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 4th 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 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.
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 1 for every 30,000 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 minor 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 control 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, etc.," 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 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 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 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 controversy 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 other words may define this more precisely than the whole of the instrument now does. 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 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 dispatch 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.
James Madison - 8 Jun 1789 - as presented to the House of Representatives. |
