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PART 5: Defending the Constitution: The Struggle over Ratification and the Bill of Rights - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government 
Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).
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Defending the Constitution: The Struggle over Ratification and the Bill of Rights
POINTS TO REMEMBER
1. After the Constitution was signed by the delegates to the Federal Convention in Philadelphia, it was submitted to the States for ratification. The approval of only nine States was needed to make the Constitution the supreme law of the land. The delegates to the State ratifying conventions were elected by the people, thereby placing the Constitution on a democratic foundation. The Americans were the first to establish popularly based constitutions.
2. The Anti-Federalists opposed the Constitution on a number of grounds, but their chief objection was that it gave too much power to the Federal government and encouraged consolidation.
3. The authors of The Federalist attempted to explain and defend the Constitution in a series of 85 essays that were published in New York newspapers and later distributed throughout the country. They agreed that the new government would be powerful, but denied that it would be too powerful or that it would be a threat to liberty and the independence of the States.
4. The federal system of government established by the new Constitution was a uniquely American contribution to the science of government. It was rooted not in abstract political theory but in compromise and the practical necessities of the time. It is unlikely that the Constitution would have been acceptable to the American people had the Framers stripped the States of their reserved powers and created a unitary form of government.
5. One of the major concerns expressed by the Anti-Federalists was the issue of local control of civil liberties. They insisted that the Federal government would be so powerful that it would trample on the rights of the people and the rights of the States. To correct this problem, they demanded that a Bill of Rights be added to the Constitution. The Federalists, on the other hand, argued that a bill of rights was unnecessary because no power had been delegated to the Federal government to regulate such matters as freedom of the press and religion in the first place. A Bill of Rights was nevertheless added to the Constitution in 1791.
6. The addition of the Bill of Rights was the chief accomplishment of the Anti-Federalists. It strengthened and affirmed the federal principle of the Constitution. It not only assured the people that the Federal government was prohibited from abridging their liberties, but it also assured the States that they would retain jurisdiction and control over most civil liberties disputes between the States and their citizens.
7. The American Constitution seeks to prevent rule by tyrannical majorities as well as tyrannical minorities. But in a democratic republic the problem of majority factions is usually the more difficult to resolve. In Federalist No. 10, James Madison explained that by establishing an extended, commercial, federal and democratic republic, the Framers sought to reduce and possibly eliminate the threat of government by tyrannical majorities. The system of representation established by the Framers is the key to an understanding of how the Constitution deals with this basic problem of democratic government.
8. The Bill of Rights is not a complete catalogue of all the rights that are enjoyed by the American people and are protected by the Constitution. As provided by the Ninth and Tenth Amendments, the people and the States retain jurisdiction over additional rights under their State constitutions and bills of rights, which the Federal government may not touch.
Signed on September 17, 1787, by all the delegates who still remained at Philadelphia—except Gerry of Massachusetts and Randolph and Mason of Virginia—the text of the proposed Constitution was dispatched to New York City, where the last Congress under the Confederation was meeting. Then there commenced a struggle which would last for nearly a year to persuade the several States to accept the new Constitution. It would be a conflict with much shouting but no shooting.
The Great Convention, in submitting the proposed Constitution to the Congress of the Confederation, had requested that Congress send copies to the State legislatures. Those legislatures, in turn, were asked to issue instructions for the election of delegates to a convention to be held in each State. At these State conventions, the new Constitution would be debated. Each State convention would then ratify or reject the document. If nine states ratified the Constitution, it would take effect as the country’s organic law, supplanting the Articles of Confederation.
This method of adoption, it is important to remember, dates back to some of the State constitutions approved during the revolutionary period. It was intended to give the Constitution a popular base and to establish the new government on a firm democratic foundation. This foundation was lacking under the Articles of Confederation because our first national constitution was never submitted to the people for approval. Although Article VII of the new Constitution specified ratification by the States, the voters in each State elected the delegates who served in the State ratifying conventions. Hence the Constitution of 1787 was ratified by the people and by the States, or by “the people in the States” (rather than simply by the States or by the people at large). In sharp contrast, new constitutions and constitutional amendments in parliamentary systems of government are often written and approved by the parliament, and the consent of the electorate is not sought or required. The Americans were the first to establish popularly based constitutions.
From a legal standpoint, the American Constitution, at its inception, was a “revolutionary” document. It may be doubted whether the Constitution would have prevailed had it not been approved by the American people. The delegates to the Federal Convention, as we noted earlier, were representatives of the States and were acting in response to a call by the Congress of the Confederation. They were sent to Philadelphia not to write a new Constitution but to “revise” the Articles of Confederation. No change in the Articles was permitted unless all thirteen State legislatures agreed. Nevertheless, the delegates to the Federal Convention boldly exceeded their mandate by proposing an entirely new government that was to go into effect when only nine State conventions ratified the Constitution.
The two factions on opposite sides in this contest over the adoption of the Constitution are called the Federalists and the Anti-Federalists. These terms are mildly confusing, for at the time when the Great Convention’s deliberations had begun, the men friendly to the Articles of Confederation thought of themselves as favoring a federal system of government; by comparison, the advocates of a new constitution who intended to create a stronger national union are often called “Nationalists” by historians of the period. A few years later, these two divisions of opinion would harden into regular political parties called, respectively, Federalists (friendly toward a strong central government) and Republicans or Democratic-Republicans (many of whom formerly were Anti-Federalists).
But by September 1787, the Nationalists were calling themselves Federalists. Like the Anti-Federalists, they sought to persuade the voters through speeches, pamphlets, newspaper articles, and personal correspondence. As we noted earlier, three of their leading men—James Madison, Alexander Hamilton, and John Jay—wrote eighty-five essays for New York newspapers under the pseudonym of “Publius.” These essays, known as The Federalist, endeavored to explain and defend each provision of the Constitution and its underlying principles of government. To this day, The Federalist is regarded as one of the most insightful sources of understanding about the nature and purposes of the American political system. Anti-Federalist literature, previously uncollected and much ignored, is now available to the modern reader. Herbert Storing’s The Complete Anti-Federalist (7 vols., 1981) is the most complete and up-to-date version.
Much knowledge about the Constitution is also to be gained by reading the debates in the several State ratifying Conventions. When the Philadelphia Convention adjourned on September 17, 1787, many of the delegates returned to their native States to defend the new Constitution and urge its adoption. Some, such as James Wilson of Pennsylvania, were elected to their State’s convention and thus entered into a second round of deliberations on the Constitution. These ratification debates contain a rich source of both Federalist and Anti-Federalist thought on the Constitution. They were later collected and published as a four-volume work by Jonathan Elliot under the title of The Debates in the Several State Conventions on the Adoption of the Federal Constitution (1830). James Madison, it is interesting to note, was the last surviving member of the Federal Convention when he passed away in 1836. The comprehensive notes that he took at the Federal Convention were published after his death, and Elliot added them as a fifth volume to his Debates in 1840. Taken together, these works—Madison’s Notes, Elliot’s Debates, The Federalist, and Storing’s The Complete Anti-Federalist, represent the principal, though by no means the entire, source material of original documents on the framing and adoption of the United States Constitution.
THE ANTI-FEDERALIST PERSUASION
On the eve of the Federal Convention, the Anti-Federalists were basically in agreement with the Federalists that the Articles of Confederation needed to be changed. They admitted that the Articles were weak and that the powers of Congress, at least those respecting domestic and foreign commerce, needed to be strengthened. But they did not sense a need to abandon the Articles entirely and substitute a new system. Above all, the Anti-Federalists opposed any fundamental change in the existing relationship between the Confederation government and the States. They were strong advocates of States’ Rights who believed that self-government, independence, and individual liberty were best protected at the local level. A distant and powerful central government over which they might exert little control or influence represented a threat to the values they cherished.
The Constitution Establishes a Consolidated Empire
Thus the Anti-Federalists’ main objection to the proposed Constitution was that it created a central government that was too strong. “We drew the spirit of liberty from our British ancestors,” Patrick Henry told the delegates of the Virginia ratifying convention, and “by that spirit we have triumphed over every difficulty. But now, Sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country to a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances in this government.” Like other Anti-Federalists, Henry saw no need for a powerful Federal government, preferring instead a loose-knit confederation that allowed the States to determine their own needs and interests. Why, asked Henry, should Virginia, a State with a large population, vast resources, and extensive territory, compromise its sovereignty and share power with smaller, less influential States? Given the great political, economic, cultural, and geographical differences among the States, was a powerful union either possible or desirable?
The Anti-Federalists did not think so. “Agrippa,” the pseudonym of a Boston Anti-Federalist, warned the citizens of Massachusetts that the new Constitution was impractical and dangerous. “We find,” he said,
that the very great empires have always been despotic. … It is impossible for one code of laws to suit Georgia and Massachusetts. … This new system is, therefore, a consolidation of all the States into one larger mass, however diverse the parts may be of which it is composed. The idea of an uncompounded republic, on an average, one thousand miles in length, and eight hundred in breadth, and containing six million white inhabitants all reduced to the same standard of morals or habits, and of laws, is in itself an absurdity and contrary to the whole experience of mankind. The attempt made by Great Britain to introduce such a system struck us with horror, and when it was proposed by some theorist that we should be represented in Parliament, we uniformly declared that one legislature could not represent so many different interests for the purposes of legislation and taxation. This was the leading principle of the revolution.
The Constitution Establishes an Aristocracy
The size and diversity of the existing confederation, in other words, led the Anti-Federalists to believe that the union envisioned by the Framers should not even be attempted.
By republicanism, the Anti-Federalists meant democratic self-government, government close to the people, limited in scope, in which the representatives were held directly accountable through frequent elections. The problem with the new Constitution, they argued, was that it gave representatives too much power and independence. Once elected, representatives would be far from home, comfortable in their jobs, enjoying a big salary that they set themselves. They would be living in some distant, yet-to-be-built city far removed from the watchful eye of the people they represented. Under these circumstances, they surely would lose touch with their constituents. The system was an invitation to despotism.
These fears and suspicions were also confirmed by certain deficiencies in the Constitution itself. The Constitution, for example, made no provision for recalling elections; and rotation in office, argued the Anti-Federalists, was not frequent enough. A common theme in Anti-Federalist literature was the complaint, as “A Plebian” from New York wrote, that “the power of the general legislature to alter and regulate the time, place, and manner of holding elections [Article I, Section 4] … will place in the hands of the general government the authority whenever they shall be disposed, and a favorable opportunity offers, to deprive the body of the people, in effect, of all share in the government.”
Republicanism also meant rule by the majority. But the Constitution, insisted the Anti-Federalists, seemed to encourage government by minority factions and wealthy aristocrats. There would be too few members in the House of Representatives (only one for every 30,000 persons), and a mere handful of Senators—as few as eighteen if only nine States joined the Union—would be able to block legislation desired by a majority of the people. “Far from being a regular balanced government,” complained “Centinel,” a Pennsylvania Anti-Federalist, “it would be in practice a permanent aristocracy.” Patrick Henry of Virginia echoed these sentiments, contending that the two-thirds requirement for proposing amendments and the three-fourths requirement for their adoption allowed entrenched minorities and “the most unworthy characters” to obstruct the will of the majority. It would be impossible, he argued, to pass an amendment by those difficult means:
To suppose that so large a number as three-fourths of the States will concur is to suppose that they will possess genius, intelligence, and integrity approaching to miraculous. … For four of the smallest States that do not collectively contain one-tenth part of the population of the United States may obstruct the most salutary and necessary amendments. … A bare majority in these four States may hinder the adoption of amendments, so that we may fairly and justly conclude that one-twentieth part of the American people may prevent the removal of the most grievous inconveniences and oppression by refusing to accede to amendments. A trifling minority may reject the most salutary amendments. Is this an easy mode of securing the public liberty? It is, sir, a most fearful situation when the most contemptible minority can prevent the alteration of the most oppressive government. … Is this the spirit of republicanism?
Quoting from the Virginia Bill of Rights, Henry went on to assert that “a majority of the community have an indubitable, unalienable, and indefeasible right to reform, alter, or abolish” their government when it becomes inadequate. “This, sir, is the language of democracy: that a majority of the community have the right to alter their government when found to be oppressive. But how different is the genius of your new Constitution from this.”
The Constitution Confers Too Much Power
No less disturbing to these critics of the Constitution were specific provisions which seemed to be inconsistent with the ideals of limited constitutional government. Elbridge Gerry, a delegate to the Federal Convention from Massachusetts who refused to sign the Constitution, spoke for most Anti-Federalists when he challenged the Constitution’s broad delegations of power. In addition to the problems of representation and Congressional control of elections, “some of the powers of the Legislature are ambiguous, and others indefinite and dangerous.” The President “is balanced with and will have undue influence over the Legislature.” The Federal Judiciary “will be oppressive.” And, Gerry argued, “the system is without the security of a bill of rights.”
An Imperial Congress
Among the powers delegated to Congress, those authorizing the national legislature to provide for the general welfare, levy taxes, regulate the States’ militia, regulate interstate commerce, and make all laws necessary and proper, gave the Anti-Federalists their deepest misgivings. “Brutus,” writing in the New York Journal, offered one of the most perceptive and far-reaching examinations of Congressional power from the Anti-Federalist perspective. The “most natural and grammatical” construction of the General Welfare Clause in Article I, he observed, is that it authorizes the Congress “to do anything which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases. …” The tax power is fundamentally unsound because “there is no limitation on this power” and Congress could levy any amount that it pleases, for any purpose, leaving the States no source of revenue. “This power therefore is neither more nor less than a power to lay and collect taxes, imposts, and excises, at their pleasure.”
Likewise, the necessary and proper clause, wrote “Brutus,” “is a power very comprehensive and … [may] be exercised in such manner as entirely to abolish the State legislatures.” Taking the General Welfare, Tax, and Necessary and Proper clauses together, concluded “Brutus,” “It is therefore evident that the legislature under this Constitution may pass any law which they may think proper.”
There was also criticism of the Commerce Clause, mostly from the southern States. What is meant by the power to “regulate”? What, precisely, is “commerce”? The Constitution did not define these terms. Although vagueness and the possibility of an indefinite grant of power were considerations, the southern Anti-Federalists were especially concerned that northern States might use their superior numbers in the Congress to discriminate against southern commercial and economic interests.
It was Patrick Henry who opposed the Constitution because it impeded majority rule. On the question of commerce, however, the Anti-Federalists argued that majority rule was not enough: extraordinary or “super” majorities ought to be required for the enactment of commercial laws, in order to protect the agricultural interests of the South. Richard Henry Lee of Virginia thus complained that, “In this congressional legislature a bare majority of votes can enact commercial laws, so that the representatives of seven Northern States, as they will have a majority, can by law create the most oppressive monopoly upon the five Southern States.” Opposition to the Constitution, it may thus be seen, stemmed not only from republican considerations and a general distrust of centralized power, but from other causes as well, including sectional differences and jealousies among the States.
An Elected Monarch
Nor was Anti-Federalist dissatisfaction with Federal power under the new Constitution limited to Congress. Patrick Henry alleged that the Constitution “has an awful squinting; it squints towards monarchy. … Your President may easily become king.” A New York Anti-Federalist, writing under the name of “Cato,” repeated the charge, asserting that the Constitution inclines toward an “odious aristocracy and monarchy.” The President, he said, has so much power that his office “differs very immaterially from the establishment of monarchy in Great Britain.”
An Omnipotent Judiciary
The Anti-Federalists were also generally agreed that the Federal Judiciary would swallow up the State courts under the new system of government. “Brutus” addressed the issue at considerable length, producing what are surely the most extensive analyses of judicial power written by an Anti-Federalist. His main concern was Article III, Section 2, which provides that “The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws, and treaties made, or which shall be made, under their authority.” This can only mean, said “Brutus,” that Article III vests the judicial branch “with a power to resolve all questions that may arise in any case on the construction of the Constitution, either in law or in equity.” By what principles of interpretation, he asked, is the Constitution to be construed?
Since the Federal courts were empowered to decide cases in equity as well as law, it appeared that the Federal judges were free to interpret the Constitution “according to the reasoning and spirit of it, without being confined to the words or letter.” This was true, said “Brutus,” because equity law gave the courts broad discretion. Equity law emerged not in the common law courts of England, which follow strict rules of construction, but in the courts of chancery, which follow virtually no principles of interpretation. The goal of equity jurisprudence is “natural justice”; it seeks to produce fairness, as the judges understand it, and to override the common law when it stands in the way of this objective. Quoting Hugo Grotius, the great scholar of international law, “Brutus” contended “That equity, thus depending essentially upon each individual case [rather than precedent], there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law.”
It therefore followed, said Brutus, that “The judicial power will operate to effect in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the Constitution: an entire subversion of the legislative, executive, and judicial powers of the individual States.” The inquiring citizen, he concluded, need only examine the Constitution itself, written “in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions,” to appreciate the truth of these remarks. “I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers.”
In light of criticisms like these, the Anti-Federalists insisted that the Constitution must either be rejected or substantially amended. Their points of disagreement with the basic design of the system and its particular provisions varied from writer to writer, and they did not agree in all respects. Taken together, however, their writings demonstrated a remarkable uniformity when we consider the distances in time and location, and the limited means of communication from one State to the next in that era. And on one issue they were almost unanimously agreed: the Constitution, because it conferred so much power upon the Federal government, was a threat to personal freedom and States’ Rights. They believed, therefore, that prohibiting the Federal government from abridging certain freedoms was absolutely essential. In the end, the Anti-Federalists were wholly unsuccessful in their effort to change the language of the Constitution and limit the power of the Federal government. They did succeed, however, in persuading the Federalists to add a bill of rights to the Constitution. This was their most important and lasting contribution to the making of the American Constitution.
THE FEDERALIST RESPONSE
Although the essays written by Hamilton, Madison, and Jay (“Publius”) in The Federalist were by no means the only thoughtful response to Anti-Federalists’ arguments, they were surely the most influential. Over the years they have come to be recognized as a primary source of understanding concerning the meaning and purpose of the Constitution. Indeed, no study of our political system and the ideas of the Framers is complete without a reading of this great American classic.
In defending the Constitution, the authors of The Federalist faced the difficult task of explaining and justifying a document that differed sharply from the Articles of Confederation. Although the Articles were unsatisfactory in a number of ways, they were nevertheless tolerable to a great many Americans. There had been no popular uprisings anywhere in the country demanding a new constitution, and many prominent political leaders—now Anti-Federalists—preferred a modest revision rather than abandonment of the Articles.
The Federalists thus found themselves in the awkward position of defending what appeared to be, at least on the surface, a radical and revolutionary change of government. Many though not all of the delegates to the Federal Convention had been instructed by their States to seek a modification of the Articles—not their wholesale elimination. These delegates were therefore highly vulnerable to the charge that they had violated the trust that had been placed in them, and had acted ultra vires (beyond the power vested in them). The Constitution itself, as the Anti-Federalists hotly contended, displayed all the characteristics of a novel experiment in government. The basic question was whether it strengthened and preserved freedom and independence, or whether it nullified the hard-fought gains of the American Revolution and promised to return America to the kind of tyranny it had known under George III.
The Constitution Limits and Distributes Power
The question was one of power, the Federalists arguing that the Articles of Confederation conferred too little power on the Federal government, and the Anti-Federalists asserting that the Constitution gave it too much. Conceding the point that the Constitution clearly increased the powers of the Federal government, the Federalists nonetheless insisted that the document had been carefully drafted to limit those powers. These limitations were sufficient, they contended, to allow for healthy and vigorous government, while at the same time preventing abuses of power. It was to be a powerful government, more powerful than the American people had known since the Revolution, the Federalists admitted. But it was not so powerful as to constitute a serious threat to liberty, and certainly not as powerful as the English monarchy.
This was true, said “Publius,” because the Constitution disallowed concentrations of power. No single government, either Federal or State, possessed all the powers of government. Political power, in general, was divided between two levels of government under the principle of federalism. The national government was to be a government of limited and enumerated powers that were specifically laid out in the Constitution. Those powers not delegated to the national government remained with the States as “reserved” powers. The limited power that the national government possessed was further restricted because it was separated among three relatively independent branches—Congress, the President, and the Judiciary. This provided the machinery for the responsible exercise of power. The problem with the Articles of Confederation was that they did not provide for a proper distribution of power. Too much power had been concentrated in the States, making it difficult for the national government to deal effectively with foreign governments, interstate rivalries, insurrections, and military threats. And, what little power the national government did possess was concentrated in one branch—Congress. The government of the United States under the Articles thus suffered from “anarchy in the parts” rather than “tyranny in the head.” It was so weak, the Federalists argued, that it could not promote economic prosperity or provide for the safety of the people. These were the bare essentials of government. The new Constitution, as the Preamble stated, promised to “establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty. …”
The first step in gaining public support for the proposed Constitution was to explain and justify the redistribution of power crafted by the Framers. The American system of federalism, unprecedented in the history of nations, was a unique arrangement that seemed foreign to some and unworkable to others. What was the nature of this new union? If sovereignty was to be divided between the general or Federal government and the States, who had ultimate authority to govern? These were difficult questions, but the authors of The Federalist answered them with consummate skill.
The nature of the new union, explained Madison, was neither wholly national nor wholly federal, but contained both national and federal elements. Regarding the basic foundation of the government, it was federal because the Constitution must be ratified by the several States. With respect to the legislature, the new Union was partly national and partly federal, one house resting on a national and the other on a federal basis. The presidency was also partly national and partly federal, since the electoral vote was distributed partly in accordance with the principle of State equality, and partly according to population. Considering the operation of the government, it was seen as national rather than federal, inasmuch as it acted directly on individuals and not through the States. In the extent of its powers, however, the Union was federal because its jurisdiction was limited to specific objects, and all else was left to the States. Thus the government of the United States was to be neither a pure confederacy nor a “consolidated republic,” but a new type of government, in a class by itself.
The States had not been reduced to provinces, the Federalists insisted, but remained in possession of “certain exclusive and very important portions of sovereign power.” They still held “all the rights of sovereignty which were not … exclusively delegated to the United States.” In a consolidated system, the local authorities are subject to control by the central government; but in the proposed Union the local authorities form distinct and independent portions of the supremacy, no more subject to the general authority than the general authority is to them within its own sphere.” The States may not be completely sovereign, but they did have a residuary sovereignty.
Such was the nature of legal sovereignty under the Constitution. Real or political sovereignty rested, of course, not with the Federal or State governments, but with the “people.” “The ultimate authority,” concluded The Federalist, “resides in the people alone.”
It therefore followed that the federal principle, woven into the entire fabric of the Constitution, would limit the power of both the Federal and State governments, while happily combining the best characteristics of both. The Anti-Federalists’ claim that the Federal government would usurp the powers of the States, argued Madison in Federalist 45, was false. It was more likely that the States would continue to dominate the national government. They had the advantage with respect “to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other.”
Of paramount importance under the new scheme were the State legislatures. The President could not even be elected unless they acted. They played a key role in his election. Moreover, they elected the members of the Senate and would probably influence the election of members of the House of Representatives as well. Both the legislative and executive branches of the Federal government, in other words, owed their very existence to the State legislatures. Added to this, the States would exercise far more influence in public affairs because more people were employed under their authority than under that of the general government. “The members of the legislative, executive and judiciary departments of thirteen and more States; the justices of peace, officers of militia, ministerial officers of justice, with all the county corporation and town-officers, for three millions and more of people, intermixed and having particular acquaintance with every class and circle of people, must exceed beyond all proportion, both in number and influence, those of every description who will be employed in the administration of the federal system.”
Accustomed to their own State constitutions, which except in Massachusetts and a few other States generally failed to provide for sufficient checks and balances, some Anti-Federalists also criticized the separation of powers system of the Constitution. There was too much “blending,” they argued, and the departments ought to be kept wholly separate and distinct. Not all Anti-Federalists shared this view, however, and many accepted the argument of Madison in Federalist 47 that some overlapping of functions was necessary in order to prevent one branch from encroaching upon the functions of another. Hence the issue of separation of powers did not become a major bone of contention in the struggle over ratification of the Constitution. The Anti-Federalists were preoccupied with the question of States’ Rights. This was the theme song of their campaign against the Constitution.
In response to the many complaints that the proposed Constitution not only redistributed power improperly but also failed to limit the powers that had now been shifted to the Federal government, the authors of The Federalist assured their adversaries that such fears were unfounded. “The powers delegated by the proposed Constitution to the Federal government,” said Madison in Federalist 45, “are few and defined. Those which are to remain in the State governments are numerous and indefinite.” The scope of Federal power would be limited primarily to military and foreign affairs, foreign commerce and taxation. The States, he continued, would retain full authority over matters pertaining to civil liberties and the rights of property, the internal affairs of the States, and the administration of law and order.
Congress Is Not an Oligarchy
Turning to specific complaints lodged against the Constitution respecting the enumerated powers of Congress, Publius denied the allegation that the “times, places and manner” provision, which gave Congress concurrent authority to regulate the election of its own members, would displace the State legislatures. The States would regulate Federal elections in the first instance, contended Alexander Hamilton in Federalist 59, and Congress would not generally interfere except when “extraordinary circumstances might render the interposition necessary to its safety.” The “times, places and manner” clause was simply a device to protect Congress from being placed at the mercy of the States. Without it, the States might prevent the election of members of Congress altogether. It was justified by the general principle that “every government ought to contain in itself the means of its own preservation.”
Anti-Federalist arguments against the General Welfare, Tax, and Necessary and Proper clauses of Article I, and the Supremacy Clause of Article VI, were also not justified, the Federalists countered. A proper interpretation of these provisions, said The Federalist, showed they were entirely consistent with the principles of limited government. The power “to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare” was not an “unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare.” Congress had not been given a general power to legislate for the general welfare, because the General Welfare Clause was tied inextricably to the power to tax and spend. Congress, said Madison in Federalist 41, could tax and spend only to carry out one of its enumerated powers. Any other interpretation would render superfluous the specific enumeration of other Congressional powers.
It was true, of course, that the Framers had placed no limit on the amount that might be taxed. It would not be practical, the Federalists believed, to do so. In time of war and national emergencies, suggested Hamilton in Federalist 34, the situation might call for added revenue. “Constitutions of civil government are not to be framed upon a calculation of existing emergencies. … There ought to be a capacity to provide for future contingencies, as these may happen; and, as these are illimitable in their nature, it is impossible safely to limit that capacity.” Given the various constitutional restraints on government and the system of popular control over members of Congress, abuses of the tax power thus seemed remote.
Similarly unwarranted, argued Publius, were Anti-Federalist assaults on the Necessary and Proper and Supremacy clauses. “These two clauses,” observed Hamilton in Federalist 33, “have been sources of much virulent invective and petulant declamation. … [and] have been held up to the people, in all the exaggerated colors of misrepresentation, as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated.” Upon close examination, however, it was clear that both clauses were “perfectly harmless.” Indeed, wrote Hamilton, “the constitutional operation of the intended government would be precisely the same, if these clauses were entirely obliterated. … They are only declaratory of a truth, which would have resulted by necessary and unavoidable implication from the very act of constituting a Federal government, and vesting it with certain specified powers.” By this he meant that the Necessary and Proper clause was intended “to leave nothing to construction” and to remove all doubt that the delegation of certain powers to Congress carried with it the implied right to execute those powers by necessary and proper laws; and that the Supremacy Clause simply acknowledged the fact that “a law by the very meaning of the term includes supremacy.” The supremacy of national laws “flows immediately and necessarily from the institution of a Federal government.” The States were protected by language which “expressly confines this supremacy to laws made pursuant to the Constitution.”
The President Is Not a King
Anti-Federalist arguments that the President and the Federal courts also enjoyed excessive amounts of power under the proposed Constitution were also rebutted by Hamilton, principally in Federalist 69 and Federalist 78. Particularly weak was the charge that the President had been endowed with all of the rights and prerogatives of an English monarch. Astutely noting that the powers of the Chief Executive did not differ remarkably from those already being exercised by many State governors, Hamilton spelled out in exhaustive detail the differences between the President and the King of Great Britain: the President was elected by the people for four years, whereas the King is a perpetual hereditary prince; the President can be impeached and removed from office, whereas the person of the King is “sacred and inviolable”; the President has a qualified veto, whereas that of the King is absolute; the President is commander-in-chief of the armed forces, whereas the King not only raises and commands the military but may also declare war on his own authority; the President shares the treaty-making and appointment power with the legislature, whereas the King alone exercises these powers. These, and countless other differences, distinguished the two offices. “What answer,” asked Hamilton, “shall we give to those who would persuade us that things so unlike resemble each other? The same that ought to be given to those who tell us, that a government, the whole power of which would be in the hands of the elective and periodical servants of the people, is an aristocracy, a monarchy, and a despotism.”
The Judiciary Is the Least Dangerous Branch
On the question of Federal judicial power, however, Hamilton dismissed many of the Anti-Federalist objections out of hand, and never really came to grips with the issue. In Federalist 78, he argued persuasively for the principle of judicial independence, but the thought that Federal judges might usurp the powers of the State courts received only passing notice. The possibility that Federal judges might also encroach upon the powers of Congress or the President seemed equally remote. Historically, courts of law had served the interests of liberty as barriers to despotism. Because of the limited nature of their function—interpreting the law—they “will always be the least dangerous” branch. Under the Constitution, observed Hamilton, “The judiciary. … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”
In sum, “the judiciary is beyond comparison the weakest of the three departments of power.” “[T]he supposed danger of judiciary encroachments on the legislative authority,” Hamilton surmised, “is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system.”
Whether a Bill of Rights Was Necessary
On May 28, 1788, one year after the delegates to the Constitutional Convention had convened in Philadelphia to begin their deliberations, Alexander Hamilton published his reply to the Anti-Federalists on the question of a bill of rights. Not until the final hours of the Convention had the thought occurred to any delegate that a bill of rights ought to be included in the Constitution. It was then that George Mason of Virginia made the proposal, and Elbridge Gerry of Massachusetts moved to appoint a committee to draft a “declaration of rights.” The motion was voted down unanimously (that is, by all of the States represented), because the general consensus was that a bill of rights was not necessary. This was essentially the same position taken by Hamilton in Federalist 84.
Opposition to a bill of rights did not stem from indifference or hostility toward civil rights, but from the widely held belief that a declaration of rights would be superfluous. The Federal government was to be a government of delegated and enumerated powers. It had no authority to interfere with such matters as speech and religion. A declaration that it had no such authority would merely make explicit what was already implicit in the Constitution, with excess verbiage that simply stated what was already obvious.
To this, Hamilton added other objections. First, the Constitution already contained specific guarantees of liberty. “The establishment of the writ of habeas corpus, the prohibition of ex post facto laws and of titles of nobility,” he asserted, “are perhaps greater securities to liberty and republicanism” than any provided by his own Constitution of New York.
Second, a bill of rights does not properly belong in this kind of Constitution. Such bills of rights are ordinarily stipulations between kings and their subjects, “reservations of rights not surrendered to the prince”—as seen in the Magna Charta, the Petition of Right, and the English Bill of Rights of 1688. Hence, Hamilton argued,“they have no application to constitutions professedly founded upon the power of the people” because “in strictness, the people surrender nothing, and as they retain everything, they have no need of particular reservations.” The Preamble of the Constitution, he believed, “is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.”
Third, said Hamilton, a bill of rights might even be dangerous. By listing freedoms that the Federal government could not deny, the government, by implication, would be free to deny those rights that had not been included. A bill of rights, he reasoned, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than was granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
Fourth, there was no clear understanding concerning the precise meaning of the liberties claimed, and the standards varied from State to State. “What signifies a declaration that ‘the liberty of the press shall be inviolably preserved’? What is the liberty of the press? Who can give it any definition which would not leave the utmost latitude for evasion?” If freedom of the press is to be enjoyed, Hamilton argued, it will be because of public opinion and the spirit of the people, not because of “fine declarations.”
Finally, a bill of rights was not needed, Hamilton maintained, because the Constitution was itself a bill of rights. What protects liberty and gives it meaning and substance is the structure of government—concrete limitations on power, not parchment declarations. If a constitution—and that of the United States is such a constitution—is properly designed to check abuses of power, the government upon which it rests will in the general course of events discourage political authorities from trampling on the liberties of the people. The privileges and immunities that might be proclaimed in such a bill of rights were already embodied in the original document.
In the end, Hamilton’s view did not prevail. The ratification struggle began as soon as Congress submitted the Constitution to the States, and the Anti-Federalists steadfastly held their position that a bill of rights was essential. This issue overshadowed all others, including the issues of legislative power and representation. Although ratification was secured within nine months, the margin of victory in at least half of the States was narrow. Had the Federalists refused to budge on the bill of rights question, it is not unlikely that the proposed Constitution would have been defeated.
The Clash of Values
This brief review of the main points of contention between the Federalists and the Anti-Federalists shows that they were in disagreement on some very fundamental issues. To the Anti-Federalists, the new Constitution posed a threat to liberty, order, and justice, whereas the Federalists believed that it would secure these values.
Liberty depends on rule of law. Yet, as the Anti-Federalists repeatedly argued, the new system rested on a flagrant disregard of the forms of legality. The delegates to the Philadelphia Convention were sent to revise the Articles of Confederation, not to write a new Constitution. James Madison responded in Federalist 40 with the argument that even if the Framers had exceeded their powers (which he flatly denied), it was in the best interests of the country to substantially alter the system. Such changes were legitimate, he suggested, if they were “calculated to accomplish the views and happiness of the people of America” and were approved by them.
Liberty also depended upon republicanism, said the Anti-Federalists, which in turn depended upon maintaining the primacy of the States. History and political theory persuaded the Anti-Federalists that free republican governments could extend only over small territories with homogeneous populations. Small republics were stable and orderly because they were public-spirited, enjoyed voluntary obedience to the laws, and were closely controlled by the people. Many Anti-Federalists preferred the simplicity of agrarian life to the complexity of a strife-ridden industrial society, and most agreed with Brutus that “in a republic, the manners, sentiments, and interests of the people should be similar. If this is not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving against those of the other.”
But the Federalists envisioned a different kind of America, and vigorously challenged this view. Homogeneous republics were possible only under the primitive conditions of pre-commercial society. “In every community whose industry is encouraged,” said Hamilton, “there will be a division of it into the few and the many.” And when this occurs, the innocence of agricultural life is lost. The Anti-Federalists criticized the man of commerce as rootless and greedy—“immersed in schemes of wealth” and “the last to take alarm when public liberty is threatened”; but they could not deny that America was already committed to a commercial order, and that the landed interests were fundamentally part of, and dependent upon, the commercial life of the nation. As Herbert Storing has observed, “The basic problem of the Anti-Federalists was that they accepted the need and desirability of the modern commercial world, while attempting to resist certain of its tendencies with rather half-hearted appeals to civic virtue. But such restraints, the Federalists replied, have never worked and will never work.”
The solution, argued Madison in Federalist 10, was the extended commercial republic proposed by the Constitution. A loosely knit confederation of small republics was neither desirable nor possible. Small republics might even pose a threat to liberty because they were governed by single-minded majority factions that are difficult to control. Such factions tend to be overbearing, and even tyrannical. They become intolerant of the rights of wealthy property owners, small religious sects, and other minority groups because they have few differences among themselves. The system of representation adopted by the Framers was preferable, said Madison, because it established a large commercial republic in which majority factions would represent diverse populations with different interests. Majority factions of this kind would be more moderate than small, homogeneous factions, since they would be forced to compromise many of their positions in order to function as a majority. The Federal government, in other words, would have a conservative, moderating influence on the affairs of the people, checking the radical elements in the States—like Daniel Shays.
Although the Federalists won the argument, we should not presume that the Anti-Federalists were wrong about any or all of these issues. The inquiring student, having examined the debates thoroughly and objectively, may well conclude that the Anti-Federalists were right about certain matters. For we must not lose sight of the fact that the debate over the Constitution was a political debate, and that both sides were seeking to persuade their fellow countrymen that their position was the correct one. In the course of the debate, both sides tended to exaggerate their claims, the Federalists playing down the fact that the Constitution did indeed confer great power on the Federal government, and the Anti-Federalists overstating the deficiencies of the Constitution.
Moreover, we should not over-inflate the effect and significance of the Anti-Federalists’ victory in securing adoption of the Bill of Rights. For the Bill of Rights neither increased nor decreased the powers of the Federal government. The first ten amendments simply made explicit what was already implicit in the Constitution. Perhaps this is why the Federalists were only half-hearted in their opposition to a bill of rights, and in the end readily acceded to the demands of the Anti-Federalists.
Although no formal agreements were made, ratification in many States was conditioned on the understanding that the first order of business in the first Congress would be the preparation of a bill of rights for submission to the States. Toward that end, five of the States sent long lists of proposed amendments to Congress for consideration. These amendments, it should be borne in mind, were motivated as much by a desire to whittle down the powers of the Federal government as by a desire to protect civil liberties.
A review of the bill of rights proposals of the first three States to make them—Massachusetts, South Carolina, and New Hampshire—shows that the members of these conventions were much more concerned about the rights and powers of the States than about the rights of the people. Massachusetts proposed nine amendments, but only the sixth and seventh—referring, respectively, to indictment by grand jury and jury trials in civil disputes—dealt with individual liberty as such. The rest called for amendments declaring that: (1) all powers not expressly delegated were reserved to the States; (2) there shall be one representative for every thirty thousand persons until there are two hundred representatives; (3) Congress shall not exercise its “times, manner, and place” powers unless a State neglects or refuses to act or subverts the right of the people to free and equal representation; (4) Congress may not impose direct taxes unless there is insufficient money arising from imposts and excise taxes, and certain other conditions are met; (5) Congress may not create monopolies giving certain merchants an exclusive advantage; (6) The Supreme Court shall have no jurisdiction over disputes between citizens of different States unless the amount in contention is at least $3,000; (7) Congress shall never consent that a person holding office under the United States shall accept a title of nobility from a foreign state.
In one place the list proposed by South Carolina mentioned the “freedom of the people,” but otherwise it dealt with the issue of “the sovereignty of the several States.” Of the twelve proposed amendments offered by New Hampshire, less than half had a direct bearing on individual liberty. The many amendments proposed by Virginia and New York, which went into great detail, dealt in part with individual liberty and in part with proposed changes to increase the powers of the States.
Thus it may be seen that federalism was an important ingredient of the “Bill of Rights” as finally adopted. The Bill of Rights was, in fact, a concession to the Anti-Federalists and to the States’ Rightists who feared Federal usurpation of State power, particularly in the sensitive area of civil liberties. By its terms, the Bill of Rights applied only to Congress (the Federal government) and exempted the States. Viewed in historical perspective, its purpose was two-fold: (1) to assure each individual that the Federal government would not encroach upon his civil liberties, and (2) to assure each State that the Federal government would not have jurisdiction over most civil liberties disputes between a State and its citizens. Each amendment was a guarantee to the individual and to the States, limiting the powers of the Federal government but not those of the States. On the question of freedom of the press, for example, Congress alone was prohibited by the First Amendment from abridging such freedom, thus leaving the States to establish their own standards of free press under their own constitutions and State bills of rights.
The task of drafting the Bill of Rights and submitting the amendments to the States for ratification fell on members of the First Congress in 1789. James Madison, who had been elected to the House of Representatives, was a member of the special committee that was responsible for sifting through the myriad amendments suggested by the States, and it was under his leadership that the Bill of Rights took shape.
The Bill of Rights as originally adopted by Congress and submitted to the States contained twelve amendments. The first two, proposing a new scale of representation for the House of Representatives and a limitation on increasing the salaries of members of Congress failed to gain ratification, and the last ten, known as the Bill of Rights, became part of the Constitution on December 15, 1791. What is now the First Amendment was originally the third. The amendment restricting changes of Congressional salaries was finally ratified in 1992, and it is now the 27th amendment to the Constitution. Not until the sesquicentennial year of 1941 did Connecticut, Georgia, and Massachusetts formally ratify the Bill of Rights.
The Bill Of Rights
The first ten amendments were proposed by Congress in 1789, at their first session; and, having received the ratification of the legislatures of three-fourths of the several States, they became a part of the Constitution December 15, 1791, and are known as the Bill of Rights.
[Amendment I.]Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
[Amendment II.]A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
[Amendment III.]No Soldier shall, in time of peace, be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
[Amendment IV.]The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[Amendment V.]No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject, for the same offense, to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
[Amendment VI.]In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
[Amendment VII.]In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
[Amendment VIII.]Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
[Amendment IX.]The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
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.
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Some of the State constitutions drawn up during the Revolution included bills of rights. The most famous and influential of these was Virginia’s Declaration of Rights, written by George Mason in 1776. (Mason also had a large hand in writing the Virginian Constitution at about the same time. Strictly speaking, the Declaration of Rights was not part of that constitution.) It is upon Mason’s Declaration of Rights that much of the Bill of Rights of the Constitution is founded. The principal author of the Bill of Rights, however, was James Madison.
All early Americans with any serious interest in politics knew something about the English Bill (or Declaration) of Rights of 1688. But, as in many other matters, American leaders tended to be influenced more by recent or colonial American precedents and example than by those from British history. John Adams and Thomas Jefferson both earnestly supported the idea of a national bill of rights, and so did many other leading men.
We shall now examine those ten amendments, one by one, with a view to grasping their original purpose or meaning. For people of our time, the phrases of those amendments, like the phrases of the original Seven Articles of the Constitution, sometimes require interpretation. What did those words mean, as people used them near the end of the eighteenth century? One way to find out is to consult the first great dictionary of the English language, Samuel Johnson’s, published at London in 1775; or, later, Noah Webster’s American Dictionary of the English Language (1828). It is important to understand precisely, so far as possible, the meanings intended by the men (chiefly James Madison and George Mason) whose phrases are found in the Bill of Rights, because many important cases of constitutional law that affect millions of Americans are today decided on the presumed significance of certain phrases in the Bill of Rights. As the English jurist Sir James Fitzjames Stephen wrote in Victorian times, “Words are tools that break in the hand.” We therefore need to define the concepts which lie behind the words of the Bill of Rights.
Another way to ascertain what the framers of the Bill of Rights intended by their amendments, and what the first Congress and the ratifying State legislatures understood by the amendments’ language, is to consult Sir William Blackstone’s Commentaries on the Laws of England (1765), and the early Commentaries on the Constitution (1833) and Commentaries on American Law (1826), written, respectively, by Joseph Story and James Kent. As eminent judges during the early decades of the Republic, both Story and Kent were more familiar with the constitutional controversies of the first five presidential administrations than any judge or professor of law near the close of the twentieth century can hope to be.
The comments on the Bill of Rights that follow are based on such sources of information, and also on the books, letters, and journals of political leaders and judges from 1776 to 1840.
It should be noted, moreover, that the Northwest Ordinance of 1787 also sheds light on the ideas and ideals of the generation that drafted the Constitution and the Bill of Rights. Passed by the Continental Congress on July 13, 1787, while the Federal Convention was meeting in Philadelphia, the Northwest Ordinance was later affirmed by the first Congress under the new Constitution. Its purpose was to provide a frame of government for the western territories that later became the States of Ohio, Indiana, Illinois, Michigan, and Wisconsin.
The Ordinance has been called our first national bill of rights, or “the Magna Charta of American Freedom.” The great American statesman Daniel Webster said he doubted “whether one single law of any lawgiver, ancient or modern, has produced effects of more distinct, marked and lasting character than the Ordinance of 1787.” In addition to protecting many civil liberties that later appeared in the Bill of Rights, the Northwest Ordinance also banned slavery in the Northwest Territory. The wording of the Thirteenth Amendment (1865) providing for the abolition of slavery in the United States was taken directly from the Northwest Ordinance. On the subject of religion, the ordinance provided that “No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in said Territory.” The Ordinance also declared as a matter of public policy that because “Religion, morality, and knowledge, [are] necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.”
The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
We hear a good deal nowadays about “a wall of separation” between church and state in America. To some people’s surprise, this phrase cannot be found in either the Constitution or the Declaration of Independence. Actually, the phrase occurs in a letter from Thomas Jefferson, as a candidate for office, to an assembly of Baptists in Connecticut.
The first clause of the First Amendment reads, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” This clause is followed by guarantees of freedom of speech, of publication, of assembly, and of petitioning. These various aspects of liberty were lumped together in the First Amendment for the sake of convenience; Congress had originally intended to assign “establishment of religion” to a separate amendment because the relationships between state and church are considerably different from the civil liberties of speech, publication, assembly, and petitioning.
The purpose of the “Establishment Clause” was two-fold: (1) to prohibit Congress from imposing a national religion upon the people; and (2) to prohibit Congress (and the Federal government generally) from interfering with existing church-state relations in the several States. Thus the “Establishment Clause” is linked directly to the “Free Exercise Clause.” It was designed to promote religious freedom by forbidding Congress to prefer one religious sect over other religious sects. It was also intended, however, to assure each State that its reserved powers included the power to decide for itself, under its own constitution or bill of rights, what kind of relationship it wanted with religious denominations in the State. Hence the importance of the word “respecting”: Congress shall make no law “respecting,” that is, touching or dealing with, the subject of religious establishment.
In effect, this “Establishment Clause” was a compromise between two eminent members of the first Congress—James Madison and Fisher Ames. Representative Ames, from Massachusetts, was a Federalist. In his own State, and also in Connecticut, there still was an established church—the Congregational Church. By 1787–1791, an “established church” was one which was formally recognized by a State government as the publicly preferred form of religion. Such a church was entitled to certain taxes, called tithes, that were collected from the public by the State. Earlier, several other of Britain’s colonies had recognized established churches, but those other establishments had vanished during the Revolution.
Now, if Congress had established a national church—and many countries, in the eighteenth century, had official national churches—probably it would have chosen to establish the Episcopal Church, related to the Church of England. For Episcopalians constituted the most numerous and influential Christian denomination in the United States. Had the Episcopal Church been so established nationally, the Congregational Church would have been disestablished in Massachusetts and Connecticut. Therefore, Fisher Ames and his Massachusetts constituents in 1789 were eager for a constitutional amendment that would not permit Congress to establish any national church or disestablish any State church.
The motive of James Madison for advocating the Establishment Clause of the First Amendment was somewhat different. Madison believed that for the Federal government to establish one church—the Episcopal Church, say—would vex the numerous Congregationalist, Presbyterian, Baptist, Methodist, Quaker, and other religious denominations. After all, it seemed hard enough to hold the United States together in those first months of the Constitution without stirring up religious controversies. So Madison, who was generally in favor of religious toleration, strongly advocated an Establishment Clause on the ground that it would avert disunity in the Republic.
In short, the Establishment Clause of the First Amendment was not intended as a declaration of governmental hostility toward religion, or even of governmental neutrality in the debate between believers and non-believers. It was simply a device for keeping religious passions out of American politics. The phrase “or prohibiting the free exercise thereof” was meant to keep the Congress from ever meddling in the disputes among religious bodies or interfering with the mode of worship.
During the nineteenth century, at least, State governments would have been free to establish State churches, had they desired to do so. The Establishment Clause restrained only Congress—not State legislatures. But the States were no more interested in establishing a particular church than was Congress, and the two New England States where Congregationalism was established eventually gave up their establishments—Connecticut in 1818, Massachusetts in 1833.
The remainder of the First Amendment is a guarantee of reasonable freedom of speech, publication, assembly, and petition. A key word in this declaration that the Congress must not abridge these freedoms is the article “the”—abridging the freedom of speech and press. For what the Congress had in mind, in 1789, was the civil freedom to which Americans already were accustomed, and which they had inherited from Britain. In effect, the clause means “that freedom of speech and press which prevails today.” In 1789, this meant that Congress was prohibited from engaging in the practice of “prior censorship”—prohibiting a speech or publication without advance approval of an executive official. The courts today give a much broader interpretation to the clause. This does not mean, however, that the First Amendment guarantees any absolute or perfect freedom to shout whatever one wishes, print whatever one likes, assemble in a crowd wherever or whenever it suits a crowd’s fancy, or present a petition to Congress or some other public body in a context of violence. Civil liberty as understood in the Constitution is ordered liberty, not license to indulge every impulse and certainly not license to overthrow the Constitution itself.
As one of the more famous of Supreme Court Justices, Oliver Wendell Holmes, put this matter, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Similarly, statutes that prohibit the publication of obscenities, libels, and calls to violence are generally held by the courts to conform to the First Amendment. For example, public assemblies can be forbidden or dispersed by local authorities when crowds threaten to turn into violent mobs. And even public petitions to the legislative or the executive branch of government must be presented in accordance with certain rules, or else they may be lawfully rejected.
The Constitution recognizes no “absolute” rights. A Justice of the Supreme Court observed years ago that “The Bill of Rights is not a suicide pact.” Instead, the First Amendment is a reaffirmation of certain long-observed civil freedoms, and it is not a guarantee that citizens will go unpunished however outrageous their words, publications, street conduct, or mode of addressing public officials. The original, and in many ways the most important, purpose of freedom of speech and press is that it affords citizens an opportunity to criticize government—favorably and unfavorably—and to hold public officials accountable for their actions. It thus serves to keep the public informed and encourages the free exchange of ideas.
The Second Amendment: The Right to Bear Arms
This amendment consists of a single sentence: “A well regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.”
Although today we tend to think of the “militia” as the armed forces or national guard, the original meaning of the word was “the armed citizenry.” One of the purposes of the Second Amendment was to prevent Congress from disarming the State militias. The phrasing of the Amendment was directly influenced by the American Revolutionary experience. During the initial phases of that conflict, Americans relied on the militia to confront the British regular army. The right of each State to maintain its own militia was thought by the founding generation to be a critical safeguard against “standing armies” and tyrants, both foreign and domestic.
The Second Amendment also affirms an individual’s right to keep and bear arms. Since the Amendment limits only Congress, the States are free to regulate the possession and carrying of weapons in accordance with their own constitutions and bills of rights. “The right of the citizens to keep and bear arms,” observed Justice Joseph Story of the Supreme Court in his Commentaries on the Constitution (1833), “has justly been considered as the palladium of the liberties of the republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” Thus a disarmed population cannot easily resist or overthrow tyrannical government. The right is not absolute, of course, and the Federal courts have upheld Federal laws that limit the sale, possession, and transportation of certain kinds of weapons, such as machine guns and sawed-off shotguns. To what extent Congress can restrict the right is a matter of considerable uncertainty because the Federal courts have not attempted to define its limits.
The Third Amendment: Quartering Troops
Forbidding Congress to station soldiers in private houses without the householders’ permission in time of peace, or without proper authorization in time of war, was bound up with memories of British soldiers who were quartered in American houses during the War of Independence. It is an indication of a desire, in 1789, to protect civilians from military bullying. This is the least-invoked provision of the Bill of Rights, and the Supreme Court has never had occasion to interpret or apply it.
The Fourth Amendment: Search and Seizure
This is a requirement for search warrants when the public authority decides to search individuals or their houses, or to seize their property in connection with some legal action or investigation. In general, any search without a warrant is unreasonable. Under certain conditions, however, no warrant is necessary—as when the search is incidental to a lawful arrest.
Before engaging in a search, the police must appear before a magistrate and, under oath, prove that they have good cause to believe that a search should be made. The warrant must specify the place to be searched and the property to be seized. This requirement is an American version of the old English principle that “Every man’s house is his castle.” In recent decades, courts have extended the protections of this amendment to require warrants for the search and seizure of intangible property, such as conversations recorded through electronic eavesdropping.
The Fifth Amendment: Rights of Persons
Here we have a complex of old rights at law that were intended to protect people from arbitrary treatment by the possessors of power, especially in actions at law. The common law assumes that a person is innocent until he is proven guilty. This amendment reasserts the ancient requirement that if a person is to be tried for a major crime, he must first be indicted by a grand jury. In addition, no person may be tried twice for the same offense. Also, an individual cannot be compelled in criminal cases to testify against himself, “nor be deprived of life, liberty, or property, without due process of law”; and the public authorities may not take private property without just compensation to the owner.
The immunity against being compelled to be a witness against one’s self is often invoked in ordinary criminal trials and in trials for subversion or espionage. This right, like others in the Bill of Rights, is not absolute. A person who “takes the Fifth”—that is, refuses to answer questions in a court because his answers might incriminate him—thereby raises “a legitimate presumption” in the court that he has done something for which he might be punished by the law. If offered immunity from prosecution in return for giving testimony, either he must comply or else expect to be jailed, and kept in jail, for contempt of court. And, under certain circumstances, a judge or investigatory body such as a committee of Congress may refuse to accept a witness’s contention that he would place himself in danger of criminal prosecution were he to answer any questions.
The Fifth Amendment’s due process requirement was originally a procedural right that referred to methods of law enforcement. If a person was to be deprived of his life, liberty or property, such a deprivation had to conform to the common law standards of “due process.” The Amendment required a procedure, as Daniel Webster once put it, that “hears before it condemns, proceeds upon inquiries, and renders judgment only after a trial” in which the basic principles of justice have been observed.
The prohibition against taking private property for public use without just compensation is a restriction on the Federal government’s power of eminent domain. Federal courts have adopted a rule of interpretation that the “taking” must be “direct” and that private property owners are not entitled to compensation for indirect loss incidental to the exercise of governmental powers. Thus the courts have frequently held that rent-control measures, limiting the amount of rent which may be charged, are not a “taking,” even though such measures may decrease the value of the property or deprive the owners of rental income. As a general rule, Federal courts have not since 1937 extended the same degree of protection to property rights as they have to other civil rights.
The Sixth Amendment: Rights of the Accused
Here again the Bill of Rights reaffirms venerable protections for persons accused of crimes. The Amendment guarantees jury trial in criminal cases; the right of the accused “to be informed of the nature and cause of the accusation”; also the rights to confront witnesses, to obtain witnesses through the arm of the law, and to have lawyers’ help.
These are customs and privileges at law derived from long usage in Britain and America. The recent enlargement of these rights by Federal courts has caused much controversy. The right of assistance of counsel, for example, has been extended backward from the time of trial to the time the defendant is first questioned as a suspect, and forward to the appeals stage of the process. Under the so-called “Miranda” rule, police must read to a suspect his “Miranda” rights before interrogation. Only if a suspect waives his rights may any statement or confession obtained be used against him in a trial. Otherwise the suspect is said to have been denied “assistance of counsel.”
The Sixth Amendment also specifies that criminal trials must be “speedy.” Because of the great backload of cases in our courts, this requirement is sometimes loosely applied today. Yet, as one jurist has put the matter, “Justice delayed is justice denied.”
The Seventh Amendment: Trial by Jury in Civil Cases
This guarantee of jury trial in civil suits at common law “where the value in controversy shall exceed twenty dollars” (a much bigger sum of money in 1789 than now) was included in the Bill of Rights chiefly because several of the States’ ratifying conventions had recommended it. It applies only to Federal cases, of course, and it may be waived. The primary purpose of the Amendment was to preserve the historic line separating the jury, which decides the facts, from the judge, who applies the law. It applies only to suits at common law, meaning “rights and remedies peculiarly legal in their nature.” It does not apply to cases in equity or admiralty law, where juries are not used. In recent years, increasingly large monetary awards to plaintiffs by juries in civil cases have brought the jury system somewhat into disrepute.
The Eighth Amendment: Bail and Cruel and Unusual Punishments
How much bail, fixed by a court as a requirement to assure that a defendant will appear in court at the assigned time, is “excessive”? What punishments are “cruel and unusual”? The monetary sums for bail have changed greatly over two centuries, and criminal punishments have grown less severe. Courts have applied the terms of this amendment differently over the years.
Courts are not required to release an accused person merely because he can supply bail bonds. The court may keep him imprisoned, for example, if the court fears that the accused person would become a danger to the community if released, or would flee the jurisdiction of the court. In such matters, much depends on the nature of the offense, the reputation of the alleged offender, and his ability to pay. Bail of a larger amount than is usually set for a particular crime must be justified by evidence.
As for cruel and unusual punishments, public whipping was not regarded as cruel and unusual in 1789, but it is probably so regarded today. In recent years, the Supreme Court has found that capital punishment is not forbidden by the Eighth Amendment, although the enforcement of capital punishment must be carried out so as not to permit jury discretion or to discriminate against any class of persons. Punishment may be declared cruel and unusual if it is out of all proportion to the offense.
The Ninth Amendment: Rights Retained by the People
Are all the rights to be enjoyed by citizens of the United States enumerated in the first eight amendments and in the Articles of the original Constitution? If so, might not the Federal government, at some future time, ignore a multitude of customs, privileges, and old usages cherished by American men and women, on the ground that these venerable ways were not rights at all? Does a civil right have to be written expressly into the Constitution in order to exist? The Seven Articles and the first eight amendments say nothing, for example, about a right to inherit property, or a right of marriage. Are, then, rights to inheritance and marriage wholly dependent on the will of Congress or the President at any one time?
The Federalists had made such objections to the very idea of a Bill of Rights being added to the Constitution. Indeed, it seemed quite possible to the first Congress under the Constitution that, by singling out and enumerating certain civil liberties, the Seven Articles and the Bill of Rights might seem to disparage or deny certain other prescriptive rights that are important but had not been written into the document.
The Ninth Amendment was designed to quiet the fears of the Anti-Federalists who contended that, under the new Constitution, the Federal government would have the power to trample on the liberties of the people because it would have jurisdiction over any right that was not explicitly protected against Federal abridgment and reserved to the States. They argued in particular that there was an implied exclusion of trial by jury in civil cases because the Constitution made reference to it only in criminal cases.
Written to serve as a general principle of construction, the Ninth Amendment declares that “The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people.” The reasoning behind the amendment springs from Hamilton’s 83rd and 84th essays in The Federalist. Madison introduced it simply to prevent a perverse application of the ancient legal maxim that a denial of power over a specified right does not imply an affirmative grant of power over an unnamed right.
This amendment is much misunderstood today, and it is sometimes thought to be a source of new rights, such as the “right of privacy,” over which Federal courts may establish jurisdiction. It should be kept in mind, however, that the original purpose of this amendment was to limit the powers of the Federal government, not to expand them.
The Tenth Amendment: Rights Retained by the States
This last amendment in the Bill of Rights was probably the one most eagerly desired by the various State conventions and State legislatures that had demanded the addition of a bill of rights to the Constitution. Throughout the country, the basic uneasiness with the new Constitution was the dread that the Federal government would gradually enlarge its powers and suppress the States’ governments. The Tenth Amendment was designed to lay such fears to rest.
This amendment was simply a declaration that “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.” The Federalists maintained that the Framers at Philadelphia had meant from the first that all powers not specifically assigned to the Federal government were reserved to the States or the people of the States.
The amendment declares that powers are reserved “to the States respectively, or to the people,” meaning they are to be left in their original state.
It should be noted that the Tenth Amendment does not say that powers not expressly delegated to the United States are reserved to the States. The authors of the Bill of Rights considered and specifically rejected such a statement. They believed that an amendment limiting the national government to its expressed powers would have seriously weakened it.
During much of our history, the Tenth Amendment was interpreted as a limitation of the delegated powers of Congress. Since 1937, however, the Supreme Court has largely rejected this view, and the Amendment no longer has the same operative meaning or effect that it once had.
Rights Versus Duties
Some Americans seem to fancy that the whole Constitution is a catalog of people’s rights. But actually the major part of the Constitution—the Seven Articles—establishes a framework of national government and only incidentally deals with individuals’ rights.
In any society, duties are often even more important than rights. For example, the duty of obeying good laws is more essential than the right to be exempted from the ordinary operation of the laws. As has been said, every right is married to some duty. Freedom involves individual responsibility.
With that statement in mind, let us look at some of the provisions of the Bill of Rights to see how those rights are joined to certain duties.
If one has a right to freedom of speech, one has a duty to speak decently and honestly, not inciting people to riot or to commit crimes.
If one has a right to freedom of the press (or, in our time, freedom of the “media”), one has the duty to publish the truth, temperately—not abusing this freedom for personal advantage or vengeance.
If one has a right to join other people in a public assembly, one has the duty to tolerate other people’s similar gatherings and not to take the opportunity of converting a crowd into a mob.
If one enjoys an immunity from arbitrary search and seizure, one has the duty of not abusing these rights by unlawfully concealing things forbidden by law.
If one has a right not to be a witness against oneself in a criminal case, one has the duty not to pretend that he would be incriminated if he should testify: that is, to be an honest and candid witness, not taking advantage of the self-incrimination exemption unless otherwise one would really be in danger of successful prosecution.
If one has a right to trial by jury, one ought to be willing to serve on juries when so summoned by a court.
If one is entitled to rights, one has the duty to support the public authority that protects those rights.
For, unless a strong and just government exists, it is vain to talk about one’s rights. Without liberty, order, and justice, sustained by good government, there is no place to which anyone can turn for enforcement of his claims to rights. This is because a “right,” in law, is a claim upon somebody for something. If a man has a right to be paid for a day’s work, for example, he asserts a claim upon his employer; but, if that employer refuses to pay him, the man must turn to a court of law for enforcement of his right. If no court of law exists, the “right” to payment becomes little better than an empty word. The unpaid man might try to take his pay by force, true; but when force rules instead of law, a society falls into anarchy and the world is dominated by the violent and the criminal.
Knowing these hard truths about duties, rights, and social order, the Framers endeavored to give us a Constitution that is more than mere words and slogans. Did they succeed? At the end of two centuries, the Constitution of the United States still functions adequately. Had Americans followed the French example of placing all their trust in a naked declaration of rights, without any supporting constitutional edifice to limit power and the claims of absolute liberty, it may be doubted whether liberty, order, or justice would have prevailed in the succeeding years. There cannot be better proof of the wisdom of the Framers than the endurance of the Constitution.
The Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
Anti-Federalist dissent from the proposed Constitution is adequately represented by this document presented to the Pennsylvania Convention on December 18, 1787, by the minority (Anti-Federalists). Similar protests against ratification were made by Patrick Henry in Virginia and by able opponents in other States.
It was not until after the termination of the late glorious contest, which made the people of the United States an independent nation, that any defect was discovered in the present confederation. It was formed by some of the ablest patriots in America. It carried us successfully through the war, and the virtue and patriotism of the people, with their disposition to promote the common cause, supplied the want of power in Congress.
The requisition of Congress for the five per cent. impost was made before the peace, so early as the first of February, 1781, but was prevented taking effect by the refusal of one State; yet it is probable every State in the Union would have agreed to this measure at that period, had it not been for the extravagant terms in which it was demanded. The requisition was new molded in the year 1783, and accompanied with an additional demand of certain supplementary funds for twenty-five years. Peace had now taken place, and the United States found themselves laboring under a considerable foreign and domestic debt, incurred during the war. The requisition of 1783 was commensurate with the interest of the debt, as it was then calculated; but it has been more accurately ascertained since that time. The domestic debt has been found to fall several millions of dollars short of the calculation, and it has lately been considerably diminished by large sales of the Western lands. The States have been called on by Congress annually for supplies until the general system of finance proposed in 1783 should take place.
It was at this time that the want of an efficient federal government was first complained of, and the powers vested in Congress were found to be inadequate to the procuring of the benefits that should result from the union. The impost was granted by most of the States, but many refused the supplementary funds; the annual requisitions were set at naught by some of the States, while others complied with them by legislative acts, but were tardy in their payments, and Congress found themselves incapable of complying with their engagements and supporting the federal government. It was found that our national character was sinking in the opinion of foreign nations. The Congress could make treaties of commerce, but could not enforce the observance of them. We were suffering from the restrictions of foreign nations, who had suckled our commerce while we were unable to retaliate, and all now agreed that it would be advantageous to the union to enlarge the powers of Congress, that they should be enabled in the amplest manner to regulate commerce and to lay and collect duties on the imports throughout the United States. With this view, a convention was first proposed by Virginia, and finally recommended by Congress for the different States to appoint deputies to meet in convention, “for the purposes of revising and amending the present articles of confederation, so as to make them adequate to the exigencies of the union.” This recommendation the legislatures of twelve States complied with so hastily as not to consult their constituents on the subject; and though the different legislatures had no authority from their constituents for the purpose, they probably apprehended the necessity would justify the measure, and none of them extended their ideas at that time further than “revising and amending the present articles of confederation.” Pennsylvania, by the act appointing deputies, expressly confined their powers to this object, and though it is probable that some of the members of the assembly of this State had at that time in contemplation to annihilate the present confederation, as well as the constitution of Pennsylvania, yet the plan was not sufficiently matured to communicate it to the public.
The majority of the legislature of this commonwealth were at that time under the influence of the members from the city of Philadelphia. They agreed that the deputies sent by them to convention should have no compensation for their services, which determination was calculated to prevent the election of any member who resided at a distance from the city. It was in vain for the minority to attempt electing delegates to the convention who understood the circumstances, and the feelings of the people, and had a common interest with them. They found a disposition in the leaders of the majority of the house to choose themselves and some of their dependents. The minority attempted to prevent this by agreeing to vote for some of the leading members, who they knew had influence enough to be appointed at any rate, in hopes of carrying with them some respectable citizens of Philadelphia, in whose principles and integrity they could have more confidence, but even in this they were disappointed, except in one member: the eighth member was added at a subsequent session of the assembly.
The Continental Convention met in the city of Philadelphia at the time appointed. It was composed of some men of excellent character; of others who were more remarkable for their ambition and cunning than their patriotism, and of some who had been opponents to the independence of the United States. The delegates from Pennsylvania were, six of them, uniform and decided opponents to the Constitution of this commonwealth. The convention sat upwards of four months. The doors were kept shut, and the members brought under the most solemn engagements of secrecy. Some of those who opposed their going so far beyond their powers, retired, hopeless, from the convention; others had the firmness to refuse signing the plan altogether; and many who did sign it, did it not as a system they wholly approved, but as the best that could be then obtained, and notwithstanding the time spent on this subject, it is agreed on all hands to be a work of haste and accommodation.
Whilst the gilded chains were forging in the secret conclave, the meaner instruments of the despotism without were busily employed in alarming the fears of the people with dangers which did not exist, and exciting their hopes of greater advantages from the expected plan than even the best government on earth could produce. The proposed plan had not many hours issued forth from the womb of suspicious secrecy, until such as were prepared for the purpose, were carrying about petitions for people to sign, signifying their approbation of the system, and requesting the legislature to call a convention. While every measure was taken to intimidate the people against opposing it, the public papers teemed with the most violent threats against those who should dare to think for themselves, and tar and feathers were liberally promised to all those who would not immediately join in supporting the proposed government, be it what it would. Under such circumstances petitions in favor of calling a Convention were signed by great numbers in and about the city, before they had leisure to read and examine the system, many of whom—now they are better acquainted with it, and have had time to investigate its principles—are heartily opposed to it. The petitions were speedily handed in to the legislature.
Affairs were in this situation, when on the 28th of September last, a resolution was proposed to the assembly by a member of the house, who had been also a member of the federal convention, for calling a State convention to be elected within ten days for the purpose of examining and adopting the proposed Constitution of the United States, though at this time the house had not received it from Congress. This attempt was opposed by a minority, who after offering every argument in their power to prevent the precipitate measure, without effect, absented themselves from the house as the only alternative left them, to prevent the measures taking place previous to their constituents being acquainted with the business. That violence and outrage which had been so often threatened was now practiced; some of the members were seized the next day by a mob collected for the purpose, and forcibly dragged to the house, and there detained by force whilst the quorum of the legislature so formed, completed their resolution. We shall dwell no longer on this subject: the people of Pennsylvania have been already acquainted therewith. We would only further observe that every member of the legislature, previously to taking his seat, by solemn oath or affirmation, declares “that he will not do or consent to any act or thing whatever, that will have a tendency to lessen or abridge their rights and privileges, as declared in the constitution of this State.” And that constitution which they are so solemnly sworn to support, cannot legally be altered but by a recommendation of the council of censors, who alone are authorized to propose alterations and amendments, and even these must be published at least six months for the consideration of the people. The proposed system of government for the United States, if adopted, will alter and may annihilate the constitution of Pennsylvania; and therefore the legislature had no authority whatever to recommend the calling of a convention for that purpose. This proceeding could not be considered as binding on the people of this commonwealth. The house was formed by violence, some of the members composing it were detained there by force, which alone would have vitiated any proceedings to which they were otherwise competent; but had the legislature been legally formed, this business was absolutely without their power.
In this situation of affairs were the subscribers elected members of the Convention of Pennsylvania—a Convention called by a legislature in direct violation of their duty, and composed in part of members who were compelled to attend for the purpose, to consider a Constitution proposed by a Convention of the United States, who were not appointed for the purpose of framing a new form of government, but whose powers were expressly confined to altering and amending the present articles of confederation. Therefore the members of the continental Convention in proposing the plan acted as individuals, and not as deputies from Pennsylvania. The assembly who called the State Convention acted as individuals, and not as the legislature of Pennsylvania; nor could they or the Convention chosen on their recommendation have authority to do any act or thing that can alter or annihilate the Constitution of Pennsylvania (both of which will be done by the new Constitution), nor are their proceedings, in our opinion, at all binding on the people.
The election for members of the Convention was held at so early a period, and the want of information was so great, that some of us did not know of it until after it was over, and we have reason to believe that great numbers of the people of Pennsylvania have not yet had an opportunity of sufficiently examining the proposed Constitution. We apprehend that no change can take place that will affect the internal government or Constitution of this commonwealth, unless a majority of the people should evidence a wish for such a change; but on examining the number of votes given for members of the present State Convention, we find that of upwards of seventy thousand freemen who are entitled to vote in Pennsylvania, the whole convention has been elected by about thirteen thousand voters, and though two-thirds of the members of the Convention have thought proper to ratify the proposed Constitution, yet those two-thirds were elected by the votes of only six thousand and eight hundred freemen.
In the city of Philadelphia and some of the eastern counties there unto that took the lead in the business agreed to vote for none but such as would solemnly promise to adopt the system in toto, without exercising their judgment. In many of the counties the people did not attend the elections, as they had not an opportunity of judging of the plan. Others did not consider themselves bound by the call of a set of men who assembled at the State-house in Philadelphia and assumed the name of the legislature of Pennsylvania; and some were prevented from voting by the violence of the party who were determined at all events to force down the measure. To such lengths did the tools of despotism carry their outrage, that on the night of the election for members of convention, in the city of Philadelphia, several of the subscribers (being then in the city to transact your business) were grossly abused, ill-treated and insulted while they were quiet in their lodgings, though they did not interfere nor had anything to do with the said election, but, as they apprehend, because they were supposed to be adverse to the proposed constitution, and would not tamely surrender those sacred rights which you had committed to their charge.
The convention met, and the same disposition was soon manifested in considering the proposed constitution, that had been exhibited in every other stage of the business. We were prohibited by an express vote of the convention from taking any questions on the separate articles of the plan, and reduced to the necessity of adopting or rejecting in toto. ’Tis true the majority permitted us to debate on each article, but restrained us from proposing amendments. They also determined not to permit us to enter on the minutes our reasons of dissent against any of the articles, nor even on the final question our reasons of dissent against the whole. Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the plan which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention.
1. The right of conscience shall be held inviolable; and neither the legislative, executive or judicial powers of the United States shall have authority to alter, abrogate or infringe any part of the constitution of the several States, which provide for the preservation of liberty in matters of religion.
2. That in controversies respecting property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the Federal courts as in those of the several States.
3. That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation, as well in the Federal courts as in those of the several States; to be heard by himself and his counsel; to be confronted with the accusers and witnesses; to call for evidence in his favor, and a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence against himself; and, that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
4. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.
5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places; or to seize any person or persons, his or their property not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the Federal government or others.
6. That the people have a right to the freedom of speech, of writing and publishing their sentiments; therefore the freedom of the press shall not be restrained by any law of the United States.
7. That the people have a right to bear arms for the defence of themselves and their own State or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by the civil powers.
8. The inhabitants of the several States shall have liberty to fowl and hunt in seasonable time on the lands they hold, and on all other lands in the United States not inclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
9. That no law shall be passed to restrain the legislatures of the several States from enacting laws for imposing taxes, except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters, shall be levied by the authority of Congress.
10. That the House of Representatives be properly increased in number; that elections shall remain free; that the several States shall have power to regulate the elections for Senators and Representatives, without being controlled either directly or indirectly by any interference on the part of the Congress; and that the elections of Representatives be annual.
11. That the power of organizing, arming and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress), remain with the individual States, and that Congress shall not have authority to call or march any of the militia out of their own State, without the consent of such State, and for such length of time only as such State shall agree.
That the sovereignty, freedom and independence of the several States shall be retained, and every power, jurisdiction and right which is not by this Constitution expressly delegated to the United States in Congress assembled.
12. That the legislative, executive and judicial powers be kept separate; and to this end that a constitutional council be appointed to advise and assist the President, who shall be responsible for the advice they give—hereby the Senators would be relieved from almost constant attendance; and also that the judges be made completely independent.
13. That no treaty which shall be directly opposed to the existing laws of the United States in Congress assembled, shall be valid until such laws shall be repealed or made conformable to such treaty; neither shall any treaties be valid which are in contradiction to the Constitution of the United States, or the constitution of the several States.
14. That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public ministers and consuls, to cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States—between a State and citizens of different States—between citizens claiming lands under grants of different States, and between a State or the citizens thereof and foreign States; and in criminal cases to such only as are expressly enumerated in the Constitution; and that the United States in Congress assembled shall not have power to enact laws which shall alter the laws of descent and distribution of the effects of deceased persons, the titles of lands or goods, or the regulation of contracts in the individual States.
After reading these propositions, we declared our willingness to agree to the plan, provided it was so amended as to meet those propositions or something similar to them, and finally moved the convention to adjourn, to give the people of Pennsylvania time to consider the subject and determine for themselves; but these were all rejected and the final vote taken, when our duty to you induced us to vote against the proposed plan and to decline signing the ratification of the same.
During the discussion we met with many insults and some personal abuse. We were not even treated with decency, during the sitting of the convention, by the persons in the gallery of the house. However, we flatter ourselves that in contending for the preservation of those invaluable rights you have thought proper to commit to our charge, we acted with a spirit becoming freemen; and being desirous that you might know the principles which actuated our conduct, and being prohibited from inserting our reasons of dissent on the minutes of the convention, we have subjoined them for your consideration, as to you alone we are accountable. It remains with you whether you will think those inestimable privileges,which you have so ably contended for, should be sacrificed at the shrine of despotism, or whether you mean to contend for them with the same spirit that has so often baffled the attempts of an aristocratic faction to rivet the shackles of slavery on you and your unborn posterity.
Our objections are comprised under three general heads of dissent, viz.:
We dissent, first, because it is the opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government, but united in the management of their general and foreign concerns.
If any doubt could have been entertained of the truth of the foregoing principle, it has been fully removed by the concession of Mr. Wilson, one of the majority on this question, and who was one of the deputies in the late general convention. In justice to him, we will give his own words; they are as follows, viz.: “The extent of country for which the new Constitution was required, produced another difficulty in the business of the Federal Convention. It is the opinion of some celebrated writers, that to a small territory, the democratical; to a middling territory (as Montesquieu has termed it), the monarchical; and to an extensive territory, the despotic form of government is best adapted. Regarding then the wide and almost unbounded jurisdiction of the United States, at first view, the hand of despotism seemed necessary to control, connect and protect it; and hence the chief embarrassment rose. For we know that although our constituents would cheerfully submit to the legislative restraints of a free government, they would spurn at every attempt to shackle them with despotic power.” And again, in another part of his speech, he continues: “Is it probable that the dissolution of the State governments, and the establishment of one consolidated empire would be eligible in its nature, and satisfactory to the people in its administration? I think not, as I have given reasons to show that so extensive a territory could not be governed, connected and preserved, but by the supremacy of despotic power. All the exertions of the most potent emperors of Rome were not capable of keeping that empire together, which in extent was far inferior to the dominion of America.”
We dissent, secondly, because the powers vested in Congress by this Constitution must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several States, and produce from their ruins one consolidated government, which from the nature of things will be an iron handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government.
As the truth of this position is of such decisive importance, it ought to be fully investigated, and if it is founded to be clearly ascertained; for, should it be demonstrated that the powers vested by this Constitution in Congress will have such an effect as necessarily to produce one consolidated government, the question then will be reduced to this short issue, viz: whether satiated with the blessings of liberty, whether repenting of the folly of so recently asserting their unalienable rights against foreign despots at the expense of so much blood and treasure, and such painful and arduous struggles, the people of America are now willing to resign every privilege of freemen, and submit to the dominion of an absolute government that will embrace all America in one chain of despotism; or whether they will, with virtuous indignation, spurn at the shackles prepared for them, and confirm their liberties by a conduct becoming freemen.
That the new government will not be a confederacy of States, as it ought, but one consolidated government, founded upon the destruction of the several governments of the States, we shall now show.
The powers of Congress under the new Constitution are complete and unlimited over the purse and the sword, and are perfectly independent of and supreme over the State governments, whose intervention in these great points is entirely destroyed. By virtue of their power of taxation, Congress may command the whole or any part of the property of the people. They may impose what imposts upon commerce, they may impose what land taxes, poll taxes, excises, duties on all written instruments and duties on every other article, that they may judge proper; in short, every species of taxation, whether of an external or internal nature, is comprised in section the eighth of article the first, viz:
“The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States.”
As there is no one article of taxation reserved to the State governments, the Congress may monopolize every source of revenue, and thus indirectly demolish the State governments, for without funds they could not exist; the taxes, duties and excises imposed by Congress may be so high as to render it impracticable to levy farther sums on the same articles; but whether this should be the case or not, if the State governments should presume to impose taxes, duties or excises on the same articles with Congress, the latter may abrogate and repeal the laws whereby they are imposed, upon the allegation that they interfere with the due collection of their taxes, duties or excises, by virtue of the following clause, part of section eighth, article first, viz.:
“To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”
The Congress might gloss over this conduct by construing every purpose for which the State legislatures now lay taxes, to be for the “general welfare,” and therefore as of their jurisdiction.
And the supremacy of the laws of the United States is established by article sixth, viz.: “That this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding.” It has been alleged that the words “pursuant to the Constitution,” are a restriction upon the authority of Congress; but when it is considered that by other sections they are invested with every efficient power of government, and which may be exercised to the absolute destruction of the State governments, without any violation of even the forms of the Constitution, this seeming restriction, as well as every other restriction in it, appears to us to be nugatory and delusive; and only introduced as a blind upon the real nature of the government. In our opinion, “pursuant to the Constitution” will be co-extensive with the will and pleasure of Congress, which, indeed, will be the only limitation of their powers.
We apprehend that two co-ordinate sovereignties would be a solecism in politics; that, therefore, as there is no line of distinction drawn between the general and State governments, as the sphere of their jurisdiction is undefined, it would be contrary to the nature of things that both should exist together—one or the other would necessarily triumph in the fullness of dominion. However, the contest could not be of long continuance, as the State governments are divested of every means of defense, and will be obliged by “the supreme law of the land” to yield at discretion.
It has been objected to this total destruction of the State governments that the existence of their legislatures is made essential to the organization of Congress; that they must assemble for the appointment of the Senators and President-general of the United States. True, the State legislatures may be continued for some years, as boards of appointment merely, after they are divested of every other function; but the framers of the Constitution, foreseeing that the people will soon become disgusted with this solemn mockery of a government without power and usefulness, have made a provision for relieving them from the imposition in section fourth of article first, viz.: “The times, places and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the place of choosing Senators.”
As Congress have the control over the time of the appointment of the President-general, of the Senators and of the Representatives of the United States, they may prolong their existence in office for life by postponing the time of their election and appointment from period to period under various pretenses, such as an apprehension of invasion, the factious disposition of the people, or any other plausible pretence that the occasion may suggest; and having thus obtained life-estates in the government, they may fill up the vacancies themselves by their control over the mode of appointment; with this exception in regard to the Senators that as the place of appointment for them must, by the Constitution, be in the particular State, they may depute some body in the respective States, to fill up the vacancies in the Senate, occasioned by death, until they can venture to assume it themselves. In this manner may the only restriction in this clause be evaded. By virtue of the foregoing section, when the spirit of the people shall be gradually broken, when the general government shall be firmly established, and when a numerous standing army shall render opposition vain, the Congress may complete the system of despotism, in renouncing all dependence on the people by continuing themselves and children in the government.
The celebrated Montesquieu, in his Spirit of Laws, vol. i., page 12, says, “That in a democracy there can be no exercise of sovereignty, but by the suffrages of the people, which are their will; now the sovereign’s will is the sovereign himself—the laws, therefore, which establish the right of suffrage, are fundamental to this government. In fact, it is as important to regulate in a republic in what manner, by whom, and concerning what suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern.” The time, mode and place of the election of Representatives, Senators and President-general of the United States, ought not to be under the control of Congress, but fundamentally ascertained and established.
The new Constitution, consistently with the plan of consolidation, contains no reservation of the rights and privileges of the State governments, which was made in the confederation of the year 1778, by article the 2d, viz.: “That each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled.”
The legislative power vested in Congress by the foregoing recited sections, is so unlimited in its nature, may be so comprehensive and boundless in its exercise, that this alone would be amply sufficient to annihilate the State governments, and swallow them up in the grand vortex of a general empire.
The judicial powers vested in Congress are also so various and extensive, that by legal ingenuity they may be extended to every case, and thus absorb the State judiciaries; and when we consider the decisive influence that a general judiciary would have over the civil polity of the several States, we do not hesitate to pronounce that this power, unaided by the legislative, would effect a consolidation of the States under one government.
The powers of a court of equity, vested by this Constitution in the tribunals of Congress—powers which do not exist in Pennsylvania, unless so far as they can be incorporated with jury trial—would, in this State, greatly contribute to this event. The rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities and delays, which a court of chancery, with the appellate powers of the Supreme Court in fact as well as law would furnish him with, and thus the poor man being plunged in the bottomless pit of legal discussion, would drop his demand in despair.
In short, consolidation pervades the whole Constitution. It begins with an annunciation that such was the intention. The main pillars of the fabric correspond with it, and the concluding paragraph is a confirmation of it. The preamble begins with the words, “We the people of the United States,” which is the style of a compact between individuals entering into a state of society, and not that of a confederation of States. The other features of consolidation we have before noticed.
Thus we have fully established the position, that the powers vested by this constitution in Congress will effect a consolidation of the States under one government, which even the advocates of this Constitution admit could not be done without the sacrifice of all liberty.
We dissent, thirdly, because if it were practicable to govern so extensive a territory as these United States include, on the plan of a consolidated government, consistent with the principles of liberty and the happiness of the people, yet the construction of this Constitution is not calculated to attain the object; for independent of the nature of the case, it would of itself necessarily produce a despotism, and that not by the usual gradations, but with the celerity that has hitherto only attended revolutions effected by the sword.
To establish the truth of this position, a cursory investigation of the principles and form of this Constitution will suffice.
The first consideration that this review suggests, is the omission of a BILL OF RIGHTS ascertaining and fundamentally establishing those unalienable and personal rights of men, without the full, free and secure enjoyment of which there can be no liberty, and over which it is not necessary for a good government to have the control—the principal of which are the rights of conscience, personal liberty by the clear and unequivocal establishment of the writ of habeas corpus, jury trial in criminal and civil cases, by an impartial jury of the vicinage or county, with the common law proceedings for the safety of the accused in criminal prosecutions; and the liberty of the press, that scourge of tyrants, and the grand bulwark of every other liberty and privilege. The stipulations heretofore made in favor of them in the State constitutions, are entirely superseded by this Constitution.
The legislature of a free country should be so formed as to have a competent knowledge of its constituents, and enjoy their confidence. To produce these essential requisites, the representation ought to be fair, equal and sufficiently numerous to possess the same interests, feelings, opinions, and views which the people themselves would possess, were they all assembled; and so numerous as to prevent bribery and undue influence, and so responsible to the people, by frequent and fair elections, as to prevent their neglecting or sacrificing the views and interests of their constituents to their own pursuits.
We will now bring the legislature under this Constitution to the test of the foregoing principles, which will demonstrate that it is deficient in every essential quality of a just and safe representation.
The House of Representatives is to consist of sixty-five members; that is one for about every 50,000 inhabitants, to be chosen every two years. Thirty-three members will form a quorum for doing business, and seventeen of these, being the majority, determine the sense of the house.
The Senate, the other constituent branch of the legislature, consists of twenty-six members, being two from each State, appointed by their legislatures every six years; fourteen senators make a quorum—the majority of whom, eight, determines the sense of that body, except in judging on impeachments, or in making treaties, or in expelling a member, when two-thirds of the Senators present must concur.
The President is to have the control over the enacting of laws, so far as to make the concurrence of two-thirds of the Representatives and Senators present necessary, if he should object to the laws.
Thus it appears that the liberties, happiness, interests, and great concerns of the whole United States, may be dependent upon the integrity, virtue, wisdom, and knowledge of twenty-five or twenty-six men. How inadequate and unsafe a representation! Inadequate, because the sense and views of three or four millions of people, diffuse over so extensive a territory, comprising such various climates, products, habits, interests, and opinions, cannot be collected in so small a body; and besides, it is not a fair and equal representation of the people even in proportion to its number, for the smallest State has as much weight in the Senate as the largest; and from the smallness of the number to be chosen for both branches of the legislature, and from the mode of election and appointment, which is under the control of Congress, and from the nature of the thing, men of the most elevated rank in life will alone be chosen. The other orders in the society, such as farmers, traders, and mechanics, who all ought to have a competent number of their best informed men in the legislature, shall be totally unrepresented.
The representation is unsafe, because in the exercise of such great powers and trusts, it is so exposed to corruption and undue influence, by the gift of the numerous places of honor and emolument at the disposal of the executive, by the arts and address of the great and designing, and by direct bribery.
The representation is moreover inadequate and unsafe, because of the long terms for which it is appointed, and the mode of its appointment, by which Congress may not only control the choice of the people, but may so manage as to divest the people of this fundamental right, and become self-elected.
The number of members in the House of Representatives may be increased to one for every 30,000 inhabitants. But when we consider that this cannot be done without the consent of the Senate, who from their share in the legislative, in the executive, and judicial departments, and permanency of appointment, will be the great efficient body in this government, and whose weight and predominance would be abridged by an increase of the representatives, we are persuaded that this is a circumstance that cannot be expected. On the contrary, the number of representatives will probably be continued at sixty-five, although the population of the country may swell to treble what it now is, unless a revolution should effect a change.
We have before noticed the judicial power as it would affect a consolidation of the States into one government; we will now examine it as it would affect the liberties and welfare of the people, supposing such a government were practicable and proper.
The judicial power, under the proposed Constitution, is founded on well-known principles of the civil law, by which the judge determines both on law and fact, and appeals are allowed from the inferior tribunals to the superior, upon the whole question; so that facts as well as law, would be reexamined, and even new facts brought forward in the court of appeals; and to use the words of a very eminent civilian—“The cause is many times another thing before the court of appeals, than what it was at the time of the first sentence.”
That this mode of proceeding is the one which must be adopted under this Constitution, is evident from the following circumstances: 1st. That the trial by jury, which is the grand characteristic of the common law, is secured by the Constitution only in criminal cases. 2d. That the appeal from both law and fact is expressly established, which is utterly inconsistent with the principles of the common law and trials by jury. The only mode in which an appeal from law and fact can be established, is by adopting the principles and practice of the civil law, unless the United States should be drawn into the absurdity of calling and swearing juries, merely for the purpose of contradicting their verdicts, which would render juries contemptible and worse than useless. 3d. That the courts to be established would decide on all cases of law and equity, which is a well-known characteristic of the civil law, and these courts would have cognizance not only of the laws of the United States, and of treaties, and of cases affecting ambassadors, but of all cases of admiralty and maritime jurisdiction, which last are matters belonging exclusively to the civil law, in every nation in Christendom.
Not to enlarge upon the loss of the invaluable right of trial by an unbiased jury, so dear to every friend of liberty, the monstrous expense and inconveniences of the mode of proceeding to be adopted, are such as will prove intolerable to the people of this country. The lengthy proceedings of the civil law courts in the chancery of England, and in the courts of Scotland and France, are such that few men of moderate fortune can endure the expense of them; the poor man must therefore submit to the wealthy. Length of purse will too often prevail against right and justice. For instance, we are told by the learned Judge Blackstone, that a question only on the property of an ox, of the value of three guineas, originating under the civil law proceedings in Scotland, after many interlocutory orders and sentences below, was carried at length from the court of sessions, the highest court in that part of Great Britain, by way of appeal to the House of Lords, where the question of law and fact was finally determined. He adds that no pique or spirit could in the Court of King’s Bench or Common Pleas at Westminster have given continuance to such a cause for a tenth part of the time, nor have cost a twentieth part of the expense. Yet the costs in the Courts of King’s Bench and Common Pleas in England are infinitely greater than those which the people of this country have ever experienced. We abhor the idea of losing the transcendent privilege of trial by jury, with the loss of which, it is remarked by the same learned author, that in Sweden, the liberties of the commons were extinguished by an aristocratic Senate; and that trial by jury and the liberty of the people went out together. At the same time we regret the intolerable delay, the enormous expense, and infinite vexation, to which the people of this country will be exposed from the voluminous proceedings of the courts of civil law, and especially from the appellate jurisdiction, by means of which a man may be drawn from the utmost boundaries of this extensive country to the seat of the Supreme Court of the nation to contend, perhaps, with a wealthy and powerful adversary. The consequence of this establishment will be an absolute confirmation of the power of aristocratical influence in the courts of justice; for the common people will not be able to contend or struggle against it.
Trial by jury in criminal cases may also be excluded by declaring that the libeller for instance shall be liable to an action of debt for a specified sum, thus evading the common law prosecution by indictment and trial by jury. And the common course of proceeding against a ship for breach of revenue laws by informal (which will be classed among civil causes) will at the civil law be within the resort of a court, where no jury intervenes. Besides, the benefit of jury trial, in cases of a criminal nature, which cannot be evaded, will be rendered of little value, by calling the accused to answer far from home; there being no provision that the trial be by a jury of the neighborhood or county. Thus an inhabitant of Pittsburgh, on a charge of crime committed on the banks of the Ohio, may be obliged to defend himself at the side of the Delaware, and so vice versa. To conclude this head: we observe that the judges of the courts of Congress would not be independent, as they are not debarred from holding other offices, during the pleasure of the President and Senate, and as they may derive their support in part from fees, alterable by the legislature.
The next consideration that the Constitution presents is the undue and dangerous mixture of the powers of government; the same body possessing legislative, executive and judicial powers. The Senate is a constituent branch of the legislature, it has judicial power in judging on impeachments, and in this case unites in some measure the characters of judge and party, as all the principal officers are appointed by the President-general, with the concurrence of the Senate, and therefore they derive their offices in part from the Senate. This may bias the judgments of the Senators, and tend to screen great delinquents from punishment. And the Senate has, moreover, various and great executive powers, viz., in concurrence with the President-general, they form treaties with foreign nations, that may control and abrogate the constitutions and laws of the several States. Indeed, there is no power, privilege or liberty of the State governments, or of the people, but what may be affected by virtue of this power. For all treaties, made by them, are to be the “supreme law of the land; anything in the constitution or laws of any State, to the contrary notwithstanding.”
And this great power may be exercised by the President and ten Senators (being two-thirds of fourteen, which is a quorum of that body). What an inducement would this offer to the ministers of foreign powers to compass by bribery such concessions as could not otherwise be obtained. It is the unvaried usage of all free States, whenever treaties interfere with the positive laws of the land, to make the intervention of the legislature necessary to give them operation. This became necessary, and was afforded by the Parliament of Great Britain, in consequence of the late commercial treaty between that kingdom and France. As the Senate judges on impeachments, who is to try the members of the Senate for the abuse of this power! And none of the great appointments to office can be made without the consent of the Senate.
Such various, extensive, and important powers combined in one body of men, are inconsistent with all freedom; the celebrated Montesquieu tells us, that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”
“Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. There would be an end of everything, were the same man, or the same body of the nobles, or of the people, to exercise those three powers; that of enacting laws, that of executing the public resolutions, and that of judging the crimes or differences of individuals.”
The President general is dangerously connected with the Senate; his coincidence with the views of the ruling junto in that body, is made essential to his weight and importance in the government, which will destroy all independence and purity in the executive department; and having the power of pardoning without the concurrence of a council, he may screen from punishment the most treasonable attempts that may be made on the liberties of the people, when instigated by his coadjutors in the Senate. Instead of this dangerous and improper mixture of the executive with the legislative and judicial, the supreme executive powers ought to have been placed in the President, with a small independent council, made personally responsible for every appointment to office or other act, by having their opinions recorded; and that without the concurrence of the majority of the quorum of this council, the President should not be capable of taking any step.
We have before considered internal taxation as it would effect the destruction of the State governments, and produce one consolidated government. We will now consider that subject as it affects the personal concerns of the people.
The power of direct taxation applies to every individual, as Congress, under this government, is expressly vested with the authority of laying a capitation or poll tax upon every person to any amount. This is a tax that, however oppressive in its nature, and unequal in its operation, is certain as to its produce and simple in its collection; it cannot be evaded like the objects of imposts or excise, and will be paid, because all that a man hath will he give for his head. This tax is so congenial to the nature of despotism, that it has ever been a favorite under such governments. Some of those who were in the late general convention from this State have labored to introduce a poll tax among us.
The power of direct taxation will further apply to every individual, as Congress may tax land, cattle, trades, occupations, etc., to any amount, and every object of internal taxation is of that nature; that however oppressive, the people will have but this alternative, either to pay the tax or let their property be taken, for all resistance will be vain. The standing army and select militia would enforce the collection.
For the moderate exercise of this power, there is no control left in the State governments, whose intervention is destroyed. No relief, or redress of grievances, can be extended as heretofore by them. There is not even a declaration of RIGHTS to which the people may appeal for the vindication of their wrongs in the court of justice. They must, therefore, implicitly obey the most arbitrary laws, as the most of them will be pursuant to the principles and form of the Constitution, and that strongest of all checks upon the conduct of administration, responsibility to the people, will not exist in this government. The permanency of the appointments of Senators and Representatives, and the control the Congress have over their election, will place them independent of the sentiments and resentment of the people, and the administration having a greater interest in the government than in the community, there will be no consideration to restrain them from oppression and tyranny. In the government of this State, under the old confederation, the members of the legislature are taken from among the people, and their interests and welfare are so inseparably connected with those of their constituents, that they can derive no advantage from oppressive laws and taxes; for they would suffer in common with their fellow-citizens, would participate in the burdens they impose on the community, as they must return to the common level, after a short period; and notwithstanding every exertion of influence, every means of corruption, a necessary rotation excludes them from permanency in the legislature.
This large State is to have but ten members in that Congress which is to have the liberty, property and dearest concerns of every individual in this vast country at absolute command, and even these ten persons, who are to be our only guardians, who are to supersede the legislature of Pennsylvania, will not be of the choice of the people, nor amenable to them. From the mode of their election and appointment they will consist of the lordly and high minded; of men who will have no congenial feelings with the people, but a perfect indifference for, and contempt of them; they will consist of those harpies of power that prey upon the very vitals, that riot on the miseries of the community. But we will suppose, although in all probability it may never be realized in fact, that our deputies in Congress have the welfare of their constituents at heart, and will exert themselves in their behalf, what security could even this afford? What relief could they extend to their oppressed constituents? To attain this, the majority of the deputies of the twelve other States in Congress must be alike well disposed; must alike forego the sweets of power, and relinquish the pursuits of ambition, which, from the nature of things, is not to be expected. If the people part with a responsible representation in the legislature, founded upon fair, certain and frequent elections, they have nothing left they can call their own. Miserable is the lot of that people whose every concern depends on the will and pleasure of their rulers. Our soldiers will become Janissaries, and our officers of government Bashaws; in short, the system of despotism will soon be completed.
From the foregoing investigation, it appears that the Congress under this Constitution will not possess the confidence of the people, which is an essential requisite in a good government; for unless the laws command the confidence and respect of the great body of the people, so as to induce them to support them when called on by the civil magistrate, they must be executed by the aid of a numerous standing army, which would be inconsistent with every idea of liberty; for the same force that may be employed to compel obedience to good laws, might and probably would be used to wrest from the people their constitutional liberties. The framers of this Constitution appear to have been aware of this great deficiency— to have been sensible that no dependence could be placed on the people for their support: but on the contrary, that the government must be executed by force. They have therefore made a provision for this purpose in a permanent standing army and a militia that may be objected to as strict discipline and government.
A standing army in the hands of a government placed so independent of the people may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes, and to carry into execution the most arbitrary measures. An ambitious man who may have the army at his devotion, may step up into the throne, and seize upon absolute power.
The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private; whether of a personal, civil or religious nature.
First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia. As militia they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind; and to death itself, by the sentence of a court martial. To this our young men will be more immediately subjected, as a select militia, composed of them, will best answer the purposes of government.
Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms. These compose a respectable proportion of the community in the State. This is the more remarkable, because even when the distresses of the late war, and the evident disaffection of many citizens of that description, inflamed our passions, and when every person who was obliged to risk his own life, must have been exasperated against such as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of conscience were held sacred.
At this momentous crisis, the framers of our State Constitution made the most express and decided declaration and stipulations in favor of the rights of conscience; but now, when no necessity exists, those dearest rights of men are left insecure.
Thirdly, the absolute command of Congress over the militia may be destructive of public liberty; for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny. The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing their liberty and independence; but in so doing, although the magnanimity of their minds will be extinguished, yet the meaner passions of resentment and revenge will be increased, and these in turn will be the ready and obedient instruments of despotism to enslave the others; and that with an irritated vengeance. Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow-citizens, and on one another. This power can be exercised not only without violating the Constitution, but in strict conformity with it; it is calculated for this express purpose, and will doubtless be executed accordingly.
As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expensive and burdensome government. The standing army must be numerous, and as a further support, it will be the policy of this government to multiply officers in every department; judges, collectors, tax-gatherers, excisemen and the whole host of revenue officers, will swarm over the land, devouring the hard earnings of the industrious—like the locusts of old, impoverishing and desolating all before them.
We have not noticed the smaller, nor many of the considerable blemishes, but have confined our objections to the great and essential defects, the main pillars of the Constitution; which we have shown to be inconsistent with the liberty and happiness of the people, as its establishment will annihilate the State governments, and produce one consolidated government that will eventually and speedily issue in the supremacy of despotism.
In this investigation we have not confined our views to the interests or welfare of this State, in preference to the others. We have overlooked all local circumstances—we have considered this subject on the broad scale of the general good; we have asserted the cause of the present and future ages—the cause of liberty and mankind.
Northwest Ordinance (1787)
An ordinance for the Government of the Territory of the United States, north-west of the River Ohio be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district; subject, however, to be divided into two districts, as future circumstances may in the opinion of Congress, make it expedient.
Be it ordained by the authority aforesaid, That the estates, both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among their children, and the descendants of a deceased child in equal parts; the descendants of a deceased child or grandchild, to take the share of their deceased parent in equal parts among them: And where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate, shall have in equal parts among them, their deceased parents’ share; and there shall in no case be a distinction between kindred of the whole and half blood; saving in all cases to the widow of the intestate, her third part of the real estate for life, and one third part of the personal estate; and this law relative to descents and dower, shall remain in full force until altered by the legislature of the district.—And until the governor and judges shall adopt laws as herein after mentioned, estates in the said territory may be devised or bequeathed by wills in writing, signed and sealed by him or her, in whom the estate may be (being of full age) and attested by three witnesses;—and real estates may be conveyed by lease and release, or bargain and sale, signed, sealed, and delivered by the person being of full age, in whom the estate may be, and attested by two witnesses, provided such wills be duly proved, and such conveyances be acknowledged, or the execution thereof duly proved, and be recorded within one year after proper magistrates, courts, and registers shall be appointed for that purpose; and personal property may be transferred by delivery; saving, however, to the French and Canadian inhabitants, and other settlers of the Kaskaskies, Saint Vincent’s, and the neighboring villages, who have heretofore professed themselves citizens of Virginia, their laws and customs now in force among them, relative to the descent and conveyance of property.
Be it ordained by the authority aforesaid, That there shall be appointed from time to time, by Congress, a governor, whose commission shall continue in force for the term of three years, unless sooner revoked by Congress; he shall reside in the district, and have a freehold estate therein, in one thousand acres of land, while in the exercise of his office.
There shall be appointed from time to time, by Congress, a secretary, whose commission shall continue in force for four years, unless sooner revoked; he shall reside in the district, and have a freehold estate therein, in five hundred acres of land, while in the exercise of his office; it shall be his duty to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department; and transmit authentic copies of such acts and proceedings, every six months, to the secretary of Congress. There shall also be appointed a court to consist of three judges, any two of whom to form a court, who shall have a common law jurisdiction, and reside in the district, and have each therein a freehold estate in five hundred acres of land, while in the exercise of their offices; and their commissions shall continue in force during good behavior.
The governor and judges, or a majority of them, shall adopt and publish in the district, such laws of the original States, criminal and civil, as may be necessary, and best suited to the circumstances of the district, and report them to Congress, from time to time; which laws shall be in force in the district until the organization of the General Assembly therein, unless disapproved of by Congress; but afterwards the Legislature shall have authority to alter them as they shall think fit.
The governor, for the time being, shall be commander-in-chief of the militia, appoint and commission all officers in the same below the rank of general officers; all general officers shall be appointed and commissioned by Congress.
Previous to the organization of the general assembly, the governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the general assembly shall be organized, the powers and duties of magistrates and other civil officers shall be regulated and defined by the said assembly; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.
For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof—and he shall proceed from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature.
So soon as there shall be five thousand free male inhabitants, of full age, in the district, upon giving proof thereof to the governor, they shall receive authority, with time and place, to elect representatives from their counties or townships, to represent them in the general assembly; Provided, That for every five hundred free male inhabitants, there shall be one representative, and so on progressively with the number of free male inhabitants shall the right of representation increase, until the number of representatives shall amount to twenty-five; after which, the number and proportion of representatives shall be regulated by the legislature: Provided that no person be eligible or qualified to act as a representative, unless he shall have been a citizen of one of the United States three years, and be a resident in the district, or unless he shall have resided in the district three years; and, in either case, shall likewise hold in his own right, in fee simple, two hundred acres of land within the same: Provided also, That a freehold in fifty acres of land in the district, having been a citizen of one of the States, and being resident in the district, or the like freehold and two years residence in the district shall be necessary to qualify a man as an elector of a representative.
The representatives thus elected shall serve for the term of two years; and in case of the death of a representative, or removal from office, the governor shall issue a writ to the county or township, for which he was a member, to elect another in his stead, to serve for the residue of the term.
The general assembly or legislature shall consist of the Governor, Legislative Council, and House of Representatives. The Legislative Council shall consist of five members, to continue in office five years, unless sooner removed by Congress; any three of whom to be a quorum: and the members of the Council shall be nominated and appointed in the following manner, to wit: As soon as representatives shall be elected, the Governor shall appoint a time and place for them to meet together, and, when met, they shall nominate ten persons, residents in the district, and each possessed of a freehold in five hundred acres of land, and return their names to Congress; five of whom Congress shall appoint and commission to serve as aforesaid; and, whenever a vacancy shall happen in the council, by death or removal from office, the House of Representatives shall nominate two persons, qualified as aforesaid, for each vacancy, and return their names to Congress; one of whom Congress shall appoint and commission for the residue of the term. And every five years, four months at least before the expiration of the time of service of the members of Council, the said House shall nominate ten persons, qualified as aforesaid, and return their names to Congress; five of whom Congress shall appoint and commission to serve as members of the Council five years, unless sooner removed. And the Governor, Legislative Council, and House of Representatives, shall have authority to make laws, in all cases, for the good government of the district, not repugnant to the principles and articles in this ordinance established and declared. And all bills having passed by a majority in the House, and by a majority in the Council, shall be referred to the Governor for his assent; but no bill, or legislative Act whatever, shall be of any force without his assent. The governor shall have power to convene, prorogue and dissolve the General Assembly, when, in his opinion, it shall be expedient.
The Governor, judges, Legislative Council, Secretary, and such other officers as Congress shall appoint in the district, shall take an oath or affirmation of fidelity, and of office; the Governor before the President of Congress, and all other officers before the Governor. As soon as a legislature shall be formed in the district, the Council and House assembled, in one room, shall have authority, by joint ballot, to elect a delegate to Congress, who shall have a seat in Congress, with a right of debating, but not of voting during this temporary government.
And for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions, and governments, which forever hereafter shall be formed in the said territory: to provide also for the establishment of States, and permanent government therein, and for their admission to a share in the federal councils on an equal footing with the original States, at as early periods as may be consistent with the general interest:
It is hereby ordained and declared by the authority aforesaid, That the following articles shall be considered as articles of compact between the original States, and the people and States in the said territory, and forever remain unalterable, unless by common consent, to wit:
Article the first. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.
Article the second. The inhabitants of the said territory, shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers, or the law of the land, and, should the public exigencies make it necessary, for the common preservation, to take any person’s property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.
Article the third. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged. The utmost good faith shall always be observed towards the Indians; their lands and property shall never be taken from them without their consent; and, in their property, rights, and liberty, they never shall be invaded or disturbed, unless in just and lawful wars authorized by Congress; but laws founded in justice and humanity shall from time to time be made for preventing wrongs being done to them, and for preserving peace and friendship with them.
Article the fourth. The said territory, and the States which may be formed therein, shall forever remain a part of this Confederacy of the United States of America, subject to the Articles of Confederation, and to such alterations therein as shall be constitutionally made; and to all the Acts and ordinances of the United States in Congress assembled, conformable thereto. The inhabitants and settlers in the said territory, shall be subject to pay a part of the federal debts contracted or to be contracted, and a proportional part of the expenses of government, to be appointed on them by Congress according to the same common rule and measure by which apportionments thereof shall be made on the other States; and the taxes for paying their proportion shall be laid and levied by the authority and direction of the legislatures of the district or districts, or new States, as in the original States, within the time agreed upon by the United States in Congress assembled. The legislatures of those districts or new States shall never interfere with the primary disposal of the soil by the United States in Congress assembled, nor with any regulations Congress may find necessary for securing the title in such soil to the bona fide purchasers. No tax shall be imposed on lands the property of the United States; and, in no case, shall non-resident proprietors be taxed higher than residents. The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.
Article the fifth. There shall be formed in the said territory, not less than three, nor more than five States; and the boundaries of the States, as soon as Virginia shall alter her act of cession, and consent to the same, shall become fixed and established as follows, to wit: The western State in the said territory, shall be bounded by the Mississippi, the Ohio and Wabash rivers; a direct line drawn from the Wabash and Post Vincents due north to the territorial line between the United States and Canada; and by the said territorial line to the lake of the Woods and Mississippi. The middle State shall be bounded by the said direct line, the Wabash from Post Vincents to the Ohio; by the Ohio, by a direct line drawn due north from the mouth of the Great Miami, to the said territorial line, and by the said territorial line. The eastern States shall be bounded by the last mentioned direct line, the Ohio, Pennsylvania, and the said territorial line: Provided however, and it is further understood and declared, that the boundaries of these three States shall be subject so far to be altered, that if Congress shall hereafter find it expedient, they shall have authority to form one or two States in that part of the said territory which lies north of an east and west line drawn through the southerly bend or extreme of Lake Michigan. And whenever any of the said States shall have sixty thousand free inhabitants therein, such State shall be admitted, by its delegates, into the Congress of the United States, on an equal footing with the original States, in all respects whatever; and shall be at liberty to form a permanent constitution and State government: provided the constitution and government so to be formed, shall be republican, and in conformity with the principles contained in these articles; and so far as it can be consistent with the general interest of the confederacy, such admission shall be allowed at an earlier period, and when there may be a less number of free inhabitants in the State than sixty thousand.
Article the sixth. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: Provided, always, That any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service as aforesaid.
Be it ordained by the authority aforesaid, That the resolutions of the 23rd of April, 1784, relative to the subject of this ordinance, be, and the same are hereby repealed and declared null and void.
Shall we imitate the example of those nations who have gone from a simple to a splendid Government? Are those nations more worthy of our imitation? What can make an adequate satisfaction to them for the loss they have suffered in obtaining such a Government—for the loss of their liberty? If we admit this Consolidated Government, it will be because we like a great splendid one. Some way or other we must be a great and mighty empire; we must have an army, and a navy, and a number of things: When the American spirit was in its youth, the language of America was different: Liberty, Sir, was then the primary object.
Patrick Henry, in the Virginia Ratifying Convention (1788)
Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government, can render us secure. To suppose that any form of government will secure liberty or happiness without any virtue in the people is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men; so that we do not depend on their virtue, or put confidence in our rul-ers, but in the people who are to choose them.
James Madison, in the Virginia Ratifying Convention (1788)
The Bill of Rights provides a fitting close to the parenthesis around the Constitution that the preamble opens. But the substance is a design of government with powers to act and a structure to make it act wisely and responsibly. It is in that design, not in its preamble or its epilogue, that the security of the American civil and political liberty lies.
Herbert J. Storing, “The Constitution and the Bill of Rights,” in M. Judd Harmon, ed., Essays on the Constitution (1978)