Miscellaneous Objections

In reviewing this Constitution, I have answered most of the objections raised against it. A few remain that did not fit neatly under any earlier heading, or were passed over where they belonged. I take them up now. Since this discussion has already run to great length, I will gather all my remarks on these scattered points into this single paper.

The weightiest of the remaining objections is that the convention’s plan contains no bill of rights. One answer already given is that the constitutions of several states are in the same position, and I add that New York is among them. Yet the opponents of the new system here, who profess boundless admiration for our own state constitution, are among the fiercest partisans of a bill of rights. To defend that zeal they allege two things. First, that although New York’s constitution has no bill of rights prefixed to it, the body of the document contains various provisions in favor of particular rights, which amount, in substance, to the same thing. Second, that our constitution adopts the common and statute law of Great Britain in full, securing many other rights not expressly stated.

To the first I answer that the proposed Constitution, just like our state constitution, contains a number of such provisions. Setting aside those that concern the structure of the government, we find these. Judgment in cases of impeachment cannot reach beyond removal from office and disqualification from future office, though the convicted party still remains subject to ordinary indictment and trial. The writ of habeas corpus may not be suspended, except in cases of rebellion or invasion when public safety requires it. No bill of attainder or ex post facto law may be passed. No title of nobility may be granted; and no officeholder may, without the consent of Congress, accept any present, emolument, office, or title of any kind from any king, prince, or foreign state. The protections continue. The trial of all crimes except impeachment must be by jury, held in the state where the crime was committed; and for crimes not committed within any state, at whatever place or places Congress directs by law. Treason is defined narrowly, as levying war against the United States or aiding their enemies, and no one may be convicted of it except on the testimony of two witnesses to the same overt act, or on confession in open court. And while Congress may set the punishment for treason, no attainder of treason may work corruption of blood, or forfeiture beyond the life of the person attainted.

It is fair to ask whether these are not, on the whole, of equal importance with anything found in our state constitution. Our own constitution has no counterpart to the establishment of habeas corpus, the ban on ex post facto laws, or the ban on titles of nobility. These are perhaps greater securities to liberty and republicanism than anything it contains. Creating crimes after the fact, punishing men for acts that broke no law when they were done, and arbitrary imprisonment have in every age been the favorite and most formidable instruments of tyranny.

William Blackstone’s observations on arbitrary imprisonment deserve repeating. To take a man’s life or seize his estate by force, without accusation or trial, he writes, would be so gross and notorious an act of despotism that it would at once alarm the whole nation. But confining a person by secretly hurrying him to jail, where his sufferings go unknown or forgotten, is less public and less striking, and therefore a more dangerous engine of arbitrary government. As the remedy for this evil, Blackstone is everywhere emphatic in praising the habeas corpus act, which he calls the bulwark of the British Constitution.

Nothing need be added about the importance of barring titles of nobility. This may truly be called the cornerstone of republican government. For so long as such titles are excluded, there can never be serious danger that the government will become anything other than the government of the people.

To the second allegation, the supposed establishment of the common and statute law by the Constitution, I answer that they are expressly made subject to such changes as the legislature may from time to time make. They may therefore be repealed at any moment by the ordinary legislative power, and so have no constitutional standing. The only purpose of the declaration was to recognize the ancient law, and to remove doubts that the Revolution might have raised. It cannot be considered part of a declaration of rights, which under our constitutions must be meant as limitations on the power of the government itself.

It has often been truly remarked that bills of rights are, in their origin, bargains between kings and their subjects. They are cuts in the prince’s prerogative in favor of the subject’s privilege, reservations of rights not surrendered to the crown. Such was Magna Charta, wrung from King John by the barons sword in hand. Such were the later confirmations of that charter, and the Petition of Right granted by Charles I. Such, too, was the Declaration of Right presented to the Prince of Orange in 1688, and later cast into the statute called the Bill of Rights. Plainly, then, in their original sense these instruments have no application to constitutions founded openly on the power of the people and carried out by their own representatives and servants. Here the people surrender nothing; and because they retain everything, they have no need of particular reservations.

Consider the Constitution’s own opening: “We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” That is a better recognition of popular rights than volumes of the aphorisms that fill several of our state bills of rights, sayings that would suit a treatise on ethics far better than a constitution of government.

A minute catalogue of particular rights fits a constitution like this one far less than it fits one that governs every kind of personal and private concern. This plan is meant only to regulate the general political interests of the nation. If the loud outcry against the convention’s plan on this score were well founded, no terms of reproach would be too harsh for our own state constitution. The truth is that both documents contain everything that, in relation to their objects, could reasonably be desired.

I go further, and affirm that bills of rights, in the sense and to the degree for which they are demanded, would be not only unnecessary in the proposed Constitution but even dangerous. They would set out exceptions to powers that were never granted; and on that very account would furnish a plausible pretext for claiming more power than was granted. Why declare that things shall not be done, when there is no power to do them? Why, for instance, say that the liberty of the press shall not be restrained, when no power is given by which any restriction could be imposed?

I will not argue that such a clause would actually confer a regulating power. But it would clearly give men disposed to usurp a plausible pretense for claiming one. They might argue, with a show of reason, that the Constitution ought not to be charged with the absurdity of guarding against the abuse of an authority that was never granted. And they might argue that the very provision against restraining the press implies that a power to regulate it was meant to be lodged in the national government. This shows the kind of handle that an unwise zeal for bills of rights would give to the doctrine of constructive powers.

On the liberty of the press, much as has already been said, I cannot help adding a remark or two. First, there is not a syllable about it in our own state constitution. Next, whatever any other state constitution says about it amounts to nothing. What does a declaration that “the liberty of the press shall be inviolably preserved” actually mean? What is the liberty of the press? Who can give it any definition that would not leave the widest room for evasion? I hold that to be impossible. And from this I conclude that its security, whatever fine declarations may be written into a constitution, must depend entirely on public opinion, and on the general spirit of the people and of the government. There, in the end, we must seek the only solid basis of all our rights.

One last view of the matter settles the point. The truth is that, after all the declamation we have heard, the Constitution is itself, in every rational sense and for every useful purpose, a bill of rights. The several bills of rights in Great Britain form its constitution; and conversely, each state’s constitution is its own bill of rights. The proposed Constitution, if adopted, will be the bill of rights of the Union. Is one object of a bill of rights to declare the political privileges of citizens in the structure and administration of the government? This is done fully and precisely in the convention’s plan, with various precautions for public security found in no state constitution. Is another object to define certain immunities and modes of proceeding relating to personal and private concerns? This too, as we have seen, is attended to in many cases in the same plan. Looking to the real meaning of a bill of rights, it is absurd to say that none is to be found in the convention’s work. One may claim it does not go far enough, though that will not be easy to show; but no one can properly contend that there is no such thing. It cannot matter in what order the rights of citizens are declared, so long as they are found somewhere in the instrument that establishes the government. Much of what has been said on this subject rests merely on verbal and nominal distinctions, wholly foreign to the substance of the thing.

Another objection, urged so often that it is presumably relied upon, runs this way. It is improper to confer such large powers on the national government, because the seat of that government must be too remote from many of the states for the people to keep proper watch over their representatives. This argument, if it proves anything, proves that there ought to be no general government at all. For the powers that all sides agree should be lodged in the Union cannot be safely entrusted to a body not under every necessary control. But there are good reasons to show the objection is not well founded. Most arguments that turn on distance involve a plain trick of the imagination. How do the people of Montgomery County judge the conduct of their representatives in the state legislature? They cannot rely on personal observation, which is confined to citizens on the spot. They must depend on the reports of intelligent men they trust. And those men gather their information from the character of public measures, from the public prints, and from correspondence with the representatives and others residing where the legislature meets. This holds not for Montgomery County alone, but for every county at any considerable distance from the seat of government.

The same sources of information would plainly be open to the people regarding their representatives in the general government. And whatever delays distance may create will be more than offset by the vigilance of the state governments. The executive and legislative bodies of each state will act as so many sentinels over those employed in every department of the national administration. Able to maintain a regular and effectual system of intelligence, they can never be at a loss to know how the national representatives behave, and can readily pass that knowledge to the people. Their willingness to warn the community of anything that threatens its interests may be counted on, if only out of the rivalry of power. We may conclude with full assurance that the people, through that channel, will be better informed of the conduct of their national representatives than they are now of their state representatives by any means they possess.

It should also be remembered that the citizens who live at and near the seat of government share the same interest in general liberty and prosperity as those at a distance. They will stand ready to sound the alarm when needed, and to point out the actors in any harmful project. And the public papers will carry the intelligence swiftly to the most remote inhabitants of the Union.

Among the many curious objections raised against the proposed Constitution, the most extraordinary and least plausible is drawn from the absence of any provision about the debts owed to the United States. This has been cast as a silent surrender of those debts, and a wicked scheme to shield public defaulters, and the newspapers have teemed with inflammatory abuse on the point. Yet nothing is clearer than that the charge is wholly groundless, the offspring of extreme ignorance or extreme dishonesty. Beyond what I have said elsewhere, I observe only this. It is both a plain dictate of common sense, and an established doctrine of political law, that states lose none of their rights, and are discharged from none of their obligations, by a change in the form of their civil government.

The last objection of any consequence that I now recall turns on the article of expense. Even if it were true that adopting the proposed government would bring a considerable increase of expense, that objection ought to carry no weight against the plan. The great body of American citizens are rightly convinced that Union is the basis of their political happiness. Men of sense in all parties now agree, with few exceptions, on several points: that the Union cannot be preserved under the present system, nor without radical change; that new and extensive powers must be granted to the national head; and that these require a different organization of the federal government, since a single body is an unsafe depositary of such ample authorities. Once all this is conceded, the question of expense must be given up; for the foundation on which the system rests cannot be safely narrowed.

The two branches of the legislature are at first to consist of only sixty-five persons, the same number that may compose Congress under the existing Confederation. This number is meant to grow, but only to keep pace with the country’s rising population and resources. A smaller number would have been unsafe even at the start; and keeping the present number into a more populous age would leave the people very inadequately represented.

From where, then, is this dreaded increase of expense to come? One source named is the multiplication of offices under the new government. But it is plain that the principal departments of administration under the present government are the same that the new one will require. We already have a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury of three persons, a Treasurer, and their assistants and clerks. These officers are indispensable under any system, and will serve under the new as well as the old. As for ambassadors and other ministers abroad, the proposed Constitution can make no difference, except to render their standing more respectable and their services more useful.

As for those employed in collecting the revenues, it is true that they will add considerably to the number of federal officers. But it does not follow that this will increase public expense. In most cases it will be nothing more than an exchange of state officers for national ones. In collecting all duties, for instance, the persons employed will be entirely national, and the states individually will need none for the purpose. What difference in expense can it make whether officers of the customs are appointed by the state or by the United States? There is no good reason to suppose the national officers will be either more numerous or better paid than the state ones.

Where, then, are we to find those added articles of expense said to swell the account to such an enormous size? The chief item that occurs to me is the support of the judges of the United States. I do not add the President, because there is already a president of Congress, whose expenses may not fall far short of those of the President of the United States. The support of the judges will clearly be an extra expense. But how great it will be depends on the plan adopted for the courts; and upon no reasonable plan can it come to a sum of material consequence.

Now consider what there is to offset any extra expense the proposed government may bring. The first thing is that much of the business which now keeps Congress in session through the year will instead be transacted by the President. Even the management of foreign negotiations will naturally fall to him, on general principles concerted with the Senate, and subject to their final concurrence. So a portion of the year will suffice for the sessions of both houses. Perhaps about a fourth of the year for the House, and a third or half for the Senate, whose extra business of treaties and appointments will give it longer occupation. From this it follows that, until the House is greatly enlarged beyond its present size, there will be a considerable saving from the difference between the constant session of the present Congress and the temporary session of the future one.

There is another circumstance of great importance for economy. Until now, the business of the United States has occupied the state legislatures as well as Congress. Congress has made requisitions that the states have had to provide for. As a result, the sessions of the state legislatures have run far longer than the mere local business of the states required, with more than half their time often spent on matters relating to the United States. The members of the several state legislatures number above two thousand. They have hitherto done what, under the new system, will at first be done by sixty-five persons, and probably in time by no more than a fourth or fifth of that number.

Under the proposed government, Congress will do all the business of the United States itself, without the intervention of the state legislatures. The states will then have only their own affairs to attend to, and will not need to sit anything like as long as before. This shortening of the state legislative sessions will be clear gain. By itself it forms a saving that may be regarded as an equivalent for any additional expense the new system may occasion.

The result of these observations is threefold: that the sources of added expense from the proposed Constitution are far fewer than has been imagined; that they are offset by considerable savings; and that, while it is doubtful which way the scale finally tips, it is certain that a cheaper government would be unequal to the purposes of the Union.