The Constitution Was Always a Moving Target

When James Madison introduced the first amendments to the new federal Constitution on June 8^th 1789, he intended them to be incorporated into the body of the text. His amendments would revise and correct the document, which he thought “defective.” They would also take into account objections raised during the process of ratification, namely by explicitly enumerating certain individual rights. His object was both a better constitution and one that would more readily command popular support. However, Madison’s amendments were not incorporated in the way he had proposed. That approach, as Connecticut’s Roger Sherman warned, risked opening the entire constitution to renewed scrutiny, something the Federalist majority in Congress was anxious to avoid. Instead, the amendments were appended to an original text that remained inviolate, thus preserving the work of the framers at Philadelphia. At the same time, this solution gave the ten amendments a textual life of their own. Both a part of the Constitution and set apart from its original text, the Bill of Rights has an awkward status—one that reflects an unresolvable ambivalence in U.S. constitutionalism.

The debate over incorporating amendments gave Congressmen an early opportunity to make a fetish of the Philadelphia Convention’s text. According to Carol Berkin’s account, “several Federalists balked at anything that would tarnish the image of the Constitution as the achievement of men of unimpeachable patriotism and exceptional wisdom” (p. 84). If amendments had to be made, better to make them invisible by revising the text than to add them at the end, like the postscript to a letter written in haste. Yet ironically, the decision to list amendments separately helped to enshrine the text untarnished in the long run. For Mary Sarah Bilder, it was precisely this choice that ensured that “the original Constitution and the Convention that wrote it remained significant” (p. 175). This significance was no quirk of fate. It was the conscious wish of many who helped shape the document, including those in the First Congress who insisted on the monumental nature of the original text. In their recent books, Berkin and Bilder both aim to tell us something of the nature of that monument and its enduring power.

A sequel to her 2002 book, A Brilliant Solution, which focused on the Philadelphia Convention, Berkin’s Bill of Rights is a brief and straightforward narrative account of the debates and processes that led to the first ten amendments. As such, it provides a potentially useful starting-point for both undergraduate students and interested lay readers. On the other hand, without chapter headings (they are simply numbered I to XIII), the book is not easy to navigate as a scholarly resource. Nor does her telling of the story add to what historians already know. Berkin frames the struggle over the Bill of Rights as a continuation of the ratification campaign. On one side was a Federalist Party wedded to centralized power; on the other, Antifederalists committed to states’ rights. James Madison, our hero, outmaneuvered and disarmed his foes by co-opting their most resonant complaint, the lack of a bill of rights. Some Antifederalists were more amenable than others. As Berkin puts it, Madison “hoped to drive a wedge between these reasonable critics of the new government and those states’ rights extremists who sought to rob the Constitution of essential powers” (p. 39). His gambit succeeded, but did not prevent states’ rights from becoming a source of perennial struggle.

Beneath the surface of this story lie important questions about what the Bill of Rights actually is and what it was supposed to achieve. Clearly, it was not simply a list of individual rights. In the first amendment alone, the establishment clause protected state governments from Congressional interference, while the right to peaceable assembly is inherently collective, not individual...