Dr. William Samuel Johnson, Chairman of the Committee of Style, “reported a digest of the plan, of which printed copies were ordered to be furnished to the members.” He also read the draft of a letter to accompany the plan when sent to Congress.
The Committee has produced a remarkable report, reducing twenty-three articles to seven. The first three articles describe the organization and powers of the legislative, executive, and judicial branches respectively. Article IV includes various provisions relating primarily to relations among the States and between Congress and the States, while Article V provides for the amendment process. Article VI establishes the supremacy of the Constitution as the supreme law of the land and finally, Article VII specifies that “the ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”
No sooner were the copies distributed than Hugh Williamson moved to reconsider requiring three-fourths of each House of the legislature to overrule the President’s veto, still referred to as the “negative.” His motion provided for substituting “two-thirds” for “three-fourths.” As it stands, the three-fourths requirement gives too much power to the President, he argued. “The repeal of bad laws might be too difficult by requiring three-fourths to overcome the dissent of the President.”
Considering the number of members of each House,” mused Gouverneur Morris, the difference between three-fourths and two-thirds amounts in one House to two members, in the other to five members. George Mason was not impressed, and perhaps a little offended, replying, “As to the numerical argument of Mr. Morris, little arithmetic was necessary to understand that three-fourths is more than two-thirds, whatever the numbers of the legislature might be.” Following a short debate, Williamson’s motion to insert “two-thirds” instead of “three fourths” passed 6 – 4 – 1.
Observing that no provision had yet been made for juries in civil cases, Williamson urged “the necessity of it.” Nathaniel Gorham was not opposed to the idea but asserted that “the Representatives of the people may be safely trusted in this matter, particularly because “it is not possible to discriminate equity cases from those in which juries are proper.”
Elbridge Gerry agreed and proposed that the Committee of Style be instructed to add a clause securing trial by juries in civil cases. Then George Mason seized the moment for a greater purpose. Perceiving the difficulty posed by Gorham, “that jury cases cannot be specified,” he wished that the Constitution “had been prefaced with a Bill of Rights and would second a motion if made for the purpose.” This “would give great quiet to the people,” he continued, and “with the aid of the State declarations, a bill might be prepared in a few hours.” Gerry instantly moved that a committee prepare a Bill of Rights. As promised, Mason seconded the motion.
Of course, drawing up a bill of rights could be done quickly but achieving agreement on its contents and precise language is another matter. Nearly four months of bargaining, arguing, cajoling, and compromising proved the difficulty of drafting a constitution to establish a government. Drafting a bill of rights would be no less a difficult task.
Roger Sherman opposed the motion but declared support for “securing the rights of the people where requisite.” The “State Declarations of Rights are not repealed by this Constitution,” he noted, “and being in force are sufficient.” Mason shot back, arguing again for a bill of rights. “The laws of the United States are to be paramount to State Bills of Rights,” he reminded them. By a lopsided vote of 0 – 10, the motion to create a committee to draft a bill of rights was defeated. Delegates from Massachusetts abstained.
For George Mason, supplying a bill of rights was not a delaying tactic; it was a fundamental, inviolable principle. In June 1776, after its decision to separate from Great Britain, the Fifth Virginia Convention held in Williamsburg voted to prepare a new plan of government for Virginia. As part of that effort, it unanimously adopted the Virginia Declaration of Rights, proclaiming “that all men are by nature equally free and independent, and have certain inherent rights, of which…are the enjoyment of life and liberty, with means of acquiring and possessing property and pursuing and obtaining happiness and safety.”
The Virginia Declaration had been written by George Mason, a thinker steeped in the history and philosophy of politics and government, having drawn deeply from the wells of John Locke’s Second Treatise on Civil Government and Fundamental Constitution of the Carolinas; Baron de Montesquieu’s Spirit of the Laws; the works of Algernon Sidney, Cardinal Robert Bellarmine and others; the history of ancient and modern regimes; and English landmark documents of freedom such as the English Bill of Rights of 1689 and Magna Carta of 1215. Few other Americans share his reservoir of knowledge or commitment to the proposition laid out in the second of the sixteen resolves of the Virginia Declaration, “that all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” Moreover, such magistrates, legislators or judges ought not to be hereditary and, “at fixed periods, be reduced to a private station” and “return to that body from which they were originally taken.”
The Virginia Declaration of Rights was the forerunner of the Declaration of Independence, drafted by Mason’s fellow Virginian, Thomas Jefferson, and approved by the Continental Congress less than a month later. Mason’s work truly revolutionized the world and today, at the Constitutional Convention, he has threatened to withhold his support of the Constitution unless and until a Bill of Rights is a part of it.