Kevin: Correct, as far as it goes, but before the First Federal Congress actually met, Madison also began to develop his own concerns about the breadth of power granted to the federal government, particularly the necessary and proper clause. He certainly recognized the political expediency of a Bill of Rights, and he viewed support for such restraints on the federal government as an obligation to his constituents (many of whom insisted, in particular, on protections for religious liberty), but it is also fair to say that he increasingly saw the substantive use of such limitations (his letters to Jefferson about the role of the Supreme Court being very interesting in this regard). Best, John Ragosta
----- Original Message -----
From: "Kevin - hardwikr Hardwick" <[log in to unmask]>
To: [log in to unmask]
Sent: Thursday, October 18, 2012 5:49:11 PM
Subject: Re: [VA-HIST] declarations of rights at the beginnings of constitutions
Ray--
Jon is talking about the Virginia Declaration of Rights, which precedes the Virginia Constitution and was drafted in 1776.
Many Federalists in 1787 and 1788 argued that a bill of rights was unnecessary--the classic statement of that argument was by James Wilson, speaking in Philadelphia in October, 1787. Wilson argued that there was a basic difference between the state constitutions, which were grants of unlimited governmental authority and thus required bills of rights, and the federal constitution, which was (he claimed) strictly limited and this did not. (Hamilton makes the same argument some months later, in the Federalist Papers). Antifederalists--the author of the "Brutus" essays in New York, for example--argued against that notion, and for the inclusion of a Bill of Rights in the US Constitution. They focused attention on the "necessary and proper" clause of the US Constitution, which, they claimed, amounted to an unlimited grant of authority.
Madison himself tended to be opposed to the idea that the US Constitution required a Bill of Rights. A few years later, however, he was persuaded that it would be politically wise to include one, as (to use both a contemporary metaphor and the title of an excellent article discussing this issue) a "tub to the whale," that is, as something that was, if properly framed, constitutionally harmless and would tend to mitigate one of the more important antifederalist arguments. But that's a much later argument.
All best wishes,
Kevin
___________________________
Kevin R. Hardwick
Associate Professor
Department of History, MSC 8001
James Madison University
Harrisonburg, Virginia 22807
________________________________________
From: Discussion of research and writing about Virginia history [[log in to unmask]] on behalf of Walter Waddell [[log in to unmask]]
Sent: Thursday, October 18, 2012 4:13 PM
To: [log in to unmask]
Subject: Re: declarations of rights at the beginnings of constitutions
With no intent of being flippant, one would have trouble becoming
authoritatively conversant on the inclusion of the Bill of Rights, let alone
its “placement”, in our Constitution without first studying “Madison’s
Notes” for the purpose of understanding the complexity of the debate about
the “Constitutional” idea itself.
To the more specific: From my readings, “advocacy” for inclusion of a “Bill
of Rights” was widely held as these leaders of that time were aware of and
in admiration of the ideas that were coming from the “Scottish”
intellectuals and other Europeans: reasoning that the individual
“transcended” the “mob“.
As to who said it first: your message seems to have "nailed the jelly to the
tree" absent further citations.
I shall follow this "thread" with interest.
Regards, Ray
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