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The signing of the US Constitution in 1787. (MPI / Getty Images)
The Bill Of Rights Was A Concession To Popular Struggles
Early US elites drafted the Constitution to check democratic uprisings that threatened the power of the ruling class. The Bill of Rights, a late addition to the Constitution that protected important freedoms, was a concession to these popular struggles.
The signing of the US Constitution in 1787. (MPI / Getty Images)
When Americans today think of the Constitution, many of us think of certain cherished freedoms we hold dear: freedom of speech, religion, and the press. Protection from unreasonable search and seizure, as well as cruel and unusual punishment. The right to a trial by a jury of your peers.
All of these rights have two things in common. They are fundamental political rights of a free people, and none of them were in the Constitution drafted by the “Founding Fathers” in the summer of 1787 — they were added by the Bill of Rights, ratified in 1791.
One of the many myths drilled into Americans’ minds from a young age is the noble, enlightened ideals of the Founding Fathers. Ask any schoolchild why the US Constitution was written, and they’re likely to rattle off any number of platitudes and cliches. They might say “to defend our freedom” or “to protect democracy.” Someone slightly older, who’s taken a college-level history class, might mention the need to replace the Articles of Confederation — America’s often forgotten first constitution — which we are told was “too weak” a form of government to run the country. But that explanation raises the question: What exactly were the Articles of Confederation “too weak” to do?
In reality, the US Constitution was not written to protect the rights and liberties of “the people.” It was created to protect the “right” of the rich to exploit the poor — a “right” that wealthy Americans increasingly realized the Articles of Confederation had been too democratic to defend.
In the words of historian Woody Holton, the same document that many Americans revere today was written by men who thought the “American Revolution had gone too far.” To the “Father of the Constitution,” James Madison, the purpose of the document was to “protect the minority of the opulent against the majority.” Like other aristocrats, slaveholders, and wealthy investors who made up the Constitutional Convention, Madison made explicit that he had a big problem with the “excess of democracy” unleashed by the American Revolution.
The reason we enjoy the protections enshrined in the Bill of Rights is that there were other forces the elites had to contend with. Chief among these was what founding elites of all stripes and across partisan lines called “the Democracy,” by which they meant the stubborn masses of ordinary people determined to vote, organize, and fight for their own interests. We have this popular discontent to thank for the Bill of Rights.
The Specter of “the Democracy”
Alexander Hamilton and Elbridge Gerry represented polar opposites of the early US political elite. Hamilton wrote over fifty widely circulated essays defending the Constitution, while Gerry was one of only three delegates at the convention who refused to sign it. Yet on the fundamental problem of American politics, they were in total agreement: “the Democracy” had to be destroyed.
Both men agreed that the “evils” the country faced flowed from an “excess of democracy” in the state governments, where national sovereignty lay under the Articles of Confederation. Many conventional accounts of the constitutional debate between Federalists and Anti-Federalists portray the struggle as one between benevolent aristocrats with different views on how best to defend Americans’ hard-won freedoms. It was actually a fierce debate among self-serving elites about how to keep ordinary Americans out of the halls of power.
Democracy had begun to get in the way of the Framers’ economic interests. Examples abound: George Washington couldn’t get squatters off Western land he was speculating in because there was no federal police force to root them out. John and Abigail Adams had invested heavily in state and federal bonds on the cheap during the staggering economic depression of the 1780s, but without an aggressive federal taxation policy, they’d never see their payouts in full. Madison and Thomas Jefferson, like Washington, wanted to get in on the action of speculating in Western indigenous land, but couldn’t get loans from domestic or French investors due to Americans’ infamously bad credit rating and Native American resistance to colonial expansion.
Like other aristocrats, slaveholders, and wealthy investors who made up the Constitutional Convention, Madison made explicit that he had a big problem with the ‘excess of democracy’ unleashed by the American Revolution.
America’s wealthiest men (and women) laid the blame for these problems at the feet of the “corruption and mutability” of the state governments and the specter haunting them — “the Democracy.” Edmund Randolph was another one of the three delegates who ultimately refused to sign the Constitution; that didn’t stop him from putting the problem bluntly in the speech that opened the Constitutional Convention. He said that the founders’ “chief danger arises from the democratic parts of our [state] constitutions,” which had failed to establish “sufficient checks against the democracy.”
Before, during, and after the American Revolution, the common people derided as “the Democracy” and “the mob” had begun aggressively asserting their right to govern themselves and organizing for their own interests on that basis. As early as 1776, for instance, a popular revolt inspired by Thomas Paine’s Common Sense overthrew the Pennsylvanian colonial government. James Cannon and Thomas Young organized the disenfranchised privates of the state militia against the colonial government that was then bent on making peace with the British king. While the vast majority of privates in the state militia supported independence, property qualifications meant that few of them could vote in the government they were fighting to defend.
All that changed on June 10, 1776, when the Philadelphia militia declared an end to the colonial assembly, effectively ending organized opposition to independence in the Continental Congress. Cannon and Young were key figures in drafting the new state constitution, which abolished property requirements for voting and established a hyper-representative state assembly unchecked by an upper house, and with the power to appoint the executive and judicial branches. In 1780, it became the first government in Europe or its colonies to abolish slavery (albeit gradually).
The popular uprisings didn’t stop there. In 1783, the populist, farmer-led Country Party swept state elections in Rhode Island and began printing money and passing tax relief for poor farmers at the expense of wealthy investors; “Rogue Island” would become the last state to ratify the Constitution after fierce popular resistance.
In states where they didn’t take power in the legislature, farmers rose up in arms. Rebellions led by “Black Matthews” and Daniel Shays in Virginia and Massachusetts, respectively, succeeded in forcing their states to enact tax and debt relief and then pardon the insurrectionists. In New Hampshire, hundreds of broke, angry farmers laid siege to the state capital. The same thing happened to the federal government in 1783 when a mutiny forced Congress to abandon Philadelphia. Washington had to march in with 1,500 soldiers to crush a revolt of unpaid veterans from his own army.
This was all deeply disturbing to American elites. Washington himself was convinced of the need for the Constitution by Shays’s Rebellion. He made the same observation that he previously had made of slave revolts, that “commotions of this sort, like snow-balls, gather strength as they roll, if there is no opposition in the way to divide & crumble them.”
Divide et Impera
Madison agreed. In the fall of 1787, Madison wrote to Jefferson that “divide et impera [meaning divide and conquer], the reprobated axiom of tyranny, is under certain qualifications, the only policy, by which a republic can be administered on just principles.” Though they disagreed on the specifics, the men who wrote the US Constitution broadly saw a need to divide the general population against itself.
Some wanted to go further than others, and the Federalists were generally the hard-liners. Madison wanted to give the Senate veto power over all legislation at the state level whatsoever. Gouverneur Morris, the man who wrote the preamble to the Constitution, privately believed there was “no hope that our union [could] subsist except in the form of an absolute monarchy.” Hamilton wanted to abolish the state governments entirely and have the president and US senators serve life terms. Morris and Hamilton even entertained an attempt to overthrow the Continental Congress and install a military dictatorship under Washington, though Washington himself put the idea to rest.
The Anti-Federalists favored a softer approach. As much as prominent Anti-Federalist George Mason liked Madison’s federal veto idea, he feared “the public mind would not now bear” it. When one delegate proposed making it impossible for Congress to override the presidential veto, Mason once again warned that such authoritarian extremes might endanger the Constitution’s ratification. Randolph and Gerry raised objections to the Constitution on similar terms. When Madison proposed that congressmen in the House serve three-year terms, Gerry blasted back that “the people of New England will never give up” annual elections, and “it was necessary to consider what the people would approve.”
The Battle for a Bill of Rights
Madison wrote the Bill of Rights, but he wasn’t particularly fond of it. He did not think such “parchment barriers” would provide sufficient checks against what he considered the true political problem of his time — the threat of popular majorities assailing elite rule. But political realities forced him to reconsider his opposition.
Chief among these was that the Constitution wasn’t very popular. Despite promising significant relief for poor farmers — by shifting the tax burden to Western settlers through excise taxes on whiskey, and using the new federal army to conquer Native American lands for land speculators like Washington — Holton estimates that as much as half the electorate opposed ratification. In his book Unruly Americans, Holton recounts how a gauntlet of plots, deceptions, delicate maneuvers, and blatant propaganda barely managed to get the Constitution ratified in the requisite nine states.
A few examples: When the New Hampshire convention looked likely to reject the Constitution, Federalist delegates obstructed the vote for five months until conditions looked more favorable. At the Massachusetts convention, Federalists planted rumors that if the delegates voted the Constitution down, they would not be paid. Two-thirds of the delegates to the convention in New York were open Anti-Federalists — until New York City threatened to secede and ratify the Constitution on its own.
Yet despite all this, seven of the state ratifying conventions demanded sweeping amendments. In Virginia, New York, and Massachusetts, ratification carried the day only after Federalists pledged themselves in support of adding a bill of rights upon ratification. North Carolina refused to even consider ratifying at all until after amendments were made. In Rhode Island, the only state where ratification was put directly to the people and not a ratifying convention, the Constitution was flat-out rejected by popular referendum.
Madison’s own support for the Constitution had cost him his bid for a seat in the US Senate, and he was elected to the House on a promise to champion a bill of rights when he got there. But what really terrified Madison and his coconspirators was the prospect of a second constitutional convention, which Madison feared would “give greater agitation to the public mind.”
Both New York and Virginia’s ratifying conventions had called for a redo, and the New York Anti-Federalists sent out a circular letter calling for others to sign on. Such a convention would’ve had far greater authority for rewriting the constitutional order than even the original convention, which had been carried out in secret behind locked doors. Madison feared that this would allow “individuals of insidious views” a “dangerous opportunity of sapping the very foundation” of the aristocratic nation that Madison sought to build.
The Bill of Rights, the part of the Constitution Americans today are most likely to care about, was drawn up, in Madison’s words, ‘to conciliate the minds of the people.’
One such “insidious individual” was a man by the name of Herman Husband. Perhaps the most important figure in “the Democracy” who you’ve never heard of, Husband had been a prominent leader in the rebellion of the Regulators in North Carolina in the late 1760s. The Regulators were an early expression of the agrarian movement that later exploded in the 1780s, which sought to “regulate” the corrupt colonial government through direct action, from protests and riots to armed revolt. (The insurgents involved in Shays’s Rebellion saw themselves as following in the tradition of “regulation” and typically referred to themselves as “regulators.”) Husband spent much of the 1770s in hiding from colonial authorities, but in 1777, he reemerged and was elected to the radically democratic Pennsylvania state legislature. Soon after, he began preaching his vision for the “New Jerusalem.”
Husband’s egalitarian views shocked his contemporaries. His vision most closely resembled a nationwide agrarian commune. He wanted to abolish slavery, negotiate a just peace with Native Americans, provide land grants to everyone (including women), institute worker ownership of industrial enterprises and progressive taxation, and establish an extremely decentralized government sprouting up from local townships, with no property or religious tests for voting. And though Husband’s views made him an outlier even among “the Democracy,” less radical ideas of popular sovereignty were circulating widely and seen as a serious threat by elites like Madison.
The Bill of Rights, the part of the Constitution Americans today are most likely to care about (along with later constitutional amendments), was drawn up, in Madison’s words, “to conciliate the minds of the people.” It was a minimalist set of concessions designed to prevent a thoroughgoing reordering of the constitutional order — either by Southern “states’ rights,” obsessed elites, or, more concerning for the Framers, “the Democracy.”
The “Parchment Barrier”
Madison was right about the Bill of Rights being little more than a “parchment barrier.” The threat to individual freedoms, however, was never “the Democracy” he tried to destroy but the elites whose rule he aimed to entrench. Less than a decade after the Bill of Rights was ratified, Federalist president John Adams signed the 1798 Alien and Sedition Acts to deport or imprison anyone who criticized the federal government, triggering one of the United States’ first constitutional crises. Now President-elect Donald Trump wants to resurrect this 226-year-old law and weaponize it in service of mass deportations of innocent people.
The law is an obvious and shameless assault on free speech, though you’re not likely to hear right-wing free-speech warriors screaming about it. Just like in the eighteenth century, our ability to defend these freedoms will come from popular resistance.
Protecting these rights, though, is hardly half the battle. The bigger lesson from the origins of the Constitution is the scale of the transformation needed for the US government to actually represent the population. Thankfully the founding fathers told us explicitly what mechanisms they built to “check” American democracy. The Electoral College is an obvious one, and is the reason why five presidential elections have gone to the candidate with fewer votes than his opponent. And Randolph described the purpose of the antimajoritarian Senate as “restrain[ing], if possible, the fury of democracy.” We could go on and on in documenting the Constitution’s antidemocratic features, as more and more writers have been doing recently.
We shouldn’t take the freedoms enshrined in the Bill of Rights for granted. But to win a democracy really worth the name, we need these major Constitutional reforms, and, as a start, a transformative economic bill of rights of the kind championed by Franklin D. Roosevelt and Martin Luther King Jr to tackle egregious economic inequality and ensure working people some amount of material security. From the United States’ beginnings, what measure of individual freedom and democracy we do have has largely been won by popular mobilization and resistance to economic elites. Our prospects for winning greater freedom today depend on the revival of that same spirit of resistance, in the form of an organized working-class challenge to corporations and the ultrarich.
