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 further 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 Carta 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 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 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 preexistent 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, 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 leveled 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 leveled 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 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 themselves are neither necessary nor 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, indeed, 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 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........[continued] |
