The Bill of (Twelve) Rights: Contingency and the Constitution

The New York Public Library’s Center for Educators and Schools provides curricular materials you can easily integrate into your teaching in addition to other tools and programs. On the For Teachers blog channel, the Curriculum Development team spotlights primary sources from the Library’s collections and draws connections to the classroom.

Intended for middle school students and educators, this article discusses the historical concept of contingency in the context of the passage of the Bill of Rights. Scroll down to find model discussion questions and activities based on this article to use in your classroom.

Plus, view a copy of what would later become known as the Bill of Rights in person at the Polonsky Exhibition of The New York Public Library’s Treasures—the Library's first major exhibition highlighting items from our world-renowned research collections! The displayed copy features 12 amendments, not the 10 that we know today.

This article was originally published in the Fall 2022 issue of Bill of Rights in Action, a publication of Teach Democracy (formerly Constitutional Rights Foundation). View the original publication here. 

The spring meeting of the nation’s First Congress was part of a larger decision-making process. That process would decide the rules that would govern relations within the now independent United States, as well as between the new nation and other nations. 

By challenging the power of the British King and Parliament, American revolutionaries had opened up space for other challenges to power. As John Adams of Massachusetts, who would later become one of the drafters of the Constitution, the first Vice President and later the second President of the United States, put it in a letter to his wife, Abigail, "We have been told that our struggle has loosened the bands of government everywhere; that children and apprentices were disobedient; that schools and colleges were grown turbulent; that Indians slighted their guardians, and Negroes grew insolent to their masters." To many revolutionaries, these threats to the established social order proved worrisome.

Before the ratification of the Constitution, the federal government was limited in what it could do by the Articles of Confederation, a set of rules written during the Revolution in 1777. The Articles prohibited many important national government functions, like collecting taxes. 

War is expensive, and after the Revolution, the fact that the Articles of Confederation did not grant the federal government the power to collect taxes proved nearly catastrophic. Congress had sold government bonds to finance the war and paid soldiers and suppliers in notes (not cash) that could only be redeemed in the future. Without the right to raise taxes, the federal government could not pay any of these debts. A letter-writer expressed Congress’s main problem with the Articles neatly to George Washington: “no money.” 

The ability of the national government to raise taxes and pay its debts was no abstract matter. In 1786, during the time period the Articles of Confederation were in effect, indebted farmers, some of whom had received only notes and little pay for serving in the Continental Army and state militias, occupied the courthouses in western Massachusetts. They were trying to prevent the seizure of their farms for failure to pay state taxes. The uprising, which became known as Shays’ Rebellion, pitted the indebted farmers against Massachusetts’s governor. Both sides claimed to be upholding the spirit of the Revolution. 

Shays’ Rebellion convinced many political leaders that the Union was vulnerable under the weak Articles. Unless the nation strengthened the powers of the federal government, the Union could dissolve. In 1787, representatives from every state—except Rhode Island—met in Philadelphia to revise the Articles. 

The discussions around the Articles and Shays’ Rebellions reveal moments of contingency. Had the Articles provided more power to the federal government, or had farmers in Western Massachusetts stayed home, this Philadelphia meeting would have likely unfolded very differently, or not at all. 

The Constitutional Convention in the spring and summer of 1787 was not destined to happen. It was partly the result of a poor showing at a gathering earlier that year, in which state delegates had hoped only to revise the Articles of Confederation, not replace them with an entirely new document. 

At that earlier meeting, which representatives from only 5 of the 13 states attended, the representatives set in motion what became the Constitutional Convention. They voted in favor of a resolution from Alexander Hamilton, a delegate from New York, that delegates from all the states would meet in Philadelphia and make necessary changes to “render the constitution of the Federal Government adequate to the exigencies of the Union.” Had delegates from the other eight states participated, the vote in favor of holding a Constitutional Convention might have turned out differently. 

When representatives gathered in Philadelphia, they shared some views, but they also disagreed over many issues. The men who crafted the Constitution (the Framers) clashed at the convention over several key questions including: the balance of power between state governments and the federal government, expanding democracy or protecting private property, the representative power of small states versus big states, and the issue of slavery.

In drafting this new document, many Framers wanted to create balance with the many already existing state constitutions, which they viewed as too democratic (granting too much power to regular people, rather than their representatives). As Massachusetts Representative Elbridge Gerry put it, the state constitutions had an “excess of democracy.” 

Democracy, to most men at the Constitutional Convention, was a word with negative connotations. They associated democracy with a governing system in which regular people had an unacceptable amount of power. They preferred a republican system in which a portion of the people, in this case a small group of largely property-owning white men, chose the leaders who would then govern the entire nation. 

After the drafting of the Constitution came the process of ratification, in which electors in each state voted on whether to ratify the Constitution. The question of whether to ratify the Constitution was hotly debated across the new nation’s then 13 states. As historians Edwin G. Burrows and Mike Wallace have put it: “no one, it seemed, could talk of anything else.” Historian Pauline Maier described the excitement with which people approached the debates around ratification as similar to the last games of the World Series but with “greater intensity.” It was a “nail biter,” according to historian Jill Lepore. 

In these discussions and debates, Federalists, who supported the ratification of the Constitution and a strong central federal government, faced off against those who opposed the ratification of the Constitution. Historians have referred to opponents of the ratification as “Anti-Federalists,” but this was considered an insult at the time and was not a term that those against the Constitution would have used to describe themselves.

The popularity of the term “Anti-Federalists” in describing those who opposed the Constitution is partly a reflection of Federalists’ wealth and power. The Federalists tended to be wealthier, more well-educated, and better connected than their opponents, and so they often influenced or directly financed press coverage of the constitutional debates and ratification process, including the adoption of the term Anti-Federalists. 

Despite the power of the Federalists, the ratification of the Constitution was not guaranteed. Ratification was contingent on a large number of men who initially opposed the Constitution changing their minds. Opponents worried that the Constitution granted too much power to the federal government. In some places, like New York, the vote in favor of ratification only squeaked by with the assumption that a set of amendments, which later became the Bill of Rights, would be added on to further limit federal power.

After the “nail biter” of a ratification process, we return to where we opened this essay: with the newly established First Congress arriving in New York in August 1789 to begin the business of governing under the recently ratified Constitution. One of their first orders of business was to address the constitutional amendments that many Americans thought were so necessary to restrict federal power. 

In August of 1789, the House of Representatives agreed to a list of 17 amendments and sent them to the Senate. The Senate rejected all of them before approving a revised list of 12 proposed amendments, a copy of which is preserved at The New York Public Library. 

After another round of revisions, the 12 proposed amendments were sent to President Washington, who in turn sent them on to the states (and Rhode Island and North Carolina, which were not yet states) for ratification. Different states ratified different amendments, illustrating that the amendments were understood by some as just a menu of possible changes, rather than a cohesive Bill of Rights to be adopted together. In the end, only 10 of them received the necessary votes. Again, we see another contingency in how easily amendments other than the ones we are now familiar with could have been adopted and embraced. 

Finally, the way that lawmakers, judges, lawyers, citizens, and residents have understood and used the Bill of Rights has changed over time. Today, we regularly refer to the 10 amendments that were ratified by the states as the Bill of Rights. These amendments are considered to be foundational for the protection of individual freedoms against the government. 

At the time that these amendments were written, however, they were not referred to as a Bill of Rights. Neither the amendments’ supporters nor their detractors referred to them in this way. Some people, in fact, complained that the Nation did not have a Bill of Rights even after the passage of these amendments. And many turned instead to the Declaration of Independence as an affirmation of the rights of the people with certain unalienable rights. 

Our conception of the Bill of Rights was contingent on later events in U.S. history. It was not until the period after the Civil War known as Reconstruction (1865–1877) that these first 10 amendments began to be labeled a Bill of Rights. During those years, with supporters of slavery driven from the national government, proponents of freedom and equality for African Americans began arguing that the Constitution guaranteed rights for individuals that neither the federal nor state governments could violate. 

The Library’s Center for Educators and Schools offers free field trips year round for students to engage with some of the most extraordinary items from our vast collections. View some of the materials mentioned in this article, including a copy of what would later become known as the Bill of the Rights in person. Explore all that we offer at the Stephen A. Schwarzman Building, including special access to exhibitions, and schedule your class field trip today. For more information and to complete a booking form, visit: nypl.org/cestreasures