A Federal Republican, A Review of the Constitution, 28 November 1787 Hitherto we have been considering the blemishes of the Constitution as they statedly exist— other objects are derived from omission. Among these the grand one, upon which is indeed suspended every other, is the omission of a bill of rights. The remarker upon the address of the sixteen members has answered their objection with much force. “I answer (says he) this is not true, it contains a declaration of many rights, and very important ones, i.e., that people shall be obliged to fulfill their contracts, and not avoid them by tenders of anything less than the value stipulated—that no ex post facto laws shall be made, etc.” The gentleman has here very wittily mistaken the sense of the two terms right and obligation. They are correlative terms and between two parties. Whenever the former applies to the one, the latter of necessity applies to the other. Whatever anyone has a right to expect from me, I am obliged to render him. He might as well have said that the Constitution gave the people a right to submit to Congress in everything, and that we have a right to pay the last farthing of compliance to their despotic whims. What he mentions is the enforcing of obligation and not the declaring of right. One of the learned members of the late Convention, the Honorable Mr. [James] Wilson, observes in his speech that all powers which are not by the Constitution given up to Congress are reserved for the disposition of the several states. This observation is wise and true, because properly speaking it should be so. In entering into the social compact, all rights which are not expressly given up to the governors are reserved to the people. That it is so from a just construction it is easy to discover. But notwithstanding, if the people are jealous of their rights, where will be the harm in declaring them? If they be meant, as they certainly are, to be reserved to the people, what injury can arise from a positive declaration of it? Although in reasoning it would appear to be unnecessary, yet if the people prefer having their rights stately defined, it is certainly reasonable that it should be done. I am well acquainted with the logical reason that is general[ly] given for it. It is said that the insertion of a bill of rights would be an argument against the present liberty of the people. To have the rights of the people declared to them would imply that they had previously given them up or were not in possession of them. 2 This indeed is a distinction of which the votaries of scholastic philosophy might be proud—but in the political world, where reason is not cultivated independently of action and experience, such futile distinctions ought not to be agitated. In fact, it does not exist, for I should think it is as rational to declare the right of the people to what they already possess, as to decree to them any new rights. If the people do really possess them, there can be no harm in expressing what is meant to be understood. A bill of rights should either be inserted, or a declaration made that whatever is not decreed to Congress is reserved to the several states for their own disposal. In this particular, the Articles of the present Confederation have an evident advantage. The second Article says, that “each state retains its sovereignty, freedom and independence, and every power, jurisdiction, and right, which is not by this confederation expressly declared to United States in Congress assembled.” This will appear the more proper, if we consider that these are rights in which all the states are concerned. It is thought proper to delegate to Congress supreme power on all occasions where the natural interests of the states are concerned, and why not for the same reason grant and declare to the states a bill of those rights which are also mutual? At any rate it is certain that no injury can arise from it, and to do it would be satisfactory and wise. On the whole, my fellow citizens, this Constitution was conceived in wisdom; the thanks of the United States are justly due to the members of the late Convention. But let their productions pass again through the furnace. Do not give them even the opportunity of depriving you of your rights and privileges, and that, without breaking over any restraint imposed by the Constitution. Because this once granted they will be fully enabled in the present age to lay the gentle foundation of despotic power, and after a temporary interval of seeming humanity between you and succeeding generations, to rivet upon them the chains of slavery beyond the possibility of a rupture. To guard against this, I could wish to see the proposed Constitution revised and corrected. If the states are not to be confederated, let them be reduced to one compact body. And if a perfect consolidation of the states is to take place, if the people are to become the source of power, and if Congress is to represent them as the head of this grand body politic, in the name of all that is dear to freemen, permit not the veins through which the life of 3 government itself is to flow from the heart to the head be any way obstructed—let the passages be free and open that vital heat may animate every limb. That if all the states were to offer their objections, the Constitution would be reduced to nothing, is an ill-founded idea. The good-natured simularity which the citizen of America discovered between this Constitution and a piece of painting is perfectly erroneous. All painting is addressed to the sense and relished by taste which is various and fluctuating— but this Constitution is addressed to the understanding and judged of by reason which is fixed and true. The Constitution is for the most part good, and perhaps many of the objections which have been made to it arise from our not being able to discern clearly the collective interest of the states. Some of them, however, in all probability, exist beyond contradiction. Let the convention of each state make its exceptions, then let a future and general one receive them all and reconcile them with as much wisdom as possible. This would certainly be some refinement. It could do no harm, but might do much good. To conclude, my friends and fellow citizens, have [the] proposed Constitution revised, corrected and amended—have every dubious expression be made plain and clear—have every power accurately defined and well understood, and your own rights and privileges clearly stated or a declaration made that all powers that are not by this Constitution delegated to Congress are reserved for your own disposal. Then, and not till then, will impartial justice rule over our land, and America become the theater of equity and wisdom, as she has already been the field of patriotism and bravery. This once obtained, we shall be happy and free, and having enjoyed the blessings of peace and plenty under the ample shade of the tree of liberty, we shall deliver them down unimpaired by the corrosive influence of time to the latest posterity.
Brutus #1 Let us now proceed to enquire, as I at first proposed, whether it be best the thirteen United States should be reduced to one great republic, or not? It is here taken for granted, that all agree in this, that whatever government we adopt, it ought to be a free one; that it should be so framed as to secure the liberty of the citizens of America, and such a one as to admit of a full, fair, and equal representation of the people. The question then will be, whether a government thus constituted, and founded on such principles, is practicable, and can be exercised over the whole United States, reduced into one state? If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science of government, we shall be constrained to conclude, that a free republic cannot succeed over a country of such immense extent, containing such a number of inhabitants, and these increasing in such rapid progression as that of the whole United States. Among the many illustrious authorities which might be produced to this point, I shall content myself with quoting only two. The one is the baron de Montesquieu . . . . “It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses are of less extent, and of course are less protected.” Of the same opinion is the marquis Beccarari. . . . In a free republic, although all laws are derived from the consent of the people, yet the people do not declare their consent by themselves in person, but by representatives, chosen by them, who are supposed to know the minds of their constituents, and to be possessed of integrity to declare this mind. In every free government, the people must give their assent to the laws by which they are governed. This is the true criterion between a free government and an arbitrary one. The former are ruled by the will of the whole, expressed in any manner they may agree upon; the latter by the will of one, or a few. If the people are to give their assent to the laws, by persons chosen and appointed by them, the manner of the choice and the number chosen, must be such, as to possess, be disposed, and consequently qualified to declare the sentiments of the people; for if they do not know, or are not disposed to speak the sentiments of the people, the people do not govern, but the sovereignty is in a few. Now, in a large extended country, it is impossible to have a representation, possessing the sentiments, and of integrity, to declare the minds of the people, without having it so numerous and unwieldy, as to be subject in great measure to the inconveniency of a democratic government. The territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they will soon become, to elect a representation, that will speak their sentiments, without their becoming so numerous as to be incapable of transacting public business? It certainly is not. In a republic, the manners, sentiments, and interests of the people should be similar. If this be not the case, there will be a constant clashing of opinions; and the representatives of one part will be continually striving, against those of the other. This will retard the operations of government, and prevent such conclusions as will promote the public good. If we apply this remark to the condition of the United States, we shall be convinced that it forbids that we should be one government. . . . In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires: But they have always proved the destruction of liberty, and [are] abhorrent to the spirit of a free republic. In England, where they depend upon the parliament for their annual support, they have always been complained of as oppressive and unconstitutional, and are seldom employed in executing of the laws; never except on extraordinary occasions, and then under the direction of a civil magistrate. . . . The confidence which the people have in their rulers, in a free republic, arises from their knowing them, from their being responsible to them for their conduct, and from the power they have of displacing them when they misbehave: but in a republic of the extent of this continent, the people in general would be acquainted with very few of their rulers; the people at large would know little of their proceedings, and it would be extremely difficult to change them. . . In a republic of such vast extent as the United-States, the legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature, that would be continually arising. In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the executive offices, in a country of the extent of the United-States, must be various and of magnitude. The command of all the troops and navy of the republic, the appointment of officers, the power of pardoning offences, the collecting of all the public revenues, and the power of expending them, with a number of other powers, must be lodged and exercised in every state, in the hands of a few. When these are attended with great honor and emolument, as they always will be in large states, so as greatly to interest men to pursue them, and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power. These are some of the reasons by which it appears that a free republic cannot long subsist over a country of the great extent of these states. If then this new constitution is calculated to consolidate the thirteen states into one, as it evidently is, it ought not to be adopted.
Anti-Federalist Paper #1 I am pleased to see a spirit of inquiry burst the band of constraint upon the subject of the NEW PLAN for consolidating the governments of the United States, as recommended by the late Convention. If it is suitable to the GENIUS and HABITS of the citizens of these states, it will bear the strictest scrutiny. The PEOPLE are the grand inquest who have a RIGHT to judge of its merits. The hideous daemon of Aristocracy has hitherto had so much influence as to bar the channels of investigation, preclude the people from inquiry and extinguish every spark of liberal information of its qualities. . . . They cry aloud the whole must be swallowed or none at all, thinking thereby to preclude any amendment; they are afraid of having it abated of its present RIGID aspect. They have strived to overawe or seduce printers to stifle and obstruct a free discussion, and have endeavored to hasten it to a decision before the people can duly reflect upon its properties. In order to deceive them, they incessantly declare that none can discover any defect in the system but bankrupts who wish no government, and officers of the present government who fear to lose a part of their power. These zealous partisans may injure their own cause, and endanger the public tranquility by impeding a proper inquiry; the people may suspect the WHOLE to be a dangerous plan, from such COVERED and DESIGNING schemes to enforce it upon them. . . . The Lawyers in particular, keep up an incessant declamation for its adoption; like greedy gudgeons they long to satiate their voracious stomachs with the golden bait. The numerous tribunals to be erected by the new plan of consolidated empire, will find employment for ten times their present numbers; these are the LOAVES AND FISHES for which they hunger. They will probably find it suited to THEIR HABITS, if not to the HABITS OF THE PEOPLE.
Anti-Federalist Paper #9 We the Aristocratic party of the United States, lamenting the many inconveniencies to which the late confederation subjected the well-born, the better kind of people, bringing them down to the level of the rabble—and holding in utter detestation that frontispiece to every bill of rights, “that all men are born equal”—beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and such as were made to bear the weight of government without having any share in its administration) to submit to our friends in the first class for their inspection, the following defense of our monarchical, aristocratical democracy. 1st. As a majority of all societies consist of men who (though totally incapable of thinking or acting in governmental matters) are more readily led than driven, we have thought meet to indulge them in something like a democracy in the new constitution, which part we have designated by the popular name of the House of Representatives. But to guard against every possible danger from this lower house, we have subjected every bill they bring forward, to the double negative of our upper house and president. . . . 2d. They will from the perpetuality of office be under our eye, and in a short time will think and act like us, independently of popular whims and prejudices. . . . We have frequently endeavored to effect in our respective states, the happy discrimination which pervades this system; but finding we could not bring the states into it individually, we have determined . . . and have taken pains to leave the legislature of each free and independent state, as they now call themselves, in such a situation that they will eventually be absorbed by our grand continental vortex, or dwindle into petty corporations, and have power over little else than yoaking hogs or determining the width of cart wheels . . . Impressed with a conviction that this constitution is calculated to restrain the influence and power of the LOWER CLASS— to draw that discrimination we have so long sought after; to secure to our friends privileges and offices . . . Signed by unanimous order of the lords spiritual and temporal.
Anti-Federalist Paper # 46 . . . We find here that the Congress in its legislative capacity, shall have the power to lay and collect taxes, duties, and excises; to borrow money; to regulate commerce; to fix the rule for naturalization and the laws of bankruptcy; to coin money; to punish counterfeiters; to establish post offices and post roads; to secure copy rights to authors; to constitute tribunals; to define and punish piracies; to declare war; to raise and support armies; to provide and support a navy; to call forth the militia; to organize, arm and discipline the militia; to exercise absolute power over a district ten miles square, independent of all the State legislatures, and to be alike absolute over all forts, magazines, arsenals, dock-yards, and other needful buildings thereunto belonging. This is a short abstract of the powers given to Congress . . . My object is to consider that undefined, unbounded and immense power which is comprised in the following clause—“And to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States; or in any department or offices thereof.” Under such a clause as this, can anything be said to be reserved and kept back from Congress? . . . Besides the powers already mentioned, other powers may be assumed hereafter as contained by implication in this constitution. The Congress shall judge of what is necessary and proper in all these cases, and in all other cases—in short, in all cases whatsoever. Where then is the restraint? How are Congress bound down to the powers expressly given? What is reserved, or can be reserved? Yet even this is not all. As if it were determined that no doubt should remain, by the sixth article of the Constitution it is declared that “this Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shalt be the supreme law of the land, and the judges in every state shall be bound thereby, any thing in the Constitutions or laws of any State to the contrary notwithstanding.” The Congress are therefore vested with the supreme legislative power, without control. In giving such immense, such unlimited powers, was there no necessity of a Bill of Rights, to secure to the people their liberties? Is it not evident that we are left wholly dependent on the wisdom and virtue of the men who shall from time to time be the members of Congress? And who shall be able to say seven years hence, the members of Congress will be wise and good men, or of the contrary character?
Anti-Federalist Paper #84 When a building is to be erected which is intended to stand for ages, the foundation should be firmly laid. The Constitution proposed to your acceptance is designed, not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made. But on this subject there is almost an entire silence. If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self-evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows. The origin of society, then, is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate . . . The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order that what remained should be preserved . . . But rulers have the same propensities as other men; they are as likely to use the power with which they are vested, for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries . . . . . . This principle is a fundamental one, in all the Constitutions of our own States; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high, and when an appeal was made to the people to form Constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is, therefore, the more astonishing, that this grand security to the rights of the people is not to be found in this Constitution. . . . The powers, rights and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any State government—it reaches to every thing which concerns human happiness—life, liberty, and property are under its control. . . . So far is it from being true, that a bill of rights is less necessary in the general Constitution than in those of the States, the contrary is evidently the fact. This system, if it is possible for the people of America to accede to it, will be an original compact; and being the last will, in the nature of things, vacate every former agreement inconsistent with it. For it being a plan of government received and ratified by the whole people, all other forms which are in existence at the time of its adoption, must yield to it. . . . Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought. So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.