Elliot’s Debates: Volume 2
Convention of Pennsylvania
Wednesday, November 28, 1787, A. M.
Mr. WILSON. This will be a proper time for making an observation or two on what may be called, the preamble to this Constitution. I had occasion, on a former day, to mention that the leading principle in the politics, and that which pervades the American constitutions, is, that the supreme power resides in the people. This Constitution, Mr. President, opens with a solemn and practical recognition of that principle:”We, the people of the United States, in order to form a more perfect union, establish justice, &c., do ordain and establish this Constitution for the United States of America.” It is announced in their nameit receives its political existence from their authority: they ordain and establish. What is the necessary consequence? Those who ordain and establish have the power, if they think proper, to repeal and annul. A proper attention to this principle may perhaps, give ease to the minds of some who have heard much concerning the necessity of a bill of rights.
Its establishment, I apprehend, has more force than a volume written on the subject. It renders this truth evidentthat the people have a right to do what they please with regard to the government. I confess I feel a kind of pride in considering the striking difference between the foundation on which the liberties of this country are declared to stand in this Constitution, and the footing on which the liberties of England are said to be placed. The Magna Charta of England is an instrument of high Value to the people of that country. But, Mr. President, from what source does that instrument derive the liberties of the inhabitants of that kingdom? Let it speak for itself. The king says, “We have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all the freemen of this our realm, these liberties following, to be kept in our kingdom of England forever.” When this was assumed as the leading principle of that government, it was no wonder that the people were anxious to obtain bills of rights, and to take every opportunity of enlarging and securing their liberties. But here, sir, the fee-simple remains in the people at large, and by this Constitution they do not part with it.
I am called upon to give a reason why the Convention omitted to add a bill of rights to the work before you. I confess, sir, I did think that, in point of propriety, the honorable gentleman ought first to have furnished some reasons to show such an addition to be necessary; it is natural to prove the affirmative of a proposition; and, if he had established the propriety of this addition, he might then have asked why it was not made.
I cannot say, Mr. President, what were the reasons of every member of that Convention for not adding a bill of rights. I believe the truth is, that such an idea never entered the mind of many of them. I do not recollect to have heard the subject mentioned till within about three days of the time of our rising; and even then, there was no direct motion offered for any thing of the kind. I may be mistaken in this; but as far as my memory serves me, I believe it was the case. A proposition to adopt a measure that would have supposed that we were throwing into the general government every power not expressly reserved by the people, would have been spurned at, in that house, with the greatest indignation. Even in a single government, if the powers of the people rest on the same establishment as is expressed in this Constitution, a bill of rights is by no means a necessary measure. In a government possessed of enumerated powers, such a measure would he not only unnecessary, but preposterous and dangerous. Whence comes this notion, that in the United States there is no security without a bill of rights? Have the citizens of South Carolina no security for their liberties? They have no bill of rights. Are the citizens on the eastern side of the Delaware less free, or less secured in their liberties, than those on the western side? The state of New Jersey has no bill of rights. The state of New York has no bill of rights. The states of Connecticut and Rhode Island have no bill of rights. I know not whether I have exactly enumerated the states who have not thought it necessary to add a bill of rights to their constitutions; but this enumeration, sir, will serve to show by experience, as well as principle, that, even in single governments, a bill of rights is not an essential or necessary measure. But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, every thing that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government, and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and by that means the constitution becomes incomplete. But of the two, it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous nor important as an omission in the enumeration of the rights of the people.
Mr. President, as we are drawn into this subject, I beg leave to pursue its history a little farther. The doctrine and practice of declarations of rights have been borrowed from the conduct of the people of England on some remarkable occasions; but the principles and maxims, on which their government is constituted, are widely different from those of ours. I have already stated the language of Magna Charta. After repeated confirmations of that instrument, and after violations of it repeated equally often, the next step taken in this business was, when the petition of rights was presented to Charles I.
It concludes in this manner: “All of which they most humbly pray to be allowed, as their rights and liberties, according to the laws and statutes of this realm.” (8th Par. Hist. 150.) One of the most material statutes of the realm was Magna Charta; so that we find they continue upon the old ground, as to the foundation on which they rest their liberties. It was not till the era of the revolution that the two houses assume a higher tone, and “demand and insist upon all the premises as their undoubted rights and liberties.” (Par, Deb. 261.) But when the whole transaction is considered, we shall find that those rights and liberties are claimed only on the foundation of an original contract, supposed to have been made, at some former period, between the king and the people. (1 Blackstone, 233.)
But, in this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with. When, therefore, they possess, as I have already mentioned, the fee-simple of authority, why should they have recourse to the minute and subordinate remedies, which can be necessary only to those who pass the fee, and reserve only a rent-charge?
To every suggestion concerning a bill of rights, the citizens of the United States may always say, We reserve the right to do what we please.
I concur most sincerely with the honorable gentleman who was last up in one sentimentthat if our liberties will be insecure under this system of government, it will become our duty not to adopt, but to reject it. On the contrary, if it will secure the liberties of the citizens of America,if it will not only secure their liberties, but procure them happiness,it becomes our duty, on the other hand, to assent to and ratify it. With a view to conduct us safely and gradually to the determination of that important question, I shall beg leave to notice some of the objections that have fallen from the honorable gentleman from Cumberland, (Whitehill.) But, before I proceed, permit me to make one general remark. Liberty has a formidable enemy on each hand; on one there is tyranny, on the other licentiousness. In order to guard against the latter, proper powers ought to be given to government: in order to guard against the former, those powers ought to be properly distributed. It has been mentioned, and attempts have been made to establish the position, that the adoption of this Constitution will necessarily be followed by the annihilation of all the state governments. If this was a necessary consequence, the objection would operate in my mind with exceeding great force. But, sir, I think the inference is rather unnatural, that a government will produce the annihilation of others, upon the very existence of which its own existence depends. Let us, sir, examine this Constitution, and mark its proportions and arrangements. It is composed of three great constituent partsthe legislative department, the executive department, and the judicial department. The legislative department is subdivided into two branchesthe House of Representatives and the Senate. Can there be a House of Representatives in the general government, after the state governments are annihilated? Care is taken to express the character of the electors in such a manner, that even the popular branch of the general government cannot exist unless the governments of the states continue in existence.
How do I prove this? By the regulation that is made concerning the important subject of giving suffrage. Article 1, section 2: “And the electors in each state shall have the qualifications for electors of the most numerous branch of the state legislature.” Now, sir, in order to know who are qualified to be electors of the House of Representatives, we are to inquire who are qualified to be electors of the legislature of each state. If there be no legislature in the states, there can be no electors of them: if there be no such electors, there is no criterion to know who are qualified to elect members of the House of Representatives. By this short, plain deduction, the existence of state legislatures is proved to be essential to the existence of the general government.
Let us proceed now to the second branch of the legislative department. In the system before you, the senators, sir,those tyrants that are to devour the legislatures of the states,are to be chosen by the state legislatures themselves. Need any thing more be said on this subject? So far is the principle of each state’s retaining the power of self-preservation from being weakened or endangered by the general government, that the Convention went further, perhaps, than was strictly proper, in order to secure it; for, in this second branch of the legislature, each state, without regard to its importance, is entitled to an equal vote. And in the articles respecting amendments of this Constitution, it is provided “That no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Does it appear, then, that provision for the continuance of the state governments was neglected, in framing this Constitution? On the contrary, it was a favorite object in the Convention to secure them.
The President of the United States is to be chosen by electors appointed in the different states, in such manner as the legislature shall direct. Unless there be legislatures to appoint electors, the President cannot be chosen: the idea, therefore, of the existing government of the states, is presupposed in the very mode of constituting the legislative and the executive departments of the general government. The same principle will apply to the judicial department. The judges are to be nominated by the President, and appointed by him, with the advice and consent of the Senate. This shows that the judges cannot exist without the President and Senate. I have already shown that the President and Senate cannot exist without the existence of the state legislatures. Have I misstated any thing? Is not the evidence indisputable, that the state governments will be preserved, or that the general government must tumble amidst their ruins? It is true, indeed, sir, although it presupposes the existence of state governments, yet this Constitution does not suppose them to be the sole power to be respected.
In the Articles of Confederation, the people unknown, but in this plan they are represented; and in one of the branches of the legislature, they are represented immediately by persons of their own choice.
I hope these observations on the nature and formation of this system are seen in their full force; many of them were so seen by some gentlemen of the late Convention. After all this, could it have been expected that assertions such as have been hazarded on this floor would have been made”that it was the business of their deliberations to destroy the state governments; that they employed four months to accomplish this object; and that such was their intentions”? That honorable gentleman may be better qualified to judge of their intentions than themselves. I know my own; and as to those of the other members, I believe that they have been very improperly and unwarrantably represented. Intended to destroy! Where did he obtain his information? Let the tree be judged of by its fruit.
Mr. President, the only proof that is attempted to be drawn from the work itself, is that which has been urged from the fourth section of the first article. I will read it: “The times, places, and manner, of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing senators.”
And is this a proof that it was intended to carry on this government after the state governments should be dissolved and abrogated? This clause is not only a proper, but necessary one. I have already shown what pains have been taken in the Convention to secure the preservation of the state governments. I hope, sir, that it was no crime to sow the seed of self-preservation in the federal government; without this clause, it would not possess self-preserving power. By this clause, the times, places, and manner of holding elections, shall be prescribed in each state, by the legislature thereof. I think it highly proper that the federal government should throw the exercise of this power into the hands of the state legislatures; but not that it should be placed there entirely without control.
If the Congress had it not in their power to make regulations, what might be the consequences? Some states might make no regulations at all on the subject. And shall the existence of the House of Representatives, the immediate representation of the people in Congress, depend upon the will and pleasure of the state governments? Another thing may possibly happen; I don’t say it will; but we were obliged to guard even against possibilities, as well as probabilities. A legislature may be willing to make the necessary regulations; yet the minority of that legislature may, by absenting themselves, break up the house, and prevent, the execution of the intention of the majority. I have supposed the case, that some state governments may make no regulations at all; it is possible, also, that they may make improper regulations. I have heard it surmised by the opponents of this Constitution, that the Congress may order the election for Pennsylvania to be held at Pittsburg, and thence conclude that it would be improper for them to have the exercise of the power. But suppose, on the other hand, that the assembly should order an election to be held at Pittsburg; ought not the general government to have the power to altar such improper election of one of its own constituent parts? But there is an additional reason still that shows the necessity of this provisionary clause. The members of the Senate are elected by the state legislatures. If those legislatures possessed, uncontrolled, the power of prescribing the times, places, and manner, of electing members of the House of Representatives, the members of one branch of the general legislature would be the tenants at will of the electors of the other branch; and the general government would lie prostrate at the mercy of the legislatures of the several states.
I will ask, now, Is the inference fairly drawn, that the general government was intended to swallow up the state governments? Or was it calculated to answer such end? Or do its framers deserve such censure from honorable gentlemen? We find, on examining this paragraph, that it contains nothing more than the maxims of self-preservation, so abundantly secured by this Constitution to the individual states. Several other objections have been mentioned. I will not, at this time, enter into a discussion of them, though I may hereafter take notice of such as have any show of weight; but I thought it necessary to offer, at this time, he observations I have made, because I consider this as an important subject, and think the objection would be a strong one, if it was well founded.