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From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution

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A truly wonderful, easy to read portrayal of Mr. Madison, a federalist who saw the political advantage to a Bill of Rights and undertook the task to write the amendments that saved the Constitution.

The author is to be commended for writing about a an important event in our nation's history -- the formation of the Bill of Rights -- that has to date been the subject of very few book-length studies. While I liked much of the historical account, it seems to me that the treatment of James Madison's ideas was lacking in some respects.

Goldwin argues that Madison's principal purpose in proposing the Bill of Rights was political. Madison, Goldwin says, was concerned about Anti-Federalist opposition to the Constitution and the risk that the Anti-Federalists would succeed in calling a second constitutional convention that might undo all of the important structural features of the Constitution. Goldwin believes that Madison hoped to steal the Anti-Federalists' thunder by offering amendments whose substance was uncontroversial, but whose inclusion would help solidify support for the new Constitution in a public that was still nervous about the way it centralized national power.

Goldwin reinforces his argument about Madison's political motivations by suggesting that Madison regarded a Bill of Rights as being practically useless in preventing governments from encroaching on the liberties of its citizens. Instead, according to the author, Madison thought that the structural elements of the Constitution (separation of powers, bicameral legislature, etc.) afforded the best mechanism for securing rights against infringement by the majority. Goldwin goes so far as to suggest repeatedly that Madison was willing to propose a Bill of Rights precisely because he believed it would "leave the original Constitution unchanged . . . ." (p. 101; see also p. 153).

Goldwin may be right about Madison's political motivations in proposing a Bill of Rights; others have drawn similar conclusions. But the author's positive assessment of Madison's ideas about the intrinsic inefficacy of a Bill of Rights is unpersuasive. If Madison truly believed that including specific restraints on governmental power in a written constitution would do little directly to advance the cause of freedom, and that the Constitution as originally written would serve those ends well, in my view he was fundamentally mistaken. It is certainly true that the will of the majority would be frustrated less often if we had no Bill of Rights, or if the Judiciary had no power to enforce its provisions. But it is precisely for that reason that the freedoms set forth in the Bill of Rights would have been less secure if they had never been made a part of the Constitution.

In light of the widely held contemporary view that the Bill of Rights is an essential (even if sometimes misused) restraint on governmental power, this book would have been better if, instead of uncritically praising Madison's contrary view, Goldwin had subjected it to searching analysis. Madison's view of the role of the judiciary in enforcing the Bill of Rights, a subject not even broached in this book, would in my view be central to such an analysis. Raoul Berger pointed out in an article written several years ago that during the debates over the ratification of the original Constitution in Virginia, Madison joined John Marshall (who later became Chief Justice of the Supreme Court) in maintaining that the Judiciary had this power. And in his speech to the First Congress proposing a Bill of Rights, Madison (echoing Jefferson's sentiments in a letter written to him from France) asserted that "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights." Madison's support for some form of judicial review is also evidenced in statements he made in the Philadelphia Convention and in The Federalist Nos. 39 and 44. Since Madison believed that the courts would have a large responsibility for enforcing the Bill of Rights, then a question which needs to be addressed is why he nevertheless regarded the amendments as a mere "parchment barrier." And what makes the other, structural elements of the Constitution which Madison looked to as the main protector of our liberties (e.g., separation of powers, limitation of Congress to enumerated powers) anything more than "parchment barriers" themselves? Finally, it would have been useful to consider not only what Madison thought immediately before and after the formation of the Constitution, but also the extent to which his views may have changed as he observed the Constitution in operation over the course of his long political career.

I also think that Goldwin's insistence that both the Federalists (including Madison) and the Anti-Federalists believed that the Amendments "changed nothing in the Constitution" (p. 177) is misleading. This characterization not only distorts the views of both groups and obscures their important philosophic differences, but also trivializes the subtantive import of the Bill of Rights. How can it be said, for example, that the privilege against self-incrimination set forth in the Fifth Amendment "changed nothing," when in its absence Congress would have been able to compel the defendant to testify in a federal criminal proceeding?

This book is about the adoption of the Constitution of the United States. According to author Robert Goldwin, adoption of the Constitution was never seriously in doubt, but the timing of its ratification certainly was. Everyone it seems understood the Articles of Confederation were a dismal failure for governance at the national level. Surprisingly, no one in Congress or in the individual State legislatures seemed to mind that the delegates to the 1787 Constitutional Convention seriously exceeded their instructions when they developed a brand new Government for the original 13 States.

What caused the subsequent debate was a feeling that prior to ratification the document developed in Philadelphia needed to be amended. And to some, to do that a second convention was required. Simply put, everyone agreed that the form of government we had was not working and that the new plan should be put into effect. The question was more one of timing: Should the Constitution be put into effect as issued by the Constitutional Convention delegates or should it be tightened via further discussions and then put into effect.

The Federalists wanted to avoid further tinkering. They felt the longer the Constitution was debated, the less certain passage became and that the Union would dissolve amid individual State self interest. To be sure, certain Anti-Federalists did not want the new government. But the majority of Anti-Federalists simply wanted to see a little more clarity, and justifiably so. Earlier in that decade we had concluded a long and costly war against a centrist monarchy. The Constitution was a centrist document. Everyone had lost sons, brothers and fathers in that war. No one wanted a repetition of those events, one that would proclaim that their loved ones had died in vain. So while ratification was mostly a question of when, amendments before adoption or after adoption, it was a seriously impassioned question that both sides were trying to resolve.

The Constitution was adopted by the slimmest of margins. An 18 vote swing would have defeated it. Those who favored it realized for it to work, the Constitution needed the strong support of those who opposed it during ratification. It had been a very close call and opposing interests could not be ignored. Even after the government was functioning, opposition continued to be wide spread and stubborn.

Robert Goldwin spins a very good story about how James Madison took the scores of amendments proposed by opponents during the ratification process, distilled them and ended opposition to the Constitution. Today we call Madison's work The Bill of Rights.

I found this book insightful, instructional and enlightening. It makes you want to know more, a lot more, about James Madison.