If you ask most Americans to name something in the Constitution, there’s a good chance they’d name one of the first ten amendments, better known as the Bill of Rights. They might single out the freedom of speech or religion, or the right to bear arms, or prohibitions against cruel and unusual punishment. But before the Founders could determine which rights to safeguard, they first had to decide how amendments would be added. In August of 1789, debate broke out in the First Federal Congress over this very issue. James Madison preferred that amendments be seamlessly integrated into the text, while Roger Sherman fought to have them added at the end like an appendix. Madison lost this fight — with enormous ramifications for the way we see and understand the Constitution today. Had Madison prevailed, there would be no First or Second Amendment; their various previsions would have simply been scattered throughout Article I. Moreover, there would be no “Bill of Rights” at all. It would take well over a century before Americans identified the first amendments in this now-famous way. Only because they were set apart, textually and visually, from the first seven articles was this ever possible.
Jonathan Gienapp, an assistant professor of history at Stanford, is the author of The Second Creation: Fixing the American Constitution in the Founding Era.