CH. 11.] OBJECTIONS TO THE CONSTITUTION. 269
OBJECTIONS TO THE CONSTITUTION.
=A7 281. LET it not, however, be supposed, that a constitution, which
looked upon with such general favour and affection by the people, had no
difficulties to encounter at its birth. The history of those times is full
of melancholy instruction on this subject, at once to admonish us of past
dangers, and to awaken us to a lively sense of the necessity of future
vigilance. The constitution was adopted unanimously by Georgia, New-Jersey,
and Delaware. It was supported by large majorities in Pennsylvania,
Connecticut, Maryland, and South-Carolina It was carried in the other
states by small majorities, and especially in Massachusetts, New-York, and
Virginia by little more than a preponderating vote.1 Indeed, it is
believed, that in each of these states, at the first assembling of the
conventions, there was a decided majority opposed to the constitution. The
ability of the debates, the impending evils, and the absolute necessity of
the case seem to have reconciledsome persons to the adoption of it, whose
opinions had been strenuously the other way.2 "In our endeavours," said
Washington, "to establish a new general government, the contest nationally
considered, seems not to have been so much for glory, as for existence. It
was for a long time doubtful, whether we were to survive, as an indepen-
1 2 Pitk. Hist. 265, 268, 273, 279, 281; North Amer. Rev. Oct. 1827, P.
270 to 278.
2 2 Pitk. Hist. 266, 269, 281; 5 Marshall's Life of Washington, 132,
260 CONSTITUTION OF THE U. STATES. [BOOK III.
dent republic, or decline from our federal dignity into insignificant and
withered fragments of empire."1
=A7 282. It is not difficult to trace some of the more important causes,
which led to so formidable an opposition, and made the constitution at that
time a theme, not merely of panegyric, but of severe invective, as fraught
with the most alarming dangers to public liberty, and at once unequal,
unjust, and oppressive.
=A7 283. Almost contemporaneously with the first proposition for a
confederation, jealousies began to be entertained in respect to the nature
and extent of the authority, which should be exercised by the national
government. The large states would naturally feel, that in proportion as
congress should exercise sovereign powers, their own local importance and
sovereignty would be diminished injuriously to their general influence on
other states from their strength, population, and character. On the other
hand, by an opposite course of reasoning, the small states had arrived
nearly at the same result. Their dread seems to have been, lest they should
be swallowed up by the power of the large states in the general government,
through common combinations of interest or ambition.2
=A7 284. There was, besides, a very prevalent opinion, that the
the several states were not the same; and there had been no sufficient
experience during their colonial dependence and intercommunication to
settle such a question by any general reasoning, or any practical results.
During the period, therefore, in which the confederation was under
discussion in congress, much excitement and much jealousy as exhibited on
this subject. The original draft, submit-
1 5 Marshall's Life of Washington, 138.
2 5 Marshall's Life of Washington, 130, 131; 4 Elliot's Debates, &c.
CH. 11.] OBJECTIONS TO THE CONSTITUTION. 261
ted by Dr. Franklin, in July, 1775, contained a much more ample grant of
powers, than that actually adopted; for congress were to be invested with
power to make ordinances relating "to our general commerce, or general
currency," to establish posts, &c. and to possess other important powers of
a different character.1 The draft submitted by Mr. Dickenson, on the 12th
of July, 1776, contains less ample powers; but still more broad, than the
articles of confederation.2 In the subsequent discussions few amendments
were adopted, which were not of a restrictive character; and the real
difficulties of the task of overcoming the prejudices, and soothing the
fears of the different states, are amply displayed in the secret journals
now made public. In truth, the continent soon became divided into two great
political parties, "the one of which contemplated America as a nation, and
laboured incessantly to invest the federal head with powers competent to
the preservation of the Union; the other attached itself to the state
authorities; viewed all the powers of congress with jealousy; and assented
reluctantly to measures, which would enable the head to act in any respect
independently of the members."3 During the war, the necessities of the
country confined the operations of both parties within comparatively narrow
limits. But the return of peace, and the total imbecility of the general
government, gave (as we have seen) increased activity and confidence to
=A7 285. The differences of opinion between these parties were too
too earnest, and too deep to be reconciled, or surrendered. They equally=20p=
1 1 Secret Journals, 285, Art. 5.
2 1 Secret Journals, 290.
3 5 Marshall's Life of Washington, 33.
262 CONSTITUTION OF THE U.STATES. [BOOK III.
vaded the public councils of the states, and the private intercourse of
social life. They became more warm, not to say violent, as the contest
became more close, and the exigency more appalling. They were inflamed by
new causes, of which some were of a permanent, and some of a temporary
character, The field of argument was wide; and experience had not, as yet,
furnished the advocates on either side with such a variety of political
tests, as were calculated to satisfy doubts, allay prejudices, or dissipate
the rears and illusions of the imagination.
=A7 286. In this state of things the embarrassments of the country
financial concerns, the general pecuniary distress among the people from
the exhausting operations of the war, the total prostration of commerce,
and the languishing unthriftiness of agriculture, gave new impulses to the
already marked political divisions in the legislative councils. Efforts
were made, on one side, to relieve the pressure of the public calamities by
a resort to the issue of paper money, to tender laws, and instalment and
other laws, having for their object the postponement of the payment of
private debts, and a diminution of the public taxes. On the other side,
public as well as private creditors became alarmed from the increased
dangers to property, and the increased facility of perpetrating frauds to
the destruction of all private faith and credit. And they insisted
strenuously upon the establishment of a government, and system of laws,
which should preserve the public faith, and redeem the country from that
ruin, which always follows upon the violation of the principles of justice,
and the moral obligation of contracts. "At length," we are told,1 "two
great parties were formed in
1 5 Marshall's Life of Washington, 83.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 263
every state, which were distinctly marked, and which pursued distinct
objects with systematic arrangement. The one struggled with unabated zeal
for the exact observance of public and private engagements. The distresses
of individuals were, they thought, to be alleviated by industry and
frugality, and not by a relaxation of the laws, or by a sacrifice of the
rights of others. They were consequently uniform friends of a regular
administration of justice, and of a vigorous course of taxation, which
would enable the state to comply with its engagements. By a natural
association of ideas, they were also, with very few exceptions, in favour
of enlarging the powers of the federal government, and of enabling it to
protect the dignity and character of the nation abroad, and its interests
at home. The other party marked out for itself a more indulgent course.
They were uniformly in favour of relaxing the administration of justice, of
affording facilities for the payment of debts, or of suspending their
collection, and of remitting taxes. The same course of opinion led them to
resist every attempt to transfer from their own hands into those of
congress powers, which were by others deemed essential to the preservation
of the Union. In many of the states the party last mentioned constituted a
decided majority of the people; and in all of them it was very powerful."
Such is the language of one of our best historians in treating of the
period immediately preceding the formation of the constitution of the
=A7 287. Without supposing, that the parties, here alluded to, were
respects identified with those, of which we have already spoken, as
contemporaneous with the confederation, it is easy to perceive, what pro-
1 See also 5 Marshall's Life of Washington, 130, 131.
264 CONSTITUTION OF THE U. STATES. [BOOK III.
digious means were already in existence to oppose a new constitution of
government, which not only transferred from the states some of the highest
sovereign prerogatives, but laid prohibitions upon the exercise of other
powers, which were at that time in possession of the popular favour. The
wonder, indeed, is not, under such circumstances, that the constitution
should have encountered the most ardent opposition; but that it should ever
have been adopted at all by a majority of the states.
=A7 288. In the convention itself, which framed it, there was a great
diversity of judgment, and upon some vital subjects, an intense and
irreconcilable hostility of opinion.1 It is understood, that at several
periods, the convention were upon the point of breaking up without
accomplishing any thing.2 In the state conventions, in which the
constitution was presented for ratification, the debates were long, and
animated, and eloquent; and, imperfect as the printed collections of those
debates are, enough remains to establish the consummate ability, with which
every part of the constitution was successively attacked, and defended.3
Nor did the struggle end here. The parties, which were then formed,
continued for a long time afterwards to be known and felt in our
legislative and other public deliberations. Perhaps they have never
1 2 Pitk. Hist. 225 to 260; Dr. Franklin's Speech, 2 Amer. Museum, 534,
538; 3 Amer. Museum, 62, 66, 70, 157, 559, 560; 4 Elliot's Debates. --
Three members of the convention, Mr. Gerry of Massachusetts, and Mr. Mason
and Mr. Randolph of Virginia, declined signing the constitution; 3 Amer.
Museum, 68. See also Mr. Jay's Letter in 1787; 3 Amer. Museum, 554 to 565.
2 5 Marshall's Life of Washington, 128.
2 Pitk. Hist. 265 to 283.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 265
=A7 289. Perhaps, from the very nature and organization of our government,
being partly federal and partly national in its character, whatever
modifications in other respects parties may undergo, there will forever
continue to be a strong line of division between those, who adhere to the
state governments, and those, who adhere to the national government, in
respect to principles and policy. It was long ago remarked, that in a
contest for power, "the body of the people will always be on the side of
the state governments. This will not only result from their love of liberty
and regard to their own safety, but from other strong principles of human
nature. The state governments operate upon those familiar personal
concerns, to which the sensibility of individuals is awake. The
distribution of private justice, in a great measure belonging to them, they
must always appear to the sense of the people, as the immediate guardians
of their rights. They will of course have the strongest hold on their
attachment, respect, and obedience."1 To which it may be added, that the
state governments must naturally open an easier field for the operation of
domestic ambition, of local interests, of personal popularity, and of
flattering influence to those, who have no eager desire for a wide spread
fame, or no acquirements to justify it.
=A7 290. On the other hand, if the votaries of the national government are
fewer in number, they are likely to enlist in its favour men of ardent
ambition, comprehensive views, and powerful genius. A love of the Union; a
sense of its importance, nay, of its necessity, to secure permanence and
safety to our political liberty; a consciousness, that the powers of the
1 Gen. Hamilton's Speech in 1786; 1 Amer. Museum, 445, 447. See also The
=46ederalist, No. 17, 31, 45, 46.
266 CONSTITUTION OF THE U. STATES. [BOOK III.
tution are eminently calculated to preserve peace at home, and dignity
abroad, and to give value to property, and system and harmony to the great
interests of agriculture, commerce, and manufactures; a consciousness, too,
that the restraints, which it imposes upon the states, are the only
efficient means to preserve public and private justice, and to ensure
tranquility amidst the conflicting interests and rivalries of the states:
-- these will, doubtless, combine many sober and reflecting minds in its
support. If to this number we add those, whom the larger rewards of fame,
or emolument, or influence, connected with a wider sphere of action, may
allure to the national councils, there is much reason to presume, that the
Union will not be without resolute friends.
=A7 291. This view of the subject, on either side, (for it is the
the commentator to abstain, as much as possible, from mere private
political speculation,) is not without its consolations. If there were but
one consolidated national government, to which the people might look up for
protection and support, they might in time relax in that vigilance and
jealousy, which seem so necessary to the wholesome growth of republican
institutions. If, on the other hand, the state governments could engross
all the affections of the people, to the exclusion of the national
government, by their familiar and domestic regulations, there would be
danger, that the Union, constantly weakened by the distance and
discouragements of its functionaries, might at last become, as it was under
the confederation, a mere show, if not a mockery of sovereignty. So, that
this very division of empire may, in the end, by the blessing of
Providence, be the means of perpetuating our rights and liberties, by
keeping alive in every state at once a sincere love of its own government,
and a love of the Union,
CH. II.] OBJECTIONS TO THE CONSTITUTION. 267
and by cherishing in different minds a jealousy of each, which shall check,
as well as enlighten, public opinion.
=A7 292. The objections raised against the adoption of the
of very different natures, and, in some instances, of entirely opposite
characters. They will be round embodied in various public documents, in the
printed opinions of distinguished men, in the debates of the respective
state conventions, and in a still more authentic shape in the numerous
amendments proposed by these conventions, and accompanying their acts of
ratification. It is not easy to reduce them all into general heads; but the
most material will here be enumerated, not only to admonish us of the
difficulties of the task of framing a general government; but to prepare us
the better to understand, and expound the constitution itself.
=A7 293. Some of the objections were to the supposed defects and
in the instrument; others were to the nature and extent of the powers
conferred by it; and others again to the fundamental plan or scheme of its
(1.) It was objected in the first place, that the scheme of government
was radically wrong, because it was not a confederation of the states; but
a government over individuals.1 It was said, that the federal form, which
regards the Union, as a confederation of sovereign states, ought to have
been preserved; instead of which the convention had framed a national
government, which regards the Union, as a consolidation of states.2 This
objection was far from being universal; for many admitted, that there ought
to be a government over individuals to a certain extent, but by no means
1 The Federalist, No. 38, 39; 2 Amer. Museum, 422; Id. 543, 546.
2 The Federalist, No. 39; Id. No. 38; 2 Pitk. Hist. 270, 272.
268 CONSTITUTION OF THE U. STATES. [BOOK III.
to the extent proposed. It is obvious, that this objection, pushed to its
full extent, went to the old question of the confederation; and was but a
re-argument of the point, whether there should exist a national government
adequate to the protection and support of the Union. In its mitigated form
it was a mere question, as to the extent of powers to be confided to the
general government, and was to be classed accordingly. It was urged,
however, with no inconsiderable force and emphasis; and its supporters
predicted with confidence, that a government so organized would soon become
corrupt and tyrannical, " and absorb the legislative, executive, and
judicial powers of the several states, and produce from their ruins one
consolidated government, which, from the nature of things, would be an
iron-handed despotism."1 Uniform experience (it was said) had
demonstrated,2 "that a very extensive territory cannot be governed on the
principles of freedom otherwise, than by a confederacy of republics,
possessing all the powers of internal government, but united in the
management of their general and foreign concerns."3 Indeed, any scheme of
a general government, however guarded, appeared to some minds (which
possessed the public confidence) so entirely impracticable, by reason of
the extensive territory of the United States, that they did not hesitate to
declare their opinion, that it would be destructive of the civil liberty of
the citizens.4 And
1 Address of the Minority of Penn. convention, 2 Amer. Museum, 542, 543.
See also 2 Pitk. Hist. 272, 273.
2 2 Amer. Museum, 542.
3 See also 2 Amer. Museum, 422, 423, 424.
4 Yates and Lansing's Letter, 3 Amer. Museum, 156, 157; Mr. Jay's Letter,
1787, 3 Amer. Museum, 531, 562. -- The same objection is repeatedly taken
notice of in the Federalist, as one then beginning to be prevalent. The
=46ederalist, No. 1, 2, 9, 13, 14, 23.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 269
others of equal eminence foretold, that it would commence in a moderate
aristocracy, and end either in a monarchy, or a corrupt, oppressive
aristocracy.1 It was not denied, that, in form, the constitution was
strictly republican; for all its powers were derived directly or indirectly
from the people, and were administered by functionaries holding their
offices during pleasure, or for a limited period, or during good behaviour;
and in the serespects it bore an exact similitude to the state governments,
whose republican character had never been doubted.2
=A7 294. But the friends of the constitution met the objection by
the indispensable necessity of a form of government, like that proposed,
and demonstrating the utter imbecility of a mere confederation, without
powers acting directly upon individuals. They considered, that the
constitution was partly federal, and partly national in its character, and
distribution of powers. In its origin and establishment it was federal.3
In some of its relations it was federal; in others, national. In the senate
it was federal; in the house of representatives it was national; in the
executive it was of a compound character; in the operation of its powers it
was national; in the extent of its powers, federal. It acted on
individuals, and not on states merely. But its powers were limited, and
left a large mass of sovereignty in the states. In making amendments, it
was also of a compound character, requiring, the concurrence of more than a
majority, and less than the whole of the states. So, that on the whole
their conclusion was, that " the constitution is, in strictness, neither a
national nor a federal constitution,
1 Mr. George Mason's Letter, 2 Amer. Museum, 534, 536.
2 The Federalist, No. 39.
3 The Federalist, No. 39.
270 CONSTITUTION OF THE U. STATES. [BOOK III.
but a composition of both. In its foundation it is federal, not national;
in the sources, from which the ordinary powers of the government are drawn,
it is partly federal and partly national; in the operation of these powers
it is national, not federal; in the extent of them again it is federal, not
national; and, finally, in the authoritative mode of introducing amendments
it is neither wholly federal, nor wholly national.1
=A7 295. Time has in this, as in many other respects, assuaged the
and disproved the prophesies of the opponents of the constitution. It has
gained friends in its progress. The states still flourish under it with a
salutary and invigorating energy; and its power of direct action upon the
people has hitherto proved a common blessing, giving dignity and spirit to
the government, adequate to the exigencies of war, and preserving us from
domestic dissensions, and unreasonable burthens in times of peace.
=A7 296. If the original structure of the government was, as has
a fertile source of opposition, another objection of a more wide and
imposing nature was drawn from the nature and extent of its powers. This,
indeed, like the former, gave rise to most animated discussions, in which
reason was employed to demonstrate the mischiefs of the system, and
imagination to portray them in all the exaggerations, which fear and
prophesy could invent. Looking back, indeed, to that period with the
calmness, with which we naturally
1 The Federalist, No. 39. See also 1 Tucker's Black. App. 145, 146. -- The
whole reasoning contained in the 39th number of the Federalist (of which
the above is merely a summary) deserves a thorough examination by every
statesman. See also on the same subject, Dane's App. =A714, p. 25,
5, p. 44, &c.; 1 Tucker's Black. Comm. App. 146, &c.; The Federalist,
No. 9; 3
Dall. R. 473.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 271
review events and occurrences, which are now felt only as matters of
history, one is surprised at the futility of some of the objections, the
absurdity of others, and the overwrought colouring of almost all, which
were urged on this head against the constitution. That some of them had a
just foundation, need not be denied or concealed; for the system was human,
and the result of compromise and conciliation, in which something of the
correctness of theory was yielded to the interests or prejudices of
particular states, and something of inequality of benefit borne for the
=A7 297. The objections from different quarters were not only of
degrees and magnitude, but often of totally opposite natures. With some
persons the mass of the powers was a formidable objection; with others, the
distribution of those powers. With some the equality of vote in the senate
was exceptionable; with others the inequality of representation in the
house. With some the power of regulating the times and places of elections
was fatal; with others the power of regulating commerce by a bare majority.
With some the power of direct taxation was an intolerable grievance; with
others the power of indirect taxation by duties on in-ports. With some the
restraint of the state legislatures from laying duties upon exports and
passing ex post facto laws was incorrect; with others the lodging of the
executive power in a single magistrate.1 With some the term of office of
the senators and representatives was too long; with others the term of
office of the president was obnoxious to a like censure, as well as his
re-eligibility.2 With some the intermixture of
1 2 Amer. Museum, 534, 536, 540; Id. 427, 435; Id. 547, 555.
2 3 Amer. Museum, 62; 2 Pitk. Hist. 283, 284; The Federalist, No. 71, 72.
272 CONSTITUTION OF THE U. STATES. [BOOK III.
the legislative, executive, and judicial functions in the senate was a
mischievous departure from all ideas of regular government; with others the
non-participation of the house of representatives in the same functions was
the alarming evil. With some the powers of the president were alarming and
dangerous to liberty; with others the participation of the senate in some
of those powers. With some the powers of the judiciary were far too
extensive; with others the power to make treaties even with the consent of
two thirds of the senate. With some the power to keep up a standing army
was a sure introduction to despotism; with others the power over the
militia.1 With some the paramount authority of the constitution,
treaties, and laws of the United States was a dangerous feature; with
others the small number composing the senate and the house of
representatives was an alarming and corrupting evil.2
=A7 298. In the glowing language of those times the people were
the new government will not be a confederacy of states, as it ought, but
one consolidated government, founded upon the destruction of the several
governments of the states. The powers of congress, under the new
constitution, are complete andunlimited over the purse and the sword, and
are perfectly independent of, and supreme over the state governments, whose
intervention in these great points is entirely destroyed. By virtue of
their power of taxation, congress may command the whole, or any part of the
properties of the people. They may impose what
1 See 2 Amer. Museum, 422, &c.; Id. 435; Id. 534; Id. 540, &c. 543, &c.;
Id. 553; 3 Amer. Museum, 62; Id. 157; Id. 419, 420, &c.
2 Many of the objections are summed up in the Federalist, No. 38, with
great force and ability.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 273
imposts upon commerce, they may impose what land taxes, and taxes, excises,
and duties on all instruments, and duties on every fine article, that they
may judge proper." "Congress may monopolize every source of revenue, and
thus indirectly demolish the state governments; for without funds they
could not exist." "As congress have the control over the time of the
appointment of the president, of the senators, and of the representatives
of the United States, they may prolong their existence in office for life
by postponing the time of their election and appointment from period to
period, under various presences." "When the spirit of the people shall be
gradually broken; when the general government shall be firmly established;
and when a numerous standing army shall render opposition vain, the
congress may complete the system of despotism in renouncing all dependence
on the people, by continuing themselves and their children in the
=A7 299. A full examination of the nature and extent of the
the several powers given to the general government will more properly find
a place, when those powers come successively under review in our commentary
on the different parts of the constitution itself. The outline here
furnished may serve to show what those were, which were presented against
them, as an aggregate or mass. It is not a little remarkable, that some of
the most formidable applied with equal force to the articles of
confederation, with this difference only, that though unlimited in their
terms, they were in some instances checked by the want of power to carry
them into effect, otherwise than by requisitions
1 Address of the minority in the Pennsylvania Convention, 2 Amer. Museum,
536, 543, 544, 545. See also the Address of Virginia, 2 Pitk. History, 334.
274 CONSTITUTION OF THE U. STATES. [BOOK III.
on the states. Thus presenting, as has been justly observed, the
extraordinary phenomenon of declaring certain powers in the federal
government. absolutely necessary, and at the same time rendering them
=A7 300. Another class of objections urged against the constitution was
founded upon its deficiencies and omissions. It cannot be denied, that some
of the objections on this head were well taken, and that there was a
fitness in incorporating some provision on the subject into the fundamental
articles of a free government. There were others again, which might fairly
enough be left to the legislative discretion and to the natural influences
of the popular voice in a republican form of government. There were others
again so doubtful, both in principle and policy, that they might properly
be excluded from any system aiming at permanence in its securities as well
as its foundations.
=A7 301. Among the defects which were enumerated, none attracted more
attention, or were urged with more zeal, than the want of a distinct bill
of rights, which should recognise the fundamental principles of a free
republican government, and the right of the people to the enjoyment of
life, liberty, property, and the pursuit of happiness. It was contended,
that it was indispensable, that express provision should be made for the
trial by jury in civil cases, and in criminal cases upon a presentment by a
grand jury only; and that all criminal trials should be public, and the
party be confronted with the witnesses against him; that freedom of speech
and freedom of the press should be secured; that there should be no
national religion, and the rights of con-
1 The Federalist, No. 38.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 275
science should be inviolable; that excessive bail should not be required,
nor cruel and unusual punishments inflicted; that the people should have a
right to bear arms; that persons conscientiously scrupulous should not be
compelled to bear arms; that every person should be entitled of right to
petition for the redress of grievances; that search warrants should not be
granted without oath, nor general warrants at all; that soldiers should not
be enlisted except for a short, limited term; and not be quartered in time
of peace upon private houses without the consent of the owners; that mutiny
bills should continue in force for two years only; that causes once tried
by a jury should not be re-examinable upon appeal, otherwise than according
to the course of the common law; and that the powers not expressly
delegated to the general government should be declared to be reserved to
the states. In all these particulars the constitution was obviously
defective; and yet (it was contended) they were vital to the public
=A7 302. Besides these, there were other defects relied on, such as
of a suitable provision for a rotation in office, to prevent persons
enjoying them for life; the want of an executive council for the president;
the want of a provision limiting the duration of standing armies; the want
of a clause securing the people the enjoyment of the common law;2 the want
of security for proper elections of public officers; the want of a
prohibition of members of congress holding any public offices, and of
judges holding any other offices; and
1 Amer. Museum, 422 to 430; Id. 435, &c.; Id. 435, &c.; 536, 540, &c. 553,
&c. 557; 3 Amer. Museum, 62; Id. 157; Id. 419, 420, &c.; The Federalist,
276 CONSTITUTION OF THE U. STATES. [BOOK III.
2 Mr. Mason, 2 Amer. Museum, 534.
finally the want of drawing a clear and direct line between the powers to
be exercised by congress and by the states.1
=A7 303. Many of these objections found their way into the amendments,
which, simultaneously with the ratification, were adopted in many of the
state conventions. With the view of carrying into effect the popular will,
and also of disarming the opponents of the constitution of all reasonable
grounds of complaint, congress, at its very. first session, took into
consideration the amendments so proposed; and by a succession of
supplementary articles provided, in substance, a bill of rights, and
secured by constitutional declarations most of the other important objects
thus suggested. These articles (in all, twelve) were submitted by congress
to the states for their ratification; and ten of them were finally ratified
by the requisite number of states; and thus became incorporated into the
constitution.2 It is a curious fact, however, that although the necessity
of these amendments had been urged by the enemies of the constitution, and
denied by its friends, they encountered scarcely any other opposition in
the state legislatures, than what was given by the very party, which had
raised the objections.3 The friends of the constitution generally
supported them upon the ground of a large public policy, to quiet
jealousies, and to disarm resentments.
=A7 304. It is perhaps due to the latter to state, that they
some of the objections to the constitution existed only in imagination, and
that others derived their sole support from an erroneous construction
1 2 Amer. Museum, 426, 428; Id. 534, 537; Id. 557, 549; 3 Amer. Mus. 62;
Id. 419, 420, &c. 2 Pitk. Hist. 267, 218, 280, 282, 283, 284.
CH. II.] OBJECTIONS TO THE CONSTITUTION. 277
2 2 Pitk. Hist. 332, 334.
3 5 Marshall's life of Washington, 209, 210.
of that instrument.1 In respect to a bill of rights, it was stated, that
several of the state constitutions contained=20none in form; and yet were no=
on that account thought objectionable. That it was not true, that the
constitution of the United States did not, in the true sense of the terms,
contain a bill of rights. It was emphatically found in those clauses, which
respected political rights, the guaranty of republican forms of government,
the trial of crimes by jury, the definition of treason, the prohibition
against bills of attainder and ex post facto laws and titles of nobility,
the trial by impeachment, and the privilege of the writ of habeas corpus.
That a general bill of rights would be improper in a constitution of
limited powers, like that of the United States; and might even be
dangerous, as by containing exceptions from powers not granted it might
give rise to implications of constructive power. That in a government, like
ours, founded by the people, and managed by the people, and especially in
one of limited authority, there was no necessity of any bill of rights; for
all powers not granted were reserved; and even those granted might at will
be resumed, or altered by the people. That a bill of rights might be fit in
a monarchy, where there were struggles between the crown and the people
about prerogatives and privileges. But, here, the government is the
government of the people; all its officers are their officers; and they can
exercise no rights or powers, but such as the people commit to them. In
such a case the silence of the constitution argues nothing. The trial by
jury, the freedom of the press, and the liberty of conscience are not taken
away, because they are not secured. They
1 5 Marshall's Life of Washington, 207, 208.
278 CONSTITUTION OF THE U. STATES. [BOOK III.
remain with the people among the mass of ungranted powers, or find an
appropriate place in the laws and institutions of each particular state.1
=A7 305. Notwithstanding the force of these suggestions, candour
us to admit, that as certain fundamental rights were secured by the
constitution, there seemed to be an equal propriety in securing in like
manner others of equal value and importance. The trial by jury in criminal
cases was secured; but this clause admitted of more clear definition, and
of auxiliary provisions. The trial by jury in civil cases at common law was
as dear to the people, and afforded at least an equal protection to persons
and property. The same remark may be made of several other provisions
included in the amendments. But these will more properly fall under
consideration in our commentary upon that portion of the constitution. The
promptitude, zeal, and liberality, with which the friends of the
constitution supported these amendments, evince the good faith and
sincerity of their opinions, and increase our reverence for their labours,
as well as our sense of their wisdom and patriotism.
1 The Federalist, No. 81; Mr. Jay's Address, 3 Amer. Museum, 554, 559; 2
Amer. Museum, 422, 425.
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