Richard Primus, University of Michigan Law School, has posted Sins and Omissions: Slavery and the Bill of Rights, which appeared in the Journal of American Constitutional History:
According to the conventional story, the Constitutional Convention declined to include a bill of rights in the Constitution because it trusted the enumeration of congressional powers to do the necessary work of limiting the federal government. That conventional story is historically unfounded. It is not supported by contemporary evidence, and it was roundly disbelieved at the time. Although it is not possible to know for certain why (really, for what mix of reasons) the Framers omitted a bill of rights, it seems likely that one major reason was that formulating a bill of rights would have provoked a bitter fight over slavery. In 1787, bills of rights in states that had them were formulated differently depending on the local attitude toward slavery. Drafting a bill of rights for the entire Union would have required choosing between those rival formulations, and any choice would have risked pointed conflict-conflict that might have prevented the Convention from reaching agreement on the Constitution. T he choice to omit a bill of rights was likely, at least in substantial part, a means of avoiding that conflict.--Dan Ernst
