutus in our last lesson stated, were not appealable this side of heaven. Well, what many of these amendments wanted was the President to serve no more than two terms, have an accountable counsel to advise him, and have his powers of pardon and command of the Army in the field stopped. New York proposed that he be convicted of impeachment by a simple majority of those present. Well, despite their commitment to legislative supremacy, the Anti-Federalists did not ignore the powers delegated under Article I to a distant and small Congress. Specifically to be denied Congress was the establishment of monopolies, regulation of state militias, ratification of treaties contradictory to state constitutions, granting of titles and nobility, and adoption of direct taxes or excises, unless other sources of revenue proved insufficient and the states failed to meet special requisitions. Congress's control over elections and the Federal City would be abridged. Several states proposed a two-thirds or a three-fourths majority, usually but not always indicating sectional motives to maintain a standing army in times of peace, to pass commercial laws, and to ratify commercial treaties or treaties contracting American territorial claims. Well folks, wouldn't that have been putting the government in the hands of the people if the states had to ratify their decisions by either a two-thirds or a three-fourths majority? Well, these Federalists couldn't have that. Well, six states wanted congressional districts limited to 30,000 constituents until such time as the size of the House reached 200, after which this limitation could be raised. Finally, and most important of all of the amendments, six states proposed that all powers not expressly or clearly delegated to Congress be reserved to the states. This had been the language of the Articles of Confederation, and if attached to the Constitution, would have eliminated the doctrine of implied powers. But Thomas Jefferson, I'm sorry, James Madison made sure that would never happen. In the first House, with his argument with Thomas Tudor Tucker, who wanted to replace that word expressly in front of the word delegated, which would have limited the Congress and the U.S. government to only its powers which were delineated or written out. But good old James Madison argued to the point of stating very openly on multiple occasions that no government can be held to its expressly delegated powers. It must have powers of implication, which means it has powers that it alone decides whether it has them or not. Well, ratification by 11 states had legitimized the Federal Convention. But Federalists had little time for any celebration since they saw ahead an anti-Federalist movement poised to attack the ship of state. Refusal to accept a Bill of Rights at the Federal Convention had cost Federalists dearly. In Massachusetts, acceptance of the idea of subsequent amendments. In Virginia, recommendations for fundamental alterations. In New York, a circular letter to the states calling for a Federal Convention just for amendments. And in North Carolina, for prior amendments. In addition, four states, including Virginia, had instructed their delegates to the first Congress to devote every effort to obtaining these amendments. August and September 1788 provided new threats. A group of New Yorkers attempted to unite anti-Federalists up and down the coastline. Congress deadlocked over where the first Congress should meet. And Pennsylvania anti-Federalists had called the first statewide political party convention in American history for the purpose of adopting amendments and selecting a slate of candidates to support them in the first House of Representatives. The Federalists panicked because they feared that the anti-Federalists might take control of the first Congress. George Washington actually lamented to Madison in a letter, and I quote, We are about to be shipwrecked inside of the port, and it would be the severest of all possible aggravations to our misery, unquote. That proves that George Washington was a member of the criminal conspiracy. No national issues arose during the first Congressional election in the winter of 1788 and 1789 aside from that of amendments. The entire election was all about amendments. Having failed to obtain changes before the ratification, and being uncertain whether a second convention would ever be called, the anti-Federalist leaders sought to insure them by means of electing a Congress that would, in the opinion of Madison, commit suicide. All the anti-Federalist candidates promised support for amendments, both alterations and rights related. In some cases, Federalist candidates pledged themselves to amendments, although usually remaining vague about which ones they might support. Lying politicians, people, have been around forever, and the ones who lie are the ones who want to trick you. Well, despite the Federalist fears, anti-Federalists did not really fare very well in the election. Americans, by virtue of a general willingness to try the new system, and expectation of amendments, and partisan election laws in some states, actually swept the Federalists into the first Congress from all states except Massachusetts, New York, Virginia, and South Carolina. And we have to remember that North Carolina and Rhode Island did not hold their election until after the first session of the first Congress. So they had nothing to do with this first Congress. Those four states sent ten anti-Federalists to a 59-man House, and Virginia sent two anti-Federalists to a 22-man Senate. So the Federalists held a strong majority. The major contest, and the one with which the most national coverage, occurred in the Virginia Piedmont during January and February of 1789. There, James Madison ran against James Monroe, who was a milquetoast anti-Federalist, I would say. The Congressional District had been carefully constructed by Patrick Henry to keep the nationally known and respected James Madison out of the House of Representatives, just as he had been able to keep him out of the Senate. But Monroe advocated amendments to a sympathetic constituency, which had been led to believe that Madison was dogmatically attached to the Constitution in every clause, syllable, and letter. Such an opinion about Madison had a firm foundation, but it failed to acknowledge a shift that had gradually taken place in his thinking since he had condemned the subsequent amendments of Massachusetts as a blemish and had convincingly argued to a Virginia political rally against a Federal Bill of Rights. He may have changed his mind, but only for political purposes, people. In the Virginia Convention, Madison had repeated the stock Federalist argument that a Bill of Rights was unnecessary if not dangerous. But in the end, when he saw that Patrick Henry could sway that entire ratification process, he gave in to support to the Convention's amendments, even though many were highly objectionable to him. So see, this was a political move. It was not a philosophical move. The New York call for a second convention had frightened Madison much more, but even as late as early August 1788, he still told the people that we need a trial period of a few years to demonstrate actually what amendments this Constitution might need. Well, North Carolina's refusal to ratify without amendments and the Anti-Federalist resurgence as the autumn of 1788 approached actually kind of made Madison do that good old political flip-flop. It had taken him a year to accept the reality of the drastic mistake that had been made at the Federal Convention. At the end of September, he informed, by letter to Thomas Jefferson, then American minister to France, that, and I quote, safeguards to liberty against which no objections can be raised should be introduced in the Congress. My own opinion has always been in favor of a Bill of Rights. Well, he lied through his teeth to Jefferson. And Madison asserted a month later in a comprehensive letter to Jefferson, whose letters during the preceding year had helped to ease the pain of the turnabout by providing a sophisticated rationale. And so Madison says to Jefferson, I have never thought the omission a material defect, nor been anxious to supply it, even by subsequent amendment, for any other reason than it is anxiously desired by others. There he said it. He didn't want it. He says, I have favored it now because I suppose it might be abuse, and if properly executed, could not be of any disservice. Properly executed means worded properly to prevent the people from actually having any powers whatsoever and for what they had written on parchment to be totally illusory. An illusion. There is no Bill of Rights, even to today. But early in November, as Virginia had prepared to elect its first senators, candidate Madison, an obvious choice for the Senate, wrote from the Confederation Congress at New York to a friend in the legislature at Richmond, announcing that he did not consider the Constitution faultless. Oh, well, thank you, Mr. Madison. You wrote it in many respects. Well, Madison managed to discourse at length in this letter without mentioning one specific amendment that he would support. And he said, and I quote, the universal cries for amendments and the Federals are obliged to join in it, but whether to amuse or to conceal other views seems dubious. He's admitting the whole thing. Well, anyway, Patrick Henry contended that anyone who wished for amendments wasted a vote on Madison and told the legislature his election would produce rivulets of blood throughout the land, unquote. Well, finding himself the underdog in the congressional campaign against James Monroe, Madison rode painfully home from Philadelphia. It had to be. He had a terrible case of the hemorrhoids. But joining Monroe in a series of debates, Madison stressed his long sought struggle for separation of church and state in Virginia. Also, he declared in letters to influential constituents publicly read around the district and printed in newspapers throughout the United States that with the Constitution safely ratified, amendments could then be considered. Specifically, Madison favored congressional approval rather than a second convention of amendments to safeguard all of the essential rights to provide for the periodic increase of the House of Representatives and to protect the people against nuisance appeals by the wealthy to a distant United States Supreme Court. In a number of other particulars, Madison believed, alterations are eligible either on their own account or on account of those who wish for them. Wow. While clearly refuting the allegation that he opposed any amendments, which he had stated to wonderful politicians even back then, that statement left vague how many and which alterations he would in fact support. Well, Madison unfortunately defeated James Monroe 1,308 votes to 972. The fact that he had given his word during the campaign to produce amendments underlies all of the reasons he later gave for supporting amendments. He lied about supporting amendments to get elected to the Congress, to the House of Representatives because he had been defeated in the Senate. And so he knew he had to make a promise he had no intention whatsoever of ever actually following through on except in a perfunctory manner. Well, Virginia Anti-Federalists continued to question Madison's sincerity. Did he really convert or was this just the politician? Well, George Mason emphasized that Madison would never have been elected without making some promises and had now suddenly become, quote, the ostensible patron of amendments. Perhaps some milk and water propositions may be laid by way of the throwing out of a tub to the whale, but of important and substantial amendments, I have not the least hope that Madison will ever approach them. Senator Richard Henry Lee wrote his old ally, Patrick Henry, that Madison's ideas and those of our convention on this subject are not at all similar. An anti-federal newspaper called on members of the first Congress to adopt amendments as their first order of business. And I quote, the interest of this new empire requires a union of sentiment and Congress can do much that way if the subject of amendments has that proper attention paid to it, which from its importance it naturally claims, unquote. But the Federalist Press, having contributed to an election landslide, ridiculed the idea of amendments, especially any alterations in the government. And I will quote, they said, the worship of the ox, the crocodile, and the cat in ancient time and the belief in astrology and witchcraft by more modern nations did not prostrate the human understanding more than these numerous absurdities. Oh, proposed as amendments. They're absurd. Okay, does that not tell you anything, people? Well, an anonymous 28-part essay analyzing the state proposals concluded with this statement. And I quote, if we must have amendments, I pray for merely amusing amendments with a little frothy garnish. Thirteen. Wow. With a little frothy garnish. Oh, my. That tells you what these people were up to. Typical politicians, even 230 some years ago. When Congress achieved a quorum in April, Madison naively expected no great difficulty in getting the Federalist Congress to adopt amendments. Those which, according to Madison, I am known to have espoused, will as far as I can gather be attainable from the Federalists. These selected proposals would extinguish opposition to the system, or at least break the force of that opposition by detaching the deluded opponents from their designing leaders. Madison says everything he's about right there. So, on May the 4th, a month after the session opened, and in order to draw attention from Virginia's application for a second convention, which was submitted the next day, James Madison gave notice that he would offer amendments in three weeks. He later agreed to two postponements to allow the revenue debate to proceed. Aha! Taxing is more important to James Madison than to the rights of the people. That's why they had a new convention. That's why they got rid of the Articles of Confederation. Well, finally, on June the 8th, informing his colleagues that he felt bound by honor and duty, Madison moved that the House sit as a committee of the whole to receive and debate his amendment proposals. But his colleagues let him know quickly that they did not consider the matter as urgent as he did. They were not expressing opposition to the protection of civil liberties. Oh, yes they were. On the contrary, almost all, even Madison's most vocal critics, had advanced somewhat crazy ideas for their times. They had other reasons for opposing the debate about amendments. Amendments meant alterations as well as protections for civil liberty. Congress, they said, had more important business. Aha! More important than the protection of civil liberty. They gave themselves away again. And they said the debate might produce the first public display of a sectional division within the young republic. Most Federalists, basking in their election sweep and control, believed amendments totally unnecessary either as a political strategy or because personal rights needed protection at the federal level. Forgetting their fears of six months earlier, Federalists called for postponement to allow a trial period for the new system without amendments. As Roger Sherman, the House's most vocal opponent of amendments, expressed it, if the people had really wanted amendments, they would have secured them prior to ratification. Well, Mr. Sherman, they tried every way in the world and were rebuffed. But Anti-Federalists also wanted a postponement because they suspected Madison's proposals would fall far short of the alterations they sought in this new government. Madison's only support came from two Virginia Federalists who understood Patrick Henry's influence. But in response to this reluctance, Madison delivered a long speech defending his motives and arguing for the expediency of new amendments. Every motive of prudence argued for them, he pleaded. Typical politician. Large numbers of Anti-Federalists would thereafter support the Constitution and North Carolina and Rhode Island would rejoin the Union if they would just add these amendments. He claimed his proposals aimed at not only curbing abuses by government against the people, but also, more importantly, at protecting minorities against majorities. Oh boy, does he ever get off on that subject in the Federalist papers. Publicly abandoning the stock Federalist argument that in a government of delegated powers no civil liberties can be infringed, Madison noted as an example that since Congress had all the power necessary and proper to collect revenue, it might issue general search warrants as a means for doing so. My gosh, have they ever done that? Thank you IRS. Madison argued that no serious objection could be raised about the items he proposed to recommend, for they were chosen carefully to secure a two-thirds vote in Congress and ratification by three-fourths of the states. Madison refused to support alterations in the government. To be sure, he contended some respectable individuals had sought such amendments, but the mass of the people had been concerned only about encroachment on their liberties. In conclusion, Madison offered and discussed in detail each of his proposals before that Congress. Relying heavily on Virginia's Convention Bill of Rights, and therefore on George Mason's 1776 Virginia Declaration of Rights, Madison incorporated into his June 8 proposals most of the rights-related amendments recommended by the states. He did not omit any frequent elections encumbered by poll taxes, a declaration of civilian control of the military, freedom from the suspension of laws or their unauthorized execution, and freedom to hunt and fish in seasonable times. Madison included two rights-related proposals not recommended by any state. See, Madison makes up his own stuff. He stated, No person could be forced to give up private property without just compensation, and no state could infringe on the equal rights of conscious freedom of the press or trial by jury in criminal cases. Of the proposed alterations, Madison included only a handful, some of which were rights-related as well. One regulating the apportionment of the House in order to set a limit on its size, and to facilitate constituent access. One confirming separation of powers. Oh, wow. One regulating the compensation of congressmen to prevent salary grabs, or setting a minimum monetary value on cases which could be appealed to the Supreme Court to prevent vexatious appeals against the poor, and one declaring that all powers not delegated were reserved to the states. Not expressly delegated, he would never say. The latter proposal significantly lacked that word expressly, between not and delegated. In sending off copies of his amendments to acquaintances in Virginia and North Carolina, Madison insisted that he design them to touch, and I quote, the structure and stamina of the government as little as possible. Yet they were important in the eyes of many, and objectionable in those of none. Despite Madison's long and comprehensive speech on that day, neither Federalist nor Anti-Federalist seemed inclined to proceed with the business. Madison had done his duty, Federalist William L. Smith of South Carolina smugly told the House of Representatives. And then said, and I quote, and if he did not succeed, he was not to blame. Anti-Federalist again urged a postponement until the new government had been organized, and the House could take up all of the amendments of the states, rather than merely those few propositions brought forward by an individual gentleman. See here folks, James Madison had taken all of these 200 amendments down to 100, and once you do away with the duplicates, and he had condensed those himself, with a committee of Federalist lawyers, to rewrite these amendments. And we'll be getting into that as we move along. The Federalist representative George Clymer of Philadelphia had reflected in a letter just before the speech on whether Madison meant merely a tub to the whale, a declaration about the press, liberty of conscience, etc., or will suffer himself to be so far frightened with the Anti-Federalism of his own state, as to attempt to lop off essentials. What did this George Clymer consider to be the essentials of government? The control of the people. Well, a postscript added after the speech summed up the view of almost everyone. He said, Madison has proved a tub on amendments. Later, Clymer described Madison as a sensible physician, who has given his maladies imaginary bread pills, powder of paste and neutral mixtures. Well, there you go, folks. If that doesn't tell you exactly what these people are about, I have no idea what would. And as I told you, this is going to be quite interesting as we move along. And so, here's what we know also, is that these other Federalists, or Monarchists, representatives characterized their proposals as innocent, nugatory, premature or unnecessary. Fisher Ames, who was the ultimate Monarchist in many opinions, he just really went after Madison and he was very upset with even the offer of a Bill of Rights. And he said, and I quote, Well, Theodore Sedgwick thought their introduction unwise and of no value politically. On and off the floor of Congress, both of these Massachusetts Federalists questioned Madison's motives in letters. And we're going to get to those, folks. And they complained about his timidity and lack of nerve when confronted by popular clamors and declared Bills of Rights to be of no constitutional importance. At the same time, both men, despite harassing Madison on the floor of the House, let friends know early in the debate that they intended, in the end, to support a modification of what Sedgwick termed Madison's water gruel amendments. Unquote. Well, Madison's proposals had become public throughout the country after they were published in the New York Daily Advertiser on June the 12th. A Boston Anti-Federalist reported that Federalists had openly expressed disappointment with the great man from Virginia. They think he appears too serious in his motion for amendments. People, the first Congress didn't want any amendments. And the amendments they agreed to could be easily neutered by the courts. We have witnessed this for 234 years now. But Anti-Federalists, getting back to this, Anti-Federalists in Boston, on the other hand, complained that Madison had, and I quote, laid aside the amendments proposed by the several states in order to prevent anything being done on the subject. Which is exactly true. And we're going to take a look at those 100 amendments and look at the 10 that you got. You got one-tenth of the amendments proposed. Well, if those amendments were proposed by the states, why were they not submitted to votes by the states? And instead of being set in Congress, which was heavily Federalist? Well, who knows? Nevertheless, a letter to a newspaper predicted, and listen to this, quote, they will give general satisfaction and quiet the minds of many well-disposed citizens. Well, all right. Madison received a great deal of reaction. And I quote, I like it as far as it goes, but I should have been for going further, wrote Jefferson. Aha. I wonder if Jefferson ever saw the amendments that were thrown onto the floor and were never considered. Others suggested Madison include the power for Congress to declare where canals should be cut, a two-thirds majority for commercial laws, and a three-fourths majority for treaties surrendering American territorial claims. If chips must be put into the porridge, wrote Richard Peters, Speaker of the Pennsylvania Assembly, I would let the bad cooks put them into the pot, nor should any throw out tubs but those who are afraid of the whale, unquote. Madison understood all too well about tubs and whales, but he questioned Peters about the porridge. Madison soon received a cable entitled, or a fable, The Wise Cooks and the Foolish Guests. Eleven cooks carefully prepared an excellent soup, dissatisfied some of the guests' proposed changes in the recipe to the extent that the soup became unrecognizable. Had you lived in the days of these cooks, Peters pointedly teased Madison, your easiness of temper would have prompted you to indulge the anti-soup-ites in some of their whims of an innocent nature, especially if they had been some of your neighbors, unquote. Madison, delighting in his correspondence with Peters and seeking to change his disapproving mind, argued the necessity of amendments. As an honest man, he felt bound by the fact that the Constitution was adopted in Virginia and other states with a tacit understanding of subsequent amendments. Further, Madison insisted that if the Virginia candidates in the Congressional election had not taken a positive stand on the issue of amendments, the delegation would have been almost wholly disaffected, that if the Federalist side of the House had not acted, the Anti-Federalist side would have, that if adopted, his amendments would destroy the opposition everywhere, enable the administration to venture into measures not otherwise safe, and prevent Anti-Federal leaders from blowing the trumpet for a second convention, unquote. He did not want anyone to take his new Constitution into measures he did not seem or believe to be safe. Well, problem is, didn't work on old Richard Peters because he remained unconvinced, believing Madison's apprehensions too highly wrought and his amendments merely a banner for the Anti-Federalist leaders to raise because the alterations they thought, they sought, had all been excluded. Madison's incoming letters also brought the news he hoped to hear. The honest Anti-Federalists, as well as the Federalists at Philadelphia, were pleased, reported Tinchcox. Madison's mouthpiece in the Philadelphia press. The designing and less honest opponents had been stripped of their arguments, Cox insisted. Virginia Anti-Federalists and Federalists approved, allegedly. Although details of Madison's proposals were unknown in North Carolina, news from there particularly encouraged them. That state's Anti-Federal leadership wanted amendments which confined Congress to expressly delegated powers. But Federalist Samuel Johnston, soon to be elected to the first United States Senate, thought, and I quote, Oh, yeah. Six weeks later, on July the 21st, Madison begged the House to take up his proposals. It spent the day debating whether to free the Committee of the Whole from its assignment and to appoint a select committee instead. Federalists saw no good purpose in discussing the subject below crowded public galleries, so they established a select, secret committee composed of a member from each state, despite the Anti-Federalists' call for a public debate. Why would the Federalist Congress not want a public debate with a gallery? Why did they keep the convention secret? Come on, folks, it really is pretty well known. The committee, whose members were unsympathetic to amendments, Oh, you mean you put together a committee of all Federalists? Oh, well, of course you did. was reported back to the House a week later. It discussed the missing state proposals, but, as Chairman John Vining observed, it, and I quote, Oh, yeah, sure. Why didn't you give them to the people and let them decide instead of you, Mr. Vining? Well, it retained Madison's plan of incorporating the amendments into the body of the Constitution itself rather than appending them at the end, as Committee member Roger Sherman urged. The report also tightened Madison's prose, rearranged his proposals, and narrowed considerably the absolute guarantees of religious freedom and the equal rights of conscience. Most prominently, it gutted Madison's majestic natural law preamble by omitting the right of the people to reform or change their government whenever it be found adverse or inadequate to the purposes of its institution. Folks, they didn't want anybody altering their government. They still don't today. The statement that acquiring and using property, pursuing and obtaining happiness and safety? Those couldn't be considered. The report reflected the Federalist viewpoint of 1789 that supportive government stability rather than the right of revolution proved uppermost in their minds. The principles of 1776, enunciated by George Mason in the Virginia Declaration of Rights and by Thomas Jefferson in the Declaration of Independence, should never be added to the Constitution. Why not? Madison, firmly attached to his own ideas, if not his own words, showed displeasure with the revision, although he admitted some things had perhaps been changed for the better. Now, Sherman, reported to have opposed civilian control of the military in that committee, thought the proposals probably harmless and satisfactory to those who are fond of bills of rights. William Loughton Smith found them inoffensive and perhaps of some strategic benefit. On August 13, two Virginians moved to go into committee of the whole on the Select Committee's report of two weeks earlier. Once again, spokesmen from the Federalists urged postponement. Even Select Committee Chairman Byning expressed ambivalence, but being, and I quote, impressed by the anxiety which the Honorable Gentleman for Virginia had discovered for having the subject debated, Byning would support its consideration instead of the Land Office Bill, which, in point of importance, every candid mind would acknowledge a preference. See, folks, the land and the money to be made from it to these people was more important than the rights of the individual. But Elbridge Gerry considered the new proposal so inadequate, or the new amendments, so inadequate that they, and like many others, they would be offered on the floor would require a lengthy debate. Madison insisted that adoption of amendments before the session ended was vital and that any proposals in addition to his would waste the House's time. Only yours matter, right, little Jimmy? Once again, the members yielded to Madison and postponement failed. The first motion set off a long debate as Sherman attempted, without success, to place any amendments at the end rather than within the body of the Constitution. From August 13th to 18th, the Committee of the Whole considered each proposal individually. The high point of the debate took place on August 15th. The debate was between Federalists and Anti-Federalists, except for Sedgwick's complaint that to guarantee the right of assembly descended into minutiae and his suggestion that the Constitution might just as well protect a man's freedom to go to bed when he chose. Led by Elbridge Gerry, the other Anti-Federalist spokesmen were Aidanist Burke, Thomas Tudor Tucker, and Thomas Sumter of South Carolina. Gerry and Sumter accused the Select Committee of being so attached to its own work that it would refuse to tolerate any change. Burke declared that the proposals before the Committee of the Whole would never satisfy the people, that Madison's amendments were, and I quote, "...frothy and full of wind, formed only to please the palate, or they are like a tub thrown out to the whale to secure the freight of the ship and its peaceable voyage." Well, Madison responded to the attack. Had not the people been told that they should oppose the Constitution until they secured these very rights? Had not the amendments he proposed been the ones most strenuously advocated by Anti-Federal leaders? No, they weren't, but that was a good argument. Who, he implied, was deceiving whom? Burke did not argue that point, but instead held up copies of the amendments of several state conventions to show the difference between those Madison had proposed and those which had been proposed by the individual states, concluding that all the important amendments had been purposely omitted. Federalist William Smith summarized the day's debate as more ill-humored and rude than any other that had occurred in Congress. Likely, it was during this day's debate that members of both sides actually challenged opponents to duels in the first Congress. Bet you didn't know that. Well, when the Committee of the Whole reconvened after its Sunday adjournment, Burke proposed that it add to the Select Committee Report, a popular item from the Virginia Ratification Convention's proposed Bill of Rights, civilian control of the military and a prohibition against standing armies in a time of peace except from actual necessity. The motion failed. Tucker took offense at Madison's proposal to prevent the states from infringing on certain specified rights of the American citizens and moved without success that it be struck. Elbridge Gerry moved that all of the amendments of the states not contained in substance in the Select Committee Report be referred to the Committee of the Whole and that it adopt a report incorporating all of them within the work of the Select Committee. Thomas Tudor Tucker threatened a second convention in support of the motion. Nevertheless, the motion lost 34 to 16. Well, who had control of the Congress, folks? Federalists. After a heated debate with frequent calls to order, the Committee of the Whole rose and submitted the Select Committee's report to the House, having made very few minor changes in it. The House began its consideration immediately. Tucker moved to refer 17 of the alterations recommended by the states to a new Committee of the Whole, but again his motion was defeated by the Federalist Monarchist. Apparently, none of the Select Committee's amendments had received the two-thirds majority in the Committee of the Whole necessary to gain approval by the full House. Somewhere, Madison would have to locate the votes. President Washington, who had urged Congress in his inaugural address to adopt amendments promoting the rights of free men without altering the system in any way, had given Madison a letter of support. Washington thought some of the proposals unimportant, but not foreseeing any evil consequences that can result from their adoption, they had my wishes for a favorable reception in both Houses. Well, lukewarm though it was, the note probably influenced House Federalists to unite behind Madison's amendments. In addition, their postponement or defeat at that stage of the process might provide Anti-Federalists with new ammunition by which to conduct a campaign for that feared Second Convention. Madison paid a price for the Federalist votes he secured in order to assure the necessary two-thirds majority. Federalists voted out the little that remained of Madison's preamble and agreed to Sherman's motion that the amendments be placed at the end of the Constitution instead of actually in the Constitution. Madison considered the latter change, and I quote, an unavoidable sacrifice to a few who knew their concurrence to be necessary to the dispatch, if not the success of this business, unquote. Madison feared that the placement would lead to ambiguities about how far the original Constitution had been superseded by the amendments. Actually, the change set a precedent for isolating amendments, broadened their role in Constitutional law, and made it possible to point to a body of amendments known as a Bill of Rights. Well, on August 20th and 21st, the House made only minor changes while moving rapidly through the proposals. When what became the Tenth Amendment limiting the central government to only those powers delegated came up for approval, Elbridge Gerry moved to add the word expressly between powers and delegated, thus bringing reservation of powers into conformity with the Articles of Confederation and the amendments proposed by six states in eliminating the doctrine of implied powers. William Smith and another southern Federalist voted with the anti-Federal minority because they believed adding the word would go a long way to prevent Congress from interfering with the institutions of the state, possibly slavery. Burke proposed without success that Congress be stripped of its power to interfere with state regulation of Congressional elections unless a state proved unable, neglected, or refused to hold elections. In the long debate which ensued, Madison expressed opposition not so much to the popular proposal as to the timing of its introduction. Elbridge Gerry saw no reason for omitting it except to establish an arbitrary government and I quote, to which the present system is pointed in no very indirect manner, unquote. Burke, Thomas Burke, decried the assertion often heard in the House that this revolution or adoption of this Constitution was agreeable to the public mind and that those who had opposed it at first are now satisfied with it. On the contrary, Burke claimed that Americans had parted with their liberties out of patriotism relying on future amendment by Congress to restore them. Having failed to secure the recommendation of such a popular amendment, anti-Federalists had little hope left. Irritated, Madison noted privately at the end of the day that the anti-Federalists were trying to and I quote, defeat by delaying a plan short of their wishes but likely to satisfy a great part of their companions in opposition, unquote. The last eight days, he complained, had been extremely difficult and fatiguing and exceedingly wearisome. By August 22nd, both the heat and the ill humor had subsided. Tucker moved the adoption of one more amendment. Congress shall not impose direct taxes except when duties, imports and excises proved insufficient and then only after a state had refused to pay a Congressional requisition. Many Federalists, Madison included, saw the elimination of Congress's power to lay direct taxes as the chief anti-Federalist goal. Samuel Livermore of New Hampshire, besides William Floyd of New York, the only Federalist voting consistently with the anti-Federalists, declared it to be the most important amendment to come before the House. Unless something more effectual was done to improve the Constitution, he knew his constituents would be dissatisfied. As to the amendments already agreed to, they would not value them more than a pinch of snuff. They went to secure rights which were never in danger. Gary and Sumter warned that the states would be annihilated if the power of direct taxation remained in the Congress. But again, folks, the Federalist-controlled House of Representatives voted down the motion. With the defeat of four more proposals on voice votes, House anti-Federalists gave up the fight for alterations. The two anti-Federalists who had spoken against Madison's proposals most frequently expressed their dissatisfaction privately. Elbridge Gary confirmed Madison's analysis that a real difference existed between anti-Federalist spokesmen and their followers. The House proposals had no other purposes than to reconcile those who had no adequate idea of the essential defects of this Constitution, said Elbridge Gary. Thomas Tudor Tucker was fumed that they were calculated to amuse, or rather to deceive, unquote. And he's exactly right, and they're amusing and deceiving today. Look at the idiots running around claiming, Oh, we've got Tenth Amendment rights, yeah, we've got, yeah, okay, right. Well, on August 24th, the House transmitted 17 amendments to the Senate. Madison found them little changed from the report of the Select Committee. The two Philadelphia representatives advised their fellow townsmen, Senator Robert Morris, that the Senate adopt the whole of them by lump as containing neither good or harm, being perfectly innocent. Robert Morris, who held Madison responsible for all the time the House had wasted on amendments, disagreed. And the wonderful, you know, conspiratorial embezzler said the following, quote, Poor Madison took one wrong step in Virginia by publishing a letter respecting amendments, and you know what a cursed thing it is to write a book, unquote. He joshed with Richard Peters, concluding at the end of the Senate debate that they are what Sentinel calls them a tub for the whale. Senator Pierce Butler of South Carolina agreed that Madison had only milk and water propositions. I suppose to keep his promise with his constituents, which is exactly what happened. The Senate met in secret, and the unofficial recorder of the debates, Federalist William McClay of Pennsylvania, was bedridden for all but the first day's debate. He noted in his diary then that Senators Morris, Ralph Izzard of South Carolina, and John Langdon of New Hampshire treated the amendments contemptuously and unsuccessfully urged a postponement until the next session of Congress. Senator Richard Henry Lee of Virginia reported a debate over whether liberty or speech and freedom of the press should be struck from the amendments on the grounds that they only intended to encourage licentiousness among the people. He was also probably the source for the assertion that a simple, but not the necessary two-thirds majority of the Senate opposed the right of the militia to bear arms. Bet you didn't know that, did you? The two anti-federal Senators, Virginia's Richard Henry Lee and William Grayson, faced the overwhelming odds of 20 to 2. Earlier in the session, when Grayson had proposed laying the Virginia Convention amendments before the Senate, Lee persuaded him to wait until the House acted, and both men closely observed proceedings in that House. Grayson complained that Madison's proposals effect personal liberty alone, leaving the great points of the judiciary, direct taxation, standing armies, and others to stand as they are. The strategy of such a tactic, the Senators reasoned, was merely to break the spirit of the anti-federalist party by dividing the party. Lee believed that the Federalists, having gained their new government, wished to neglect the condition upon which probably their success was founded. Lee and Grayson failed to preserve and strengthen the House proposals, and to add one by one the Virginia amendments which had been omitted by Madison. When it completed work on the amendments on September the 14th, the Senate had made 26 changes. Aside from tightening and revising language, the Senate rearranged and compressed the 17 articles into 12, and made significant changes within their content. Struck from the House amendments were ones forbidding the states from infringing certain rights of Americans, asserting separation of powers as a principle of the United States government. See folks, I told you there is no separation of powers. Guaranteeing freedom of conscience, exempting from military service those with religious objections, and the vicinage requirements in criminal trials. The monetary minimum for appeals to the Supreme Court, and the provision for trials of crimes committed in a place in possession of an enemy. The Senate added a minimum of $20 at issue to ensure a jury trial in common lawsuits, weakened the guarantees of the Religious Liberty Clause, and significantly added, or to the people, at the end of the 10th Amendment. That is a great argument. Because why did they need, or to the people? Because they meant the people in aggregate, and not the people of the states. That's lawyer salad, folks. That 10th Amendment is worthless. Well, the Senate also inserted a preamble describing the amendments as a response to the State Ratification Convention, and as a means of extending public confidence in the government. Senator Lee understandably found the statement ironic. He believed the Senate had mutilated and enfeebled the House proposals of a Bill of Rights, and assured Patrick Henry that he and Grayson had made every effort to secure the adoption of the Virginia Amendments. And I quote from that letter, We might as well have attempted to move Mount Atlas upon our shoulders. In fact, echoing the warning of the Federal Farmer two years earlier, Richard Henry Lee lamented that not insisting on prior amendments of the Constitution had been little better than committing suicide. Unquote. And he continued, The lower house sent up amendments which held out a safeguard to personal liberty in a great many instances, but this disgusted the Senate. Folks, the government was disgusted about personal liberties. 234 years ago. You think it's different now? And even William Grayson reported to Patrick Henry, and I quote, They are so mutilated and gutted that in fact they are good for nothing. And I believe, as many others do, that they will do more harm than benefits. Unquote. William Grayson, you were a genius. Because the harm today is in the fact that the people still believe the lie, and that we have people out there like David Barton and Chris Ann Hall out there preaching that they do what they have never done. But also angered by Senate changes, Madison claimed they struck at his most salutary proposals. Reports circulated that he had declared the amendments stripped of their sedative virtue and that none was better than those agreed to by the Senate. Predictably, Sherman and several other congressmen who had reluctantly supported Madison welcomed the amending hand of the Senate, and when President Washington forwarded the Twelve Amendments to the states in early October, most of the Senate change had remained. Folks, little is recorded about the ratification process within the states. The Anti-Federal Leviathan had submerged, and no new unified opposition had replaced it. Other issues, such as the assumption of the states' Revolutionary War debts by the central government and the location of the federal capital, had captured the public attention. Although nine states ratified the amendment within ten months, it took more than two years before the necessary tenth state acted. Several states rejected either the first or second of the proposed amendments on apportionment of the House and on compensation to members of Congress, and so, to Madison's further chagrin, the Twelve became Ten. In the four states where anti-federalism had never been a major force, New Jersey and Delaware ratified the amendments just as quickly as they had the Constitution itself, while Connecticut and Georgia waited until the 1939 sesquicentennial of the Bill of Rights. Although important but not always effective, anti-federalist parties had existed in Maryland, South Carolina, and New Hampshire. All three states ratified the amendments between December of 1789 and January of 1790. Pennsylvania had influential anti-federalists, but it ratified the amendments in March of 1790 despite Samuel Bryan's revival of Sentinel. Bryan repeated familiar arguments about the kinds of changes that the Constitution really required and described the Twelve Amendments as an opiate described to subjugate the people. In his view, Madison had rendered Mikey O'Belly piddling by comparison. In Massachusetts, the anti-federalist leadership unsuccessfully proposed an additional twelve alterations in the legislature, and a last-minute disagreement between the two houses prevented adoption of the amendments. Finally convinced that it had never ratified the Bill of Rights, Massachusetts did so in 1939. Well, most of the complaints about the amendments came from the four states with the strongest anti-federalist parties. The New York anti-federalist leaders found them trivial, unequivocal, and unimportant since the people in the states lacked the power to enforce them. New York, however, agreed to them in February of 1790. In North Carolina, the amendments helped bring the state back into the Union as Madison and others had hopes. Nevertheless, the November 1789 Convention, which ratified the Constitution a month prior to the legislature's adoption of the amendments, had demanded that its congressmen seek eight additional amendments. These provided further guarantees of personal liberty, but primarily altered the structure and powers of the federal government in order to protect state interest. North Carolina's representatives attempted without success to bring the proposals before the House in March and May of 1790. In November of 1790, the North Carolina Senate killed a resolution for a second federal convention. Rhode Island informed the federal government in September 1789 that the amendments, and I quote, already afforded some relief and satisfaction to the minds of the people of this state, but it did not ratify the Constitution until May of 1790. With its ratification, Rhode Island sent a list of 21 alterations and 18 rights-related amendments, which the state assumed to be unimpaired by the federal Constitution. Among the novel alterations offered by Rhode Island, it proposed an end to the importation of slaves as soon as possible, and a provision that no amendment to the Constitution could take place after 1793 unless 11 of the original 13 states agreed to it. Rhode Island adopted all but one of Congress's amendments two weeks after it ratified the Constitution itself. Virginia's response to the amendments was crucial both to Madison politically and to the continuance of an anti-federalist movement there. Opponents of the Constitution, particularly in the heavily anti-federal counties south of the James River, not only reconciled to the document as a result of the amendments, but also praised Madison as having been their patron. The state's anti-federalist leaders remained dissatisfied. Henry claimed the amendments injured rather than served the cause of liberty. Patrick Henry was right. And Patrick promised to continue the fight. He insisted they acted only to lull suspicion and to cast an impediment in a way of those who wished to retrench the exorbitancy of power which had been granted away from the people to the central government. Patrick Henry had it every time, didn't he? More moderate than Henry, though, was George Mason, who must have recognized much from his Virginia Declaration of Rights and Madison's proposals, gained satisfaction from them as they had stood before the Senate and revised them. Before the Senate had revised them, I'm sorry. With a few more alterations, he could support the new system. Thomas Jefferson, by his own words in 1787, was not a friend to a very energetic government, had not been forced to take sides in the ratification debate because he wasn't even in the country. Although he had claimed to be more of a federalist than an anti-federalist, his unyielding support for a Bill of Rights and his widely circulated suggestion that once nine states had ratified the Constitution, the others should withhold their consent until a Bill of Rights was added, proved him a milquetoast federalist at best, I guess. Jefferson agreed with Mason that amendments additional to those sent to the states should be pressed in order to fix the government on a more Republican basis. The amendments first came before the Virginia legislature during the closing weeks of 1789. Patrick Henry urged postponement, nevertheless reacting out of anger or the recognition of defeat. He avoided the complete debate by simply leaving. The resolution for postponement lost overwhelmingly, although an attempt to ask Congress to adopt the remainder of the Virginia Convention amendments failed by only one vote. The two houses disagreed over which of the twelve amendments to reject, and it did not ratify until December of 1791. Appropriately, this made Virginia the tenth state to ratify and therefore gave legal effect to the first ten amendments. By then, all were widely referred to as the Bill of Rights. Senators Grayson and Lee jointly had sent two official letters to the state in September of 1789, insisting that they had done all that they could have to oppose these radical amendments. Fearing a loss of civil liberty and a tendency toward national rather than federal government, they expressed real grief that we now send forward propositions inadequate to the purpose of real and substantial amendments, and so far short of the wishes of Virginia. Their letters seriously misread the public reaction to Madison's amendments, and the legislature refused to order them printed. Leaked to the press at the end of 1789, the letters appeared in newspapers throughout the United States, for in light of Madison's effectiveness, they served as the funeral oration for the Anti-Federalist Party. Some few indeed had gone such lengths in their declaration of hostility that they feel it awkward, perhaps, to come over. Secretary of State Jefferson informed the Marquis de Lafayette, but the amendments proposed by Congress have brought over almost all of their followers. As Madison had predicted, the amendments did detach the Anti-Federalists from their leaders, and thereby prevented immediate structural revision of the Constitution. The opposition party, which replaced the Anti-Federalists, called the Democratic-Republicans, was led by Madison Jefferson, and Patrick Henry had nothing to do with it. The new party accepted the Constitution and challenged its interpretation rather than its essence. In one of the first pamphlets to attack the new party, Federalist William Smith argued that it was Madison, and I quote, who advised that no other amendments to the Constitution should be offered to the people but a few milk-and-water propositions. Unquote. Alexander Hamilton, after a decade of violent party politics, reflected that Madison's amendments met, and I quote, scarcely any of the important objections which were urged, leaving the structure of the government and the mass and the distribution of its powers exactly where they were, and are too insignificant to be with any sensible man a reason for being reconciled to the system it thought it originally bad. Unquote. Hamilton says the amendments did nothing, and he was right. The Constitutional role, as well as the consecrated status of the Federal Bill of Rights today, is due less to the foresight of the Founding Fathers than to the vigilance of a concerned citizenry, and especially to what Jefferson had called to Madison's attention in 1789 as the argument of great weight in favor of the Bill of Rights. The legal check which it puts into the hands of the judiciary, and that, my friends, has destroyed it. It is done. It's just really crazy today that people look at this Bill of Rights like it's some kind of sacred thing that really helps. And again, folks, credit should be given to Mr. Kenneth R. Bowling and his article, A Tub to the Whale, The Founding Fathers and Adoption of the Federal Bill of Rights, from which I took much of the work today. And this one, yesterday was a short one, today is a long one, but I wanted to get this across. A Bill of Rights or a Bill of Goods, and folks, it has never, ever worked. If you don't believe it, just check the federal records of how many times the federal courts have overruled the people's rights in the Federal Bill of Rights and in their State Bill of Rights. The federal government has the supreme position, the supreme court, unelected, an office for life, controls the country. Well, folks, I'll close out now. It's been a long one. I appreciate your time, and I appreciate you staying with me for this one. Yes, we're going to get into the letters around the Bill of Rights in a future sub stack. I hope that you will support me and continue to support me as a paid subscriber. So, thank you so very much, and God bless. Have a wonderful day.