Founding America: Documents from the Revolution to the Bill of Rights

by Jack N. Rakove (editor)

  PAGE 417

  Richard Henry Lee: Letter to George Mason (October 1, 1787)

  PAGE 420

  James Wilson: Speech on the Constitution (October 6, 1787)

  PAGE 422

  George Mason: Objections to the Constitution (October 7, 1787)

  PAGE 428

  ONCE THE CONSTITUTION REACHED Congress, it faced an early challenge from Richard Henry Lee of Virginia. Lee felt the Constitution needed amendment, and he wanted Congress to propose appropriate changes before sending it on to the states. But Madison and other framers who had returned to Congress argued that this would make the Constitution the work of Congress, not the convention. That in turn meant that it would have to be ratified according to the rule of the Confederation requiring approval by all thirteen state legislatures. This objection prevailed, and the Constitution went out to the states as the Convention had intended.

  Beyond the immediate task of securing the approval of nine states lay the greater challenge of organizing a new government and adopting the right policies. One Federalist leader who was already looking ahead was Alexander Hamilton. Well before any of the states had acted on the Constitution, he was already speculating about the additional steps that would be needed for the new government to succeed.

  Meanwhile, the public debate on the Constitution got under way At the outset, statements from two former members of the convention played a key role in framing the debate. On October 6 James Wilson, the leading Pennsylvania Federalist, gave a public speech explaining why Americans should not be troubled by the omission of a bill of rights from the Constitution. Because this speech was public, Wilson’s argument was taken to be an authoritative statement of the Federalist position, and it soon became a lightning rod for Anti-Federalist criticism. George Mason’s reputation as a distinguished patriot similarly gave his objections to the Constitution greater authority than they would have enjoyed had he simply published them anonymously.

  —James Madison:

  LETTER TO GEORGE WASHINGTON

  SEPTEMBER 30, 1787

  I FOUND oN MY arrival here that certain ideas unfavorable to the Act of the Convention which had created difficulties in that body, had made their way into Congress. They were patronised chiefly by Mr. R.H.L.65 and Mr. Dane of Massts. It was first urged that as the new Constitution was more than an Alteration of the Articles of Confederation under which Congress acted, and even subverted these articles altogether, there was a Constitutional impropriety in their taking any positive agency in the work. The answer given was that the Resolution of Congress in Feby. had recommended the Convention as the best mean of obtaining a firm national Government; that as the powers of the Convention were defined by their Commissions in nearly the same terms with the powers of Congress given by the Confederation on the subject of alterations, Congress were not more restrained from acceding to the new plan, than the Convention were from proposing it. If the plan was within the powers of the Convention it was within those of Congress; if beyond those powers, the same necessity which justified the Convention would justify Congress; and a failure of Congress to Concur in what was done, would imply either that the Convention had done wrong inexceeding their powers, or that the Government proposed was in itself liable to insuperable objections ; that such an inference would be the more natural, as Congress had never scrupled to recommend measures foreign to their constitutional functions, whenever the public good seemed to require it; and had in several instances, particularly in the establishment of the new Western Governments, exercised assumed powers of a very high & delicate nature, under motives infinitely less urgent than the present state of our affairs, if any faith were due to the representations made by Congress themselves, ecchoed by 12 States in the Union, and confirmed by the general voice of the people.—An attempt was made in the next place by R.H.L. to amend the Act of the Convention before it should go forth from Congress. He proposed a bill of Rights—provision for juries in civil cases & several other things corresponding with the ideas of Col. M—.66 He was supported by Mr. Me—Smith67 of this State. It was contended that Congress had an undoubted right to insert amendments, and that it was their duty to make use of it in a case where the essential guards of liberty had been omitted. On the other side the right of Congress was not denied, but the inexpediency of exerting it was urged on the following grounds. 1. that every circumstance indicated that the introduction of Congress as a party to the reform, was intended by the States merely as a matter of form and respect. 2. that it was evident from the contradictory objections which had been expressed by the different members who had animadverted on the plan, that a discussion of its merits would consume much time, without producing agreement even among its adversaries. 3. that it was clearly the intention of the States that the plan to be proposed should be theact of the Convention with the assent of Congress, which could not be the case, if alterations were made, the Convention being no longer in existence to adopt them. 4. that as the Act of the Convention, when altered would instantly become the mere act of Congress, and must be proposed by them as such, and of course be addressed to the Legislatures, not conventions of the States, and require the ratification of thirteen instead of nine States, and as the unaltered act would go forth to the States directly from the Convention under the auspices of that Body—Some States might ratify one & some the other of the plans, and confusion & disappointment be the least evils that could ensue. These difficulties which at one time threatened a serious division in Congs. and.popular alterations with the yeas & nays on the journals, were at length fortunately terminated by the following Resolution—“ Congress having recd. the Report of the Convention lately assembled in Philada., Resold. unanimously that the said Report, with the Resolutions & letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a Convention of Delegates chosen in each State by the people thereof, in conformity to the Resolves of the Convention made & provided in that case.” Eleven States were present, the absent ones R.I. & Maryland. A more direct approbation would have been of advantage in this & some other States, where stress will be laid on the agency of Congress in the matter, and a handle taken by adversaries of any ambiguity on the subject. With regard to Virginia & some other States, reserve on the part of Congress will do no injury. The circumstance of unanimity must be favorable every where.

  The general voice of this City seems to espouse the new Constitution. It is supposed nevertheless that the party in power is strongly opposed to it. The Country must finally decide, the sense of which is as yet wholly unknown. As far as Boston & Connecticut has been heard from, the first impression seems to be auspicious. I am waiting with anxiety for the eccho from Virginia but with very faint hopes of its corresponding with my wishes.

  P.S. a small packet of the size of 2 vol. 80. addressed to you lately came to my hands with books of my own from France. Genl. Pinkney has been so good as to take charge of them. He set out yesterday for S. Carolina & means to call at Mount Vernon.

  —Alexander Hamilton—

  CONJECTURES ABOUT THE CONSTITUTION

  SEPTEMBER 1787

  THE NEW CONSTITUTION HAS in favour of its success these circumstances—a very great weight of influence of the persons who framed it, particularly in the universal popularity of General Washington,—the good will of the commercial interest throughout the states which will give all its efforts to the establishment of agovernment capable of regulating protecting and extending the commerce of the Union—the good willmost men of property in the several states who wish a government of the union able to protect them against domestic violence and the depredations which the democratic spirit is apt to make on property; and who are besides anxious for the respectability of the nation—the hopes of the Creditors of the United States that a general government possessing the means of doing it will pay the debt of the Union. a strong belief in the people at large of the insufficiency of the present confederation to preserve the existence of the Union and of the necessity o
f the union to their safety and prosperity; of course a strong desire of a change and a predisposition to receive well the propositions of the Convention.

  Against its success is to be put, the dissent of two or three important men in the Convention; who will think their characters pleged to defeat the plan—the influence of many inconsiderable men in possession of considerable offices under the state governments who will fear a diminution of their consequence power and emolument by the establishment of the general government and who can hope for nothing there—the influence of some considerable men in office possessed of talents and popularity who partly from the same motives and partly from a desire of playing a part in a convulsion for their own aggrandisement will oppose the quiet adoption of the new government—(some considerable men out of office, from motives of ambition may be disposed to act the same part)—add to these causes the disinclination of the people to taxes and of course to a strong government—the opposition of all men much in debt who will not wish to see a government established one object of which is to restrain this means of cheating Creditors—the democratical jealousy of the people which may be alarmed at the appearance of institutions that may seem calculated to place the power of the community in few hands and to raise a few individuals to stations of great preeminence—and the influence of some foreign powers who from different motives will not wish to see an energetic government established throughout the states.

  In this view of the subject it is difficult to form any judgment whether the plan will be adopted or rejected. It must be essentially matter of conjecture. The present appearances and all other circumstances considered the probability seems to be on the side of its adoption.

  But the causes operating against its adoption are powerful and there will be nothing astonishing in the Contrary—

  If it do not finally obtain, it is probable the discussion of the question will beget such struggles animosities and heats in the community that this circumstance conspiring with the real necessity of an essential change in our present situation will produce civil war. Should this happen, whatever parties prevail it is probable governments very different from the present in their principles will be established—A dismemberment of the Union and monarchies in different portions of it may be expected. It may however happen that no civil war will take place; but several republican confederacies be established between different combinations of particular states.

  A reunion with Great Britain, from universal disgust at a state of commotion, is not impossible, though not much to be feared. The most plausible shape of such a business would be the establishment of a son of the present monarch in the supreme government of this country with a family compact.

  If the government is adopted, it is probable general Washington will be the President of the United States—This will ensure a wise choice of men to administer the government and a good administration. A good administration will conciliate the confidence and affection of the people and perhaps enable the government to acquire more consistency than the proposed constitution seems to promise for so great a Country—It may then triumph altogether over the state governments and reduce them to an entire subordination, dividing the large states into smaller districts. The organs of the general government may also acquire additional strength.

  If this should not be the case, in the course of a few years, it is probable that the contests about the boundaries of power between the particular governments and the general government and the momentum of the larger states in such contests will produce a dissolution of the Union. This after all seems to be the most likely result.

  But it is almost arrogance in so complicated a subject, depending so entirely on the incalculable fluctuations of the human passions, to attempt even a conjecture about the event.

  It will be Eight or Nine months before any certain judgment can be formed respecting the adoption of the Plan.

  —Richard Henry Lee—

  LETTER TO GEORGE MASON

  OCTOBER 1, 1787

  I HAVE WAITED UNTIL now to answer your favor of Septr. 18th from Philadelphia, that I might inform you how the Convention plan of Government was entertained by Congress. Your prediction of what would happen in Congress was exactly verified—It was with us, as with you, this or nothing; & this urged with a most extreme intemperance—The greatness of the powers given & the multitude of Places to be created, produces a coalition of Monarchy men, Military Men, Aristocrats, and Drones whose noise, impudence & zeal exceeds all belief—Whilst the Commercial plunder of the South stimulates the rapacious Trader. In this state of things, the Patriot voice is raised in vain for such changes and securities as Reason and Experience prove to be necessary against the encroachments of power upon the indispensable rights of human nature. Upon due consideration of the Constitution under which we now Act, some of us were clearly of opinion that the 13th article of the Confederation precluded us from giving an opinion concerning a plan subversive of the present system and eventually forming a New Confederacy of Nine instead of 13 States. The contrary doctrine was asserted with great violence in expectation of the strong majority with which they might send it forward under terms of much approbation. Having procured an opinion that Congress was qualified to consider, to amend, to approve or disapprove—the next game was to determine that tho a right to amend existed, it would be highly inexpediant to exercise that right, but merely to transmit it with respectful marks of approbation—In this state of things I availed myself of the Right to amend, & moved the Amendments copy of which I send herewith & called the ayes & nays to fix them on the journal—This greatly alarmed the Majority & vexed them extremely—for the plan is, to push the business on with great dispatch, & with as little opposition as possible; that it may be adopted before it has stood the test of Reflection & due examination—They found it most eligible at last to transmit it merely, without approving or disapproving; provided nothing but the transmission should appear on the Journal—This compromise was settled and they took the opportunity of inserting the word Unanimously, which applied only to simple transmission, hoping to have it mistaken for an Unanimous approbation of the thing—It states that Congress having Received the Constitution unanimously transmit it &c.—It is certain that no Approbation was given—This constitution has a great many excellent Regulations in it and if it could be reasonably amended would be a fine System—As it is, I think ’tis past doubt, that if it should be established, either a tyranny will result from it, or it will be prevented by a Civil war—I am clearly of opinion with you that it should be sent back with amendments Reasonable and Assent to it with held until such amendments are admitted—You are well acquainted with Mr. Stone & others of influence in Maryland—I think it will be a great point to get Maryld. & Virginia to join in the plan of Amendments & return it with them—If you are in correspondence with our Chancelor Pendleton it will be of much use to furnish him with the objections, and if he approves our plan, his opinion will have great weight with our Convention, and I am told that his relation to Judge Pendleton of South Carolina has decided weight in that State & that he is sensible & independent—How important will be then to procure his union with our plan, which might probably be the case, if our Chancelor was to write largely & pressingly to him on the subject; that if possible it may be amended there also. It is certainly the most rash and violent proceeding in the world to cram thus suddenly into Men a business of such infinite Moment to the happiness of Millions. One of your letter [s] will go by the Packet, and one by a Merchant Ship. My compliments if you please to Your Lady & to the young Ladies & Gentlemen.

  [P.S.] Suppose when the Assembly recommended a Convention to consider this new Constitution they were to use some words like these—It is earnestly recommended to the good people of Virginia to send their most wise & honest Men to this Convention that it may undergo the most intense consideration before a plan shall be without amendments adopted that admits of abuses being practised by which the best interests of this Country may be injured and Civil Liber
ty greatly endanger’d.—This might perhaps give a decided Tone to the business—

  Please to send my Son Ludwell a Copy of the Amendments proposed by me to the new Constitution sent herewith—

  -James Wilson—

  SPEECH ON THE CONSTITUTION

  OCTOBER 6, 1787

  MR. CHAIRMAN AND FELLOW CITIZENS, Having received the honor of an appointment to represent you in the late convention, it is perhaps, my duty to comply with the request of many gentlemen whose characters and judgments I sincerely respect, and who have urged, that this would be a proper occasion to lay before you any information which will serve to explain and elucidate the principles and arrangements of the constitution, that has been submitted to the consideration of the United States. I confess that I am unprepared for so extensive and so important a disquisition; but the insidious attempts which are clandestinely and industriously made to pervert and destroy the new plan, induce me the more readily to engage in its defence; and the impressions of four months constant attention to the subject, have not been so easily effaced as to leave me without an answer to the objections which have been raised.

  It will be proper however, before I enter into the refutation of the charges that are alledged, to mark the leading descrimination between the state constitutions, and the constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve ; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating fœderal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed constitution: for it would have been superfluous and absurd to have stipulated with a foederal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence. For instance, the liberty of the press, which has been a copious source of declamation and opposition, what controul can proceed from the foederal government to shackle or destroy that sacred palladium of national freedom? If indeed, a power similar to that which has been granted for the regulation of commerce, had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate, as that the impost should be general in its operation. With respect likewise to the particular district of ten miles, which is to be made the seat of foederal government, it will undoubtedly be proper to observe this salutary precaution, as there the legislative power will be exclusively lodged in the president, senate, and house of representatives of the United States. But this could not be an object with the convention, for it must naturally depend upon a future compact, to which the citizens immediately interested will, and ought to be parties; and there is no reason to suspect that so popular a privilege will in that case be neglected. In truth then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.