This
installment of Patriots’ Corner belongs to James Madison, “Father of the
Constitution” in concurrence with the Study Page, which is devoted to a study
of the United States Constitution. What
better time for the electorate of this country to reflect on the beginnings of
the most successful government ever conceived by man? Deb V
“Father of the Constitution,”Madison protested that the document was not “the off- spring of a single brain,” but “the work of many heads and many hands.” |
James
Madison
Speech
for Amendments to the Constitution - 1789
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 on 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 5th
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 subjects, 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, as will render it as
acceptable to the whole people of the United States, as it has been found
acceptable 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 depotism. 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, their 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
as present feel much inclined to join their support to the cause of federalism,
if they were satisfied in 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 shew 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 who 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 those steps which would be
prudent and requisite at this juncture, that in a short time we should see that
disposition prevailing in those states that are not come in, that we have seen
prevailing [in] those states which are.
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 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 have 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 re-consideration 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 was opened, if 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 gainst 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 controuls 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 provison against encroachments on particular
rights, and those safeguards which they have been long accustomed to have
interposed between them and the magistrate who exercised the sovereign
power: nor ought we to consider them
safe, while a great number of our fellow citizens think these securities
necessary. It has been a fortunate
thing that the objection to the government has been made on the gound 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:
First. That there be prefixed to the constitution a
declaration—That all power is orginally vested in, and consequently derived
from the people. That government is
instituted, and ought to be exercised for the benefit of the people; which consists
in the enjoyment of life and liberty, with the right of acquiring and using
property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable,
unalienable, and indefeasible right to reform or change their government,
whenever it be found adverse or inadequate to the purposes of its institution.
Secondly. That in article 2st. section 2, clause 3,
these words be struck out, to wit, “The number of representatives shall not
exceed one for every thirty thousand, but each state shall have at least one representative,
and until such enumeration shall be made.”
And that in place thereof be inserted these words, to wit, “After the
first actual enumeration, there shall be one representative for every thirty
thousand, until the number amount to
after which the proportion shall be so regulated by congress, that the
number shall never be less than nor more than but each state shall after the first enumeration, have at least
two representatives; and prior thereto.”
Thirdly. That in article 2st, section 6, clause 1,
there be added to the end of the first sentence, these words, to wit, “But no
law varying the compensation last ascertained shall operate before the next
ensuing election of representatives.”
Fourthly. That in article 2st, section9, between
clauses 3 and 4, be inserted these clauses, to wit, 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 by 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. No soldier shall in time of peace be
quartered in any house without the consent of the owner; nor at any time, but
in a manner warranted by law. No person
shall be subject, except in cases of impeachment, to more than one punishment,
or one trial for the same office; nor shall be compelled to be a witness
against himself; nor be deprived of life, liberty, or property without due
process of law; nor be obliged to relinquish his property, where it may be
necessary for public use, without a just compensation. Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted. The rights of the people to be secured in
their persons, their houses, their papers, and their other property from all
unreasonable searches and seizures, shall not be violated by warrants issued
without probable cause, supported by oath or affirmation, or not particularly
describing the places to be searched, or the persons or things to be
seized. In all criminal prosecutions,
the accused shall enjoy the right to a speedy and public trial, to be informed
of the cause and nature of the accusation, to be confronted with his accusers,
and the witnesses against him; to have a compulsory process for obtaining
witnesses in his favor; and to have the assistance of counsel for his defense. The exceptions here or elsewhere in the
constitution, made in favor of particular rights, shall not be so construed as
to diminish the just importance of other rights retained by the people; or as
to enlarge the powers delegated by the constitution; but either as actual
limitations of such powers, or as inserted merely for greater caution.
Fifthly. That in article 2st, section 10, between
clauses 1 and 2, be inserted this clause, to wit: No state shall violate the equal
rights of conscience, or the freedom of the press, or the trial by jury in
criminal cases.
Sixthly. That article 3d, section 2, be annexed to
the end of clause 2d, these words to wit:
but no appeal to such court shall be allowed where the value in
controversy shall not amount to___dollars:
nor shall any fact triable by jury, according to the course of common
law, be otherwise re-examinable than may consist with the principles of
common
law.
Seventhly. That in article 3d, section 2, the third clause
be struck out, and in its place be inserted the classes following, to wit: The trial of all crimes (except in cases of
impeachments, and cases arising in the land or naval forces, or the militia
when on actual
service
in time of war or public danger) shall be by an impartial jury of freeholders
of the vicinage, with the requisite of unanimity for conviction, of the right
of challenge, and other accustomed requisites; and in all crimes punishable
with loss of life or member, presentment or indictment by a grand jury, shall
be an essential preliminary, provided that in cases of crimes committed within
any county which may be in possession of an enemy, or in which a general
insurrection may prevail, the trial may by law be authorised in some other county
of the same state, as near as may be to the seat of the offence. In cases of crimes committed not within any
county, the trial may by law be in such county as the laws shall have
prescribed. In suits at common law,
between man and man, the trial by jury, as one of the best securities to the
rights of the people, ought to remain inviolate.
Eighthly. That immediately after article 6th,
be inserted, as article 7th, the clauses following, to wit: The powers delegated by this constitution,
are appropriated to the departments to which they are respectively
distributed: so that the legislative
department shall never exercise the powers vested in the executive or judicial;
nor the executive exercise the powers vested in the legislative or judicial;
nor the judicial exercise the powers vested in the legislative or executive
departments. The powers not delegated
by this constitution, nor prohibited by it to the states, are reserved to the
States respectively.
Ninthly. That article 7th, be numbered as
article 8th. 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 of 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. Altho’ I know
whenever the great rights, the trial by jury, freedom of the press, or liberty
of conscience, came 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 altho’
the case may be widely different, 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 the altho’ 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 the 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
controul; 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 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 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 mean to controul 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
provisons 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 them who are to judge of the
necessity and propriety to accomplish those special purposes which they may
have in contemplation, which laws in themselves are neither necessary or
proper; as well as improper laws could be enacted by the state legislatures,
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, because it
has been said, that a bill of rights is not necessary, because the
establishment of this government has not repealed 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 the
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. Beside
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 may be guarded against. I have attempted it, as gentlemen may see by turning to the last
clause of the 4th resolution.
It has been said, that it is necessary 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 most valuable articles have
not, at one time or other, been violated; but does it 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. Beside 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 operation
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.
In
the next place I wish to see that part of the constitution revised which
declares, that the number of representatives shall not exceed the proportion of
one for every thirty thousand persons, and allows one representative to every
state which rates below that proportion.
If we attend to the discussion of this subject, which has taken place in
the state conventions, and even in the opinion of the friends to the
constitution, an alteration here is proper.
It is the sense of the people of America, that the number of representatives
ought to be increased, but particularly that it should not be left in the
discretion of the government to diminish them, below that proportion which
certainly is in the power of the legislature as the constitution now stands;
and they may, as the population of the country increases, increase the house of
representatives to a very unwieldy degree.
I confess I always thought this part of the constitution defective,
though not dangerous; and that it ought to be particularly attended to whenever
congress should go into the consideration of amendments.
There
are several lesser cases enumerated in my proposition, in which I wish also to
see some alteration take place. That
article which leaves it in the power of the legislature to ascertain its own
emolument is one to which I allude. I do
not believe this is a power which, in the ordinary course of government, is
likely to be abused, perhaps of all the powers granted, it is least likely to
abuse; but there is a seeming impropriety in leaving any set of men without
controul to put their hand into the public coffers, to take out money to put in
their pockets; there is a seeming indecorum in such power, which leads me to
propose a change. We have a guide to
this alteration in several of the amendments which the different conventions
have proposed. I have gone therefore so
far as to fix it, that no law, varying the compensation, shall operate until
there is a change in the legislature; in which case it cannot be for the
particular benefit of those who are concerned in determining the value of the
service.
I
wish also, in revising the constitution, we may throw into that section, which
interdicts the abuse of certain powers in the state legislatures, 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 controuled by the
general principle, 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 controuled 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
now 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
think it will be proper, with respect to the judiciary powers, to satisfy the
public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the
distance they would be dragged to obtain justice in the supreme court of the
United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal
shall be made unless the matter in controvers amounts to a particular sum: This, with the regulations respecting jury
trials in criminal cases, and suits at common law, it is to be hoped will quiet
and reconcile the minds of the people to that part of the constitution.
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 instrument 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.
These
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 gentlemen 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 patronised 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 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 dispatch in the
business of amendments, if I was 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.
Cong.
Register, I, 423-37 (also reported in Gazette of the US., 10 and 13 June 1789).
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