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To ensure ratification of the Constitution, the founding fathers promised that Congress would address guarantees of specific liberties in their first session. After a list of minor textual changes, a series of protections beginning with “No religion shall be established by law, nor shall the equal rights of conscience be infringed” followed by “The freedom of speech, and of the press, and the right of the people peaceably to assemble, and consult for their common good, and to apply to the government for the redress of grievances shall not be infringed” goes on to enumerate most of what would become the Bill of Rights. This is the Report of Mr. Vining and the Committee of Eleven “to whom it was referred to take the subject of Amendments to the Constitution of the United States, generally into their consideration...”  in essence the first Congressional draft of the Bill of Rights submitted to the House of Representatives. Several weeks later, the whole House would take up the Committee report pass an official draft of 17 amendments. The fine-tuning between House and Senate versions would continue for the rest of the Congressional session. But the initial report of the Committee of Eleven was the first time the enumerated amendments were revealed.

[BILL OF RIGHTS]. Newspaper. Gazette of the United States. August 1, 1789. New York: John Fenno. 4 pp. (125-128), 10 x 16 in.

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Excerpt

“In the introductory paragraph before the words, ‘We the people,’ add, ‘Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.’” (p. 125, col. 3).

“Art 1, Sec 9, Between par. 2 and 3. insert, “No religion shall be established by law, nor shall the equal rights of conscience be infringed.”

            “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed, but no person religiously scrupulous shall be compelled to bear arms.”

            “No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be prescribed by law.”

            “No person shall be subject, except in case of impeachment, to more than one trial or one punishment for the same offence, nor shall be compelled to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ; nor shall private property to be taken for public use without just compensation.”

            “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.”

            “The right of the people to be secure in their houses, persons, papers and effects shall not be violated by warrants issuing, without probable cause supported by oath or affirmation, and not particularly describing the places to be searched, and the persons or things to be seized.”

            “The enumeration in this constitution of certain rights shall not be construed to deny or disparage others retained by the people.” (p. 126, col. 1).

“Art. 1 Sec. 10, between the 1st and 2d Insert- 'No State shall infringe the equal rights of conscience, nor the freedom of speech, or of the press, nor of the right of trial by jury in criminal cases.” (p. 126, col. 1).

With additional reports from New York dated July 19: “Yesterday the Senate passed the Bill for the establishment of the department of foreign affairs, with one very small alteration respecting the chief Clerck to the Secretary- the principle of the bill is not varied.- The question of the President's power of removal from office was very warmly debated, and in voting the members divided exactly even 2 and 10- The President of the Senate gave the casting vote in favor of the  clause as it came for the House, by which the power of the President, to remove from office (as contained in the Constitution) is recognized- for I consider the act as nothing more in this point than a recognition of a principle interwoven in the tenure of the system....”  (p. 127, col. 2).

Historical Background

After Madison proposed his suggested amendments, the Committee of Eleven drafted discrete articles of amendment. Their report, printed here, suggested a variety of changes to Madison’s proposals. Most of the proposed Bill of Rights is sandwiched between other suggested amendments to Article I (composition of the legislative branch) and Article III (composition of the judiciary). Some of what would eventually become Amendments I through X are listed here amidst semantic and textual revisions. For example, “ ‘The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the states respectively’ ” is listed here as being added as a separate Article VII. Instead, it became the Tenth Amendment. Jury trials in both criminal and civil cases are similarly suggested as amendments to Article III. Instead, they are included in parts of Amendments VI and VII. Several changes, such as the prohibition of establishing a national religion, are included as individual amendments and as changes within specific articles. Since the Constitution had supremacy over the states, there was no need for this redundancy and these changes were not made.

Two proposed amendments, one pertaining to religion, and the other to free speech, a free press, and peaceable assembly were combined into the First Amendment. The Second Amendment stands in full, but with an additional clause exempting those “religiously scrupulous” from being forced to take up arms (no doubt a nod to Quakerism). The Third Amendment, prohibiting the private quartering of soldiers, is the exact Constitutional text. The Fourth Amendment prohibition against unreasonable searches and seizures is present with only slightly different wording, the Eighth Amendment prohibiting excessive bail and cruel and unusual punishment is verbatim to the final wording, as is the Ninth Amendment, which reserves any rights not listed in the federal constitution to the people. The ideas eventually found in the Fifth and Sixth Amendment, especially prohibitions against self-incrimination and double jeopardy, an included in this Gazette of the United States printing but were fleshed out substantially in the final form found in the Constitution.

The Articles of Confederation were the official compact for the government of the United States in the final years of the Revolutionary War and the five years following the war. The Articles defined a loose association of states, where each state retained full independence and sovereignty. There was no president; major decisions required a supermajority (9 of the 13 states) and most of the powers granted to the national government revolved around defense and foreign affairs. In financial matters, the government could coin money but not raise the funds necessary to run a government. The Confederation government did have some success, notably a series of land ordinances culminating with the Northwest Ordinance of 1787. Combined, they divided, surveyed, and sold the land, and provided a path to statehood. Most importantly, the ordinances banned slavery in the territories, which would have far-reaching consequences in the decades to come.

In late 1786 and early 1787, a group of Massachusetts farmers led by Daniel Shays shut down the local courts to prevent foreclosure. Shays’s Rebellion was a warning to some of the founders, and greatly strengthened the need for a truly national government. In May 1787, fifty-five delegates met in Philadelphia, initially to amend the Articles but quickly deciding to scrap them entirely and write a new Constitution. Nailing the windows shut for privacy despite the summer heat, the convention worked in secrecy drafting the Constitution. The entire process was an exercise in compromise on issues such as representation, composition of the legislature, voting rights, and especially, slavery. In a novel plan that helped circumvent entrenched political positions, special state conventions would ratify the document.

The debate over ratification continued in the states. Two camps, the Federalists, in favor of ratification, and the Anti-Federalists, quickly developed. Alexander Hamilton, James Madison, and John Jay then wrote a series of essays under the nom-de-plume “Publius,” collectively entitled The Federalist, in an attempt to gain public support for ratification. Anti-Federalists feared that business interests would take over the new government, and that U.S. territory was too large for an effective central government. A key concern was the lack of a Bill of Rights, something contained in individual state constitutions. Madison gained support for the document he drafted by promising that the first Congress would enact a federal Bill of Rights.