Miscellaneous Objections

I have answered most of the objections to this Constitution. A few remain that fit no earlier heading. The weightiest is that the plan contains no bill of rights. Several state constitutions lack one too, New York among them. Yet those here who most admire our own constitution are the fiercest partisans of a bill of rights. They defend that zeal two ways. New York secures particular rights in the body of its constitution. It also adopts Great Britain’s common and statute law, which secures many more.

To the first: the plan holds many such provisions beyond those on structure. Impeachment reaches only removal and disqualification; the party convicted still faces ordinary trial. Habeas corpus may be suspended only in rebellion or invasion, if public safety requires. No bill of attainder or ex post facto law may pass. No title of nobility may be granted; no officer may take a present, salary, office, or title from a foreign state without Congress’s consent. All crimes but impeachment are tried by jury where committed, or where Congress directs. Treason is only levying war against the United States or aiding their enemies; conviction needs two witnesses to one overt act or open confession. Congress sets its punishment, but no attainder may corrupt blood or forfeit beyond the offender’s life.

These may equal anything in our state constitution, which lacks habeas corpus and bans on ex post facto laws and titles of nobility. Those may guard liberty and republicanism better than anything it contains. Punishing men for acts that broke no law when done has in every age been a favorite instrument of tyranny. So has imprisonment at will. Blackstone thought secret imprisonment the more dangerous engine, since the victim’s sufferings go unnoticed. He praised habeas corpus as the bulwark of the British Constitution.

Barring titles of nobility is the cornerstone of republican government. While such titles are excluded, there is no serious danger of a government other than the people’s. To the second allegation: the common and statute law stay subject to whatever changes the legislature makes. Ordinary legislation may repeal them at any moment; they have no constitutional standing. That declaration recognized the ancient law and removed doubts raised by the Revolution. It is no declaration of rights, which under our constitutions must limit the government itself.

Bills of rights began as bargains between kings and their subjects, reservations of rights not surrendered to the crown. Such was Magna Charta, wrung from King John by the barons sword in hand. In that sense they cannot apply to constitutions founded on the power of the people. Here the people surrender nothing; retaining everything, they need no reservations. The Constitution opens with “We, the People of the United States.” That recognizes popular rights better than volumes of aphorisms in our state bills of rights.

A minute catalogue of rights fits a constitution over private concerns better than one over the nation’s general political interests. If the outcry were just, our own state constitution would deserve the same reproach. Both contain all their objects require. I go further: such bills would be not merely unnecessary but dangerous. They state exceptions to powers never granted, and so give a pretext for claiming more. Why forbid restraining the press, when no power to restrain it is given? Men disposed to usurp could argue that the clause implies a power to regulate the press. So an unwise zeal for bills of rights feeds the doctrine of constructive powers.

Our own state constitution says nothing of the liberty of the press, and what other state constitutions say amounts to nothing. Who can define that liberty in words that leave no room for evasion? I hold it impossible. Its security must rest on public opinion and the spirit of the people and the government, the only solid basis of our rights.

The Constitution is itself, in every rational sense, a bill of rights. Each state’s constitution is its own, and this plan, if adopted, will be the Union’s. Is one object of a bill of rights to declare the political privileges of citizens in the government’s structure? The plan does that fully, with safeguards no state constitution has. Is another to define immunities and modes of proceeding in private concerns? It does that too. To say there is none is absurd; one may claim only that it does not go far enough.

Such large powers are improper, opponents say, because the seat of government must be too remote for the people to watch their representatives. If that proves anything, it proves we should have no general government at all, since the Union’s admitted powers need a body under full control. Most arguments from distance rest on a trick of the imagination. How do the people of Montgomery County judge their state representatives? Not by personal observation, but through intelligent men they trust, who read public measures, the prints, and letters from the representatives.

The same sources serve the people for their national representatives, and distance is offset by the vigilance of the state governments. Each state’s executive and legislature will be sentinels over the national administration, keeping a regular system of intelligence and telling the people what they learn. They will then be better informed of their national representatives than of their state ones. Citizens near the seat share the same interest in general liberty, and will sound the alarm. The papers carry word to the remotest parts of the Union.

The least plausible objection is drawn from the want of any provision about the debts owed to the United States. It has been called a silent surrender of those debts, a scheme to shield public defaulters. The charge is groundless, born of extreme ignorance or extreme dishonesty. By common sense and settled political law, states lose no rights and shed no obligations when the form of their civil government changes.

The last objection of any consequence turns on expense. Even a considerable increase of expense would be no weight against the plan. Men of sense in all parties now agree, with few exceptions, on three points. First, the Union cannot be preserved under the present system, or without radical change. Second, new and extensive powers must go to the national head. Third, these need a different organization of the federal government, a single body being unsafe for such ample authorities. Conceding that, expense must be given up; the foundation cannot be safely narrowed.

The two branches of the legislature will at first hold only sixty-five persons, the number Congress may hold under the present Confederation. It is to grow with the population; fewer would be unsafe now, and this many would ill represent a larger people. Where, then, is the dreaded increase of expense to come from? One source named is a multiplication of offices. But the chief departments under the present government are the same the new one requires, and their officers are indispensable under any system.

Revenue collectors will much increase the number of federal officers, but not the expense. In most cases it is only an exchange of state officers for national ones. There is no reason to think the national officers more numerous or better paid. The chief added item is the pay of the federal judges. I do not add the President; a president of Congress already costs nearly as much. That pay is extra, but on no reasonable plan can it come to a sum of consequence.

Much of what now keeps Congress sitting all year will fall to the President. Even foreign negotiations will be his, on principles concerted with the Senate and subject to their concurrence. Part of the year will then serve both houses: a fourth for the House, perhaps, and a third or half for the Senate. Until the House is greatly enlarged, that shorter session saves a considerable sum.

The nation’s business has occupied the state legislatures too, since Congress made requisitions the states had to provide for. Their sessions ran far beyond what local business required, more than half the time often spent on national matters. Above two thousand state legislators have done what the new system gives first to sixty-five, and later perhaps to a fourth or fifth of that number. Congress will now do the nation’s business itself, leaving the states shorter sessions. That saving alone may equal any added expense.

The result is threefold. The sources of added expense under the proposed Constitution are far fewer than has been imagined. They are offset by considerable savings. It is doubtful which way the scale finally tips, yet certain that a cheaper government would be unequal to the purposes of the Union.