Think, for a second, about how hard it is to draft a constitution.

Making it work is even harder. And because it’s so difficult, most constitutions don’t last long. Yet if you’re like most Americans, you’ve probably always taken constitutions for granted.

But consider this: between 1971 and 1990, 110 of the world’s 162 national constitutions were either written or extensively re-written (1). An average of five new constitutions are adopted somewhere in the world each year. Canada’s most recent version was adopted in 1982. France had to begin rewriting less than three years after it finished. Since 1789, France has tried to get it right a total of 15 times.

But while the French have written and rewritten, the United States Constitution has endured for over 200 years, making it the oldest written constitution in the world. And no part of the U.S. Constitution is more important to our national character than the 45 words that make up the First Amendment.

But how did the First Amendment, and the U.S. Constitution, come to be?
To answer that question, imagine that the year is 1785: America is just four years removed from its stunning victory over the British, but the new nation is already in trouble.

The Articles of Confederation, America’s first model of self-government, is a huge failure. Wary of the strong central power of the British monarchy, America’s leaders had instead created a form of government that gave lip service to the notion of a “United States,” but provided no real ways of ensuring its development. As a result, instead of having national unity, America has thirteen separate nations.
In an environment of such discord, the United States of Congress Assembled—as it was then called—is vulnerable. Something needs to be done, or else the nation Americans have just fought and died to secure will be lost.

What would you do?

Well, beginning in 1785, many of the country’s leading figures began to talk about how they could strengthen the Articles of Confederation. Eventually, they decided to hold a convention of all 13 states, in Philadelphia, in the late summer and fall of 1787.

Congress clearly stated that the purpose of the convention was not to draft a new form of government, but the delegates quickly realized that was exactly what they had to do.

One group of delegates, who became known as the antifederalists, insisted that the new Constitution should contain a specific list of guaranteed rights for its citizens. These were men like George Mason, who had drafted Virginia’s Declaration of Rights, a document which had become a model for other states, and which was drawn on by Thomas Jefferson in the first part of the Declaration of Independence. To omit such a list, Mason and others argued, would be to fail “to attend to the rights of every class of people.”

A majority of the delegates, however, disagreed—not because they thought individual rights weren’t important, but because the purpose of their meeting was to draft a more effective form of government. To begin that process by providing a lengthy list of everything it couldn’t do just didn’t make sense. And this majority, who became known as the federalists, had a point: after all, if nearly every state had some mentioning of individual rights in their state constitutions, wouldn’t a national list be repetitive?

This question remained unresolved when the Philadelphia convention concluded, and the draft of the new Constitution—minus a Bill of Rights—was distributed to all 13 states for consideration.

When word spread about the new document, it quickly became clear that deciding whether or not to add a Bill of Rights would be the central obstacle for each state convention to hurdle. In fact, eight of the eleven states that voted to ratify the Constitution (2) did so only after being promised that adding a Bill of Rights would be Congress’s first order of business. In anticipation of that meeting, the 13 state conventions produced a dizzying list of recommendations—210 different amendments to be precise, covering 80 different areas. (3)

Clearly, the First Congress had their work cut out for them.
James Madison, a prominent Virginian and a member of the Philadelphia convention, wanted to be a member of that First Congress. Madison had not been a strong proponent of a Bill of Rights in Philadelphia, but he quickly realized he would need to support the idea to win a seat in the House.

Madison did win, and then fulfilled his campaign promise by urging his colleagues at the First Congress “not to disregard [the people’s] inclination, but, on principles of amity and moderation, [to] conform to their wishes and expressly declare the great rights of mankind secured under this constitution.” (4)
Once he had made the case for their consideration, Madison moved on to present the amendments themselves. (5)  There were nine in all, but it is in the language of the middle three that we can see the precursors to the  five freedoms of the First Amendment. They read:

4. The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext infringed.

5. The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

6. The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances for redress of their grievances. (6)

A special House committee, however, suggested some language revisions to Madison’s original list. As a result, his fourth, fifth and sixth amendments were combined, so they now read like this:

3. No religion shall be established by law, nor shall the equal rights of conscience be infringed.

4. The freedom of speech, and of the press, and of the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed.

The committee was getting closer, but the wording still wasn’t perfect, or so thought the members of the House. And then, during the debate, Theodore Sedgwick of Massachusetts asked a potentially destructive question.

To list both the freedom to speak and to assemble, Sedgwick argued, was unnecessary. After all, there are countless rights —“a man’s right to wear a hat, to go to bed when he wants, to ride a horse in the afternoon.” (7)  If you’re going to guarantee one of these, he continued, why not all of them?

Madison, however, allayed the fears of his colleagues by urging that they “confine [them]selves to an enumeration of simple, acknowledged principles.” (8)  And finally, on August 24th, the House approved a total of 17 amendments for the Senate to consider. Two of those read as follows.

ARTICLE THE THIRD.
Congress shall make no law establishing religion or prohibiting the free exercise thereof, nor shall the rights of Conscience be infringed.

ARTICLE THE FOURTH.
The freedom of Speech, and of the Press, and of the right of the People peaceably to assemble, and consult for their common good, and to apply to the Government for a redress of grievances, shall not be infringed.

When the House’s proposed amendments arrived at the Senate for final consideration, the Senators set about trying to condense the House’s longer list into one that was more manageable.

Gradually, and after much debate, the Senate reduced the17 House amendments to 12, and on Sept. 25, 1789, Congress sent these amendments to President Washington for transmission to the states.

Many states, however, found the first two amendments unworthy for consideration, and approved only the final ten. Consequently, on December 15, 1791, when Virginia became the required eleventh state to ratify the Bill of Rights, the first amendment, which had once been three separate amendments, then two, and then the third overall, now read:

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.

It has not been revised since.

This essay was written by Sam Chaltain of the First Amendment Schools project. For more information about First Amendment Schools, visit the project Web site at http://www.firstamendmentschools.org. The author can be reached at schaltain@freedomforum.org.

1 Robert A. Goldwin, “From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution.” The AEI Press (Washington, D.C., 1997), 1.

2 North Carolina and Rhode Island initially rejected the Constitution, but once the new national government got underway, they had little choice but to join.

3 Robert Wagman, “The First Amendment Book.” Pharos Books (New York, 1991), 32.

4 Cited in Goldwin 80.

5 Although many of the ten amendments that comprise the Bill of Rights were dramatically rewritten before they were finally ratified, there is nothing they protect that is not mentioned, in some form, in this first list of Madison’s.

6 Neil Cogan, “The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins.”  Oxford University Press (New York and Oxford, 1997), 1, 83, & 129.

7 Wagman 37.

8 Cited in Wagman 38.