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By Root 293 0

“It is very probable … that mankind would have been obliged, at length, to live constantly under the government of a SINGLE PERSON, had they not contrived a kind of constitution, that has all the internal advantages of a republican, together with the external force of a monarchical government. I mean a CONFEDERATE REPUBLIC. This form of Government is a Convention, by which several smaller States agree to become members of a larger one, which they intend to form. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of new associations, until they arrive to such a degree of power as to be able to provide for the security of the united body.”23 Madison, therefore, relied in part on the same passage from The Spirit of the Laws as Wilson.

Although Madison was very much influenced by Montesquieu, it is clear he did not agree with Montesquieu’s view that republics need to be small in size to survive. However, in order to secure the support of the Anti-Federalists—as opposition to the Constitution was organizing in a number of states, some states were adding their own amendments to the Constitution with their ratification votes, and the Constitution’s ratification was in doubt—the Federalists agreed that several amendments to the Constitution would be offered in the 1st Congress and thereafter to the states for ratification should the Constitution be adopted. Indeed, after its ratification in 1789, when the 1st Congress met, Madison drafted and became a leading advocate for the twelve amendments that were approved by Congress and sent to the states, of which ten were ratified—becoming the Bill of Rights.

It must be noted that the key figure urging a bill or declaration of rights from the earliest days was George Mason. Mason, a delegate from Virginia to the Constitutional Convention, was the author of the Virginia Declaration of Rights. Madison’s draft of the Bill of Rights borrowed heavily from Mason’s Virginia Declaration.

Importantly, not only did the Bill of Rights, and the earlier Virginia Declaration, incorporate John Locke’s view of inalienable rights, providing one protection after another of the individual from government, but in the Tenth Amendment it sought to further address Montesquieu’s concern respecting the difficulty of republican government succeeding in large countries and the Anti-Federalist objection that the Constitution created an overly centralized and powerful federal government that threatened state sovereignty.

The Tenth Amendment, which is very similar to Article 2 of the Articles of Confederation, provides that “[t]he 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.”24

However, the Tenth Amendment, standing alone, did not completely satisfy the concerns about federal usurpation of state sovereignty. The Ninth Amendment was also crucial. It was demanded by several states prior to the Constitution’s earlier ratification and provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”25 The Ninth Amendment was to be read in conjunction with the Tenth Amendment.

In fact, in his speech against the constitutionality of the Bank of the United States on February 2, 1791, Madison specifically addressed the Ninth and Tenth amendments (originally the eleventh and twelfth amendments as proposed to the states for ratification), referring to them as “explanatory amendments”—that is, as Professor Kurt T. Lash explained, providing “the proper rule of interpretation, implied in the structure of the Constitution, represented by the Federalists to the state conventions, and demanded to be made express by those same conventions.…”26

Madison reasoned: “The explanatory amendments proposed by Congress themselves, at least, would be good authority with them [the state proposals]; all these renunciations of power proceeded on a rule of construction, excluding the latitude now contended