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

by Jack N. Rakove (editor)

  If then the courts of justice are to be considered as the bulwarks of a limited constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges, which must be essential to the faithful performance of so arduous a duty.

  This independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the mean time, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed constitution will never concur with its enemies,76 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established constitution whenever they find it inconsistent with their happiness; yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents incompatible with the provisions in the existing constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually: and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community.

  But it is not with a view to infractions of the constitution only, that the independence of the judges may be an essential safe-guard against the effects of occasional ill humours in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character of our governments, than but few may imagine. The benefits of the integrity and moderation of the judiciary have already been felt in more states than one; and though they may have displeased those whose sinister expectations they may have disappointed, they must have commanded the esteem and applause of all the virtuous and disinterested. Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer to-day. And every man must now feel, that the inevitable tendency of such a spirit is to sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress.

  That inflexible and uniform adherence to the rights of the constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission. Periodical appointments, however regulated, or by whomsoever made, would, in some way or other, be fatal to their necessary independence. If the power of making them was committed either to the executive or legislature, there would be danger of an improper complaisance to the branch which possessed it; if to both, there would be an unwillingness to hazard the displeasure of either; if to the people, or to persons chosen by them for the special purpose, there would be too great a disposition to consult popularity, to justify a reliance that nothing would be consulted but the constitution and the laws.

  There is yet a further and a weighty reason for the permanency of judicial offices; which is deducible from the nature of the qualifications they require. It has been frequently remarked, with great propriety, that a voluminous code of laws is one of the inconveniences necessarily connected with the advantages of a free government. To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived, from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprize us, that the government can have no great option between fit characters; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity. In the present circumstances of this country, and in those in which it is likely to be for a long time to come, the disadvantages on this score would be greater than they may at first sight appear; but it must be confessed, that they are far inferior to those which present themselves under the other aspects of the subject.

  Upon the whole, there can be no room to doubt, that the convention acted wisely in copying from the models of those constitutions which have established good behaviour as the tenure of judicial offices, in point of duration; and that, so far from being blameable on this account, their plan would have been inexcusably defective, if it had wanted this important feature of good government. The experience of Great Britain affords an illustrious comment on the excellence of the institution.

  PUBLIUS

  THE PROBLEM OF DECLARING RIGHTS

  James Madison: Letter to Thomas Jefferson—excerpt (October 24 and November 1, 1787)

  PAGE 549

  Thomas Jefferson: Letter to James Madison—excerpt (December 20, 1787)

  PAGE 561

  James Madison: Letter to Thomas Jefferson—excerpt (April 22, 1788)

  PAGE 565

  Thomas Jefferson: Letter to James Madison—excerpt (July 31, 1788)

  PAGE 566

  James Madison: Letter to Thomas Jefferson—excerpt (October 17,1788)

  PAGE 568

  James Madison: Letter to Thomas Jefferson—excerpt (December 8, 1788)

  PAGE 573

  Thomas Jefferson: Letter to James Madison—excerpt (March 15, 1789)

  PAGE 576

  Thomas Jefferson: Letter to James Madison (September 6, 1789)

  PAGE578

  James Madison: Letter to Thomas Jefferson (February 4, 1790)

  PAGE 584

  SHORTLY BEFORE THE CONSTITUTIONAL Convention adjourned, James Madison sent Thomas Jefferson, then serving as American minister to France, a gloomy letter, predicting that the completed Constitution “will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts against the state governments. The grounds of this opinion will be the subject of a future letter.” Madison waited another seven weeks before fulfilling this p
romise. When he did, in a lengthy missive of October 24, 1787, he went to great lengths to justify the most controversial proposal he had presented at Philadelphia: to give the national government a negative (we would say, a veto) on all state laws, which it could use both to protect national laws against interference from the states and to intervene within the individual states to defend the rights of minorities.

  Madison’s letter was the first in a series the two men exchanged—often with great delays, due to the vagaries of the Atlantic passage—over the next year and a half. It is perhaps the single most fascinating exchange of political views in all of American history, conducted by two friends who respected and admired each other, but who sometimes reasoned very differently. Jefferson was open to the idea that the proposed Constitution could benefit from modest amendments, and he particularly favored the idea of adding articles explicitly protecting particular rights to the text the Convention had proposed. Madison worried that Anti-Federalists would exploit the idea of adding amendments protective of rights to advance other structural changes in the Constitution.

  But these letters also illustrate a profound development in American thinking about rights more generally. Before the Revolution, Americans would have said that their rights were derived from multiple sources. The adoption of bills of rights like those that accompanied the early state constitutions did not create or establish the rights enumerated but merely confirmed their existence. By 1787, however, the idea that a written constitution would have the status of supreme law offered a means of resolving the ambiguities that inevitably arose by appealing to nature or custom as the source of rights. A right that was explicitly mentioned in the text of a constitution would now possess the highest legal status available. But this opened other questions. Would that relegate rights left unmentioned to an inferior, more precarious status? And would it not also require the drafters of a bill of rights to be extremely careful in their use of language?

  These were some of the questions that Madison and Jefferson canvassed in these absorbing letters. But they also explored other issues. Where did the real dangers to rights arise? And who could be held most accountable for their protection?

  In the summer of 1789, as the First Congress was debating the amendments Madison ultimately proposed, the correspondence took a new twist. In Paris, Jefferson was observing the opening phase of the French Revolution and consulting with those liberals, like the Marquis de Lafayette, who favored American-style solutions for their nation’s constitutional problems. In the wake of these conversations, Jefferson wrote Madison a remarkable letter, posing the question “whether one generation of men has a right to bind another.” In the immediate context, the question was how great a political obligation the French reformers turning into revolutionaries owed to the legal structures they had inherited, with their vast concentration of aristocratic privilege. But in Madison’s thoughtful reply, this question in turn pivoted around the advantages and disadvantages of thinking of constitutions as relatively fixed and stable documents.

  —James Madison—

  LETTER TO THOMAS JEFFERSON (EXCERPT)

  OCTOBER 24 AND NOVEMBER 1, 1787

  DEAR SIR,

  ... You will herewith receive the result of the Convention, which continued its session till the 17th of September. I take the liberty of making some observations on the subject which will help to make up a letter, if they should answer no other purpose.

  It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States. No proposition was made, no suggestion was thrown out in favor of a partition of the Empire into two or more Confederacies.

  It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force both obnoxious and dangerous, and in general, a scene resembling much more a civil war, than the administration of a regular Government.

  Hence was embraced the alternative of a government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in the principle and proportion of representation.

  This ground-work being laid, the great objects which presented themselves were 1. to unite a proper energy in the Executive and a proper stability in the Legislative departments, with the essential characters of Republican Government. 2. To draw a line of demarkation which would give to the General Government every power requisite for general purposes, and leave to the States every power which might be most beneficially administered by them. 3.

  To provide for the different interests of different parts of the Union. 4. To adjust the clashing pretensions of the large and small States. Each of these objects was pregnant with difficulties. The whole of them together formed a task more difficult than can be well conceived by those who were not concerned in the execution of it. Adding to these considerations the natural diversity of human opinions on all new and complicated subjects, it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle.

  The first of these objects as it respects the Executive, was peculiarly embarrassing. On the question whether it should consist of a single person, or a plurality of co-ordinate members, on the mode of appointment, on the duration in office, on the degree of power, on the re-eligibility, tedious and reiterated discussions took place. The plurality of co-ordinate members had finally but few advocates. Governour Randolph was at the head of them. The modes of appointment proposed were various, as by the people at large—by electors chosen by the people—by the Executives of the States—by the Congress, some preferring a joint ballot of the two Houses—some a separate concurrent ballot allowing to each a negative on the other house—some a nomination of several canditates by one House, out of whom a choice should be made by the other. Several other modifications were started. The expedient at length adopted seemed to give pretty general satisfaction to the members. As to the duration in office, a few would have preferred a tenure during good behaviour—a considerable number would have done so in case an easy and effectual removal by impeachment could be settled. It was much agitated whether a long term, seven years for example, with a subsequent and perpetual ineligibility, or a short term with a capacity to be re-elected, should be fixed. In favor of the first opinion were urged the danger of a gradual degeneracy of re-elections from time to time, into first a life and then a hereditary tenure, and the favorable effect of an incapacity to be reappointed, on the independent exercise of the Executive authority. On the other side it was contended that the prospect of necessary degradation would discourage the most dignified characters from aspiring to the office, would take away the principal motive to the faithful discharge of its duties. The hope of being rewarded with a reappointment, would stimulate ambition to violent efforts for holding over the constitutional term, and instead of producing an independent administration, and a firmer defence of the constitutional rights of the department, would render the officer more indifferent to the importance of a place which he would soon be obliged to quit for ever, and more ready to yield to the incroachments of the Legislature of which he might again be a member.

  The questions concerning the degree of power turned chiefly on the appointment to offices, and the controul on the Legislature. An absolute appointment to all offices—to some offices—to no offices, formed the scale of opinions on the first point. On the second, some contended for an absolute negative, as the only possible mean of reducing to practice, the theory of a free government which forbids a mixture of the Legislative and Executive powers. Others would be content with a revisionary power to be overruled by three fourths of both Houses. It was warmly urged that the judiciary department should be associated in the r
evision. The idea of some was that a separate revision should be given to the two departments—that if either objected two thirds; if both three fourths, should be necessary to overrule.

  In forming the Senate, the great anchor of the Government, the questions as they came within the first object turned mostly on the mode of appointment, and the duration of it. The different modes proposed were, 1. by the House of Representatives, 2. by the Executive, 3. by electors chosen by the people for the purpose, 4. by the State Legislatures. On the point of duration, the propositions descended from good behavior to four years, through the intermediate terms of nine, seven, six and five years. The election of the other branch was first determined to be triennial, and afterwards reduced to biennial.

  The second object, the due partition of power, between the General and local Governments, was perhaps of all, the most nice and difficult. A few contended for an entire abolition of the States; Some for indefinite power of Legislation in the Congress, with a negative on the laws of the States, some for such a power without a negative, some for a limited power of legislation, with such a negative : the majority finally for a limited power without the negative. The question with regard to the Negative underwent repeated discussions, and was finally rejected by a bare majority. As I formerly intimated to you my opinion in favor of this ingredient, I will take this occasion of explaining myself on the subject. Such a check on 552Founding -America------ ---the States appears to me necessary 1. to prevent encroachments on the General authority, 2. to prevent instability and injustice in the legislation of the States.