Due largely to the efforts of Representative James Madison, who studied the deficiencies of the constitution pointed out by anti-federalists and then crafted a series of corrective proposals, Congress approved twelve articles of amendment on September 25, 1789, and submitted them to the states for ratification. Contrary to Madison's proposal that the proposed amendments be incorporated into the main body of the Constitution (at the relevant articles and sections of the document), they were proposed as supplemental additions (codicils) to it. Articles Three through Twelve were ratified as additions to the Constitution on December 15, 1791, and became Amendments One through Ten of the Constitution. Article Two became part of the Constitution on May 5, 1992, as the Twenty-seventh Amendment. Article One is still pending before the states.
Although Madison's proposed amendments included a provision to extend the protection of some of the Bill of Rights to the states, the amendments that were finally submitted for ratification applied only to the federal government. The door for their application upon state governments was opened in the 1860s, following ratification of the Fourteenth Amendment. Since the early 20th century both federal and state courts have used the Fourteenth Amendment to apply portions of the Bill of Rights to state and local governments. The process is known as incorporation.
The convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania. Although the Convention was purportedly intended only to revise the Articles, the intention of many of its proponents, chief among them James Madison of Virginia and Alexander Hamilton of New York, was to create a new government rather than fix the existing one. The convention convened in the Pennsylvania State House, and George Washington of Virginia was unanimously elected as president of the convention. The 55 delegates who drafted the Constitution are among the men known as the Founding Fathers of the new nation. Thomas Jefferson, who was Minister to France during the convention, characterized the delegates as an assembly of "demi-gods." Rhode Island refused to send delegates to the convention.
On September 12, George Mason of Virginia suggested the addition of a Bill of Rights to the Constitution modeled on previous state declarations, and Elbridge Gerry of Massachusetts made it a formal motion. However, after only a brief discussion where Roger Sherman pointed out that State Bills of Rights were not repealed by the new Constitution, the motion was defeated by a unanimous vote of the state delegations. Madison, then an opponent of a Bill of Rights, later explained the vote by calling the state bills of rights "parchment barriers" that offered only an illusion of protection against tyranny. Another delegate, James Wilson of Pennsylvania, later argued that the act of enumerating the rights of the people would have been dangerous, because it would imply that rights not explicitly mentioned did not exist; Hamilton echoed this point in FederalistNo. 84.
Because Mason and Gerry had emerged as opponents of the proposed new Constitution, their motion—introduced five days before the end of the convention—may also have been seen by other delegates as a delaying tactic. The quick rejection of this motion, however, later endangered the entire ratification process. Author David O. Stewart characterizes the omission of a Bill of Rights in the original Constitution as "a political blunder of the first magnitude" while historian Jack N. Rakove calls it "the one serious miscalculation the framers made as they looked ahead to the struggle over ratification".
Thirty-nine delegates signed the finalized Constitution. Thirteen delegates left before it was completed, and three who remained at the convention until the end refused to sign it: Mason, Gerry, and Edmund Randolph of Virginia. Afterward, the Constitution was presented to the Articles of Confederation Congress with the request that it afterwards be submitted to a convention of delegates, chosen in each State by the people, for their assent and ratification.
Following the Philadelphia Convention, some leading revolutionary figures such as Patrick Henry, Samuel Adams, and Richard Henry Lee publicly opposed the new frame of government, a position known as "Anti-Federalism". Elbridge Gerry wrote the most popular Anti-Federalist tract, "Hon. Mr. Gerry's Objections", which went through 46 printings; the essay particularly focused on the lack of a bill of rights in the proposed constitution. Many were concerned that a strong national government was a threat to individual rights and that the President would become a king. Jefferson wrote to Madison advocating a Bill of Rights: "Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can." The pseudonymous Anti-Federalist "Brutus"[a] wrote,
We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion—that no bill of attainder, or ex post facto law, shall be passed—that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.
He continued with this observation:
Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.
Supporters of the Constitution, known as Federalists, opposed a bill of rights for much of the ratification period, in part due to the procedural uncertainties it would create. Madison argued against such an inclusion, suggesting that state governments were sufficient guarantors of personal liberty, in No. 46 of The Federalist Papers, a series of essays promoting the Federalist position. Hamilton opposed a bill of rights in The Federalist No. 84, stating that "the constitution is itself in every rational sense, and to every useful purpose, a bill of rights." He stated that ratification did not mean the American people were surrendering their rights, making protections unnecessary: "Here, in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations." Patrick Henry criticized the Federalist point of view, writing that the legislature must be firmly informed "of the extent of the rights retained by the people ... being in a state of uncertainty, they will assume rather than give up powers by implication." Other anti-Federalists pointed out that earlier political documents, in particular the Magna Carta, had protected specific rights. In response, Hamilton argued that the Constitution was inherently different:
Bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was the Magna Charta, obtained by the Barons, swords in hand, from King John.
George Washington's 1788 letter to the Marquis de Lafayette observed, "the Convention of Massachusetts adopted the Constitution in toto; but recommended a number of specific alterations and quieting explanations." Source: Library of Congress
In December 1787 and January 1788, five states—Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut—ratified the Constitution with relative ease, though the bitter minority report of the Pennsylvania opposition was widely circulated. In contrast to its predecessors, the Massachusetts convention was angry and contentious, at one point erupting into a fistfight between Federalist delegate Francis Dana and Anti-Federalist Elbridge Gerry when the latter was not allowed to speak. The impasse was resolved only when revolutionary heroes and leading Anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments. The convention's proposed amendments included a requirement for grand jury indictment in capital cases, which would form part of the Fifth Amendment, and an amendment reserving powers to the states not expressly given to the federal government, which would later form the basis for the Tenth Amendment.
Following Massachusetts' lead, the Federalist minorities in both Virginia and New York were able to obtain ratification in convention by linking ratification to recommended amendments. A committee of the Virginia convention headed by law professor George Wythe forwarded forty recommended amendments to Congress, twenty of which enumerated individual rights and another twenty of which enumerated states' rights. The latter amendments included limitations on federal powers to levy taxes and regulate trade.
A minority of the Constitution's critics, such as Maryland's Luther Martin, continued to oppose ratification. However, Martin's allies, such as New York's John Lansing, Jr., dropped moves to obstruct the Convention's process. They began to take exception to the Constitution "as it was," seeking amendments. Several conventions saw supporters for "amendments before" shift to a position of "amendments after" for the sake of staying in the Union. Ultimately, only North Carolina and Rhode Island waited for amendments from Congress before ratifying.
Article Seven of the proposed Constitution set the terms by which the new frame of government would be established. The new Constitution would become operational when ratified by at least nine states. Only then would it replace the existing government under the Articles of Confederation and would apply only to those states that ratified it.
Following contentious battles in several states, the proposed Constitution reached that nine-state ratification plateau in June 1788. On September 13, 1788, the Articles of Confederation Congress certified that the new Constitution had been ratified by more than enough states for the new system to be implemented and directed the new government to meet in New York City on the first Wednesday in March the following year. On March 4, 1789, the new frame of governmentcame into force with eleven of the thirteen states participating.
In New York, the majority of the Ratifying Convention was Anti-Federalist and they were not inclined to follow the Massachusetts Compromise. Led by Melancton Smith, they were inclined to make the ratification of New York conditional on prior proposal of amendments or, perhaps, insist on the right to secede from the union if amendments are not promptly proposed. Hamilton, after consulting with Madison, informed the Convention that this would not be accepted by Congress.
After ratification by the ninth state, New Hampshire, followed shortly by Virginia, it was clear the Constitution would go into effect with or without New York as a member of the Union. In a compromise, the New York Convention proposed to ratify with in confidence that the states would call for new amendments using the convention procedure in Article V, rather than making this a condition of ratification by New York. John Jay wrote the New York Circular Letter calling for the use of this procedure, which was then sent to all the States. The legislatures in New York and Virginia passed resolutions calling for the convention to propose amendments that had been demanded by the States while several other states tabled the matter to consider in a future legislative session. Madison wrote the Bill of Rights partially in response to this action from the States.