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The Bill of Rights - Lance Banning, Liberty and Order: The First American Party Struggle [2004]

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Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The Bill of Rights

Although he was a staunch opponent of the anti-Federalist demand for a second federal convention—and of any amendments that would substantially reduce the powers of the new regime—Madison had said at the Virginia Ratifying Convention that he would not oppose amendments that might provide additional securities for liberty. During the first federal elections, in which he overcame a formidable challenge for a seat in the House, he announced that he was positively committed to such amendments, though still convinced that these could be secured most speedily, with the greatest security against damaging alterations in the substance of the Constitution, and with the greatest likelihood of general acceptance, if they were prepared by Congress rather than another general convention. Over the succeeding months, he took it on himself to lead this effort, combing through the many amendments recommended by the states, together with the states’ declarations of rights, for such additions and changes as he considered advisable and safe. Public assurances of speedy action on the subject were inserted in Washington’s inaugural address and in the House of Representatives’ reply, both of which Madison drafted. On 4 May 1789, he announced to the House that he would introduce amendments on 25 May. The press of other business forced him to accept a postponement on that date. But on 8 June he interrupted other business to introduce some nineteen propositions.

Madison faced considerable resistance in his drive for these amendments—from anti-Federalists who wanted more-substantial alterations than he proposed, from Federalists who resisted any changes, and from general impatience to get on with other business. The propositions of 8 June were referred to a select committee on 26 July and did not come before the House until the middle of August. At that point, Madison insisted on action and persevered until Congress agreed to submit twelve amendments to the states. Ten were ratified by 1791. One was finally adopted, as the twenty-seventh amendment, after a lapse of two hundred years. The twelfth, providing for an enlargement of the House of Representatives, was quickly rendered obsolete.

Proceedings in the House of Representatives 8 June 1789

Madison moved that the House resolve itself into a committee of the whole to consider amendments to the Constitution.

William Loughton Smith (S.C.)

was not inclined to interrupt the measures which the public were so anxiously expecting by going into a committee of the whole at this time. He observed there were two modes of introducing this business to the house: one by appointing a select committee to take into consideration the several amendments proposed by the state conventions; this he thought the most likely way to shorten the business. The other was that the gentleman should lay his propositions on the table for the consideration of the members; that they should be printed and taken up for discussion at a future day. Either of these modes would enable the house to enter upon the business better prepared than could be the case by a sudden transition from other important concerns to which their minds were strongly bent. He therefore hoped the honorable gentleman would consent to bring the subject forward in one of those ways, in preference to going into a committee of the whole. For, he said, it must appear extremely impolitic to go into the consideration of amending the government before it is organized, before it has begun to operate; certainly, upon reflection, it must appear to be premature… .

James Jackson (Ga.)

I am of opinion we ought not to be in a hurry with respect to altering the Constitution. For my part I have no idea of speculating in this serious matter on theory; if I agree to alterations in the mode of administering this government, I shall like to stand on the sure ground of experience, and not be treading air. What experience have we had of the good or bad qualities of this Constitution? Can any gentleman affirm to me one proposition that is a certain and absolute amendment? I deny that he can. Our Constitution, sir, is like a vessel just launched and lying at the wharf, she is untried, you can hardly discover any one of her properties; it is not known how she will answer her helm or lay her course; whether she will bear in safety the precious freight to be deposited in her hold. But, in this state, will the prudent merchant attempt alterations? Will he employ two thousand workmen to tear off the planking and take asunder the frame? He certainly will not. Let us gentlemen, fit out our vessel, set up her masts, and expand her sails, and be guided by the experiment in our alterations. If she sails upon an uneven keel, let us right her by adding weight where it is wanting. In this way, we may remedy her defects to the satisfaction of all concerned; but if we proceed now to make alterations, we may deface a beauty or deform a well proportioned piece of workmanship. In short, Mr. Speaker, I am not for amendments at this time, but if gentlemen should think it a subject deserving of attention, they will surely not neglect the more important business which is now unfinished before them. Without we pass the collection bill, we can get no revenue, and without revenue the wheels of government cannot move. I am against taking up the subject at present and shall therefore be totally against the amendments if the government is not organized, that I may see whether it is grievous or not.

When the propriety of making amendments shall be obvious from experience, I trust there will be virtue enough in my country to make them… .

Let the Constitution have a fair trial, let it be examined by experience, discover by that test what its errors are, and then talk of amending; but to attempt it now is doing it at risk, which is certainly imprudent. I have the honor of coming from a state that ratified the Constitution by the unanimous vote of a numerous convention: the people of Georgia have manifested their attachment to it, by adopting a state constitution framed upon the same plan as this. But although they are thus satisfied, I shall not be against such amendments as will gratify the inhabitants of other states, provided they are judged of by experience and not theory. For this reason I wish the consideration of the subject postponed until the first of March, 1790.

Benjamin Goodhue (Mass.)

I believe it would be perfectly right in the gentleman who spoke last to move a postponement to the time he has mentioned, because he is opposed to the consideration of amendments altogether. But I believe it will be proper to attend to the subject earlier, because it is the wish of many of our constituents that something should be added to the Constitution to secure in a stronger manner their liberties from the inroads of power. Yet I think the present time premature, inasmuch as we have other business before us, which is incomplete, but essential to the public interest; when that is finished, I shall concur in taking up the subject of amendments.

Aedenus Burke (S.C.)

thought amendments to the Constitution necessary, but this was not the proper time to bring them forward; he wished the government completely organized before they entered upon the ground. The law for collecting the revenue was immediately necessary, the treasury department must be established; till these and other important subjects were determined, he was against taking this up. He said it might interrupt the harmony of the house, which was necessary to be preserved to dispatch the great objects of legislation. He hoped it would be postponed for the present, and pledged himself to bring it forward again, if nobody else would.

James Madison (Va.)

The gentleman from Georgia (Mr. Jackson) is certainly right in his opposition to my motion for going into a committee of the whole, because he is unfriendly to the object I have in contemplation; but I cannot see that the gentlemen who wish for amendments being proposed at the present session stand on good ground when they object to the house going into committee on this business.

When I first hinted to the house my intention of calling their deliberations to this object, I mentioned the pressure of other important subjects and submitted the propriety of postponing this till the more urgent business was dispatched; but finding that business not dispatched, when the order of the day for considering amendments arrived, I thought it a good reason for a farther delay. I moved the postponement accordingly. I am sorry the same reason still exists in some degree; but operates with less force when it is considered that it is not now proposed to enter into a full and minute discussion of every part of the subject, but merely to bring it before the house, that our constituents may see we pay a proper attention to a subject they have much at heart; and if it does not give that full gratification which is to be wished, they will discover that it proceeds from the urgency of business of a very important nature. But if we continue to postpone from time to time, and refuse to let the subject come into view, it may occasion suspicions which, though not well founded, may tend to inflame or prejudice the public mind against our decisions: they may think we are not sincere in our desire to incorporate such amendments in the Constitution as will secure those rights which they consider as not sufficiently guarded. The applications for amendments come from a very respectable number of our constituents, and it is certainly proper for Congress to consider the subject, in order to quiet that anxiety which prevails in the public mind: Indeed I think it would have been of advantage to the government, if it had been practicable, to have made some propositions for amendments the first business we entered upon; it would stifle the voice of complaint and make friends of many who doubted its merits. Our future measures would then have been more universally agreeable and better supported; but the justifiable anxiety to put the government in operation prevented that; it therefore remains for us to take it up as soon as possible. I wish then to commence the consideration at the present moment; I hold it to be my duty to unfold my ideas and explain myself to the house in some form or other without delay. I only wish to introduce the great work, and as I said before, I do not expect it will be decided immediately; but if some step is taken in the business it will give reason to believe that we may come at a final result. This will inspire a reasonable hope in the advocates for amendments that full justice will be done to the important subject; and I have reason to believe their expectation will not be defeated. I hope the house will not decline my motion for going into a committee.

Roger Sherman (Conn.)

I am willing that this matter should be brought before the house at a proper time. I suppose a number of gentlemen think it their duty to bring it forward; so that there is no apprehension it will be passed over in silence. Other gentlemen may be disposed to let the subject rest until the more important objects of government are attended to; and I should conclude from the nature of the case that the people expect the latter of us in preference of altering the Constitution, because they have ratified that instrument in order that the government may begin to operate. If this was not their wish, they might well have rejected the Constitution, as North Carolina has done, until the amendments took place. The state I have the honor to come from adopted this system by a very great majority, because they wished for the government; but they desired no amendments. I suppose this was the case in other states; it will therefore be imprudent to neglect much more important concerns for this. The executive part of the government wants organization; the business of the revenue is incomplete, to say nothing of the judiciary business. Now, will gentlemen give up these points to go into a discussion of amendments when no advantage can arise from them? For my part, I question if any alteration which can be now proposed would be an amendment in the true sense of the word; but nevertheless I am willing to let the subject be introduced; if the gentleman only desires to go into committee for the purpose of receiving his propositions, I shall consent; but I have strong objections to being interrupted in completing the more important business, because I am well satisfied it will alarm the fears of twenty of our constituents where it will please one.

Alexander White (Va.)

I hope the house will not spend much time on this subject till the more pressing business is dispatched, but, at the same time, I hope we shall not dismiss it altogether, because I think a majority of the people who have ratified the Constitution did it under an expectation that Congress would, at some convenient time, examine its texture and point out where it is defective, in order that it might be judiciously amended. Whether, while we are without experience, amendments can be digested in such a manner as to give satisfaction to a constitutional majority of this house, I will not pretend to say, but I hope the subject may be considered with all convenient speed. I think it would tend to tranquilize the public mind; therefore I shall vote in favor of going into a committee of the whole, and after receiving the subject shall be content to refer it to a special committee to arrange and report… .

Mr. Smith

thought the gentleman who brought forward the subject had done his duty: He had supported his motion with ability and candor, and if he did not succeed he was not to blame. On considering what had been urged for going into a committee, he was induced to join the gentleman; but it would be merely to receive his propositions; after which he would move something to this effect: That however desirous this house may be to go into the consideration of amendments to the Constitution, in order to establish the liberties of the people of America on the securest foundation, yet the important and pressing business of the government prevents their entering upon that subject at present.

John Page (Va.)

My colleague tells you he is ready to submit to the committee of the whole his ideas on this subject; if no objection had been made to his motion, the whole business might have been finished before this. He has done me the honor of showing me certain propositions which he has drawn up. They are very important, and I sincerely wish the house may receive them. After they are published, I think the people will wait with patience till we are at leisure to resume them; but it must be very disagreeable to them to have it postponed from time to time, in the manner it has been, for six weeks past; they will be tired out by a fruitless expectation. Putting myself into the place of those who favor amendments, I should suspect Congress did not mean seriously to enter upon the subject; that it was vain to expect redress from them; I should begin to turn my attention to the alternative contained in the fifth article, and think of joining the legislatures of those states which have applied for calling a new convention. How dangerous such an expedient would be, I need not mention, but I venture to affirm that unless you take early notice of this subject, you will not have power to deliberate. The people will clamor for a new convention, they will not trust the house any longer; those, therefore, who dread the assembling of a convention will do well to acquiesce in the present motion and lay the foundation of a most important work. I do not think we need consume more than half an hour in the committee of the whole; this is not so much time but we may conveniently spare it, considering the nature of the business. I do not wish to divert the attention of Congress from the organization of the government, nor do I think it need be done, if we comply with the present motion… .

Mr. Madison

I am sorry to be accessory to the loss of a single moment of time by the house. If I had been indulged in my motion, and we had gone into a committee of the whole, I think we might have rose and resumed the consideration of other business before this time. … As that mode seems not to give satisfaction, I will withdraw the motion and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several states, conformably to the Fifth Article of the Constitution. I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfill the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if Congress will devote but one day to this subject, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils and prepare the way for a favorable reception of our future measures. It appears to me that this house is bound by every motive of prudence not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the Constitution as will render it as acceptable to the whole people of the United States as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this Constitution may have the opportunity of proving to those who were opposed to it that they were as sincerely devoted to liberty and a republican government as those who charged them with wishing the adoption of this Constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired of such a nature as will not injure the Constitution, and they can be engrafted so as to give satisfaction to the doubting part of our fellow citizens, the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this house that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description who, at present, feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this Constitution. The acquiescence which our fellow citizens show under the government calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy; it is a desirable thing, on our part as well as theirs, that a reunion should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in that we have seen prevailing in those states which are.

But I will candidly acknowledge that, over and above all these considerations, I do conceive that the Constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage arising from the exercise of that power shall be damaged or endangered by it. We have in this way something to gain and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the Constitution, we must feel for the Constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a reconsideration of the whole structure of the government, for a reconsideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents. Such as would be likely to meet with the concurrence of two-thirds of both houses and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the Constitution.

There have been objections of various kinds made against the Constitution: Some were leveled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the Constitution which is considered as essential to the existence of the government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by Congress to the state legislatures, are these:

The first of these amendments relates to what may be called a bill of rights; I will own that I never considered this provision so essential to the federal constitution as to make it improper to ratify it until such an amendment was added; at the same time, I always conceived that, in a certain form and to a certain extent, such a provision was neither improper nor altogether useless. I am aware that a great number of the most respectable friends to the government and champions for republican liberty have thought such a provision not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of perhaps by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the Constitution by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison; therefore the arguments drawn from that source were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Altho’ I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights respecting which the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But altho’ the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find that altho’ some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government: declaring that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks as will prevent the encroachment of the one upon the other.

But whatever may be the form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be leveled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive that, in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty ought to be leveled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this is not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper. It has been said that in the federal government they are unnecessary because the powers are enumerated, and it follows that all that are not granted by the Constitution are retained: that the Constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed, they are directed to particular objects; but even if government keeps within those limits, it has certain extraordinary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the Constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfill every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view? If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a bill of rights is not necessary because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of that people, who meant, and declared at the head of the instrument, that they ordained and established a new system for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this Constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a bill of rights that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication that those rights which were not singled out were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

It has been said that it is unnecessary to load the Constitution with this provision, because it was not found effectual in the constitutions of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but it does not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operations of this government and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something in the form I have proposed, to be incorporated in the system of government as a declaration of the rights of the people.

In the next place I wish to see that part of the constitution revised which declares that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject which has taken place in the state conventions, and even in the opinion of the friends to the Constitution, an alteration here is proper. It is the sense of the people of America that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them below that proportion which certainly is in the power of the legislature as the Constitution now stands; and they may, as the population of the country increases, increase the House of Representatives to a very unwieldy degree. I confess I always thought this part of the Constitution defective, though not dangerous; and that it ought to be particularly attended to whenever Congress should go into the consideration of amendments.

There are several lesser cases enumerated in my proposition in which I wish also to see some alteration take place. That article which leaves it in the power of the legislature to ascertain its own emolument is one to which I allude. I do not believe this is a power which, in the ordinary course of government, is likely to be abused, perhaps of all the powers granted it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone therefore so far as to fix it that no law varying the compensation shall operate until there is a change in the legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish also, in revising the Constitution, we may throw into that section which interdicts the abuse of certain powers in the state legislatures some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, etc.” were wise and proper restrictions in the Constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted on all hands that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the Supreme Court of the United States upon an appeal on an action for a small debt. To remedy this, declare that no appeal shall be made unless the matter in controversy amounts to a particular sum: This, with the regulations respecting jury trials in criminal cases and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the Constitution.

I find, from looking into the amendments proposed by the state conventions, that several are particularly anxious that it should be declared in the Constitution that the powers not therein delegated should be reserved to the several states. Perhaps words which may define this more precisely than the whole of the instrument now does may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated; I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentleman will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow citizens; and if we can make the Constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty in bringing before this house the subject of amendments, and also stated such as I wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving that a committee be appointed to consider of and report such amendments as ought to be proposed by Congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the Constitution of the United States. By agreeing to this motion, the subject may be going on in the committee while other important business is proceeding to a conclusion in the house. I should advocate greater dispatch in the business of amendments if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens in proportion as we fortify the rights of the people against the encroachments of the government.

Mr. Jackson

The more I consider the subject of amendments, the more, Mr. Speaker, I am convinced it is improper. I revere the rights of my constituents as much as any gentleman in Congress, yet I am against inserting a declaration of rights in the Constitution, and that upon some of the reasons referred to by the gentleman last up. If such an addition is not dangerous or improper, it is at least unnecessary; that is a sufficient reason for not entering into the subject at a time when there are urgent calls for our attention to important business… .

Elbridge Gerry (Mass.)

I do not rise to go into the merits or demerits of the subject of amendments, nor shall I make any other observations on the motion for going into a committee of the whole, … which is now withdrawn, than merely to say that referring the subject to that committee is treating it with the dignity its importance requires. But I consider it improper to take up this business at this time, when our attention is occupied by other important objects. We should dispatch the subjects now on the table and let this lie over until a period of more leisure for discussion and attention. … I would not have it understood that I am against entering upon amendments when the proper time arrives. I shall be glad to set about it as soon as possible, but I would not stay the operation of the government on this account… .

I say, sir, I wish as early a day as possible may be assigned for taking up this business in order to prevent the necessity which the states may think themselves under of calling a new convention. … I think, if it is referred to a new convention, we run the risk of losing some of its best properties; this is a case I never wish to see. Whatever might have been my sentiments of the ratification of the Constitution without amendments, my sense now is that the salvation of America depends upon the establishment of this government, whether amended or not. If the Constitution which is now ratified should not be supported, I despair of ever having a government of these United States.

I wish the subject to be considered early for another reason: There are two states not in the union; it would be a very desirable circumstance to gain them. I should therefore be in favor of such amendments as might tend to invite them and gain their confidence; good policy will dictate to us to expedite that event… .

I have another reason for going early into this business: It is necessary to establish an energetic government. But … we appear afraid to exercise the constitutional powers of the government, which the welfare of the state requires, lest a jealousy of our power be the consequence. What is the reason of this timidity? Why, because we see a great body of our constituents opposed to the Constitution as it now stands, who are apprehensive of the enormous powers of governments. But if this business is taken up and it is thought proper to make amendments, it will remove this difficulty. Let us deal fairly and candidly with our constituents, and give the subject a full discussion; after that I have no doubt but the decision will be such as, upon examination, we shall discover to be right… .

I am against referring the subject to a select committee, because I conceive it would be disrespectful to those states which have proposed amendments. The conventions of the states consisted of the most wise and virtuous men of the community; they have ratified this Constitution in full confidence that their objections would at least be considered; and shall we, sir, preclude them by the appointment of a special committee to consider of a few propositions brought forward by an individual gentleman. … The ratification of the Constitution in several states would never have taken place had they not been assured that the objections would have been duly attended to by Congress… .

Mr. Sherman

I do not suppose the Constitution to be perfect, nor do I imagine if Congress and all the legislatures on the continent were to revise it, that their united labors would make it perfect. I do not expect any perfection on this side the grave in the works of man; but my opinion is that we are not at present in circumstances to make it better. It is a wonder that there has been such unanimity in adopting it, considering the ordeal it had to undergo; and the unanimity which prevailed at its formation is equally astonishing; amidst all the members from the twelve states present at the federal convention, there were only three who did not sign the instrument to attest their opinion of its goodness. Of the eleven states who have received it, the majority have ratified it without proposing a single amendment; this circumstance leads me to suppose that we shall not be able to propose any alterations that are likely to be adopted by nine states; and gentlemen know before the alterations take effect, they must be agreed to by the legislatures of three-fourths of the states in the union. Those states that have not recommended alterations will hardly adopt them, unless it is clear that they tend to make the Constitution better; now how this can be made out to their satisfaction I am yet to learn; they know of no defect from experience. It seems to be the opinion of gentlemen generally that this is not the time for entering upon the discussion of amendments; our only question, therefore, is how to get rid of the subject; now for my own part I would prefer to have it referred to a committee of the whole rather than a special committee, and therefore shall not agree to the motion now before the house.

Proceedings in the House of Representatives 13 August 1789

Madison’s propositions of 8 June were referred to a select committee of eleven, which reported them out without substantial change. After further debate about delaying the subject, the House finally went into committee of the whole to consider the amendments. The debates on the Bill of Rights were too extensive to be presented here in full, but Congress added nothing that Madison had not initially proposed and defeated him, in substance, on only two important points. The House approved, but (in debates that were not recorded) the Senate defeated Madison’s proposal to guarantee the freedoms of religion and the press against infringements by the states as well as against infringements by the federal government. And, led by Roger Sherman, a stubborn minority compelled Madison to forgo his original idea that the changes ought to be interwoven into the body of the Constitution, not tacked onto the end.

Mr. Sherman

I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron, and clay as to incorporate such heterogeneous articles, the one contradictory to the other. Its absurdity will be discovered by comparing it with a law: would any legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected. When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference.

Beside this, sir, it is questionable whether we have the right to propose amendments in this way. The Constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the state governments; again, all the authority we possess is derived from that instrument; if we mean to destroy the whole and establish a new Constitution, we remove the basis on which we mean to build. For these reasons I will move to strike out that paragraph and substitute another.

The paragraph proposed was to the following effect: Resolved by the Senate and House of Representatives of the United States in Congress assembled, That the following articles be proposed as amendments to the Constitution; and when ratified by three-fourths of the state legislatures shall become valid to all intents and purposes as part of the same.

Under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form.

Mr. Madison

Form, sir, is always of less importance than the substance; but on this occasion, I admit that form is of some consequence, and it will be well for the house to pursue that which, upon reflection, shall appear to the most eligible. Now it appears to me that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong than it will if they consist of separate and distinct parts; we shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment; it will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons, whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work.

Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed.

Mr. Smith [S.C.]

did not think the amendment proposed by the honorable gentleman from Connecticut was compatible with the Constitution, which declared that the amendments recommended by Congress and ratified by the legislatures of three-fourths of the several states should be part of this Constitution; in which case it would form one complete system; but according to the idea of the amendment, the instrument is to have five or six suits of improvements. Such a mode seems more calculated to embarrass the people than anything else, while nothing in his opinion was a juster cause of complaint than the difficulties of knowing the law, arising from legislative obscurities that might easily be avoided. He said that it had certainly been the custom in several of the state governments to amend their laws by way of supplement; but South Carolina has been an instance of the contrary practice, in revising the old code; instead of making acts in addition to acts, which is always attended with perplexity, she has incorporated them, and brought them forward as a complete system, repealing the old. This is what he understood was intended to be done by the committee: the present copy of the Constitution was to be done away and a new one substituted in its stead.

Samuel Livermore (N.H.)

was clearly of opinion that whatever amendments were made to the Constitution, that they ought to stand separate from the original instrument. We have no right, said he, to alter a clause any otherwise than by a new proposition. We have well-established precedents for such a mode of procedure in the practice of the British Parliament and the state legislatures throughout America. I do not mean, however, to assert that there has been no instance of a repeal of a whole law on enacting another; but this has generally taken place on account of the complexity of the original, with its supplements. Were we a mere legislative body, no doubt it might be warrantable in us to pursue a similar method, but it is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the Constitution of the United States, by making a new one to substitute in its place. The reason of this is grounded on a very simple consideration. It is by virtue of the present Constitution, I presume, that we attempt to make another; now, if we proceed to the repeal of this, I cannot see upon what authority we shall erect another; if we destroy the base, the superstructure falls of course. At some future day it may be asked upon what authority we proceeded to raise and appropriate public monies. We suppose we do it in virtue of the present Constitution; but it may be doubted whether we have a right to exercise any of its authorities while it is suspended, as it will certainly be, from the time that two-thirds of both houses have agreed to submit it to the state legislatures; so that unless we mean to destroy the whole Constitution, we ought to be careful how we attempt to amend it in the way proposed by the committee. From hence I presume it will be more prudent to adopt the mode proposed by the gentleman from Connecticut, than it will be to risk the destruction of the whole by proposing amendments in the manner recommended by the committee… .

Mr. Jackson

I do not like to differ with gentlemen about form, but as so much has been said, I wish to give my opinion … that the original Constitution ought to remain inviolate, and not be patched up from time to time with various stuffs resembling Joseph’s coat of many colors… .

The Constitution of the Union has been ratified and established by the people, let their act remain inviolable; if anything we can do has a tendency to improve it, let it be done, but without mutilating and defacing the original.

Mr. Sherman

If I had looked upon this question as mere matter of form, I should not have brought it forward or troubled the committee with such a lengthy discussion. But, sir, I contend that amendments made in the way proposed by the committee are void: No gentleman ever knew an addition and alteration introduced into an existing law, and that any part of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance in every case where the two were not incompatible. But if these observations alone should be thought insufficient to support my motion, I would desire gentlemen to consider the authorities upon which the two constitutions are to stand. The original was established by the people at large by conventions chosen by them for the express purpose. The preamble to the Constitution declares the act: But will it be a truth in ratifying the next constitution, which is to be done perhaps by the state legislatures and not conventions chosen for the purpose? Will gentlemen say it is “We the people” in this case; certainly they cannot, for by the present constitution, we nor all the legislatures in the union together do not possess the power of repealing it: All that is granted us by the 5th article is that, whenever we shall think it necessary, we may propose amendments to the Constitution; not that we may propose to repeal the old and substitute a new one.

Gentlemen say it would be convenient to have it in one instrument that people might see the whole at once; for my part I view no difficulty on this point. The amendments reported are a declaration of rights; the people are secure in them whether we declare them or not; the last amendment but one provides that the three branches of government shall each exercise its own rights, this is well secured already; and in short, I do not see that they lessen the force of any article in the Constitution; if so, there can be little more difficulty in comprehending them whether they are combined in one or stand distinct instruments.

Mr. Gerry

The honorable gentleman from Connecticut, if I understand him right, says that the words “We the people” cannot be retained if Congress should propose amendments, and they be ratified by the state legislatures: Now if this is a fact, we ought most undoubtedly adopt his motion; because if we do not, we cannot obtain any amendment whatever. But upon what ground does the gentleman’s position stand? The Constitution of the United States was proposed by a convention met at Philadelphia, but with all its importance it did not possess as high authority as the President, Senate, and House of Representatives of the union: For that convention was not convened in consequence of any express will of the people, but an implied one, through their members in the state legislatures. The Constitution derived no authority from the first convention; it was concurred in by conventions of the people, and that concurrence armed it with power and invested it with dignity. Now the Congress of the United States are expressly authorized by the sovereign and uncontrollable voice of the people to propose amendments whenever two-thirds of both houses shall think fit: Now if this is the fact, the propositions of amendment will be found to originate with a higher authority than the original system. The conventions of the states respectively have agreed for the people that the state legislatures shall be authorized to decide upon these amendments in the manner of a convention. If these acts of the state legislatures are not good because they are not specifically instructed by their constituents, neither were the acts calling the first and subsequent conventions.

Does he mean to put amendments on this ground, that after they have been ratified by the state legislatures they are not to have the same authority as the original instrument; if this is his meaning, let him avow it, and if it is well founded, we may save ourselves the trouble of proceeding in the business. But for my part I have no doubt but a ratification of the amendments, in any form, would be as valid as any part of the Constitution. The legislatures are elected by the people; I know no difference between them and conventions, unless it be that the former will generally be composed of men of higher characters than may be expected in conventions; and in this case, the ratification by the legislatures would have the preference.

Now if it is clear that the effect will be the same in either mode, will gentlemen hesitate to approve the most simple and clear? It will undoubtedly be more agreeable to have it all brought into one instrument than have to refer to five or six different acts.