structure and content of what became the FirstAmendment. In fact, the order of the six rights textually protected in what became the First Amendment was fixed on June 8, even though each was treated as a separate interpolation. Madisonâs June 8 provisions eventually evolved into the First, Second, Third, Fifth, Eighth, Fourth, Sixth, and Ninth Amendments, in that order. As of June 8, though, no one could accuse Madison of poetry.
Madison also urged that a new clause be placed into Article I, section 10, forbidding states from violating the rights of conscience, freedom of the press, and jury trial in criminal cases. The 1789 Senate, consisting of twenty-one white men of substantial property elected by the state legislatures, erased this effort to impose rights-based limitations on state governments. It took the Civil War, the enactment of the Fourteenth Amendment in 1868, and years of legal wrangling before Madisonâs vision of a Bill of Rights limiting state as well as federal government finally became a reality through the âincorporationâ of most of the Bill of Rights into the Fourteenth Amendmentâs Due Process Clause, an act of genuine semantic daring.
Madison continued by suggesting a new clause in Article III, section 2, limiting the power of the Supreme Court by imposing a minimum jurisdictional amount on appeals and forbidding Supreme Court review of jury verdicts except in accordance with existing common law principles. This was a very big deal in a legal world where juries often decided what the law was. The second half of Madisonâs proposed jury material eventually became the âreexamination clauseâ of the Sixth Amendment. In addition, the third clause of Article III, section 2 was to be replaced by a guaranty of a unanimous and impartial jury in all criminal cases, grand jury presentment in capital cases, and jury trial in civil cases, protections that eventually found their way into the Sixth, Fifth, and Seventh Amendments. Madison concluded his June 8 speech with a recommendation that a clause protecting separation of powers be placed in Article VI, forbidding the three branches of government from poaching on each otherâs turf, together with a federalism clause, ensuring that powers not given to the federal government orforbidden to the states be reserved to the states. Although the federalism clause became the Tenth Amendment, Madisonâs separation-of-powers clause, like his elegant preface and his clauses protecting religious freedom, free speech, and jury trial against the states, was rejected by the Senate. Eventually, though, all of Madisonâs âlost clausesâ but one became law through the magic of aggressive judicial review. Separation of powers is enforced nontextually; state governments are bound under the incorporation doctrine; but the Seventh Amendment right to jury trial in federal civil cases has not yet been applied to the states.
When Madison finally sat down on June 8, many of his colleagues were less than enthusiastic about the substance of his handiwork, and about taking time away from genuinely important things to debate the abstractions of a declaration of rights. Several sought to table the discussion indefinitely. Several others sought to refer the matter to a committee, where it might die a quiet death. Yet others doubted the necessity and wisdom of the entire enterprise. Finally the House was persuaded to continue considering the adoption of a bill of rights as a committee of the whole whenever time permitted. It took Madison more than a month to get the Bill of Rights onto the Houseâs agenda again. On July 21, he asked the House to consider his proposed June 8 amendments as a committee of the whole. The response was more griping about taking time away from pressing matters, especially because many members feared that each amendment recommended by a state ratifying convention would be discussed at length on the House floor.
Madison also urged that a new clause be placed into Article I, section 10, forbidding states from violating the rights of conscience, freedom of the press, and jury trial in criminal cases. The 1789 Senate, consisting of twenty-one white men of substantial property elected by the state legislatures, erased this effort to impose rights-based limitations on state governments. It took the Civil War, the enactment of the Fourteenth Amendment in 1868, and years of legal wrangling before Madisonâs vision of a Bill of Rights limiting state as well as federal government finally became a reality through the âincorporationâ of most of the Bill of Rights into the Fourteenth Amendmentâs Due Process Clause, an act of genuine semantic daring.
Madison continued by suggesting a new clause in Article III, section 2, limiting the power of the Supreme Court by imposing a minimum jurisdictional amount on appeals and forbidding Supreme Court review of jury verdicts except in accordance with existing common law principles. This was a very big deal in a legal world where juries often decided what the law was. The second half of Madisonâs proposed jury material eventually became the âreexamination clauseâ of the Sixth Amendment. In addition, the third clause of Article III, section 2 was to be replaced by a guaranty of a unanimous and impartial jury in all criminal cases, grand jury presentment in capital cases, and jury trial in civil cases, protections that eventually found their way into the Sixth, Fifth, and Seventh Amendments. Madison concluded his June 8 speech with a recommendation that a clause protecting separation of powers be placed in Article VI, forbidding the three branches of government from poaching on each otherâs turf, together with a federalism clause, ensuring that powers not given to the federal government orforbidden to the states be reserved to the states. Although the federalism clause became the Tenth Amendment, Madisonâs separation-of-powers clause, like his elegant preface and his clauses protecting religious freedom, free speech, and jury trial against the states, was rejected by the Senate. Eventually, though, all of Madisonâs âlost clausesâ but one became law through the magic of aggressive judicial review. Separation of powers is enforced nontextually; state governments are bound under the incorporation doctrine; but the Seventh Amendment right to jury trial in federal civil cases has not yet been applied to the states.
When Madison finally sat down on June 8, many of his colleagues were less than enthusiastic about the substance of his handiwork, and about taking time away from genuinely important things to debate the abstractions of a declaration of rights. Several sought to table the discussion indefinitely. Several others sought to refer the matter to a committee, where it might die a quiet death. Yet others doubted the necessity and wisdom of the entire enterprise. Finally the House was persuaded to continue considering the adoption of a bill of rights as a committee of the whole whenever time permitted. It took Madison more than a month to get the Bill of Rights onto the Houseâs agenda again. On July 21, he asked the House to consider his proposed June 8 amendments as a committee of the whole. The response was more griping about taking time away from pressing matters, especially because many members feared that each amendment recommended by a state ratifying convention would be discussed at length on the House floor.
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