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Special Order Speech on the Occasion of the 220th Anniversary of the First Congress and the Bill of Rights

Today I rise to mark the occasion of the 220th anniversary of the first Congress, and what is perhaps the most important milestone that was achieved in that first session – the passage of the Bill of Rights. 220 years ago, James Madison, a Congressman from Virginia and the father of our constitution, introduced a package of constitutional amendments, sparking a great, historic debate here in the House of Representatives and the Senate. This came about, despite the fact that Madison had opposed inclusion of a bill of rights when drafting the constitution, because his constituents demanded it. Lives, fortunes and sacred honor had been sacrificed in the war that followed the signing of our Declaration of Independence, and many believe fervently that it would all be in vain without a bill of rights.

The States went on to ratify 10 of the 12 amendments that Congress passed – the very first 10 amendments to our constitution, which collectively are known around the world as the most enduring and comprehensive guarantor of rights in the modern world.

I believe there is great value in remembering our history, as a nation and as an institution, and examining the lessons that can be applied in our own era. As we deal with the many challenges of today – the worst recession in recent memory, two ongoing wars and a worldwide struggle against violent extremism – there is much to be gleaned from the great debates of our past. And the more we know about where we have been, the better we can understand where we are now, and where we are headed.

On May 4, 1789, James Madison announced his intention to introduce a series of amendments that would constitute the bill of rights that many opponents of the constitution had sought. Though eleven of the thirteen states had ratified the constitution, there remained those who opposed the constitution and the system of federalism it established. Chief among the complaints by those who had not supported the constitution was the absence of a clear bill of rights.

As I have said, Madison himself had originally opposed the issue when he crafted and then, under the nom de plume Publius, joined by Alexander Hamilton and John Jay, penned the Federalist Papers to defend the constitution. But he came to see the value not only in explicitly delineating the rights of the citizens of the United States, but more important, he came to see the value in bringing unity to the nation and consolidating support for our constitution.

On June 8, 1789, he introduced his proposal in the House of Representatives. On July 21, 220 years ago this week, the matter was referred to the Rules Committee, on which Madison served. After reviewing the proposal, the committee moved the amendment package to the House floor on August 14, marking the start of a very vigorous debate here in this body. This debate carried on for ten days, as Members passionately argued for and against the individual amendments, passing some, amending some, and rejecting others. On August 24, the House took its final vote and passed 17 amendments, sending them to the Senate for consideration.

The Senate began its debate the following day, August 25. This debate carried on throughout the month of September, and additional changes were made. Ultimately a conference committee was convened, and both the House and the Senate passed the final version on September 24, having whittled the package down to 12 proposed constitutional amendments. As we all know, the states went on to ratify 10 of those, and Madison’s bill of rights was incorporated into our constitution.

Throughout that summer, 220 years ago, many passionate arguments were made in favor of and against the proposed constitutional amendments. But I believe the most instructive debate came on June 8, when Madison first introduced his proposal in the House of Representatives. He argued vigorously for the need to pass a bill of rights, but he also presented a fair representation of the arguments against such a bill of rights. He welcomed a fair, open and spirited debate. And he wanted it to take place on the floor of the House, where it could be conducted in the light of day and within plain view of the American people.

Though Madison had previously opposed the idea, he became increasingly ambivalent – and ultimately supportive – of the need for a bill of rights. But he remained sympathetic to the argument that rights that are enumerated are inherently limited. He noted that some believe, “that a declaration of rights…is either ineffectual or improper. It has been said that in the federal government, they are unnecessary because the powers are enumerated, and it follows that all that are not granted by the constitution are retained by the people; that the constitution is a bill of powers, the great residuum being the rights of the people.”

Madison understood that the government does not grant the people their rights; rather, the people grant their government certain powers. For this reason, he sought to assuage these concerns by including in his proposal a provision clarifying that, “The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution.” Congressman Madison knew that this was an important clarification to make. But ultimately, he believed very deeply that despite the concerns, the imperative for moving forward was far more compelling.

As I said at the outset, Madison very passionately believed in bringing unity to our nation on the question of our constitution. He saw this as the most fundamental of issues, and he believed very deeply in continuing to work toward consensus, despite the fact that the necessary majority had ratified our constitution.

In his speech on June 8, he expressed respect and understanding for those whose point of view on our system of federalism was different from his, saying, “yet still there is a great number of our constituents who are dissatisfied with [our constitution], among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive.”

He wisely understood that Congress’s capability as a representative body depended upon the full support of those they represented. Whatever disagreements on the various issues of the day there may be, Congress’s legitimacy in working out these issues would be called into question as long as there remained a vocal minority who opposed the very existence of the federal government. He noted that, “so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.”

He also saw the passage of a bill of rights as an opportunity to demonstrate good faith to those who were skeptical of the federal government and its powers, saying, “those who have been friendly to the adoption of this constitution may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled.”

Madison viewed the unity of the nation on the issue of our constitution as far more important than any reservations some may have had on the need for a bill of rights, and he championed the need for a rigorous debate on the issue. He also believed, despite his earlier ambivalence, that the case for a bill of rights was ultimately persuasive on the merits because of the need for checks and balances on the powers of the federal government.

Though he found persuasive the argument that the government’s powers are enumerated, and therefore our liberties need not be, he recognized that explicitly enumerating the most important rights would help to place a check on the government’s power. He noted, “It is true the powers of the general government are circumscribed…but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent.” Ever mindful that government is made up of fallible men, Madison believed whole-heartedly in the need to hold the federal government’s power in check.

He also understood that the issue of basic rights could not be left merely to the whims of majority rule. In fact, he feared this even more than the potential abuses of government, saying in his June 8 speech, “I confess that I do conceive that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power. But this is not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.”

Had Madison not taken up the cause of the bill of rights, our constitution may never have explicitly enshrined our freedom of speech, of press, of religion, of assembly, or our right to petition our government. It may never have expressly guaranteed trials by juries of our peers, or guarded against unlawful searches and seizures, self incrimination, cruel and unusual punishment, or double jeopardy.

Today we hold these enumerated rights to be as self-evident and fundamental as the rights to life, liberty and the pursuit of happiness that the Declaration of Independence proclaimed. We can’t imagine our constitution without them. But what I believe is most instructive for us today is not the content of Madison’s bill of rights, but the manner in which he proposed it. The intellectual rigor, which led him to champion this cause and with which he made his case to his colleagues and the American people. The open, vigorous and comprehensive debate that was held here in the Congress. And the tenor of that debate.

As we have seen from the text of Madison’s speech on June 8, 1789, as he introduced his proposal in the House, Madison had great respect for the views of the Members with whom he disagreed. He argued with civility and comity and respect. He did not impugn his adversaries’ motives, and in fact defended them. He passionately sought consensus on the fundamental issues and placed it above his own ambivalence on lesser concerns. He urged his colleagues to act based on “the principles of amity and moderation,” to “proceed with caution,” but that ultimately they must act resolutely “to satisfy the public mind that their liberties will be perpetual.”

He clearly did not believe that decisive action and a full, open debate were mutually exclusive. In fact, he saw them as being fully intertwined – that elevating the debate above reproach would give this body the moral authority to act decisively and appropriately as a truly representative body.

In his closing remarks that day, Madison said “If we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame or abridging its usefulness in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.” Let me repeat that phrase – “we act the part of wise and liberal men.” We’re not here to grandstand. We’re not here to demagogue or turn the important issues of our day into political footballs. We’re not here to attack those who hold different views, or stifle debate, or prevent opposing views from being heard. We are not here to become mired in petty arguments and partisan politics.

We are here to deliberate. We are here to honestly and openly confront the difficult challenges we face together as a country. To ensure that our constituents’ concerns, whether they represent the majority or minority view, can be voiced and discussed here in the House of Representatives.

I believe very much in this Madisonian model of rigorous yet civil debate. So it is with great dismay that I have seen the tenor of our debate deteriorate, and the legislative process grow ever more closed in recent years. I believe Republicans and Democrats alike have shared in the blame for this deterioration. But there is no doubt that it has accelerated dramatically in the past few years. We have seen the opportunities for open debate become rarer. What’s more, the level of debate and transparency allowed has been inversely proportional to the significance of the legislation in question. The more consequential, the more complicated, the more controversial a bill may be, the less opportunity there is for the kind of intellectually rigorous debate that Madison called for and exemplified.

One by one, the traditions and precedents of this House have been discarded. Perhaps the most significant of these has been the abandonment of openness in the appropriations process, which, as is the tradition, we are in the midst of this summer.

Throughout our 220-year history in Congress, the House of Representatives has considered its annual spending bills with an open debate. In recent history, this open appropriations process has been one of the very few opportunities that Members of the House get to freely offer amendments and have a debate on the issues that matter most to them.

Unlike the Senate, we have a Rules Committee, on which Madison sat, here in the House of Representatives. The Rules Committee sets the terms and conditions of debate on every major bill that comes to a vote. These terms and conditions have become increasingly more restrictive, shutting out all amendments to more legislation than ever before, and significantly limiting the number of amendments on others. But the open appropriations process has always been held sacrosanct, because we have no greater constitutional duty in this body than holding the power of the purse.

We have the very serious responsibility of spending the taxpayers’ hard-earned money, and this responsibility deserves a completely open and transparent process. There have been times in the past when some limits have been imposed. This has often been done by unanimous consent to expedite matters after a period of open debate. There have been other instances of debate restrictions on individual appropriations bills for various reasons. But they have been the exceptions to the rule. And the rule has been an open, good-faith process in which any Member, Democrat or Republican, can offer any amendment that conforms to the rules of the House. I am proud to say that this is certainly the spirit in which Republicans operated during twelve years of holding the majority.

But this year, we have seen a very troubling reversal of this practice. From the very outset, before a single vote was cast or a single word of debate was uttered, the appropriations process was restricted. Rather than granting the traditional and customary open rule to our appropriations bills, they imposed a pre-printing requirement. This means that rather than the free-flowing and rigorous debate that has always characterized our appropriations process, Members were required to submit their amendments in advance to be printed in the Congressional Record.

Now, this may seem like a reasonable requirement at first glance. Why shouldn’t amendments be submitted in advance of debate? In practice, there are a number of ways that this stifles debate. First of all, appropriations bills are often debated over the course of a number of days. When a deadline is imposed prior to the start of debate, in effect this requires amendments to be submitted two, three, even four days in advance of when debate on the relevant section of the bill is considered.

Secondly, the Budget Act prevents Members from offering amendments that increase the overall cost of an appropriations bill. This means that if a Member wants to increase funding for a particular program, the amendment must also cut funding elsewhere by an equivalent amount. But what happens if the offset contained in one amendment is zeroed out by another? That Member would no longer be able to offer his amendment. And the deadline having come and gone before the start of debate, there would be no opportunity to redraft the amendment with a different offset.

What’s more, there are many logistical issues beyond Members’ control that can prevent them from getting their amendments properly submitted prior to the artificial deadline. Legislative Counsel, faced with a deluge of requests as Members scramble to get their amendments drafted and submitted, can be too swamped to handle every request. Likewise for the Government Printing Office. This is a self-compounding problem, as Members submit multiple versions of the same amendment, just in case their offsets of choice are altered by another Member’s amendment.

All of these problems inherent to the pre-printing requirement have the effect of limiting debate and the ability of rank-and-file Members of both parties to fully participate in the appropriations process. And yet it was imposed at the outset of this year’s process.

But that was only the beginning. As we started the already-restricted debate on our very first appropriations bill, we got to exactly page 2, line 7, before the Chairman of the Appropriations Committee had enough. One page, seven lines, was apparently his capacity for even partially open debate.

So, he promptly shut the entire process down. We returned to the Rules Committee late that night, where the Democratic Majority imposed a structured rule for the consideration of the bill. They decided that they alone would be the arbiters of which issues could be debated, which amendments would see the light of day – 220 years of history be damned. This closed process has been repeated for every single appropriations bill we have considered this year. We have one remaining spending bill to consider in the House – the Defense Appropriations bill – and we know that it too will be considered under a highly restrictive rule that shuns the traditionally open debate with which we have handled our constitutionally mandated power of the purse.

I believe that it is no accident that the abandonment of open debate on our appropriations bills has coincided with the most profligate spending in our history. It’s no coincidence that our deficit has exceeded the $1 trillion mark just halfway through the year at the same time that the Democratic Majority has shut out meaningful debate on their spending practices.

As disastrous as the consequences of this reckless and unchecked spending spree will be, I fear that even greater damage will come about as a result of the utter disregard for the traditions and precedents of this body. Looking back at that historic bill of rights debate 220 years ago is so instructive because it illustrates just how far we have digressed from the high-minded example that Madison laid out for us.

The civility, the respect for opposing views, the intellectually rigorous and open debate, the deep belief in the importance of building consensus. All of these elements that characterized the debate led by James Madison 220 years ago have been gradually hollowed out, leaving us with little more than empty, partisan rhetoric.

Perhaps most troubling of all is how quickly this has become the new normal. More than a quarter of this entire body has served less than two terms. For over 25% of the House of Representatives, limited debate and bills written in the dead of night appear to be standard operating procedure. A closed appropriations process is just the normal way of doing business. Rancorous debate and demagoguery is simply the way we operate. If we do not urgently consider our history and our traditions as an institution, if we do not make an effort to come together very soon and work to restore civility and open debate, these traditions will be lost forever.

Of course there will always be significant divergence of opinions. We were meant to have a great clash of ideas in the Congress. Our founders very intentionally designed a system in which we would hold ourselves accountable by this very divergence. Benjamin Franklin wrote in 1789, “A plural legislature is as necessary to good government as a single executive. It is not enough that your legislature should be numerous; it should also be divided. Numbers alone are not a sufficient barrier against the impulses of passion, the combination of interest, the intrigues of faction, the haste of folly, or the spirit of encroachment. One division should watch over and control the other, supply its wants, correct its blunders, and cross its designs, should they be criminal or erroneous.”

We certainly have seen a great deal in recent weeks of the haste of folly and spirit of encroachment that Franklin spoke of. When debate is stifled, these checks and balances that the founders envisioned are drastically diminished, and the result is both a poisonous atmosphere and reckless public policy. In fact, the latter inevitably follows the former. A bad process begets bad legislation. And the respect, civility and comity that used to govern this body are destroyed in the process.

My fear is that irreversible damage has already been done. But by remembering our history, by honoring our traditions, by looking back to our founders and the example they gave us, I believe we can begin to restore our institution. We can once again engage in great debates, in a clash of ideas, and do so with respect for our adversaries and a sincere desire to ultimately reach consensus. That is the model that James Madison presented in one of the most important debates in the Congress’s history. The great challenges we face today are no less deserving of this kind of debate.

If we are going to effectively and appropriately deal with the economic, energy, healthcare, environmental and national security issues that are before us, we must immediately reverse the very dangerous course on which we have embarked. I urge the Democratic Leadership to restore deliberation to this body. And I urge my colleagues on both sides of the aisle to once again engage in exchanges characterized by the “principles of amity and moderation” that Madison spoke of, to once again “act the part of wise and liberal men” as we address that great challenges of our day.

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