Free Madison's Music by Burt Neuborne Page B

bear arms” clause, including a narrow 24–22 vote to retain a provision guarantying religious conscientious objection to military service. Madison’s “cruel and unusual punishment” clause was upheld over objections that it was too vague, and his ban on “unreasonable search and seizures” was reinstated. The text of what would become the Fourth Amendment was strengthened by Egbert Benson’s motion adding the language “no warrants shall issue [without probable cause etc.].” Madison’s recognition of unenumerated rights that eventually evolved into the Ninth Amendment was adopted verbatim. Gerry couldn’t even get a second for his effort to substitute impair for disparage . Finally, Madison’s effort to limit the states from interfering with religious freedom, speech, or the press, which he described as the most important element of his work, was overwhelmingly accepted with a minor edit that shifted it into a positive statement:
    . . . the equal rights of conscience, the freedom of speech, or the press, and the right to trial by jury in criminal cases, shall not be infringed by any State.
    On Tuesday, August 18, the House ended its consideration of the Committee of Eleven’s edit of Madison’s June 8 proposals by approving his separation-of-powers clause and slightly modifying his federalism clause, which had read:
    The powers not delegated by the Constitution, nor prohibited by it to the States, are reserved to the States respectively.
    The House added “or to the people” at its close. So, after a week of debate, the only significant change imposed by the committeeof the whole on the Committee of Eleven’s proposals was a minor redraft of Madison’s religious-freedom amendment. But surviving the committee of the whole was just the beginning. Madison had to do it all over again before the same House of Representatives in its formal parliamentary dress.
    Poetry struck late on August 19. After the House rejected what was left of Madison’s effort to amend the preamble, the indefatigable Roger Sherman moved for a third time to reorganize Madison’s separate clauses into a single coherent Bill of Rights. This time, after an unreported debate, Sherman won. Madison was less than pleased. He did not serve on the three-person Committee on Style charged with rearranging the clauses into a single document. In fact, Sherman did Madison—and us—a huge service by insisting that Madison’s music be displayed in a manner that reveals its majestic harmonies. If Madison ever receives royalties from his poetry, he should split them with Roger Sherman.
    In fairness to Madison the poet, though, he had already developed the content, order, and structure of the rights sprinkled throughout the larger text. All Sherman did was to lift the rights out one by one in the order that Madison had placed them and list them all in a single place. It took a day. If they do split the royalties, Madison is entitled to the lion’s share.
    On August 20, Fisher Ames successfully urged yet another rewrite of the religious-freedom clause, reinstating an explicit protection for free exercise, retaining the right of conscience, and continuing to place establishment before free exercise:
    The Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience.
    The “keep and bear arms” clause was also slightly amended to reinstate Madison’s original use of the words “in person” at the close of the conscientious-objection provision, presumably to signal that conscientious objectors could be required to perform alternativeservice. Because the conscientious-objection clause did not make it through the Senate, we’ll never know exactly what the House had in mind. The rest of the material that became the Bill of Rights sailed through with little debate. Fittingly, on August 21,