A Hundred and Ten Years of the Constitution: Part X

A HUNDRED AND TEN YEARS OF THE

CONSTITUTION.-PART X.

It can hardly be necessary to remind the reader that weare indebted to Mr. Madison for almost all we know ofthe proceedings of the Convention. Yates, it is true.took short minutes, during the time he attended. But itis to Mr. Madison that we nmust look for extended infor-mation. Writing many years later, he tells us that hehad determined to preserve as well as he could an exactaccount of what passed in the Convention "whilst execut-ing its trust; with the magnitude of which I was dulyimpressed, as I was by the gratification promised to futurecuriosity by an authentic exhibition of the objects, theopinions, and the reasonings, from which the new systemof government was to receive its peculiar structure andorganization. Nor was I unaware of the value of sucha contribution to the fund of materials for the history ofa Constitution in which would be staked the happinessof a people great even in its infancy, and possibly the causeof liberty throughout the world." The better to performhis self-imposed task, he chose a seat in "a favorable posi-tion for hearing all that passed"-and carefully noted, in asort of shorthand, all that was said, writing out his notesdaily, or within a day or two, and never being absentfrom the Convention a single hour of a single day. Hetells us that the radical weakness of the Confederationwas "the dependence of Congress on the voluntary andsimultaneous compliance with its requisitions by so manyindependent communities, each consulting more or less itsparticular interests and convenience and distrusting thecompliance of others"-and after reciting some of theconsequences of these fundamental defects, he adds thatit was to cure these defects that the Convention assembled,and they "ought never to be overlooked in expoundingand appreciating the Constitutional Charter, the remedythat was provided." In a letter to Mr. Randolph underdate of April 8, 1787, in anticipation of the assembling

A HUNDRED AND TEN YEARS OF THE CONSTITUTION. 341

of the Convention in the following month, in what Iconsider a truly remarkable passage in its clearness, wis-dom, and foresight. he says "'I hold it for a fundamentalpoint that an individual independence of the states is ut-terly irreconcilable with the idea of an aggregate sove-reignty. I think, at the same time, that a consolidationof the states with one simple republic is not less unattain-able than it would be inexpedient. Let it be tried, then,whether any middle ground can be taken, which will atonce support a due supremacy of the national authority,and leave in force the local authorities so far as they canbe subordinately useful." Now, these were Mr. Mad-ison's ideas, before, and long after, the Convention-wehave heard him in debate during its sessions-and afternoticing a few of his expressions shortly after the ad-journment, while its work was being reviewed in Con-gress and in the various state conventions, let us passto a consideration of what was done in Congress and inthese conventions.

Writing to General Washington on September 30,1787, Mr. Madison says that the answer given to thosewho contended that Congress could not properly urge theadoption of a Constitution subversive of the very articlesto which it owed its existence, was the reason given byCongress for recommending the Convention, viz: that itwas the best means of forming a firm National Govern-ment (italics in the original) and on October 2oth of thesame year he writes Mr. Randolph from New York thatthe papers in the Northern and Middle States are full ofcontroversial articles, the articles being chiefly leveledagainst the organization of the government, and theomission of provisions as to juries, etc.- (provisionswhich would have been ridiculous in a treaty of alliance).But there is one combatant, it seems, who "strikes at thefoundation. He represents the situation of the UnitedStates to be such as to render any government improperand impracticable which forms the states into one nation,and is to operate directly on the people." If this is notstrong testimony, from friend and foe, as to the con-temporary estimation of what the new government

342 A HUNDRED AND TEN YEARS OF THE CONSTITUTION.

really was, it will be hard to find any. Again, writingto the same gentleman in March, 1788, he says that theowing to certain occurrences "the opposition (to theConstitution) here, which are unquestionably hostile toeverything beyond the federal principle, will take newspirits." (Italics in the original.)

The Convention transmitted the results of its laborsto Congress, accompanied by a letter briefly stating thegeneral reasons which moved them to recommend theConstitution, saying inter alia "In all our deliberationson this subject we kept steadily in our view, that whichappears to us the greatest interest of every true Ameri-can, the consolidation of our Union, in which is involvedour prosperity, felicity, safety, perhaps our national ex-istence."

Congress at once resolved unanimously to transmitthe Constitution to the legislatures of the several statesin order that they might be submitted to a specially chosenConvention in each state for ratification. We must con-sider the debates in the various state conventions withsome care. If the general Convention framed the Con-stitution, these conventions ratified it, and their concep-tion of its meaning is therefore most important. Let usbegin with the debates in the then leading Common-wealth-Virginia.

Virginia did not hold her Convention for the consid-eration of the Constitution until June, 1788; in themeantime eight states had ratified it, a point upon whichmuch stress was laid in the debates. The Conventionwas a large body, consisting of about one hundred andseventy members. Several of the delegates to the gen-eral Convention were also sent to the State Convention,and there were also present a number of well known anddistinguished men, "with a good many more of a lesserdegree." As is usual in such cases, comparatively fewtook the floor at all, and still fewer took a really activepart in the deliberations, and, also as usual, several gen-tlemen were constantly on their feet, notably PatrickHenry, who had refused to serve as a delegate to the gen-eral Convention. The Constitution does not seem to


have been considered with very great particularity.Alany of its provisions, indeed, were not discussed at all.But the general nature of the instrument was discussedalmost ad nauseam. Much real ability was displayed,and on the other hand, much wild, absurd talk was in-dulged in, that must have sorely tried the patience of thesaner minds in the Convention. There was also, ofcourse, some more or less adroit manceuvring; and nodoubt a great deal that was said was dictated by motivesof self-interest, direct or indirect. By most of the oppo-nents of the Constitution, there is shown a distrust ofAmericans in general, which leads one to wonder thatthey could look with equanimity upon popular govern-ment at all! Mr. Madison, who gave evidence in thisConvention as in the general Convention, of extraordi-nary mental balance, and equally extraordinary tactful-ness, after having been wearied with this distrustful at-titude of some members for many days, let fall the follow-ing words of wisdom, which should be read, learned andinwardly digested by all lovers of good government:"I have observed that gentlemen suppose that the generallegislature will do everything mischievous they possiblycan, and that they will omit to do everything good whichthey are authorized to do. If this were a reasonable sup-position, their objections would be good. I consider itreasonable to conclude that they will as readily do theirduty as deviate from it; nor do I go on the grounds men-tioned by gentlemen on the other side-that we areto place unlimited confidence in them, and expect nothingbut the most exalted integrity and sublime virtue. ButI go on this great republican principle, that the peoplewill have virtue and intelligence to select men of virtueand wisdom. Is there no virtue among us? If there isnot, we are in a wretched situation. No theoretical checks,no form of government, can render us secure. To sup-pose that any form of government will secure liberty orhappiness without any virtue in the people, is a chimericalidea. If there be sufficient virtue and intelligence in thecommunity, it will be .exercised in the selection of thesemen; so that we do not depend on their virtue, or put con-


fidence in our rulers, but in the people who are to choosethem."

In general, the argument against the Constitution maybe said to have been: that it formed a consolidated gov-ernment to the practical annihilation of the state govern-ments, and by so doing endangered the liberties of thepeople and paved the way for the establishment of a des-potism: that the power of direct taxation would producea conflict of authority between the national and statetax-gatherers, and as the National Constitution was tobe the supreme law of the land, the state authoritiesmust go to the wall: that it therefore placed Virginiansat the mercy of a majority from other states, who mightimpose taxes on Virginian and Southern products, etc.,and that it contained no bill of rights to protect the peopleagainst deprivation of the right of trial by jury, freedomof the press, etc., and that Virginia should not assent to itwithout previous amendments explicitly securing theseand kindred rights, and in express terms reserving to thestates all powers not delegated to the general govern-ment. The most bitter and violent opponent of the Con-stitution was Patrick Henry, whose fertile brain andlively imagination conjured up all sorts of horrors as cer-tain consequences of its adoption. The opposition werenever tired of pronouncing the Constitution a scheme fora great consolidated (i. e. centralized) governmentsometimes asserting that it was "admittedly" so, expect-ing, we must suppose, to play upon the alarms of the peo-ple, always tenacious of local self-government and of theirliberties, and to embarrass the supporters of the Constitu-tion, who could not deny that it meant a certain degreeof consolidation, and were put to great pains to show thatgreat care had been taken to prevent undue centralization,and to preserve as far as compatible with a firm NationalUnion, not only the local authority of the states, but theirexistence as distinct political entities.

The Convention plunged at once in medias res. It washardly fairly organized before Mr. Henry started the ballrolling, by asking by what authority the general Conven-tion had used the words "we the people" instead -of "we


the states" in the preamble? (A point which oddlyenough had caused little or no discussion in the GeneralConvention.) He said that it was "demonstrably clearthat a great consolidated government was to be formedinstead of a Confederation." As to the expression "wethe people" he w~s replied to by Mr. Randolph, Mr. Pen-dleton, Mr. Lee, and Mr. Corbin-by Mr. Randolph bythe counter question "Why not ?"-since the governmentwas for the people, and that it was a misfortune that thepeople had no agency in the government before. ByMr. Pendleton by the question "Who but the people havethe right to form governments," or delegate powers? andhe intimated that the state government had nothing todo with it. By Mr. Lee, that it was a proper expressionbecause the government was to operate on the people, ifadopted. By Mr. Corbin, to substantially the same effect.

Mr. Henry adhered stubbornly throughout the entiresessions to his assertion that the government would beconsolidated and utterly unfederal, although to use hisown words, it had been alleged "to be national and federalas it suited the arguments of gentlemen," and toward theclose of the session, Mr. -Dawson said that its friendshad "admitted that it possesses few federal features, andwill ultimately end in a consolidated government, a truthwhich in my opinion they would have denied in vain; forevery article, every section, every clause, almost everyline, proves that it will have this tendency." Mr. Mason,a former member of the general Convention, was equallypositive. Mr. Grayson did not feel obliged to acceptsomething quite different from the Confederation.

The defenders of the Constitution nowhere denied thatit was radically different from the Confederation articles.Mr. Lee denied that it was conceded to be a "National"(centralized) government, and once more we have Mr.Madison as the clearest exponent of the true intent of theConstitution as framed. He says it differs radically fromthe confederation in that it forms a government partlyconsolidated, partly federal. "It is in a manner unprece-dented; we cannot find one express example in the experi-ence of the world. It stands by itself. * * I can say


notwithstanding what the honorable gentleman has saidthat this government is not completely consolidated, noris it entirely federal. Who are parties to it? Thepeople,-but not the people as composing one great body;but the people as composing thirteen sovereignties. * *Should all the states adopt it, it will be then a govern-ment established by the thirteen States of America, notthrough the intervention of the legislatures, but by thepeople at large. In this particular respect the distinctionbetween the existing and proposed government is verymaterial. The existing system has been derived from thedependent derivative authority of the legislatures of thestates; whereas this is derived from the superior powerof the people. If we look at the manner in which altera-tions are to be made in it, the same idea is, in some degree,attended to. By the new system, a majority of the statescannot introduce amendments; nor are all the states" re-quired for that purpose. * * In this there is a de-parture from the federal idea. The members of the Na-tional House of Representatives are to be chosen by thepeople at large in proportion to the nuibers in the re-spective districts. When we come to the Senate itsmembers are elected by the states in their equal and po-litical capacity. But had the government been com-pletely consolidated, the Senate would have been chosenby the people in their individual capacity, in the samemanner as members of the other house. Thus it is of acomplicated nature." In spite of this, the assertion wasagain and again made afterwards by the enemies of theConstitution that it meant a consolidated governmentpure and simple, to all practical intents and purposes. Indefending the Constitution, it was not difficult to showhow unfounded were the fears and gloomy prognostica-tions as to loss of liberty, despotism, etc., to the morelogical minds. The forced and strained construction putupon the words of the Constitution by its opponents wasso grotesque at times as to excite disgust. But whatcould not be denied was, that the new government wouldbe essentially different from the old, that it would act di-rectly upon the people in many instances. And the main


struggle was really as to whether a bill of rights and cog-nate amendments should be required as a condition prece-dent to Virginia's assent.

The absolute necessity of Union was insisted upon overand over again, and in the strongest terms, by the advo-cates of the Constitution. and the establishment and per-petuation of that Union was declared to be the main ob-ject in forming the Constitution. Mr. Randolph calls theUnion "the anchor of our political salvation," and equallystrong expressions are quite frequent. And now let usexamine the proceedings of the Convention a little morein detail. It was determined at the outset to considerand debate the Constitution "clause by clause," and yet inpractice the rule was at once departed from, owing to Mr.Henry's vehement and passionate condemnation of theConstitution as a whole, which brought forth replies andcounter replies, so that more than one-half in volume,and about one-half in time, of the debates in the entiresession was devoted to a general discussion, quite de-sultory in character, with the first and second sectionsof Article I nominally under consideration; the third sec-tion was not read until June 14th; the Convention as-sembled on June 2d and concluded its debates on June25 th, adjourning two days later. So far as we are atpresent concerned the first "particular" discussion of anyimportance arose as to the clause of Article I, Section 8,which gives Congress power to call forth the militia toexecute the laws of the Union, etc., to which it was ob-jected that by this too much power was taken from thestates and given to the general government, and that itwould lead to the establishment of a standing army; andfurther that Congress might drag the militia to immensedistances. To this Mr. Madison replied that the exist-ence and control of the militia was the best guarantee thata standing army would not be necessary, and that theabuse of power in dragging the militia to immense dis-tances was not likely to occur where there was a "govern-ment of a federal nature, consisting of many co-equalsovereignties, and particularly having one branch chosenby the people." As to taking the militia away from the


state governments, he stated that the Congressional powerover it was concurrent, not exclusive. And when a littlelater it was contended by the alarmists that under theConstitution, if the state governments had. any controlover the militia it was by implication, Mr. John Marshallreplied that the state governments did not derive theirpower from the general government; but each govern-ment derived its powers from the people, and each was toact according to the powers given it. There was alsoquite a discussion as 'to the clause giving Congress thepower of exclusive legislation over a district ten milessquare. It was fraught with terrible dangers to the lib-erties of the people inhabiting the vast area outside of it,thought Mr. Mason; the district would become a sort ofsanctuary for the blackest criminals, and for fugitiveslaves, etc., etc. Even at this late date, it is difficult tokeep one's temper in reading such balderdash!

When the ninth section was read, Mr. Henry rose anddeclared that this section was really a bill of rights, that itprescribed the limits beyond which Congress could notgo. He argued that outside of these prohibitions, theycould do what they pleased, and as in his judgment this"bill of rights" was totally inadequate for the protectionof the liberties of the people, a more substantial provisionin the shape of a real bill of rights should go in. Theargument was plausible, certainly, and there could be butone answer to it, namely, that the restrictions were ex-ceptions to particular powers, express or implied, and notto a general power. This was the answer made by Mr.Randolph, and elaborated by him. In some instances, hisingenuity was taxed a good deal to find the particularpower abridged, but as a matter of fact, wherever thepower is hard to find, the restriction is unnecessary. Foreven had the Constitution been silent on the subject, it ishard to find where Congress had been expressly orimpliedly authorized to grant titles of nobility, for ex-ample. As to the tenth section (containing restrictionsupon the powers of the states) there was compara-tively little discussion, and most of the objections wereof a temporary character. Now, it is noteworthy


that many highly important and highly sovereign powersconferred upon Congress and taken from the states werenot discussed at all, but passed, as it were, sub silentio.For example: (i) The power to lay duties on imports.(2) To regulate commerce. (3) To establish uniformnaturalization laws. (4) To coin money, etc. (5) To de-clare war, etc. In a discussion at a later stage (Art. II,Sec. 2), which we need not now follow in detail, somesignificant remarks were made of a general nature. Mr.Grayson said the Constitution would be the "Great Char-ter" of America. "After having once consented to it, wecannot recede from it." And Mr. Randolph said that itfollowed from the nature of civil association that no par-ticular part shall sacrifice the whole. And Mr. Corbincontended that the "empire" could not be dismemberedwithout the consent of the part dismembered. When thequestion of the propriety of the establishment of inferiorfederal courts was under discussion, and it was warmlydebated, Mr. Mason said that he believed that the Con-stitution was intended to destroy the state governments,and gradually bring about one great, national consoli-dated government, which many gentlemen in the UnitedStates thought advisable. Mr. Madison interrupted toask to whom he referred, as without explanation his hear-ers might think he referred to all the members of the lateConvention, to which Mr. Mason replied that he had notreferred to any one from Virginia, but it was notoriousthat it was "a prevailing opinion," with which explanationMr. Madison declared himself satisfied. Whether thisstatement was a shrewd move on the part of Mr. Mason toprejudice the minds of the members, or whether he reallybelieved what he said, it is impossible to say. Mr. Madi-son very naturally declined to be placed in a false position.For there can be no question that any truly consolidated,centralized government, annihilating the state govern-ments, would never have been set up by the American peo-ple at that time, or since, for that matter. And we haveseen in an examination of the debates of the general Con-vention that no such a view as that stated by Mr. Masonwas held except possibly by the very few extremists, if


indeed by anyone. It is the old difference between a Na-tional and a Centralized government, by no means syn-onymous terms. In the words of Mr. Pendleton, "I shouldunderstand a consolidated government to be that whichshould have the sole and exclusive power, legislative, ex-ecutive and judicial, without any limitation." And sucha government it is ridiculous to say that the Constitutionwas intended to establish either all at once or graduallyby its general tendency. As before suggested, the ab-sence of a bill of rights and of a specific declaration thatall powers not granted were reserved, inclined somemembers to insist upon their insertion as a condition pre-cedent to ratification; while others felt that while not ex-pressed, a bill of rights was clearly understood, and thatby the very nature of the instrument the governmentorganized under it could only have the powers conferredby it, and moreover, that an incomplete bill of rights wasworse than none; and that it would be far worse to im-peril the Union by insisting on amendments to the Con- -

stitution previous to its adoption, than to trust to properamendments being made afterwards. It had been sug-gested that in ratifying the Constitution, the Conventionshould insert a declaration to the effect that all the powersin the Constitution were derived from the people andmight be rescinded by them whensoever they should beperverted to their injury or oppression, a self-evidenttruth, it would seem; and Mr. Nicholas, a friend to theConstitution, argued that there could be no danger inadopting it in this way, "for these expressions will becomea part of the contract. The Constitution cannot be bind-ing on Virginia but with these conditions. If thirteen in-dividuals are about to make a contract, and one agrees toit, but at the same time declares that he understands itsmeaning, significance, and intent to be (what the words ofthe contract plainly and obviously denote) that it is not tobe construed so as to impose any supplementary condi-tions upon him, and that he is to be exonerated from itwhensoever any such imposition shall be attempted. Iask whether, in this case, these conditions, on which heassented to it, would not be binding on the other twelve.


In like manner these conditions will be binding on Con-gress. They can exercise no power thatis not expresslygranted to them." \Vith the soundness of this view weneed not now concern ourselves; and wlether they reallyexpressed Mr. Nicholas' belief is not certain; he wasarguing in favor of the adoption of the Constitution andendeavoring to quiet the fears of the more sensitive as toundue centralization as a result of adoption without pre-vious amendments. No comment was made upon Mr.Nicholas' remarks, and no one else made the same argu-ment. On the contrary, the argument of the opponentsof the Constitution was that after ratification it would betoo late to secure amendments, possibly they might bemade, and possibly not. Mr. Innes said that in hisopinion all the Convention could do was to accept or re-ject the Constitution, not to accept conditionally. Thefinal result of the deliberations was, that by a vote ofeighty-nine to seventy nine, the Constitution was ratifiedin the following form: "VIRGINIA, to wit: We, thedelegates of the people of Virginia, duly elected in pursu-ance of a recommendation from the General Assembly,and now met in Convention, having fully and freely in-vestigated and discussed the proceedings of the FederalConvention, and being prepared, as well as the most ma-ture deliberation hath enabled us, to decide thereon, Do inthe name and in behalf of the people of Virginia, declareand make known, that the powers granted under the Con-stitution, being derived from the people of the UnitedStates, be rescinded by them whensoever the same shall beperverted to their injury or oppression, and that everypower, not granted thereby remains with them and attheir will (italics in the original); that, therefore, noright, of any denomination, can be cancelled, abridged,restrained, or modified, by the Congress, by the Senate orHouse of Representatives, acting in any capacity, by thePresident, or any department or officer of the UnitedStates, except in those instances in which power is givenby the Constitution for those purposes; and that, amongother essential rights, the liberty of conscience and ofthe press cannot be cancelled, abridged, restrained, or

352 A HUNDRED AND TEN YEARS OF THE CONSTiTUTION.

modified by any authority of the United States. Withthese impressions, with a solemn appeal to the Searcherof hearts for the purity of our intentions, and under theconviction that whatsoever imperfections may exist in theConstitution ought rather to be examined in the mode pre-scribed therein, than to bring the Union into danger bydelay, with a hope of obtaining amendments previous tothe ratification, We, the said delegates, in the name andbehalf of the people of Virginia, do, by these presents,assent to and ratify the Constitution, recommended onthe seventeenth day of September, one thousand sevenhundred and eighty-seven, by the Federal Government forthe United States; hereby announcing to all whom it mayconcern that the said Constitution is binding upon thesaid people, according to an authentic copy hereto an-nexed," etc. They then proceeded to draw up certainamendments to the Constitution, to be submitted to thefirst Congress assembled under it. The first of thesewas, that .there should be a bill of rights attached to theConstitution "in some such manner" as the following,which is too long to transcribe. It consisted of twentyparagraphs, the first seven setting out somewhat in detailthe principles of popular self-government, the balance set-ting out fully and explicitly the great personal rights forwhich our forefathers contended in and before the Revo-lution. In addition to the bill of rights, they recom-mended twenty other amendments, only a few of whichwe need notice just now: (i) "That each state in theUnion shall respectively retain every power, jurisdiction,and right, which is not by this Constitution delegated tothe Congress of the United States, or to the departmentsof the Federal Government." (3) "When Congress shalllay taxes or excises, they shall immediately inform the ex-ecutive power of each state of the quota of such state, ac-cording to the census herein directed, which is proposedto be thereby raised; and if the legislature of any stateshall pass a law which shall be effectual for raising suchquota at the time required by Congress, the taxes andexcises laid by Congress shall not be collected in suchstate." A motion to strike this amendment from the


list of those recommended failed by a vote of eighty-fiveto sixty-five. (i i) The eleventh suggested amendmentgave the states the control of the militia except when inthe actual service of the United States. (12) The twelfthsuggested amendment limits the power of Congress overthe "ten miles square" district to such regulations as re-spect "the police and good government thereof." (14)The fourteenth suggested amendment limits the jurisdic-tion of the United States Courts, calls the inferior courts"Courts of Admiralty," and entirely abolishes federaljurisdiction between citizens of different states. (16)The sixteenth suggested .amendment limits the power ofCongress to regulate elections to cases in which the legis-lature has been unable, or has neglected, to do so. (17)The seventeenth suggested amendment provides thatclauses declaring that Congress shall not exercise certainpowers are not to be interpreted so as to extend the powerof Congress, but taken as exceptions to specified powers,or "as inserted merely for greater caution."

Lucius S. Landreth.

A Hundred and Ten Years of the Constitution: Part X

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