Madison's Music (32 page)

The committee rearranged and shortened the clauses:

A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.

While Madison's operational phrase “the right of the people to keep and bear arms” was left intact by the editors, the editors flipped the order of the militia clause and the keep-and-bear-arms clause. Folks have argued for years about what legal effect, if any, should flow from the flipping of the order of the first two clauses,
and whether the short-lived addition (and subsequent disappearance) of the phrase “composed of the people” was intended to mean anything. The right to religiously based conscientious objection to military service was eventually eliminated by the Senate. But the power of Madison's vision has triumphed, persuading Congress to provide for conscientious objection from the draft.

The editors made only trivial changes to Madison's quartering-of-troops clause, which eventually became the Third Amendment. Madison had proposed:

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

The committee's version read:

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 to be prescribed by law.

The committee's version is marginally better, but I wouldn't pay much for the improvement.

The editors' emerging concern with structure also appears in the minor change to Madison's double-jeopardy draft. Madison had written, “no person shall be subject . . . to more than one punishment or one trial for the same offence . . .” The editors put “trial” before “punishment” to reflect the chronology of the two events. The more significant editorial change to Madison's proposed clauses protecting against double jeopardy, self-incrimination, deprivation of due process of law, and unlawful taking of private property, which eventually became the Fifth Amendment, involved a rewrite of the takings clause. Madison had originally written:

. . . nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

The editors substituted:

. . . nor shall private property be taken for public use without just compensation.

Score another minor point for the editors.

On the other hand, the editors just couldn't keep their hands off Madison's prototype of the Fourth Amendment. Madison wrote:

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

The committee removed the
d
from “secured,” deleted the word
their
from “their houses” and “their papers,” and substituted the term
effects
for “their other property.” The editors also removed the reference to “all unreasonable searches and seizures,” and changed the last two
or
s to
and
s. Because protection from “unreasonable searches and seizures” is the heart of the clause, it's hard to imagine what the editors had in mind when they took that language out. The phrase was promptly reinstated during congressional debate, with the suggestion that its omission had been inadvertent.

Madison had ended his proposed interpolations into Article I, section 9 with a clause designed to respond to critics who had argued that a bill of rights was dangerous because it would preclude the recognition of additional unwritten rights, and imply the existence of a muscular government with implied powers capable of violating rights. Madison's clause, which eventually evolved into the Ninth Amendment, provided:

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be construed as to diminish
the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

The editors shrank Madison's text from fifty-seven to twenty-one words, entirely eliminating the clause designed to prevent the implied growth of government power.

The enumeration in this Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

The proposed limits on the power of the states in Article I, section 10 survived with minor editorial tinkering. Madison's
violate
was changed to “abridge,” and the
or
s became
nor
s. Madison's clause limiting appeals from civil jury verdicts—which eventually became the Reexamination Clause of the Sixth Amendment—remained virtually intact, with a $1,000 jurisdictional amount imposed on Supreme Court appeals, and one minor editorial change. Madison had written:

nor shall any fact, triable by jury, according to the course of the common law, be otherwise re-examinable than may consist with the principles of common law.

The editors improved the diction:

Nor shall any fact, triable by a Jury according to the course of the common law, be otherwise re-examinable than according to the rules of the common law.

In addition to moving the criminal procedure trial rights from Article I to Article III, the editors tinkered with the text. Madison had provided for notice of “the cause and nature of the accusation.” The editors flipped the order of
nature
and
cause
. Madison had provided
that an accused be “confronted by his accusers and the witnesses against him. . . .” The editors removed
accusers
but left
witnesses
. Presumably, they believed the two categories were interchangeable, but who knows for sure? Madison's catchall jury trial clause that eventually fragmented into parts of the Fifth, Sixth, and Seventh Amendments was substantially edited for the better. Madison's June 8 draft included a guaranty of grand jury indictment “in all crimes punishable by loss of life or member.” The editors provided:

no person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment by a Grand Jury.

Madison originally included a rambling provision on the location of criminal trials. The editors provided that trial should take place where the crime occurs, but that if a crime occurs in a place in possession of an enemy or where an insurrection was taking place, a trial could be moved to a new location. Madison's June 8 civil-jury-trial language provided:

In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

This was shortened by the editors and placed in a separate clause to read:

In suits at common law the right of trial by jury shall be preserved.

Finally the editors tinkered slightly with Madison's proposed closing clause, designed to preserve separation of powers and federalism. Madison had written:

The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that
the Legislative Department shall never exercise powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise powers vested in the Legislative or Executive Departments.

. . .

The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.

The committee cleaned up the text, providing:

The powers delegated by this Constitution to the government of the United States, shall be exercised as therein appropriated, so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise powers vested in the Legislative or Executive Departments.

. . .

The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively.

In the end, the first round of editing by the Committee of Eleven made few substantive changes to Madison's June 8 draft but did carry out some useful reorganization. It also occasionally condensed Madison's discursive language into sharper prose. Given the committee's makeup, I suspect that the minor structural reorganizations came from Roger Sherman, but I'll bet that the felicitous line editing was Madison editing himself.

On July 28, when John Vining sought to present the report of the Committee of Eleven recommending adoption of seventeen clauses, he was met by the House's usual unwillingness to take time from important matters to discuss something as abstract as a declaration of rights. The report was promptly tabled for future consideration. It wasn't until August 3 that Madison could get the floor. The best he could do was to obtain a commitment by the House to consider the report as a committee of the whole as soon as time
was available. On August 13, the House, sitting as a committee of the whole, finally began debate on the report of the Committee of Eleven.

The discussion began with the by now ritual grumblings about taking time away from more important matters. In fairness, the House was simultaneously debating the structure of the judicial department and voting on what became the Judiciary Act of 1789. John Vining didn't make matters easier by apologizing profusely for interfering with the scheduled debate over a bill to appoint land agents for Western lands, which he acknowledged was much more important than the Bill of Rights. Theodore Sedgwick, who would later play an important editorial role on the Committee on Style, grumbled that the House had “much other and more important business requiring attention.” Elbridge Gerry, who had refused to sign the Constitution because it lacked a bill of rights and who had demanded that every amendment proposed by a state ratifying convention be discussed on the floor of Congress, continued to play his complex game by urging Madison to withdraw his proposals entirely. Gerry hoped that failure to adopt a bill of rights would require the calling of a new constitutional convention with power to rewrite the 1787 document. Madison didn't take offense. In fact, Gerry eventually served as Madison's vice president from 1813 until Gerry's death in 1814.

Debate began on August 13. Roger Sherman, who had lost the argument in the Committee of Eleven, urged once again that the seventeen pending clauses be consolidated in a single coherent bill of rights. Once again, Madison, the reluctant poet, disagreed, insisting on interpolating the clauses into the body of the Constitution at five different places. Elbridge Gerry then piped up, ridiculing the idea of a single coherent bill of rights. Sherman's motion for a single bill of rights was once again roundly defeated.

On August 14, the House finally began considering Madison's handiwork. His stripped-down addition to the preamble was adopted by a vote of 27–23, although it was eventually rejected by the Senate. His apportionment fix, linking House representation
to thirty thousand constituents and fixing the maximum size of the House at 275, carried 27–22. His structural limit on Congress raising its own salary carried easily. None of it made its way into the final Bill of Rights. On August 15, a Saturday, the House finally began debating the committee's edited version of Madison's effort to protect religious freedom. The committee's version read:

No religion shall be established by law, nor shall the equal rights of conscience be infringed.

Roger Sherman moved to strike the amendment entirely, arguing that it was unnecessary because Article I, section 8 did not give Congress the power to establish a religion in the first place, so no need existed for an antidote. After Madison reminded his colleagues that some feared that the Constitution's “necessary and proper” clause would expand Congress's power beyond the literal text of the Constitution, Sherman's motion was overwhelmingly defeated. Attention then turned to the text. Madison explained that the clause was intended to prevent Congress from establishing a national religion and requiring people to observe it by law. Samuel Livermore (N.H.), an opponent of strong national government who had opposed the creation of lower federal courts, moved to amend the text to read:

Congress shall make no laws touching religion, or infringing the rights of conscience.

While the House adopted the Livermore version by a vote of 31–20, subsequent editing would veer back toward Madison's “establishment” language. Theodore Sedgwick then ridiculed Madison's insistence on protecting the right of assembly as well as speech. His effort to excise “assembly” was roundly defeated. A sustained effort to augment Madison's protection of the freedom to apply to the government for redress of grievances by adding a right of the people “to instruct their representatives” was defeated by a vote of 41–10,
but not before it triggered a discussion of Edmund Burke and the nature of representative democracy. The day ended with Fisher Ames unsuccessfully seeking to derail all further discussion of the committee's work.

Madison had a good day on Monday, August 17. The House voted to approve Madison's “right to keep and bear arms” clause, including a narrow 24–22 vote to retain a provision guarantying religious conscientious objection to military service. Madison's “cruel and unusual punishment” clause was upheld over objections that it was too vague, and his ban on “unreasonable search and seizures” was reinstated. The text of what would become the Fourth Amendment was strengthened by Egbert Benson's motion adding the language “no warrants shall issue [without probable cause etc.].” Madison's recognition of unenumerated rights that eventually evolved into the Ninth Amendment was adopted verbatim. Gerry couldn't even get a second for his effort to substitute
impair
for
disparage
. Finally, Madison's effort to limit the states from interfering with religious freedom, speech, or the press, which he described as the most important element of his work, was overwhelmingly accepted with a minor edit that shifted it into a positive statement: