On 8 June 1789, James Madison rose to the floor of the United States Congress and proposed a series of changes to the new Constitution. The national charter would not be complete, he argued, unless amendments were added that explicitly protected individuals’ rights. Many members of Congress balked at the suggestion, but Madison was adamant. Nor did he rest until the Bill of Rights had been drafted and ratified, guaranteeing to Americans—perhaps most critically—their right to the freedom of religion.
This is a great story, but it could not be more misleading. Madison, although the principle advocate for passing the Bill of Rights in the House, personally believed it was wholly unnecessary and even referred to the entire episode as the "nauseous project of amendments." His supporters in the House were just as cynical; they described the Bill of Rights as "milk and water amendments," "bread pills," and "a little flourish and dressing."10
So why did Madison take the lead on this project? And what exactly did the Bill of Rights—and, more specifically, the freedom of religion—mean to the men who added it to our Constitution? To answer these questions, we need to back up a couple of years.
After Madison and the other members of the Constitutional Convention had completed drafting the Constitution during the summer of 1787, they sent copies of the document to the states for ratification. They had agreed that the new government, since it would derive its power from the people, would not go into effect until nine of the thirteen states had ratified it in special conventions called for that purpose. At these conventions, the Constitution encountered some resistance. While most Americans seemed supportive of the new government, a comparatively small but vigorous opposition emerged. Their complaints about the proposed new government varied, but most of them hovered around the increased powers of the government, especially regarding taxation and commerce.
These critics of the new government, known as Anti-Federalists, recognized that their scattered and sometimes complex criticisms of the Constitution were not capable of drawing mass public support. What they needed was a single clear and compelling issue around which to frame their opposition, and they found it in the Constitution’s original lack of a bill of rights. Not only was the new government too powerful, they warned, but it offered no explicit protections of individuals' liberties. What was to prevent this powerful new political monster from stomping out citizens' rights to free speech and religion?
The supporters of the Constitution, like James Madison, tried first simply to rebut these Anti-Federalist claims. The government could never do what it was not explicitly authorized to do, they argued. Therefore, things like speech and religion were safe. A listing of rights, moreover, could be dangerous, leading to the erroneous conclusion that only those rights specifically listed were actually protected. Furthermore, most states already had bills of rights; a federal list would be redundant.
These arguments were effective enough to secure the ratification of the Constitution. But they were not effective enough to silence the opposition. In fact, many states ratified the Constitution with the recommendation that a bill of rights be added immediately. And Anti-Federalists hoped that they could leverage these recommendations to achieve more than just a bill of rights. Many hoped that they could use this wedge to force a new constitutional convention that would make changes to the new government’s taxation and commerce clauses.
It was at this point that Madison and other supporters of the Constitution decided to change their approach; rather than rebut Anti-Federalist demands, they would co-opt them. They would propose a bill of rights and steal the political thunder that the issue represented.
Therefore, when Madison rose to his feet in 1789 and proposed adding the Bill of Rights to the Constitution through a series of amendments, he was acting politically more than philosophically. He was trying to crush the opposition to the new Constitution by taking away the issue that had the most potential to galvanize his foes. He still believed that a list of explicit protections was unnecessary, in terms of the structure of the new government. But he recognized that a list was politically necessary in order to guarantee the stability of the young nation.