14

Rights

CHAPTER 14|Document 52

Debate in House of Representatives

[1:707--10, 714--15, 717; 13 Aug.]

The House then resolved itself into a Committee of the Whole, Mr. Boudinot in the Chair, and took the amendments under consideration. The first article ran thus: "In the introductory paragraph of the Constitution, before the words 'We the people,' add 'Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone.'"

Mr. Sherman.--I believe, Mr. Chairman, this is not the proper mode of amending the Constitution. We ought not to interweave our propositions into the work itself, because it will be destructive of the whole fabric. We might as well endeavor to mix brass, iron, and clay, as to incorporate such heterogeneous articles, the one contradictory to the other. Its absurdity will be discovered by comparing it with a law. Would any Legislature endeavor to introduce into a former act a subsequent amendment, and let them stand so connected? When an alteration is made in an act, it is done by way of supplement; the latter act always repealing the former in every specified case of difference.

Besides this, sir, it is questionable whether we have the right to propose amendments in this way. The Constitution is the act of the people, and ought to remain entire. But the amendments will be the act of the State Governments. Again, all the authority we possess is derived from that instrument; if we mean to destroy the whole, and establish a new Constitution, we remove the basis on which we mean to build. For these reasons, I will move to strike out that paragraph and substitute another.

The paragraph proposed was to the following effect:

Resolved, by the Senate and House of Representatives of the United States in Congress assembled, That the following articles be proposed as amendments to the Constitution, and when ratified by three-fourths of the State Legislatures, shall become valid to all intents and purposes, as part of the same.

Under this title, the amendments might come in nearly as stated in the report, only varying the phraseology so as to accommodate them to a supplementary form.

Mr. Madison.--Form, sir, is always of less importance than the substance; but on this occasion I admit that form is of some consequence, and it will be well for the House to pursue that which, upon reflection, shall appear to be the most eligible. Now it appears to me, that there is a neatness and propriety in incorporating the amendments into the Constitution itself; in that case, the system will remain uniform and entire; it will certainly be more simple when the amendments are interwoven into those parts to which they naturally belong, than it will if they consist of separate and distinct parts. We shall then be able to determine its meaning without references or comparison; whereas, if they are supplementary, its meaning can only be ascertained by a comparison of the two instruments, which will be a very considerable embarrassment. It will be difficult to ascertain to what parts of the instrument the amendments particularly refer; they will create unfavorable comparisons; whereas, if they are placed upon the footing here proposed, they will stand upon as good foundation as the original work. Nor is it so uncommon a thing as gentlemen suppose; systematic men frequently take up the whole law, and, with its amendments and alterations, reduce it into one act. I am not, however, very solicitous about the form, provided the business is but well completed.

Mr. Smith did not think the amendment proposed by the honorable gentlemen from Connecticut was compatible with the Constitution, which declared, that the amendments recommended by Congress, and ratified by the Legislatures of three-fourths of the several States, should be part of this Constitution; in which case it would form one complete system; but according to the idea of the amendment, the instrument is to have five or six suits of improvements. Such a mode seems more calculated to embarrass the people than any thing else, while nothing in his opinion was a juster cause of complaint than the difficulties of knowing the law, arising from Legislative obscurities that might easily be avoided. He said, that it had certainly been the custom in several of the State Governments to amend their laws by way of supplement. But South Carolina had been an instance of the contrary practice, in revising the old code; instead of making acts in addition to acts, which is always attended with perplexity, she has incorporated them, and brought them forward as a complete system, repealing the old. This is what he understood was intended to be done by the committee; the present copy of the Constitution was to be done away, and a new one substituted in its stead.

. . . . .

Mr. Livermore was clearly of opinion, that whatever amendments were made to the Constitution, they ought to stand separate from the original instrument. We have no right, said he, to alter a clause any otherwise than by a new proposition. We have well-established precedents for such a mode of procedure in the practice of the British Parliament and the State Legislatures throughout America. I do not mean, however, to assert that there has been no instance of a repeal of the whole law on enacting another; but this has generally taken place on account of the complexity of the original, with its supplements. Were we a mere Legislative body, no doubt it might be warrantable in us to pursue a similar method; but it is questionable whether it is possible for us, consistent with the oath we have taken, to attempt a repeal of the Constitution of the United States, by making a new one to substitute in its place; the reason of this is grounded on a very simple consideration. It is by virtue of the present Constitution, I presume, that we attempt to make another; now, if we proceed to the repeal of this, I cannot see upon what authority we shall erect another; if we destroy the base, the superstructure falls of course. At some future day it may be asked upon what authority we proceeded to raise and appropriate public moneys. We suppose we do it in virtue of the present Constitution; but it may be doubted whether we have a right to exercise any of its authorities while it is suspended, as it will certainly be from the time that two-thirds of both Houses have agreed to submit it to the State Legislatures; so that, unless we mean to destroy the whole Constitution, we ought to be careful how we attempt to amend it in the way proposed by the committee. From hence, I presume it will be more prudent to adopt the mode proposed by the gentleman from Connecticut, than it will be to risk the destruction of the whole by proposing amendments in the manner recommended by the committee.

Mr. Vining disliked a supplementary form, and said it was a bad reason to urge the practice of former ages, when there was a more convenient method of doing the business at hand. He had seen an act entitled an act to amend a supplement to an act entitled an act for altering part of an act entitled an act for certain purposes therein mentioned. If gentlemen were disposed to run into such jargon in amending and altering the Constitution, he could not help it; but he trusted they would adopt a plainness and simplicity of style on this and every other occasion, which should be easily understood. If the mode proposed by the gentleman from Connecticut was adopted, the system would be distorted, and like a careless written letter, have more attached to it in a postscript than was contained in the original composition.

The Constitution being a great and important work, ought all to be brought into one view, and made as intelligible as possible.

Mr. Clymer was of opinion, with the gentleman from Connecticut, that the amendments ought not to be incorporated in the body of the work, which he hoped would remain a monument to justify those who made it; by a comparison, the world would discover the perfection of the original, and the superfluity of the amendments. He made this distinction, because he did not conceive any of the amendments essential, but as they were solicited by his fellow-citizens, and for that reason they were acquiesced in by others; he therefore wished the motion for throwing them into a supplementary form might be carried.

. . . . .

Mr. Jackson.--I do not like to differ with gentlemen about form; but as so much has been said, I wish to give my opinion; it is this: that the original Constitution ought to remain inviolate, and not be patched up, from time to time, with various stuffs resembling Joseph's coat of many colors.

Some gentlemen talk of repealing the present Constitution and adopting an improved one. If we have this power, we may go on from year to year, making new ones; and in this way, we shall render the basis of the superstructure the most fluctuating thing imaginable, and the people will never know what the Constitution is. As for the alteration proposed by the committee, to prefix before "We the people," certain dogmas, I cannot agree to it; the words, as they now stand, speak as much as it is possible to speak; it is a practical recognition of the right of the people to ordain and establish Governments, and is more expressive than any other mere paper declaration.

Mr. Sherman.--If I had looked upon this question as a mere matter of form, I should not have brought it forward, or troubled the committee with such a lengthy discussion. But, sir, I contend that amendments made in the way proposed by the committee are void. No gentleman ever knew an addition and alteration introduced into an existing law, and that any part of such law was left in force; but if it was improved or altered by a supplemental act, the original retained all its validity and importance, in every case where the two were not incompatible. But if these observations alone should be thought insufficient to support my motion, I would desire gentlemen to consider the authorities upon which the two Constitutions are to stand. The original was established by the people at large, by conventions chosen by them for the express purpose. The preamble to the Constitution declares the act; but will it be a truth in ratifying the next Constitution, which is to be done perhaps by the State Legislatures, and not conventions chosen for the purpose? Will gentlemen say it is "We the people" in this case? Certainly they cannot; for, by the present Constitution, we, nor all the Legislatures in the Union together, do not possess the power of repealing it. All that is granted us by the 5th article is, that whenever we shall think it necessary, we may propose amendments to the Constitution; not that we may propose to repeal the old, and substitute a new one.

Gentlemen say, it would be convenient to have it in one instrument, that people might see the whole at once; for my part, I view no difficulty on this point. The amendments reported are a declaration of rights; the people are secure in them, whether we declare them or not; the last amendment but one provides that the three branches of Government shall each exercise its own rights. This is well secured already; and, in short, I do not see that they lessen the force of any article in the Constitution; if so, there can be little more difficulty in comprehending them whether they are combined in one, or stand distinct instruments.

. . . . .

Mr. Sherman.--The gentlemen who oppose the motion say we contend for matter of form; they think it nothing more. Now we say we contend for substance, and therefore cannot agree to amendments in this way. If they are so desirous of having the business completed, they had better sacrifice what they consider but a matter of indifference to gentlemen, to go more unanimously along with them in altering the Constitution.

The question on Mr. Sherman's motion was now put and lost.

[1:717--19; 14 Aug.]

Mr. Smith wished to transpose the words of the first amendment, as they did not satisfy his mind in the manner they stood.

Mr. Gerry said, they were not well expressed; we have it here "government being intended for the benefit of the people;" this holds up an idea that all the Governments of the earth are intended for the benefit of the people. Now, I am so far from being of this opinion, that I do not believe that one out of fifty is intended for any such purpose. I believe the establishment of most Governments is to gratify the ambition of an individual, who, by fraud, force, or accident, had made himself master of the people. If we contemplate the history of nations, ancient or modern, we shall find they originated either in fraud or force, or both. If this is demonstrable, how can we pretend to say that Governments are intended for the benefit of those who are most oppressed by them. This maxim does not appear to me to be strictly true in fact, therefore I think we ought not to insert it in the Constitution. I shall therefore propose to amend the clause, by inserting "of right," then it will stand as it ought. I do not object to the principle, sir; it is a good one, but it does not generally hold in practice.

The question on inserting the words "of right" was put, and determined in the negative.

Mr. Tucker.--I presume these propositions are brought forward under the idea of being amendments to the Constitution; but can this be esteemed an amendment of the Constitution? If I understand what is meant by the introductory paragraph, it is the preamble to the Constitution; but a preamble is no part of the Constitution. It is, to say the best, a useless amendment. For my part, I should as soon think of amending the concluding part, consisting of General Washington's letter to the President of Congress, as the preamble; but if the principle is of importance, it may be introduced into a bill of rights.

Mr. Smith read the amendments on this head, proposed by the conventions of New York, Virginia, and North Carolina, from which it appeared that these States had expressed a desire to have an amendment of this kind.

Mr. Tucker replied that the words "We the people do ordain and establish this Constitution for the United States of America," were a declaration of their action; this being performed, Congress have nothing to do with it. But if it was necessary to retain the principle, it might come in at some other place.

Mr. Sumter thought this was not a proper place to introduce any general principle; perhaps, in going through with the amendments, something might be proposed subversive of what was there declared; wherefore he wished the committee would pass over the preamble until they had gone through all the amendments, and then, if alterations were necessary, they could be accommodated to what had taken place in the body of the Constitution.

Mr. Livermore was not concerned about the preamble; he did not care what kind it was agreed to form in the committee; because when it got before the House, it would be undone if one member more than one-third of the whole opposed it.

Mr. Page thought the preamble no part of the Constitution; but if it was, it stood in no need of amendment; the words "We, the people," had the neatness and simplicity, while its expression was the most forcible of any he had ever seen prefixed to any Constitution. He did not doubt the truth of the proposition brought forward by the committee, but he doubted its necessity in this place.

Mr. Madison.--If it be a truth, and so self-evident that it cannot be denied--if it be recognised, as is the fact in many of the State Constitutions--and if it be desired by three important States to be added to this--I think they must collectively offer a strong inducement to the mind desirous of promoting harmony to acquiesce with the report; at least some strong arguments should be brought forward to show the reason why it is improper.

My worthy colleague says the original expression is neat and simple; that loading it with more words may destroy the beauty of the sentence; and others say it is unnecessary, as the paragraph is complete without it. Be it so in their opinion; yet still it appears important in the estimation of three States that this solemn truth should be inserted in the Constitution. For my part, sir, I do not think the association of ideas anywise unnatural; it reads very well in this place; so much so, that I think gentlemen, who admit it should come in somewhere else, will be puzzled to find a better place.

Mr. Sherman thought they ought not to come in in this place. The people of the United States have given their reasons for doing a certain act. Here we propose to come in and give them a right to do what they did on motives which appeared to them sufficient to warrant their determination; to let them know that they had a right to exercise a natural and inherent privilege, which they have asserted in a solemn ordination and establishment of the Constitution.

Now, if this right is indefeasible, and the people have recognised it in practice, the truth is better asserted than it can be by any words whatever. The words "We the people," in the original Constitution, are as copious and expressive as possible; any addition will only drag out the sentence without illuminating it; for these reasons it may be hoped the committee will reject the proposed amendment.

The question on the first paragraph of the report was put and carried in the affirmative, twenty-seven to twenty-three.

[1:745--47; 15 Aug.]

Mr. Burke.--I do not mean to insist particularly upon this amendment [affirming the right of the people to give instructions to their representatives]; but I am very well satisfied that those that are reported and likely to be adopted by this House are very far from giving satisfaction to our constituents; they are not those solid and substantial amendments which the people expect; they are little better than whipsyllabub, frothy and full of wind, formed only to please the palate; or they are like a tub thrown out to a whale, to secure the freight of the ship and its peaceable voyage. In my judgment, the people will not be gratified by the mode we have pursued in bringing them forward. There was a committee of eleven appointed; and out of the number I think there were five who were members of the convention that formed the Constitution. Such gentlemen, having already given their opinion with respect to the perfection of the work, may be thought improper agents to bring forward amendments. Upon the whole, I think it will be found that we have done nothing but lose our time, and that it will be better to drop the subject now, and proceed to the organization of the Government.

. . . . .

Mr. Madison was unwilling to take up any more of the time of the committee; but, on the other hand, he was not willing to be silent after the charges that had been brought against the committee, and the gentleman who introduced the amendments, by the honorable members on each side of him, (Messrs. Sumter and Burke.) Those gentlemen say that we are precipitating the business, and insinuate that we are not acting with candor. I appeal to the gentlemen who have heard the voice of their country, to those who have attended the debates of the State conventions, whether the amendments now proposed are not those most strenuously required by the opponents of the Constitution? It was wished that some security should be given for those great and essential rights which they have been taught to believe were in danger. I concurred, in the convention of Virginia, with those gentlemen, so far as to agree to a declaration of those rights which corresponded with my own judgment, and the other alterations which I had the honor to bring forward before the present Congress. I appeal to the gentlemen on this floor who are desirous of amending the Constitution, whether those proposed are not compatible with what are required by our constituents? Have not the people been told that the rights of conscience, the freedom of speech, the liberty of the press, and trial by jury, were in jeopardy? that they ought not to adopt the Constitution until those important rights were secured to them?

But while I approve of these amendments, I should oppose the consideration at this time of such as are likely to change the principles of the Government, or that are of a doubtful nature; because I apprehend there is little prospect of obtaining the consent of two-thirds of both Houses of Congress, and three-fourths of the State Legislatures, to ratify propositions of this kind; therefore, as a friend to what is attainable, I would limit it to the plain, simple, and important security that has been required. If I were inclined to make no alteration in the Constitution, I would bring forward such amendments as were of a dubious cast, in order to have the whole rejected.

Mr. Burke never entertained an idea of charging gentlemen with the want of candor; but he would appeal to any man of sense and candor, whether the amendments contained in the report were any thing like the amendments required by the States of New York, Virginia, New Hampshire, and Carolina; and having these amendments in his hand, he turned to them to show the difference, concluding that all the important amendments were omitted in the report.

[1:773--76; 22 Aug.]

Mr. Tucker moved the following as a proposition to be added to the same: "The Congress shall never impose direct taxes but where the moneys arising from the duties, imposts, and excise, are insufficient for the public exigencies, nor then until Congress shall have made a requisition upon the States to assess, levy, and pay their respective proportions of such requisitions. And in case any State shall neglect or refuse to pay its proportion, pursuant to such requisition, then Congress may assess and levy such State's proportion, together with the interest thereon, at the rate of six per cent. per annum, from the time of payment prescribed by such requisition."

Mr. Page said, that he hoped every amendment to the Constitution would be considered separately in the manner this was proposed, but he wished them considered fully; it ought to have been referred to the committee of eleven, reported upon, and then to the Committee of the Whole. This was the manner in which the House had decided upon all those already agreed to; and this ought to be the manner in which this should be decided; he should be sorry to delay what was so nearly completed on any account. The House has but little time to sit, and the subject has to go before the Senate, therefore it requires of us all the expedition we can possibly give it. I would prefer putting a finishing hand to what has been already agreed to, and refer this to the Committee of eleven for their consideration.

Mr. Tucker.--This proposition was referred to the committee, along with many others in the gross, but the Committee of eleven declined reporting upon it. I understood it to be in any gentleman's power to bring it forward when he thought proper, and it was under this influence that I proposed it, nor do I conceive it to be an improper time. The House is engaged in the discussion of amendments; they have made some progress, and I wish them to go on and complete what they have begun. This may be added without inconvenience, if it meet the sense of the House; but if it does not, I wish my constituents to be acquainted with our decision on the whole subject, and therefore hope it may be decided upon at this time.

Mr. Jackson.--The gentleman has an undoubted right to bring forward the proposition; but I differ greatly with respect to its propriety. I hope, sir, the experience we have had will be sufficient to prevent us from ever agreeing to a relinquishment of such an essential power. The requisitions of the former Congress were ineffectual to obtain supplies; they remain to this day neglected by several States. If a sense of common danger, if war, and that a war of the noblest kind, a contest for liberty, were not sufficient to stimulate the States to a prompt compliance, when the means were abundant, by reason of the immense quantities of paper medium, can we ever expect an acquiescence to a requisition in future, when the only stimulus is honesty, to enable the Confederation to discharge the debts of the late war?

But suppose requisitions were likely to be, in some degree, complied with, (which, by the way, I never can admit.) in every case where a State had neglected or refused to furnish its quota, Congress must come in, assess, and collect it. Now, in every such case, I venture to affirm that jealousies would be excited, discontent would prevail, and civil wars break out. What less can gentlemen picture to themselves, when a Government has refused to perform its obligations, but that it will support its measures by the point of the bayonet?

Without the power of raising money to defray the expenses of Government, how are we to be secure against foreign invasion? What! can a Government exert itself, with its sinews torn from it? We can expect neither strength nor exertion; and without these are acquired and preserved, our union will not be lasting; we shall be rent asunder by intestine commotion, or exterior assault; and when that period arrives, we may bid adieu to all the blessings we have purchased at the price of our fortunes, and the blood of our worthiest heroes.

Mr. Livermore thought this an amendment of more importance than any yet obtained; that it was recommended by five or six States, and therefore ought to engage their most serious consideration. It had been supposed that the United States would not attempt to levy direct taxes; but this was certainly a mistake. He believed nothing but the difficulty of managing the subject would deter them. The modes of levying and collecting taxes pursued by the several States are so various, that it is an insuperable obstacle to an attempt by the General Government.

He was sensible that the requisitions of the former Congress had not been fully complied with, and the defect of the Confederation was, that the Government had no powers to enforce a compliance. The proposition now under consideration obviated that difficulty. Suppose one or two States refused to comply, certainly the force of the others could compel them, and that is all that ought to be required; because it is not to be supposed that a majority of the States will refuse, as such an opposition must destroy the Union. He hoped the States would be left to furnish their quotas in a manner the most easy to themselves, as was requested by more than half of the present Union.

Unless something more effectual was done to improve the Constitution, he knew his constituents would be dissatisfied. As to the amendments already agreed to, they would not value them more than a pinch of snuff; they went to secure rights never in danger.

Mr. Page wished the proposition might be recommitted, for he was certain there was neither time nor inclination to add it to those already agreed upon.

He observed that the warmest friends to amendments differ in opinion on this subject; many of them have ceased urging it, while others have become strenuous advocates for the reverse. The most judicious and discerning men now declare that the Government ought never to part with this power. For his part, experience had convinced him that no reliance was to be had on requisitions, when the States had treated them with contempt in the hour of danger, and had abundant means of compliance. The public credit stood at this moment in the utmost need of support, and he could not consent to throw down one of its strongest props. He thought there was no danger of an abuse of this power, for the Government would not have recourse to it while the Treasury could be supplied from any other source; and when they did, they would be studious of adapting their law to the convenience of the States. He hoped, when the gentleman returned home to New Hampshire, his constituents would give him credit for his exertions, and be better satisfied with the amendments than he now supposed them to be.

Mr. Sumter felt himself so sensibly impressed with the importance of the subject, that if he apprehended the proposition would not have a fair discussion at this time, he would second the motion of commitment, and had not a doubt but the House would acquiesce in it.

Gentlemen had said that the States had this business much at heart. Yes, he would venture to say more, that if the power was not relinquished by the General Government, the State Governments would be annihilated. If every resource is taken from them, what remains in the power of the States for their support, or for the extinguishment of their domestic debt?

Mr. Gerry thought if the proposition was referred, that it ought to go to a Committee of the Whole, for he wished it to have a full and candid discussion. He would have something left in the power of every State to support itself, independent of the United States, and therefore was not satisfied with the amendment proposed. The Constitution, in its original state, gives to Congress the power of levying and collecting taxes, duties, imposts, and excise. The fault here is, that every thing is relinquished to the General Government. Now, the amendment gives the same power, with qualification, that there shall have been a previous requisition. This by no means came up to his idea; he thought that some particular revenue ought to be secured to the States, so as to enable them to support themselves.

He apprehended, when this clause in the Constitution was under the consideration of the several State conventions, they would not so readily have ratified it, if they had considered it more fully in the point of view in which he had now placed it; but if they had ratified it, it would have been under a conviction that Congress would admit such amendments as were necessary to the existence of the State Governments. At present, the States are divested of every means to support themselves. If they discover a new source of revenue, after Congress shall have diverted all the old ones into their treasury, the rapacity of the General Government can take that from them also. The States can have recourse to no tax, duty, impost, or excise, but what may be taken from them whenever the Congress shall be so disposed; and yet gentlemen must see that the annihilation of the State Governments will be followed by the ruin of this.

Now, what is the consequence of the amendment? Either the States will or will not comply with the requisitions. If they comply, they voluntarily surrender their means of support; if they refuse, the arms of Congress are raised to compel them, which, in all probability, may lay the foundation for civil war. What umbrage must it give every individual to have two sets of collectors and tax-gatherers surrounding his doors; the people then soured, and a direct refusal by the Legislature, will be the occasion of perpetual discord. He wished to alter this proposition in such a manner as to secure the support of the Federal Government and the State Governments likewise, and therefore wished the amendment referred to a Committee of the whole House.

The Founders' Constitution
Volume 1, Chapter 14, Document 52
http://press-pubs.uchicago.edu/founders/documents/v1ch14s52.html
The University of Chicago Press

Annals of Congress. The Debates and Proceedings in the Congress of the United States. "History of Congress." 42 vols. Washington, D.C.: Gales & Seaton, 1834--56.

Easy to print version.