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Of
Debates in Congress
Amendments
to the Constitution
Madison's
Commentary
June
8, 1789
1
Annals of Cong. 448 et seq. (J. Gales ed., 1834)
Pg.
448.
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* * *
Mr.
Madison--I am sorry to be accessary to the loss of a single
moment of time by the House. If I had been indulged in my
motion, and we had gone into a committee of the whole, I
think we might have rose and resumed the consideration of
other business before this time; that is, so far as it depended
upon what I proposed to bring forward. As that mode seems
not to give satisfaction, I will withdraw the motion, and
move you, sir, that a select committee be appointed to consider
and report such amendments as are proper for Congress to
propose to the Legislatures of the several States, conformably
to the fifth article of the constitution.
I
will state my reasons why I think it proper to propose amendments,
and state the amendments themselves, so far as I think they
ought to be proposed. If I thought I could fulfil the duty
which I owe to myself and my constituents, to let the subject
pass over in silence, I most certainly should not trespass
upon the indulgence of this House. But I cannot do this,
and am therefore compelled to beg a patient hearing to what
I have to lay before you. And I do most sincerely believe,
that if Congress will devote but one day to this subject,
so far as to satisfy the public that we do not disregard
their wishes, it will have a salutary influence on the public
councils, and prepare the way for a favorable reception
of our future measures. It appears to me that this House
is bound by every motive of prudence, not to let the first
session pass over without proposing to the State Legislatures
some things to be incorporated into the constitution, that
will render it as acceptable to the whole people of the
United States, as it has been found acceptable
Pg.
449
to
a majority of them. I wish, among other reasons why something
should be done, that those who have been friendly to the
adoption of this constitution may have the opportunity of
proving to those who were opposed to it that they were as
sincerely devoted to liberty and a Republican Government,
as those who charged them with wishing the adoption of this
constitution in order to lay the foundation of an aristocracy
or despotism. It will be a desirable thing to extinguish
from the bosom of every member of the community, any apprehensions
that there are those among his countrymen who wish to deprive
them of the liberty for which they valiantly fought and
honorably bled. And if there are amendments desired of such
a nature as will not injure the constitution, and they can
be ingrafted so as to give satisfaction to the doubting
part of our fellow-citizens, the friends of the Federal
Government will evince that spirit of deference and concession
for which they have hitherto been distinguished.
It
cannot be a secret to the gentlemen in this House, that,
notwithstanding the ratification of this system of Government
by eleven of the thirteen United States, in some cases unanimously,
in others by large majorities; yet still there is a great
number of our constituents who are dissatisfied with it;
among whom are many respectable for their talents and patriotism,
and respectable for the jealousy they have for their liberty,
which, though mistaken in its object, is laudable in its
motive. There is a great body of the people falling under
this description, who at present feel much inclined to join
their support to the cause of Federalism, if they were satisfied
on this one point. We ought not to disregard their inclination,
but, on principles of amity and moderation, conform to their
wishes, and expressly declare the great rights of mankind
secured under this constitution. The acquiescence which
our fellow-citizens show under the Government, calls upon
us for a like return of moderation. But perhaps there is
a stronger motive than this for our going into a consideration
of the subject. It is to provide those securities for liberty
which are required by a part of the community; I allude
in a particular manner to those two States that have not
thought fit to throw themselves into the bosom of the Confederacy.
It is a desirable thing, on our part as well as theirs,
that a re-union should take place as soon as possible. I
have no doubt, if we proceed to take these steps which would
be prudent and requisite at this juncture, that in a short
time we should see that disposition prevailing in those
States which have not come in, that we have seen prevailing
in those States which have embraced the constitution.
But
I will candidly acknowledge, that, over and above all these
considerations, I do conceive that the constitution may
be amended; that is to say, if all power is subject to abuse,
that then it is possible the abuse of the powers of the
General Government may be guarded
Pg.
450
against
in a more secure manner than is now done, while no one advantage
arising from the exercise of that power shall be damaged
or endangered by it. We leave in this way something to gain,
and, if we proceed with caution, nothing to lose. And in
this case it is necessary to proceed with caution; for while
we feel all these inducements to go into a revisal of the
constitution, we must feel for the constitution itself,
and make that revisal a moderate one. I should be unwilling
to see a door opened for a reconsideration of the whole
structure of the Government--for a re-consideration of the
principles and the substance of the powers given; because
I doubt, if such a door were opened, we should be very likely
to stop at that point which would be safe to the Government
itself. But I do wish to see a door opened to consider,
so far as to incorporate those provisions for the security
of rights, against which I believe no serious objection
has been made by any class of our constituents: such as
would be likely to meet with the concurrence of two-thirds
of both Houses, and the approbation of three-fourths of
the State Legislatures. I will not propose a single alteration
which I do not wish to see take place, as intrinsically
proper in itself, or proper because it is wished for by
a respectable number of my fellow-citizens; and therefore
I shall not propose a single alteration but is likely to
meet the concurrence required by the constitution. There
have been objections of various kinds made against the constitution.
Some were levelled against its structure because the President
was without a council; because the Senate, which is a legislative
body, had judicial powers in trials on impeachments; and
because the powers of that body were compounded in other
respects, in a manner that did not correspond with a particular
theory; because it grants more power than is supposed to
be necessary for every good purpose, and controls the ordinary
powers of the State Governments. I know some respectable
characters who opposed this Government on these grounds;
but I believe that the great mass of the people who opposed
it, disliked it because it did not contain effectual provisions
against encroachments on particular rights, and those safeguards
which they have been long accustomed to have interposed,
between them and the magistrate who exercises the sovereign
power; nor ought we to consider them safe, while a great
number of our fellow-citizens think these securities necessary.
It
is a fortunate thing, that the objection to the Government
has been made on the ground I stated; because it will be
practicable, on that ground, to obviate the objection, so
far as to satisfy the public mind that their liberties will
be perpetual, and this without endangering any part of the
constitution, which is considered as essential to the existence
of the Government by those who promoted its adoption.
The
amendments which have occurred to me, proper to be recommended
by Congress to the State Legislatures, are these:
*
* * *
Pg.
451
The
civil rights of none shall be abridged on account of religious
belief or worship, nor shall any national religion be established,
nor shall the full and equal rights of conscience be in
any manner, or on any pretext, infringed.
The
people shall not be deprived or abridged of their right
to speak, to write, or to publish their sentiments; and
the freedom of the press, as one of the great bulwarks of
liberty, shall be inviolable.
The
people shall not be restrained from peaceably assembling
and consulting for their common good; nor from applying
to the Legislature by petitions, or remonstrances, for redress
of their grievances.
The
right of the people to keep and bear arms shall not be infringed;
a well armed and well regulated militia being the best security
of a free country; but no person religiously scrupulous
of bearing arms shall be compelled to render military service
in person.
*
* * *
Pg.
452
No
State shall violate the equal rights of conscience, or the
freedom of the press, or the trial by jury in criminal cases.
*
* * *
Pg.
453
The
first of these amendments relates to what may be called
a bill of rights. I will own that I never considered this
provision so essential to the federal constitution, as to
make it improper to ratify it, until such an amendment was
added; at the same time, I always conceived, that in a certain
form, and to a certain extent, such a provision was neither
improper nor altogether useless. I am aware, that a great
number of the most respectable friends to the Government,
and champions for republican liberty, have thought such
a provision, not only unnecessary, but even improper; nay,
I believe some have gone so far as to think it even dangerous.
Some policy has been made use of, perhaps, by gentlemen
on both sides of the question: I acknowledge the ingenuity
of those arguments which were drawn against the constitution,
by a comparison with the policy of Great Britain, in establishing
a declaration of rights; but there is too great a difference
in the case to warrant the comparison: therefore, the arguments
drawn from that source were in a great measure inapplicable.
In the declaration or rights which that country has established,
the truth is, they have gone no farther than to raise a
barrier against the power of the Crown; the power of the
Legislature is left altogether indefinite. Although I know
whenever the great rights, the trial by jury, freedom of
the press, or liberty of conscience, come in question in
that body, the invasion of them is resisted by able advocates,
yet their Magna Charta does not contain any one provision
for the security of those rights, respecting which the people
of America are most alarmed. The freedom of the press and
rights of conscience, those choicest privileges of the people,
are unguarded in the British constitution.
But
although the case may be widely differ-
Pg.
454
ent,
and it may not be thought necessary to provide limits for
the legislative power in that country, yet a different opinion
prevails in the United States. The people of many States
have thought it necessary to raise barriers against power
in all forms and departments of Government, and I am inclined
to believe, if once bills of rights are established in all
the States as well as the federal constitution, we shall
find that although some of them are rather unimportant,
yet, upon the whole, they will have a salutary tendency.
It
may be said, in some instances, they do no more than state
the perfect equality of mankind. this, to be sure, is an
absolute truth, yet it is not absolutely necessary to be
inserted at the head of a constitution.
In
some instances they assert those rights which are exercised
by the people in forming and establishing a plan of Government.
In other instances, they specify those rights which are
retained when particular powers are given up to be exercised
by the Legislature. In other instances, they specify positive
rights, which may seem to result from the nature of the
compact. Trial by jury cannot be considered as a natural
right, but a right resulting from a social compact which
regulates the action of the community, but is as essential
to secure the liberty of the people as any one of the pre-existent
rights of nature. In other instances, they lay down dogmatic
maxims with respect to the construction of the Government;
declaring that the legislative, executive, and judicial
branches shall be kept separate and distinct. Perhaps the
best way of securing this in practice is, to provide such
checks as will prevent the encroachment of the one upon
the other.
But
whatever may be the form which the several States have adopted
in making declarations in favor of particular rights, the
great object in view is to limit and qualify the powers
of Government, by excepting out of the grant of power those
cases in which the Government ought not to act, or to act
only in a particular mode. They point these exceptions sometimes
against the abuse of the executive power, sometimes against
the legislative, and, in some cases, against the community
itself; or, in other words, against the majority in favor
of the minority.
In
our Government it is, perhaps, less necessary to guard against
the abuse in the executive department than any other; because
it is not the stronger branch of the system, but the weaker:
It therefore must be levelled against the legislative, for
it is the most powerful, and most likely to be abused, because
it is under the least control. Hence, so far as a declaration
of rights can tend to prevent the exercise of undue power,
it cannot be doubted but such declaration is proper. But
I confess that I do conceive, that in a Government modified
like this of the United States, the great danger lies rather
in the abuse of the community than in the legislative body.
The prescriptions in favor of liberty ought to be levelled
against that quarter where
Pg.
455
the
greatest danger lies, namely, that which possesses the highest
prerogative of power. But this is not found in either the
executive or legislative departments of Government, but
in the body of the people, operating by the majority against
the minority.
It
may be thought that all paper barriers against the power
of the community are too weak to be worthy of attention.
I am sensible they are not so strong as to satisfy gentlemen
of every description who have seen and examined thoroughly
the texture of such a defence; yet, as they have a tendency
to impress some degree of respect for them, to establish
the public opinion in their favor, and rouse the attention
of the whole community, it may be one means to control the
majority from those acts to which they might be otherwise
inclined.
It
has been said, by way of objection to a bill of rights,
by many respectable gentlemen out of doors, and I find opposition
on the same principles likely to be made by gentlemen on
this floor, that they are unnecessary articles of a Republican
government, upon the presumption that the people have those
rights in their own hands, and that is the proper place
for them to rest. It would be a sufficient answer to say,
that this objection lies against such provisions under the
State Governments, as well as under the General Government;
and there are, I believe, but few gentlemen who are inclined
to push their theory so far as to say that a declaration
of rights in those cases is either ineffectual or improper.
It has been said, that in the Federal Government they are
unnecessary, because the powers are enumerated, and it follows,
that all that are not granted by the constitution are retained;
that the constitution is a bill of powers, the great residuum
being the rights of the people; and, therefore, a bill of
rights cannot be so necessary as if the residuum was thrown
into the hands of the Government. I admit that these arguments
are not entirely without foundation; but they are not conclusive
to the extent which has been supposed. It is true, the powers
of the General Government are circumscribed, they are directed
to particular objects; but even if Government keeps within
those limits, it has certain discretionary powers with respect
to the means, which may admit of abuse to a certain extent,
in the same manner as the powers of the State Governments
under their constitutions may to an indefinite extent; because
in the constitution of the United States, there is a clause
granting to Congress the power to make all laws which shall
be necessary and proper for carrying into execution all
the powers vested in the Government of the United States,
or in any department or officer thereof; this enables them
to fulfil every purpose for which the Government was established.
Now, may not laws be considered necessary and proper by
Congress, for it is for them to judge of the necessity and
propriety to accomplish those special purposes which they
may have in contemplation, which laws in them-
Pg.
456
selves
are neither necessary nor proper; as well as improper laws
could be enacted by the State Legislature, for fulfilling
the more extended objects of those Governments. I will state
an instance, which I think in point, and proves that this
might be the case. The General Government has a right to
pass all laws which shall be necessary to collect its revenue;
the means for enforcing the collection are within the direction
of the Legislature: may not general warrants be considered
necessary for this purpose, as well as for some purposes
which it was supposed at the framing of their constitutions
the State Governments had in view? If there was reason for
restraining the State Governments from exercising this power,
there is like reason for restraining the Federal Government.
It
may be said, indeed it has been said, that a bill of rights
is not necessary, because the establishment of this Government
has not repeated those declarations of rights which are
added to the several State constitutions; that those rights
of the people, which had been established by the most solemn
act, could not be annihilated by a subsequent act of that
people, who meant, and declared at the head of the instrument,
that they ordained and established a new system, for the
express purpose of securing to themselves and posterity
the liberties they had gained by an arduous conflict.
I
admit the force of this observation, but I do not look upon
it to be conclusive. In the first place, it is too uncertain
ground to leave this provision upon, if a provision is at
all necessary to secure rights so important as many of those
I have mentioned are conceived to be, by the public in general,
as well as those in particular who opposed the adoption
of this constitution. Besides, some States have no bills
of rights, there are others provided with very defective
ones, and there are others whose bills of rights are not
only defective, but absolutely improper; instead of securing
some in the full extent which republican principles would
require, they limit them too much to agree with the common
ideas of liberty.
It
has been objected also against a bill of rights, that, by
enumerating particular exceptions to the grant of power,
it would disparage those rights which were not placed in
that enumeration; and it might follow, by implication, that
those rights which were not singled out, were intended to
be assigned into the hands of the General Government, and
were consequently insecure. This is one of the most plausible
arguments I have ever heard urged against the admission
of a bill of rights into this system; but, I conceive, that
it may be guarded against. I have attempted it, as gentlemen
may see by turning to the last clause of the fourth resolution.
It
has been said, that it is unnecessary to load the constitution
with this provision, because it was not found effectual
in the constitution of the particular States. It is true,
there are a few particular States in which some of the
Pg.
457
most
valuable articles have not, at one time or other, been violated;
but it does not follow but they may have, to a certain degree,
a salutary effect against the abuse of power. If they are
incorporated into the constitution, independent tribunals
of justice will consider themselves in a peculiar manner
the guardians of those rights; they will be an impenetrable
bulwark against every assumption of power in the legislative
or executive; they will be naturally led to resist every
encroachment upon rights expressly stipulated for in the
constitution by the declaration of rights. Besides this
security, there is a great probability that such a declaration
in the federal system would be enforced; because the State
Legislatures will jealously and closely watch the operations
of this Government, and be able to resist with more effect
every assumption of power, than any other power on earth
can do; and the greatest opponents to a Federal Government
admit the State Legislatures to be sure guardians of the
people's liberty. I conclude, from this view of the subject,
that it will be proper in itself, and highly politic, for
the tranquility of the public mind, and the stability of
the Government, that we should offer something, in the form
I have proposed, to be incorporated in the system of Government
as a declaration of the rights of the people.
*
* * *
Pg.
458
I
wish also, in revising the constitution, we may throw into
that section, which interdicts the abuse of certain powers
in the State Legislature, some other provisions of equal,
if not greater importance than those already made. The words,
"No State shall pass any bill of attainder, ex post facto
law," &c. were wise and proper restrictions in the constitution.
I think there is more danger of those powers being abused
by the State Governments than by the Government of the United
States. The same may be said of other powers which they
possess, if not controlled by the general principal, that
laws are unconstitutional which infringe the rights of the
community. I should therefore wish to extend this interdiction,
and add, as I have stated in the 5th resolution,
that no State shall violate the equal right of conscience,
freedom of the press, or trial by jury in criminal cases;
because it is proper that every Government should be disarmed
of powers which trench upon those particular rights. I know,
in some of the State constitutions, the power of the Government
is controlled by such a declaration; but others are not.
I cannot see any reason against obtaining even a double
security on those points; and nothing can give a more sincere
proof of the attachment of those who opposed this constitution
to these great and important rights, than to see them join
in obtaining the security I have not proposed; because it
must be admitted, on all hands, that the State Governments
are as liable to attack these invaluable privileges as the
General Government is, and therefore ought to be as cautiously
guarded against.
*
* * *
I
find, from looking into the amendments proposed by the State
conventions, that several are particularly anxious that
it should be declared in the constitution, that the powers
not therein delegated should be reserved to the several
States. Perhaps words which may define this more precisely
than the whole of the instru-
Pg.
459
ment
now does, may be considered as superfluous. I admit they
may be deemed unnecessary; but there can be no harm in making
such a declaration, if gentlemen will allow that the fact
is as stated. I am sure I understand it so, and do therefore
propose it.
There
are the points on which I wish to see a revision of the
constitution take place. How far they will accord with the
sense of this body, I cannot take upon me absolutely to
determine; but I believe every gentleman will readily admit
that nothing is in contemplation, so far as I have mentioned,
that can endanger the beauty of the Government in any one
important feature, even in the eyes of its most sanguine
admirers. I have proposed nothing that does not appear to
me as proper in itself, or eligible as patronized by a respectable
number of our fellow-citizens; and if we can make the constitution
better in the opinion of those who are opposed to it, without
weakening its frame, or abridging its usefulness, in the
judgment of those who are attached to it, we act the part
of wise and liberal men to make such alterations as shall
produce that effect.
Having
done what I conceived was my duty, in bringing before this
House the subject of amendments, and also stated such as
I wish for and approve, and offered the reasons which occurred
to me in their support, I shall content myself, for the
present, with moving "that a committee be appointed to consider
of and report such amendments as ought to be proposed by
Congress to the Legislatures of the States, to become, if
ratified by three-fourths thereof, part of the constitution
of the United States." By agreeing to this motion, the subject
may be going on in the committee, while other important
business is proceeding to a conclusion in the House. I should
advocate greater despatch in the business of amendments,
if I were not convinced of the absolute necessity there
is of pursuing the organization of the Government; because
I think we should obtain the confidence of our fellow-citizens,
in proportion as we fortify the rights of the people against
the encroachments of the Government.
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