A CONSTITUTIONAL AMENDMENT
September 07, 1803
DEAR SIR,— Your favor of the 3d was delivered me at court; but we were much disappointed at not seeing you here, Mr. Madison & the Gov. being here at the time. I enclose you a letter from Monroe on the subject of the late treaty. You will observe a hint in it, to do without delay what we are bound to do. There is reason, in the opinion of our ministers, to believe, that if the thing were to do over again, it could not be obtained, & that if we give the least opening, they will declare the treaty void. A warning amounting to that has been given to them, & an unusual kind of letter written by their minister to our Secretary of State, direct. Whatever Congress shall think it necessary to do, should be done with as little debate as possible, & particularly so far as respects the constitutional difficulty. I am aware of the force of the observations you make on the power given by the Constn to Congress, to admit new States into the Union, without restraining the subject to the territory then constituting the U S. But when I consider that the limits of the U S arc precisely fixed by the treaty of 1783, that the Constitution expressly declares itself to be made for the U S, I cannot help believing the intention was to permit Congress to admit into the Union new States, which should be formed out of the territory for which, & under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, &c. into it, which would be the case on your construction. When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. Whatever of these enumerated objects is proper for a law, Congress may make the law; whatever is proper to be executed by way of a treaty, the President & Senate may enter into the treaty; whatever is to be done by a judicial sentence, the judges may pass the sentence. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time & trial show are still wanting. But it has been taken too much for granted, that by this rigorous construction the treaty power would be reduced to nothing. I had occasion once to examine its effect on the French treaty, made by the old Congress, & found that out of thirty odd articles which that contained, there were one, two, or three only which could not now be stipulated under our present Constitution. I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people. If, however, our friends shall think differently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects.
No apologies for writing or speaking to me freely are necessary. On the contrary, nothing my friends can do is so dear to me, & proves to me their friendship so clearly, as the in-formation they give me of their sentiments & those of others on interesting points where I am to act, and where information & warning is so essential to excite in me that due reflection which ought to precede action. I leave this about the zest (21st), and shall hope the District Court will give me an opportunity of seeing you.
Accept my affectionate salutations, & assurances of cordial esteem & respect.
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