In the ratification fight, several states ratified only after recommending amendments, and Federalists promised to consider them. James Madison, now a member of the House of Representatives, kept that promise. On June 8, 1789, he proposed amendments to the First Congress.
Key idea
Congress sent twelve amendments to the states in September 1789. Ten were ratified by December 15, 1791. Together they are the Bill of Rights: freedoms of religion, speech, the press, assembly and petition; the right to keep and bear arms; protections against unreasonable searches; and rights of people accused of crimes, such as a jury trial. At first they limited only the national government.
Why it works
Why amendments rather than a new convention? A second convention might have undone the whole Constitution, which is what some Anti-Federalists hoped. Madison chose rights that almost everyone accepted and left out changes to the government's structure. That won over moderate critics, and North Carolina and Rhode Island, which had held out, ratified the Constitution while the amendments were before the states.
Worked example: Whom did it bind?
In 1833 a Baltimore wharf owner said the city had ruined his business without paying him, which he said broke the Fifth Amendment. The Supreme Court ruled against him in Barron v. Baltimore. Why?
- The First Amendment begins "Congress shall make no law…": it speaks to the national government.
- The Court read the whole Bill of Rights the same way: it limited the federal government, not the states or cities.
- Baltimore was a city in a state, so the Fifth Amendment did not apply to it then.
- Later, after the Fourteenth Amendment (1868), the Court applied most of these rights to the states, one by one.
Answer: The Bill of Rights at first limited only the national government.
Common mistake
The Bill of Rights was not part of the Constitution of 1787. The Constitution was signed in 1787 and in effect by 1789; the Bill of Rights came in 1791. And at first it did not limit the states. Check the dates: signed 1787, first Congress 1789, amendments ratified 1791.
Of the two proposals that failed in 1791, one, on congressional pay raises, was finally ratified in 1992 as the Twenty-seventh Amendment. Hamilton argued in Federalist No. 84 that a bill of rights was unnecessary and might even be dangerous; the Federal Farmer argued that one was needed.