CHAPTER 14|Document 40
Edmund Randolph, Virginia Ratifying Convention9, 17 June 1788Elliot 3:191, 464--67
Our situation is radically different from that of the people of England. What have we to do with bills of rights? Six or seven states have none. Massachusetts has declared her bill of rights as no part of her Constitution. Virginia has a bill of rights, but it is no part of her Constitution. By not saying whether it is paramount to the Constitution or not, it has left us in confusion. Is the bill of rights consistent with the Constitution? Why, then, is it not inserted in the Constitution? Does it add any thing to the Constitution? Why is it not in the Constitution? Does it except any thing from the Constitution? Why not put the exceptions in the Constitution? Does it oppose the Constitution? This will produce mischief. The judges will dispute which is paramount. Some will say, the bill of rights is paramount: others will say, that the Constitution, being subsequent in point of time, must be paramount. A bill of rights, therefore, accurately speaking, is quite useless, if not dangerous to a republic.
If it would not fatigue the house too far, I would go back to the question of reserved rights. The gentleman supposes that complete and unlimited legislation is vested in the Congress of the United States. This supposition is founded on false reasoning. What is the present situation of this state? She has possession of all rights of sovereignty, except those given to the Confederation. She must delegate powers to the confederate government. It is necessary for her public happiness. Her weakness compels her to confederate with the twelve other governments. She trusts certain powers to the general government, in order to support, protect, and defend the Union. Now, is there not a demonstrable difference between the principle of the state government and of the general government? There is not a word said, in the state government, of the powers given to it, because they are general. But in the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it?--for if its powers were to be general, an enumeration would be needless.
But the insertion of the negative restrictions has given cause of triumph, it seems, to gentlemen. They suppose that it demonstrates that Congress are to have powers by implication. I will meet them on that ground. I persuade myself that every exception here mentioned is an exception, not from general powers, but from the particular powers therein vested. To what power in the general government is the exception made respecting the importation of negroes? Not from a general power, but from a particular power expressly enumerated. This is an exception from the power given them of regulating commerce. He asks, Where is the power to which the prohibition of suspending the habeas corpus is an exception? I contend that, by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus. This is therefore an exception to that power.
The 3d restriction is, that no bill of attainder, or ex post facto law, shall be passed. This is a manifest exception to another power. We know well that attainders and ex post facto laws have always been the engines of criminal jurisprudence. This is, therefore, an exception to the criminal jurisdiction vested in that body.
. . . . .
On the subject of a bill of rights, the want of which has been complained of, I will observe that it has been sanctified by such reverend authority, that I feel some difficulty in going against it. I shall not, however, be deterred from giving my opinion on this occasion, let the consequence be what it may. At the beginning of the war, we had no certain bill of rights; for our charter cannot be considered as a bill of rights; it is nothing more than an investiture, in the hands of the Virginia citizens, of those rights which belonged to British subjects. When the British thought proper to infringe our rights, was it not necessary to mention, in our Constitution, those rights which ought to be paramount to the power of the legislature? Why is the bill of rights distinct from the Constitution? I consider bills of rights in this view--that the government should use them, when there is a departure from its fundamental principles, in order to restore them.
This is the true sense of a bill of rights. If it be consistent with the Constitution, or contain additional rights, why not put it in the Constitution? If it be repugnant to the Constitution, here will be a perpetual scene of warfare between them. The honorable gentleman has praised the bill of rights of Virginia, and called it his guardian angel, and vilified this Constitution for not having it. Give me leave to make a distinction between the representatives of the people of a particular country, who are appointed as the ordinary legislature, having no limitation to their powers, and another body arising from a compact, and with certain delineated powers. Were a bill of rights necessary in the former, it would not be in the latter; for the best security that can be in the latter is the express enumeration of its powers.
The Founders' Constitution
Volume 1, Chapter 14, Document 40
The University of Chicago Press
Elliot, Jonathan, ed. The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787. . . . 5 vols. 2d ed. 1888. Reprint. New York: Burt Franklin, n.d.
Easy to print version.