The Original Bill of Rights

December 15th, Bill of Rights Day

Yesterday, December 15th, was Bill of Rights day––a holiday which celebrates the ratification of the first 10 amendments to the U.S. Constitution, and which serves as a reminder of the founders' intent to limit federal power. 

Yet two things are often overlooked in this important history: first, that there is a Preamble to the Bill of Rights which clearly explains the document's purpose to restrain federal power, not the states; and second, that today's Bill of Rights is not what was originally proposed to Congress.

Today's Bill of Rights

(Full Text of the Bill of Rights & all constitutional amendments)

The first "unknown" of the Bill of Rights––and the most significant––is that it has a preamble. American schools always mention the preamble to the Constitution but never the preamble to the Bill of Rights. This is entirely on purpose. As the Tenth Amendment Center's Bob Greenslade says: "This omission is intentional because a reading of the preamble shows that the first paragraph discloses the true intent of the proposed amendments."

The true intent? To prevent misconstruction and abuse of the powers delegated to the federal government.

Preamble to the Bill of Rights

I've made the argument that the Bill of Rights does not apply to the States, and that all state lawsuits regarding them and which then find their way into federal courts, are an abrogation of state powers (see: A Deep Dive into Trump's Trumped-Up Charges, footnote 1). The preamble makes this quite clear even before one gets around to reading Article I, Section 8 or even the Bill of Rights itself!

For example, the Establishment Clause reads that "Congress shall make no law respecting an establishment of religion," but is usually understood to mean that there must be a "separation between Church and State." Indeed, it does require a separation between Church and State; but it is a separation between Church and the Federal government, not Churches and the individual states. The first word, "Congress," ought to make it clear that this applies to the Federal Congress, and the preamble ought to make it clear that all restrictions within the Bill of Rights are restrictions on the Feds, not the states!

The 1st and 2nd Drafts of the Bill of Rights

(Comparison of All 3 Versions of the Bill of Rights)

The second "unknown" fact about the Bill of Rights is that it is actually the third rendition of an attempt to restrain federal power. The first draft of the Bill of Rights was submitted to Congress by James Madison on June 8th, 1789 and included 17 amendments, not just 10. Some of these were later combined into single amendments while others were unanimously demanded by the states yet failed ratification. So what happened?

The 1st Draft

(Full Text of 1st Draft of Bill of Rights)

When Madison submitted his proposal to Congress, the 17 proposed amendments were sent to both Houses of Congress for their consideration. The House of Representatives ratified all 17, the Senate ratified 12, but only 10 of the 12 that made their way to the states wound up being ratified. What did Madison's original proposal look like, then?

Ultimately, four amendments from this first draft fail to be ratified outright, one amendment is ratified after undergoing significant alterations, and all the rest are either ratified as is, or are combined and then ratified.

Those four amendments which failed outright were Article the First, Article the Second, Article the Fourteenth and Article the Sixteenth.

Article the First was perhaps the most important amendment sought by the states' delegates and the Anti-Federalists. It has to do with Congressional apportionment in the House of Representatives and would've ensured an initial ratio of 1 Representative for every 30,000 people which would later increase to 1 per every 50,000 people. If ratified, today's House would not consist of a mere 435 representatives, but rather 6,717 representatives.

Here's two interesting facts regarding this amendment: (1) the determination of this ratio is the only instance during the ratification debates in which George Washington is reported to have offered any opinion regarding the drafting of the Constitution. When the delegates recommended a ratio of 1:40,000, Washington recommended a ratio of 1:30,000. And so it was. (2) This amendment is still pending and could become the 28th amendment to the Constitution if only 1 state legislature chooses to ratify it. However, as Patrick Henry explains, its status as 'pending' is well-deserved:

Article the Second fails to be ratified as part of the Bill of Rights but is eventually ratified, as is, on May 7th, 1992. It is the 27th amendment and the most recent amendment made to the Constitution. Not much else is of note here other than the fact that the amendments initially proposed by the first Congress can be, and have been, ratified in very recent history.

Article the Fourteenth was the only amendment in Madison's proposal which limited the powers of the states and, according to Gordon Lloyd, was also one of Madison's favorites.

Article the Sixteenth, on the other hand, is a particularly interesting amendment. It reaffirms, in no uncertain terms, the separation of powers between the three branches of the federal government. Although many would argue that this separation is implied by the Constitution itself, simply make note of the fact that the Executive bureaucracies routinely write, judge and enforce their own laws; that the courts routinely invent powers for themselves and legislate when the Congress refuses to do so; and that the Congress regularly violates the Constitution in the passing of clearly unconstitutional laws in hopes that the courts will either ignore them or declare them constitutional (see how many wars since WWII have a declaration of war required by the Constitution).

As for the proposed amendment which was significantly altered and then ratified, Article the Fifth goes on to become the 2nd amendment. Here it is in the original:

Article the Fifth is notable for its last clause, the Exemption Clause. As written, the proposed amendment declares that "The right of the People to keep and bear arms, shall not be infringed," but also carves out an exemption from military service for those "religiously scrupulous of bearing arms." The reason for its alteration is likely two-fold: first, what would later become the 1st Amendment makes the Exemption Clause redundant; and second, the exemption can be seen as a usurpation of State powers because the U.S. armed forces are composed of the state militias and therefore "regulated" by the states. Thus, the personnel composing the militias is something to be determined by the states, not the Feds. On the other hand, Gordon Lloyd argues that the Senate removed this clause because they did not like the idea of men refusing military service––religious conviction or not.

The 2nd Draft

(Full Text of the 2nd Draft of the Bill of Rights)

Ultimately those amendments which are sent to the states for ratification is decided by the Senate. From an initial list of 17 amendments, a condensed list of 12 are approved by the Senate on August 24th, 1789. The 12 are then sent to the state legislatures who reject only two of the 12 amendments.

The two amendments in this 2nd draft which fail to be ratified are Article the First and Article the Second––the apportionment amendment and the congressional salaries amendment. With 10 of the 12 amendments now ratified by the states, the U.S. Constitution is officially amended, and the 10 amendments approved by the states become affixed to the Constitution on December 15th, 1791.

Take note of the delay that occurs between Congress's sending, and the states' ratification of the amendments. More than two years transpire before the final version of the Bill of Rights is ratified. Also important in this history of the Bill of Rights is the fact that four states refused to ratify any of these amendments or even respond to Congress at all: Massachusetts, Connecticut, Georgia and Kentucky did not return delegates to the capitol.

Conclusion

So much more can be said about this era of American history. Book after book after book have been written in an attempt to do just that. But unfortunately, the typical histories of the founding era are disappointing and negligent, and little is done by contemporary authors to stress the importance of the few things I've attempted to convey here.

If I can ask you to remember one thing and one thing only, it is that the Bill of Rights was intended to restrain the powers delegated to the federal government and to protect the powers of the states and the rights of the people. The preamble to the Bill of Rights is proof enough of that and ought to be discussed far and wide by all lovers of liberty who wish to defend the American tradition and reestablish a constitutionally constrained federal government subservient to the states.

Happy Bill of Rights Day.