The argument over whose liberty the Constitution protected

The ratification struggle becomes a national debate

Beginning in late 1787, Alexander Hamilton, James Madison and John Jay published essays now known collectively as The Federalist. They defended a stronger union against fears of disorder and foreign weakness. Their opponents were not one political party. George Mason, who refused to sign the Constitution, objected to the absence of a declaration of rights and the compromises over slavery. Patrick Henry warned Virginians that national authority could overwhelm local government. Debate reached state ratifying conventions, newspapers and households far beyond Philadelphia.

Delaware ratified first, on December 7, 1787. New Hampshire became the ninth state to ratify, on June 21, 1788, satisfying the new Constitution’s threshold. But a legal threshold did not end the political problem: Virginia and New York still mattered greatly to the union’s legitimacy. Ratification in those states was close and bitterly contested. Some supporters of the new Constitution helped secure votes by promising that the first Congress would consider amendments.

A republic is not simply the opposite of democracy

When Madison discussed a republic in Federalist No. 10, he distinguished the direct assembly of all citizens from a system in which citizens choose representatives. In ordinary modern usage, the American system is both a constitutional republic and a representative democracy. Calling it a republic does not make elections dispensable; calling it a democracy does not remove written limits on what elected majorities may do. Article IV requires a republican form of government in the states, while Articles I through III distribute national lawmaking, executive and judicial authority.

What gives this American arrangement its particular character is the layering. Citizens elect representatives and, through state electoral procedures, choose the presidency; states retain their own governments; courts decide cases under a written constitution; constitutional amendments require unusually broad agreement. The arrangements are not self-enforcing. An election can be conducted under unfair rules; a court can lack resources or compliance; a constitutional promise may exclude people to whom it should apply.

Madison turns a promise into amendments

As a member of the first House of Representatives, Madison proposed amendments in 1789. Congress sent twelve to the states on September 25. Ten were ratified by December 15, 1791, becoming the Bill of Rights, with protections concerning expression, religion, assembly, fair legal process and other matters. The amendments were a response to opponents who demanded enforceable limits on the new government, not an afterthought added to a finished consensus. Their earliest application was limited, and constitutional protection developed unevenly, particularly for people who remained enslaved or politically excluded.