A Few Obvious Truths
Madison is commonly thought of as the author of the Bill of Rights, and with good reason. Most of the first ten amendments came substantially from his hand. Nevertheless, there is more than enough irony in this reputation. He made no known effort to incorporate any specific guarantees of individual rights into the Constitution at the Convention of 1787 beyond the few scattered through the text. He made no apparent effort to reinforce the very few efforts of others to add provisions as the work of the Convention was nearing completion. Until 1789, he defended this omission and was only slowly convinced that the movement for amendments would have to be satisfied after ratification of the original document, if public confidence in the new government were to be established. Furthermore, neither the final form in which the amendments were placed in the Constitution nor their substance nor their effects in some cases were fully consistent with his recommendations in 1789. Certainly, the two guarantees which he thought were most widely believed to be in need of protection from the new government, "the freedom of the press and the rights of conscience, those choicest privileges of the people," have not been construed as strictly as he wished. 1 Nevertheless, it is important to distinguish between Madison the reluctant architect of the Bill of Rights and the ardent advocate of the fundamental freedoms embodied in the First Amendment.
There was very little opportunity at the Constitutional Convention for Madison to support a bill of rights of the conventional sort. The Convention's charge was to enlarge, not to restrict, the powers of the federal government. Apparently, the Framers thought that the ninth section of the first article provided the only restrictions which were indispensable aside from the prohibition against religious tests for holding office under the Constitution. The propositions which Charles Pinckney proposed on 20 August to be considered by the Committee of Detail included two of the provisions later placed in article one, section nine, and a guarantee of free press, as well, but the latter was dropped in committee. There was no debate on Pinckney's motion to refer and it passed without opposition. On 12 September George Mason voiced his desire for a bill of rights and said that he would second a motion to refer to a committee the task of composing one in "a few hours" by cribbing from state bills of rights. Despite a motion supporting his position, Mason's proposal was rejected by the states unanimously. Madison did