Madison's Music by Burt Neuborne

limit was found. Instead of a poem, Madison was thinking about a good-government cookbook, in which spicy, potentially indigestible helpings of government power could be made palatable by immediate immersion in a soothing rights-protective sauce. Given the debates over a bill of rights during the ratification process, there was a careful method to Madison’s original structural madness. By avoiding a coherent and comprehensive listing of rights, Madison was attempting to avoid an inadvertent freezing of rights to only those described by the literal text. Moreover, by structurally placing the right at the point where the power was created, Madison hoped to avoid any implication that a written catalog of rights implied the existence of power not explicitly granted in the text.
    Madison began his recipe for good government with an elegant proposed new preface to the Constitution drawn from George Mason’s preface to the 1776 Virginia Declaration of Rights, which had formed the basis for Thomas Jefferson’s Declaration of Independence. Madison’s preface asserted that government exists solely to protect the people’s enjoyment of life and liberty, the right of acquiring and using property, and the pursuit of happiness and safety. He even inserted a right of rebellion if government failed to fulfill its purpose. The newly elected members of the fledgling national government did not take kindly to Madison’s suggestion that they were sitting uneasily atop a revolutionary volcano of popular rejection. The elegant preface with its right of rebellion never made it out of Congress.
    Madison then proposed two structural fixes designed to correct perceived flaws in the Constitution’s original text having nothingto do with rights. He urged, first, that the provisions of Article I, section 2, clause 3 setting out the structure of the House of Representatives be amended to set a maximum on the size of the House and the number of constituents each member could represent. A modified apportionment formula raising the ceiling to 50,000 constituents was eventually adopted by Congress but was ratified by only nine of the needed eleven states. If Madison’s original June 8 apportionment proposal had been ratified by the necessary eleven states, the current House of Representatives would consist of 20,000 members, a terrifying thought. Today, each of the 435 members of the House represents approximately 670,000 people.
    Madison’s second proposed structural fix urged that Article I, section 6, clause 1, dealing with Congress’s compensation, be amended to ensure that a sitting Congress could not increase its own salary. The proposal made it through Congress but was initially ratified by only five states. The proponents never gave up. In 1992, when Michigan became the thirty-eighth state to ratify Madison’s proposal, the idea of limiting Congress’s power to vote itself a pay raise finally achieved acceptance by three quarters of the states and became the Twenty-Seventh Amendment only 74,003 days after Congress had first recommended its adoption by the states. Better late than never.
    With the preface and structural fixes out of the way, Madison got down to the real business of rights. The story of the Bill of Rights begins with Madison’s June 8 proposals for amending Article I, section 9, inserting a series of separate clauses protecting religious freedom, free speech, free press, free assembly, the right to petition, the right to bear arms, limiting the quartering of troops, banning double jeopardy, guarantying due process of law, prohibiting unlawful search and seizure, banning cruel and unusual punishment, protecting jury trial and the right to counsel, and recognizing the possibility of additional unenumerated rights. Madison’s proposed text was often wordy, and the poetic structure was not yet evident to the naked eye—although Madison had already grasped much of it, especially the