Who wrote the Constitution amendments

James Madison proposed 12 amendments to the Constitution, but only 10 were approved. What were the two that were not?

Answer

When the Constitutional Convention sent the proposed Constitution to the states for ratification, Anti-Federalists voiced strong objections to it, especially criticizing the strength it invested in the national government and its lack of explicit protections for the rights of individuals. Politicians in several states were able to secure their states' ratification of the Constitution only with the promise that it would be almost immediately amended.

In 1789, James Madison, then an elected member from Virginia of the First Congress's House of Representatives, proposed 19 amendments meant to answer the objections already raised in the states. The Senate consolidated and trimmed these down to 12, which were approved by Congress and sent out to the states by President Washington in October, 1789.

The states ratified the last 10 of the 12 amendments. They became the first 10 amendments to the Constitution, and are now referred to as the Bill of Rights. Not enough states (10 were needed at the time) ratified the first two of Madison's original 12, however, and they did not become law.

The first of these would have established how members of the House of Representatives would be apportioned to the states. It was drafted to ensure that members of the House would continue to represent small constituencies even as the general population grew, small enough that Representatives would not be too far removed from the concerns of citizens. In addition, keeping the House of Representatives from being too small was thought to protect against its becoming a kind of oligarchy. Congress did send this amendment to the states, but the number of states that ratified it was just short of the number needed. Although the proposed amendment did not become law, Congressional apportionment is nevertheless grounded in the Constitution (Article 1, Section 2, Paragraph 3) and the total number of members of the House of Representatives is set by federal statute (currently at 435).

The second of Madison's 12 amendments forbade Congress from giving itself a pay raise: Congress could vote for a raise but it would only apply from the beginning of the next Congress. This amendment also failed to gather the required number of state ratifications in the years after it was introduced. In 1982, however, Gregory Watson, a university student doing research for a government class, ran across a description of this amendment and realized that it remained "alive" because it had included no language in it about a window of time in which it had to gain the needed number of state ratifications. Watson organized a successful effort to lobby various state legislatures, seeking their ratification of the amendment. As a result, the needed number was eventually reached and this amendment, first proposed in 1789, became the 27th (and most recent) amendment to the U.S. Constitution in 1992.

Richard E. Labunski, James Madison and the Struggle for the Bill of Rights (New York: Oxford University Press, 2006).

Jackson Turner Main, The Anti-federalists: critics of the Constitution, 1781-1788 (Chapel Hill: UNC Press, 2004)

David J. Siemers, The Antifederalists: men of great faith and forbearance (Lanham, Md.: Rowman & Littlefield, 2003).

John R. Vile, A Companion to the United States Constitution and Its Amendments, 4th edition (Westport, Ct.: Greenwood Publishing Group, 2006).

John W. Dean, "The Telling Tale of the Twenty-Seventh Amendment: A Sleeping Amendment Concerning Congressional Compensation Is Later Revived," September 27, 2002 (at FindLaw).

Images:
Portrait etching of James Madison and detail of broadside, printed by Bennett Wheeler, Providence, R.I., 1789.

James Madison medallion, frontispiece of William Cabell Rives, History of the Life and Times of James Madison (Boston: Little, Brown and Company, 1859).

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

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Amendment II

A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

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Amendment III

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.

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Liberty and Security in Modern Times

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

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Gideon v. Wainwright

Amendment VII

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

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Due Process of Law 

Amendment VIII

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

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Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

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State and Local Governments

Primary Source by James Madison, George Mason (1791)

The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the First Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The Fourth Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant.

The Bill of Rights was strongly influenced by the Virginia Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties.

One of the many points of contention between Federalists, who advocated a strong national government, and Anti-Federalists, who wanted power to remain with state and local governments, was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty.

Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII.

The House approved 17 amendments. Of these, the Senate approved 12, which were sent to the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791.