A bill of rights was not contemplated at the Constitutional Convention, until George Mason mentioned it in the last days of the Convention. Every state ruled it out. Rufus King, however, suggested that “as the fundamental rights of individuals are secured by express provisions in the State Constitutions; why may not a like security be provided for the Rights of the States in the National Constitution?” Gordon Wood, The Creation of the American Republic: 1776-1787, 536 quoting Farrand, ed., Records of the Federal Convention, II, 375-76, 378-79, I, 492-93.
Antifederalists began to see the Bill of Rights as a “barrier between the general government and the respective states and their citizens.” Luther Martin’s Reply to the Landholder, Mar. 19, 1788, Farrand, ed., Records of the Federal Convention, III, 290. Antifederalists began to demand that these traditional protections of the people’s liberties be introduced into American society with the Constitution. See Gordon Wood, The Creation of the American Republic: 1776-1787, 537.
Thomas Jefferson stated that: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” Id. quoting Jefferson to David Humpreys, Mar. 18, 1789, Boyd, ed., Jefferson Papers, XIV, 678.
The Federalists believed that a bill of rights was merely a “paper check” and would continuously be violated by states. See Gordon Wood, The Creation of the American Republic: 1776-1787, 537.
Others, like James Wilson, believed that a bill of rights was unnecessary as those powers “not expressly delegated to the general government was reserved in the people’s hands.” Id. at 540. Others were concerned that “to list the people’s rights might actually imply ‘we had delegated to the general government a power to take away such of our rights as we had not enumerated.'” Id. quoting Thomas Hartley, in McMaster and Stone, eds., Pennsylvania and the Federal Constitution, 290-91.
On the whole, the desire for Americans to have a bill of rights was too strong for the Federalists to overcome. James Madison stated that it would serve the “double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty.” Gordon Wood, The Creation of the American Republic: 1776-1787, 543 quoting Madison to George Eve, Jan. 2, 1789, Hunt, ed., Writings of Madison, V, 320.
Both Jefferson and Madison stated that the Bill of Rights would put “a legal check . . . into the hands of the judiciary,” which would protect people’s liberties. Gordon Wood, The Creation of the American Republic: 1776-1787, 543 quoting Jefferson to Madison, Mar. 15, 1789, Boyd, ed., Jefferson Papers, XIV, 659.
The arguments surrounding the adoption of the Bill of Rights reflected a fundamental disagreement as to how the Constitution operated in relation to the people’s rights. The Antifederalists won the argument, as the Bill of Rights was ultimately adopted. This was a significant victory for the future of America.
The Bill of Rights would set a precedent. While some, like James Wilson, feared that defining a handful of rights would thereby preclude the protection of other rights, this was not simply the case. Rather, it set an example. Americans would value these fundamental values, enumerated in the Bill of Rights, for the centuries to come and more fully flesh them out in the judiciary, just as Madison and Jefferson had hoped.
When modern Americans consider these rights, they should do so with a keen awareness that the Founding Fathers chose these rights to be most fiercely protected .