Amendments to the Constitution, [8 June] 1789 — reading text

the prople, ought to remain inviolate. Eighthly. That Immediaiely after article 6th, be infert- ed, as article 7th, the clanfes follov\ing, to wit ; The powers delegated by this conituuiion, are appro- priated CO the departiiienis to which they are refpedtively diilributed : fo that the legiflative department ihall never exercife the powers vefted in the executive or judicial ; nor the executive exercife the pov^ers veiled in the legifla- tjve or judicial ; nor the judicial exerciie the powers vcft- . cd in the legiflative or executive departments. The powers not delegated by this conftiiution, nor pro- hibited by it to the ilates, are referved to the States re- fpeftivelj^. Ninthly. That article 7th, be numbered as arti'le 8th. The nrft of ihefe amendments, relates to what may be called a bill of rights I will own that I never ; coniider- ed this provilion fo eflential to the federal coi.ftituticn, as to make it improper to ratify it, until fuch an amend- nient was added ; at the fame time, 1 always conceived, that in a certain form and to a certaui extent, fuch a provi- fion was neither improper nor ahogedier ufelefs. I am aware, that a great number of themoft: refpedable friends To the government and champions for republican liberty, have thought fuch a provifion, not only unnecefiary, but even improper, nay, I believe fome have gone fo far as to think it even dangerous. Some policy has been made ufe of perhaps by gentlemen on both lides of the quellion : I acknowledge the ingenuity of tho/e arguments which were drawn againlt the conlUtuti- on, by a comparifon with the policy of Great Bri- tain, in ciubiiihlng a declaration of rights ; but there istoo great a difference in the cal'e to v.arrant the compa- rifon^ therefore the arguments drawn from that fourcCy 4.3» DEBATES were in a great meafure inapplicable. A. 1789. In the declaratioii of rights v^hich that conntry has eftabliflied, the truth is, they have gone no farther, than co ra^e a barrier againll the power of the crown, the power of thelegii'laiure jslefc altoiTether iudefinite, Altho' 1 know whenever the great rights, the trial byjury^ freedom of the prefs, or liberty of confcience, came in queftion in that body, the invalion of theniis reiifted by able advocates, yet their Magna Charta does not contain any one proviiion for the fecurity of thofe rights, refpec'ling which, the people of America are noft alarmed. The treedom of the prefs and rights of confci- ence, thofe choiceft privileges of the people, are unguardfd in the Briciih confritution. But altho' the cafe may be widely different, and it may not be thought necelTary to provide limits for the legiflative power in that country, yet a different opinion prevails in the United States. The people of many ftates, have thought, it ncccilfary to raife barriers agaiiift power in all forms and departments of government, and I am iliclined ro believe, if once bills of rights are eftablilhed all the in Hates as well as the federal conflitution, we fhall find th^t altho' fome of them are rather unimportant, yet, upon the whole, they will have a falutary tendency, It m.ay be faid, in fome inflances they do no more thai^ ftate the perfeiH: equality of mankind, this- to be fure is :in abfolute truth, yet it is not abfolutely necefiliry to be inferi- cdatthe head of a conflitution. In fome inflances they aflert thofe rights which are exer- cifed by the peop'e in forming and eifablifiiing a plan of •.Tovernment. In other inftances, they fpecify thofe rights which are retained when particular powers are given up to be exercifed by the legiflature. In other initances, they Ipecify pofitive rights, which may feem to refult from the liature of the compail. Trial by jury cannot be confider- t'd as a natural right, but a right" refultiiig from the focial compaft which regulates the action of the coiiynunity, bup is as elTeutialto fecure the liberty of the people as any one of the pre-cxiile;;t rights of nature. In other inllances they lay down (iogn)ot';c maxims with refpeft to the con- of the government; declaring, that the legifla- il:ru;51:ion tive, executive, and judicial branches fhall be keptfeparaie and dUtind: ]\.rbaps the befl v^-ay of fecuring this iii : praftice is to provide fuch checks, as will prevent the en^ croachment of the one upon the another*.':'" But whatever may be form which tiie fcveral ftates have jjdi>pted in making declarations in favor of particular riglitSj A. 1 789- Of C O N G H £ S S. 43f the great object in view is to limit and qualify the powers of government, by excepting out of ihc grant of power thofe cales in which the government ought not to atl, or to act only in a' particular mode. They point thei'e ex. ceptions Ibinetiines againff the abufe of the executive power, fometimes againlt the legiflacive, and, in fome cafes, againit the community itfelf; or, in other words, ag:iinlt the majority in favor of the minority. In our government it is, perhaps, lefs necefiaryto guarcJi againll the abufe in the executive department than any other ; becaufe it is not the itronger branch of the fyftem, but the weaker : It therefore muit be levelled aQ-ainft the jegiflative, for it is the molt powerful, and moft likely to ba abufed, becaufe it is under the leall controul ; hence, fo far as a declaration of rights can tend to prevent the exercife of undue power, it cannot be doubted but fuch declaration is proper. But 1 confefs that I do conceive, that in a government modilied like this ot the United States, the great danger lies rather in the abufe of the community than in the legiflative body. The preicriptions in favor I of liberty, ought to be levelled againit that quarter where] the gi-eateft danger lies, namely, that which poirelTes tie 1 higheil perogative of power : But this not found in either the executive or legiflative departments of government, but in the body of the people, operating by the majority againit the minority. It may be thought all paper barriers againfl: the power of the community, are too weak to be uorihy of aft- tention. I am fenfible they are not lb ftrong as to fatisfy gentlemen of eveiy defcription who have feen and exa- mined thoroughly the texture of fuch a defence ; yet, as they have a tendency taimprefs lome degree of rtfped for rhem, to eltablifli the public opinion in their favor, and roufe the attention of the whole community, it may be one mean to cOHtronl the majority from thofe adis to^ which they might be otherwife intlined. It has been laid by v/ay of objection to a bill of rights, by many refpeftable gentlemen out of doors, and I fincf oppofuion on the lame principles likely to be n)a.de by gen- tlemen on this floor, that they are unnecefl'ary articles of a republican government, upon the prefumption that the people have thofe rights in their own hands, and that is Ciie proper place for them to reit. It would be a fufScient ar.iwer to fay tiiat this objedion lies againit fuch provihons under the itate governments as well as under die general 4^2 DEBATES A. J78g„ government; and there are, I believe, but few gentlemen who are indined to pulh their theory fo far as to lay that a declaration of rights in thofe cafes is either inefteftual or improper. It has been faid that in the federal govern- ment they are unneceil'ary, becaufe the powers are enu- nieratea, and it follows that all that .are not granted by the conftitution are retained : that the conltitution is a , bill of poA-ers, the great rcfiduum being the rights of the people ; and therefore a bill of rights cannot be fo necef- iary as if the refiduum was thrown into the hands of the government. I admit that thele arguments are not en- tirely without foundation ; but they are not conclufive to the extent, which has been fuppofed. It is true the pow- ers of the general government are circunifcribed, they are directed to particular objects ; but even if government keeps within thofe limits, it has certanidifcretionary powers >i^ith relpecl tp the means, which may admit of abufe to a certain extent, in the fame manner as the powers of the irate governments under their conflitutions may to an inde- finite extent ; becaufe in the conltitution of the United States there is a claufe granting to Congrefs the power to make all laws which ihall be neceflary and proper for carry- ing into execution all the powers veiled in the govern- inent of the United States, or in any department ur officer thereof ; this enables them to fulfil every purpofe for ^hich the government was eftr.blillied. Now^ may no£ Jaws be conlidered necelTary and proper by Congrefs, for 't is thein who are to judge of the necellity and propriety to accomplilh thofe fpecial purpofes which they may have in contemplation, which laws in theinfelves are neither ne- ceflary or proper ; as well as improper laws could be ena<^ed by the itate legillatures, for fulfilling the more ex- tended objecfts of thole governments. 1 will itate an in- llance which I think in point, and proves that this might be the cafe. The general government has a right to j)afs all-laws which Ihall be ifeceffary to colled its revenue ; the means for enfarciiig the collection are within the diredtion of the legidature may not general warrants be conlidered : necelTary for this purpofe, as well as for ibme purpofes which it was fuppofed at the framing of their conllitutions the ftate govenunents had in view. If there was reafon for reltraihiiig the. itate governments from exercifing this power, there is like reafon for reltraiuing the federal go- vernment. It raav be faid, becaufe it has been faid^, that a bill of' 1. ly^. . Of CONGRESS. % ^ J^j right's is not ueceilhry, bccaiife the eflablifliment of this government has not repealed thofe declarations of rights which are added to the ieveral ilate contlitutions thac : tiiole rights of the people, which had been eltabiJihcd by the moll iblemn acl, could not be annihilated by a fubfe- quent aft of that people, who meant, and declared at the head of the inftru.'nent, that they ordained and etlabliHied a new fyftem, for the exprefs purpofe of lecuringto them- lelves and pofterity the liberties they had g.-^intd by aij arduous conflid:. r I admit the force of this obfervation, but 1 do not look upon it to be conclulive. In the firlt place, it is too un- certain ground to leave this provifion upob, if a provifiori is at all necefiary to fecure rights fo important as many of thofe I have mentioned are conceived to be, by the public in general, as well as thole in particular who oppofed the aidoptiori of this conltitution. Belid6 fome ftates have no bills of rights, there are others provided with very defec- tive ones, and there are others whofe bilfs of rights are ftoc »nly defective, but abfolutely improper iiiltead of ; I'ecuriug fume in the full extent which republican principles! would require, they limit tliem too much to agre^ Viith the common ideas of liberty. It has been objefted alfo againfl a bill of rights, that, \y& enumerating particular excepiioos to