As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. [1]
Because there had been considerable public concern that the U.S. Constitution did not contain provisions protecting certain rights of the citizens, one of the most important tasks facing the First Congress was developing and adopting constitutional amendments on these subjects to propose to the states for ratification followed by the states’ ratification of ten of these proposals. [2]
Congress’ Adoption of Proposed Amendments
The House of Representatives opened this “Great and Delicate Subject” on June 8, 1789, when Representative James Madison introduced his nine proposed amendments. He said they were to meet objections by some citizens that the Constitution “did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power.” For illustration, Madison’s fourth article of amendment stated, in part, as follows:
- “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.”
- The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.”
- “The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.”
Madison’s proposals, however, were not immediately welcomed, by his own Federalists and by the Antifederalists. Many saw them as a waste of time or premature and preventing attention on more pressing business. Therefore, the proposals would have to wait.
On July 21, 1789, Madison unsuccessfully tried to move his amendments to the House floor. Instead they were assigned to a pro-Federalist select committee. Madison was aided in his amendment project by quoting from a not-quite-secret private letter from President Washington saying, “I see nothing exceptionable in the proposed amendments. Some of them, in my opinion, are importantly necessary; others, though in themselves not very essential, are necessary to quiet the fears of some respectable characters and well meaning Men. Upon the whole, not foreseeing any evil consequences that can result from their adoption, they have my wishes for a favorable reception in both houses.”
Thereafter the select committee reshuffled, tightened, and reconfigured Madison’s proposals into a more coherent list of nineteen, but still including what we now know as the Bill of Rights with narrower language for freedom of conscience. Madison argued that this language meant that Congress could not enforce the legal observance of any religion nor compel anyone to worship God in any way contrary to his conscience.
The select committee also revised Madison’s militia amendment—he had proposed an absolute individual right to bear arms—to make clear that the amendment applied specifically to organized, officially sanctioned militias, which were seen as the front line of defense against any foreign military invasion.
On August 24, 1789, the House after a cursory, mostly non-substantive debate approved 17 articles of amendment, including these important rights. Federalists thought they were self-evident, and Antifederalists were more interested in states rights. These articles then were sent to the Senate, which was not very enthusiastic about considering them.
On September 2, 1789, however, the Senate took up the amendments that had been approved by the House and altered and consolidated them into 12 articles that passed the Senate on September 9. Thereafter the House agreed to most of the Senate’s changes, and a conference committee reconciled the remaining differences.
On September 25, 1789, the First Congress approved these revised 12 articles of proposed amendments. According to Bordewich, “the collective mood [of the Congress] was less one of triumph than of sheer exhaustion. No one in Congress regarded passage of the amendments as more than an exercise in political housekeeping” or “paper guarantees.”
States’ Ratification of First Ten Amendments to Constitution
These 12 articles of proposed amendments then were sent to the states for ratification. Although nine states so ratified 10 of the 12 articles within ten months, their actual ratification did not happen until December 15, 1791.[3] Here are the ratified amendments (now the Bill of Rights) or Articles I through X in “Addition to, and Amendment of, the Constitution:”
- Article I. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
- Article II. “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
- Article III. “No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner prescribed by law.”
- Article IV. “The right of the people to be secure in their persons, houses, papers, effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon principal cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
- Article V. “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”
- Article VI.“In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.”
- ArticleVII. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reëxamined, in any court of the United States, than according to the rules in common law.”
- Article “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
- Article IX. “The enumeration, in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
- Article “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.”
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[1] U.S. First Congress: Overview, 1789-1791, dwkcommentaries.com (Feb. 15, 2017).
[2] Bordewich, The First Congress at 13, 85-93, 107, 115-143, 158-59, 312 (Simon & Schuster, New York, 2016); House of Representatives, Amendments to the Constitution, The Founders Constitution.
[3] Article II of these proposed amendments was ratified on May 7, 1992, and is now the 27th Amendment to the U.S. Constitution. Article I of the proposed amendments from 1789, therefore, is still pending. (Twenty-seventh Amendment to the United States Constitution, Wikipedia.)