Thomas Jefferson’s position on the ratification of the Constitution was pragmatically brilliant. He hoped that nine states would ratify the Constitution so that the new government, which he believed to be essential, could begin to operate. But he also hoped that four states would refuse to join in the new government until a bill of rights was secured.
In short, Jefferson wanted both the Constitution and the Bill of Rights.
By the time Virginia’s ratification convention was underway, eight other states had voted to ratify the new constitution. It was assumed that the ninth vote was inevitable, probably coming from New Hampshire.
Accordingly, Patrick Henry, a delegate to Virginia’s ratification convention, argued against ratifying the Constitution in Virginia in hopes that Virginia’s absence from the union would be of sufficient weight to force the new Congress to propose amendments—including a bill of rights.
Patrick Henry failed to defeat the Constitution in Virginia. But the vote was close enough that he secured the promise of James Madison to press the new government to adopt a bill of rights. As Virginia’s representative in the new Congress, Madison made good on his promise, and nearly single-handedly moved the Bill of Rights through Congress and out to the states for ratification.
I tell you this history not just because it is interesting in its own right, but to set the context for Patrick Henry’s arguments in favor of a written bill of rights. At the time, everyone agreed that human beings have rights that are gifts from God. But they disagreed on what basis the government is obligated to observe and defend those rights.
Those who opposed a written bill of rights contended that rights are implied in the law and history, and that by writing them down, we risk limiting them. But Patrick Henry argued that implied rights, based on logical inferences and historical precedent, are not sufficiently protected.
We should listen to the wisdom of Patrick Henry once again:
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