Madison on “Parchment Barriers” and the defence of liberty II (1788)
In a letter to Thomas Jefferson in October 1788, James Madison expresses lukewarm support for the idea of a bill of rights since “repeated violations of these parchment barriers have been committed by overbearing majorities in every State.” He continues to believe the main threat to liberty comes from the legislative not the executive branch of government:
… experience proves the inefficacy of a bill of rights on those occasions when its controul is most needed. Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. Notwithstanding the explicit provision contained in that instrument for the rights of Conscience, it is well known that a religious establishment wd have taken place in that State, if the Legislative majority had found as they expected, a majority of the people in favor of the measure; and I am persuaded that if a majority of the people were now of one sect, the measure would still take place and on narrower ground than was then proposed, notwithstanding the additional obstacle which the law has since created. Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.
In this second quote about “parchment barriers” to protect the people’s liberties Madison expresses his lukewarm support on the grounds that a bill of rights would be unnecessary (the rights are reserved by the people) and that they would be ineffective (governments historically have “repeatedly” violated them anyway). He continues to believe that the real threat to liberty will come from “the majority of the Community” and not from “acts of Government”. He concludes his letter to Jefferson with the confident observation that he “see(s) no tendency in our Governments to danger on that side” because of the ebb and flow which historically operates to balance the forces of liberty and power: sometimes there are “abuses of liberty” which call forth an increase in government power, and when this goes too far and there is “an undue degree of power” the balance then tips back towards liberty. He rejects the idea that “there is a tendency in all Governments to an augmentation of power at the expence of liberty”. Thomas Jefferson replied to Madison’s criticisms in a letter of March 15, 1789 which he wrote from Paris. His first response was to say that although “parchment barriers” like a declaration of rights were always incomplete “Half a loaf is better than no bread. If we cannot secure all our rights, let us secure what we can.” Concerning the relative threat to liberty of the legislative and the legislative branches Jefferson agreed that the legislative branch was the present threat but that the threat at some future date would come the executive: “The executive in our governments is not the sole, it is scarcely the principal object of my jealousy. The tyranny of the legislatures is the most formidable dread at present, and will be for long years. That of the executive will come in it’s turn, but it will be at a remote period.”