Madison's Music by Burt Neuborne

Roger Sherman had a redundant last word by editing Madison’s federalism clause to read:
    . . . 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.
    That was the way it already read except for the one comma after the word States .
    August 22 was devoted to unsuccessful efforts by House members to place pet amendments into the text, and to the adoption of the final version of Madison’s doomed apportionment clause setting a ceiling of fifty thousand on the number of constituents a House member could represent. The big news on August 22 was the appointment of a three-person Committee on Style, consisting of Roger Sherman, Egbert Benson, and Theodore Sedgwick, to rearrange Madison’s separate clauses into a single Bill of Rights. Madison, having lost the argument over whether to interpolate the rights into the body of the Constitution or to list them separately, was sulking in his tent, but he had already done most of the heavy organizational lifting. The order of his June 8 proposals meticulously prefigures the organization of the First, Second, and Third Amendments and closes with material tracking the Ninth and Tenth. The material that evolved into the Fourth through Eighth Amendments was somewhat less meticulously organized. But that left something for Roger Sherman to do. The three members of the Committee on Style closeted themselves for a day or so and quickly presented the House with a document containing seventeen proposed articles on August 24, 1789. The first two articles were the ill-fated apportionment and congressional pay raise provisions, having nothing to do with rights. With the exception of Madison’sseparation-of-powers clause, which didn’t get through the Senate, the remaining fifteen articles prefigure the remarkable order and structure of the Bill of Rights. The three editors didn’t tinker with Madison’s placement of the order of the rights that became the First, Second, and Third Amendments, although the First Amendment material is still divided into separate religious and secular clauses. They did, however, bring organizational order to much of the material that became the Fourth, Fifth, Sixth, and Eighth Amendments. The three editors put together a pretty good draft for the Senate’s consideration. It was adopted by the House without debate on August 24.
    The House Resolution was transmitted to the Senate on August 25 and taken up for debate on September 2. Unfortunately, the Senate met in closed session in those days, so we have even less of a record than in the House. The Senate rejected several important pieces of Madison’s handiwork, including the guaranty of conscientious objection to bearing arms and the presence of separate clauses protecting both religious exercise and the rights of secular conscience. The Senate also refused to restrict state efforts to interfere with the crucial rights of religious freedom, free speech, free press, and criminal jury trial and also rejected an explicit separation-of-powers clause. Ironically, every single item that the Senate stripped from the bill of rights ultimately became the law of the land. The Supreme Court has not hesitated to enforce the separation of powers without an explicit textual clause. The right of secular conscience is now constitutionally protected. The states are now bound by the provisions of the Bill of Rights. And Congress has provided for conscientious objection to the military draft.
    A blizzard of efforts at other substantive changes failed in the Senate, but the twenty-one senators took their editorial responsibilities very seriously. They carefully edited the language of virtually every House provision, producing the final textual versions of almost everything in the Bill of Rights, except for the final version of the First Amendment and a minor tweak of the Fifth that werehammered out on