Madison's Music by Burt Neuborne Read Free Book Online

the order, cadence, structure, and content of the text of the Bill of Rights, especially the First Amendment, if we are wise enough to hear it.
    We almost didn’t have a Bill of Rights, though, much less a coherent poetic celebration of democracy and freedom. It’s not as though bills of rights were rare in 1787. Starting in 1215 with the Magna Carta and running through the burst of Revolutionary rights-bearing documents produced from 1765 to 1783, I count at least four English declarations of rights, three major colonial compilations of rights, and eighteen Revolutionary efforts to describe individual rights. In fact, Madison had at least forty-two source documents to choose from, to say nothing of dozens and dozens of proposed amendments suggested by the states. But it all almost came to nothing.
    Our first effort at a national charter, the 1781 Articles of Confederation, did not contain a Bill of Rights, perhaps because the national government under the Articles was so weak—it lacked an executive, a judiciary, and the power to tax—that it was deemed unnecessary to list protected rights. When the fifty-five Founders gathered in Philadelphia on May 25, 1787, to discuss amending the Articles of Confederation to strengthen the national government, sentiment quickly turned to scrapping the Articles entirely in favor of a brand-new Constitution, even if that appeared to exceed the delegates’ original mandate. The consensus among the delegates was that it would be a mistake to include a bill of rights in the new Constitution. Some, such as Alexander Hamilton, believed that the proposed new national government was already too weak and should not be further hobbled by declarations of rights. Others, such as James Wilson, feared that a formal enumeration of rights would be dangerous because it would imply a strong central government with power to violate them. Madison himself, accurately predicting a future Antonin Scalia, feared that any written enumeration of rights might accidentally leave some important rights out, making it difficult or impossible for new rights to evolve and be recognized. While several halfhearted efforts were made late in the game to insert provisions protecting rights into the new constitution, they got nowhere. After a formal proposal to add a bill of rights was unanimously rejected, the Constitution was finally signed on September 17, 1787, without a bill of rights.
    The closest thing to rights in the original constitutional text was the promise in Article VI that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Article 1, section 9 contains a promise that Congress would not suspend habeas corpus except in times of war or rebellion, and a promise that bills of attainder and retroactive criminal laws would be prohibited. But those two essentially procedural guaranties, while important, are separation of powers–based protections of the rule of law generally, not protections of particular rights. A potential equality provision in Article IV, section 1 promised that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states,” but any hint of serious protection of equality was immediately erased by the notorious clause providing for the apprehension and return of fugitive slaves, and the nonamendable guaranty of the right to import slaves for twenty-one more years, until 1808. Four prominent delegates, Elbridge Gerry (Mass.), George Mason (Va.), Luther Martin (Md.), and Edmund Randolph (Va.), refused to sign the proposed new constitution because it lacked a bill of rights. John Lansing and Robert Gates, the delegates from New York, actually walked out of the Constitutional Convention after six weeks in order to begin organizing opposition to the document.
    Ratification was far from a sure thing. Unlike the Articles of Confederation, which had