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:
