A Letter to Grover Cleveland Part 16

Now, if congress and the courts had attempted to obey this amendment, as they were const.i.tutionally bound to do, they would soon have found that they had really no lawmaking power whatever left to them; because they would have found that they could make no law at all, _of their own invention_, that would _not_ violate men's natural rights.

All men's natural rights are co-extensive with natural law, the law of justice; or justice as a science. This law is the exact measure, and the only measure, of any and every man's natural rights. No one of these natural rights can be taken from any man, without doing him an injustice; and no more than these rights can be given to any one, unless by taking from the natural rights of one or more others.

In short, every man's natural rights are, first, the right to do, with himself and his property, everything that he pleases to do, and that justice towards others does not forbid him to do; and, secondly, to be free from all compulsion, by others, to do anything whatever, except what justice to others requires him to do.

Such, then, has been the const.i.tutional law of this country since 1791; admitting, for the sake of the argument--what I do not really admit to be a fact--that the const.i.tution, so called, has ever been a law at all.

This amendment, from the remarkable circ.u.mstances under which it was proposed and adopted, must have made an impression upon the minds of all the public men of the time; although they may not have fully comprehended, and doubtless did not fully comprehend, its sweeping effects upon all the supposed powers of the government.

But whatever impression it may have made upon the public men of that time, its authority and power were wholly lost upon their successors; and probably, for at least eighty years, it has never been heard of, either in congress or the courts.

John Marshall was perfectly familiar with all the circ.u.mstances, under which this, and the other nine amendments, were proposed and adopted. He was thirty-two years old (lacking seven days) when the const.i.tution, as originally framed, was published (September 17, 1787); and he was a member of the Virginia convention that ratified it. He knew perfectly the objections that were raised to it, in that convention, on the ground of its inadequate guaranty of men's natural rights. He knew with what force these objections were urged by some of the ablest members of the convention. And he knew that, to obviate these objections, the convention, as a body, without a dissenting voice, so far as appears, recommended that very stringent amendments, for securing men's natural rights, be made to the const.i.tution. And he knew further, that, but for these amendments being recommended, the const.i.tution would not have been adopted by the convention.[6]

[6] For the amendments recommended by the Virginia convention, see "Elliot's Debates," Vol. 3, pp. 657 to 663. For the debates upon these amendments, see pages 444 to 452, and 460 to 462, and 466 to 471, and 579 to 652.

The amendments proposed were too numerous to be repeated here, although they would be very instructive, as showing how jealous the people were, lest their natural rights should be invaded by laws made by congress.

And that the convention might do everything in its power to secure the adoption of these amendments, it resolved as follows:

And the convention do, in the name and behalf of the people of this commonwealth, enjoin it upon their representatives in congress to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the foregoing alterations and provisions, in the manner provided by the 5th article of the said Const.i.tution; and, in all congressional laws to be pa.s.sed in the meantime, to conform to the spirit of these amendments, as far as the said Const.i.tution will admit.--_Elliot's Debates, Vol. 3, p. 661._

In seven other State conventions, to wit, in those of Ma.s.sachusetts, New Hampshire, Rhode Island, New York, Maryland, North Carolina, and South Carolina, the inadequate security for men's natural rights, and the necessity for amendments, were admitted, and insisted upon, in very similar terms to those in Virginia.

In Ma.s.sachusetts, the convention proposed nine amendments to the const.i.tution; and resolved as follows:

And the convention do, in the name and in the behalf of the people of this commonwealth, enjoin it upon their representatives in Congress, at all times, until the alterations and provisions aforesaid have been considered, agreeably to the 5th article of the said Const.i.tution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the said article.--_Elliot's Debates, Vol. 2, p. 178._

The New Hampshire convention, that ratified the const.i.tution, proposed twelve amendments, and added:

And the Convention do, in the name and behalf of the people of this State, enjoin it upon their representatives in congress, at all times, until the alterations and provisions aforesaid have been considered agreeably to the fifth article of the said Const.i.tution, to exert all their influence, and use all reasonable and legal methods, to obtain a ratification of the said alterations and provisions, in such manner as is provided in the article.--_Elliot's Debates, Vol. 1, p. 326._

The Rhode Island convention, in ratifying the const.i.tution, put forth a declaration of rights, in eighteen articles, and also proposed twenty-one amendments to the const.i.tution; and prescribed as follows:

And the Convention do, in the name and behalf of the people of the State of Rhode Island and Providence Plantations, enjoin it upon their senators and representative or representatives, which may be elected to represent this State in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Const.i.tution, in the manner prescribed therein; and in all laws to be pa.s.sed by the congress in the mean time, to conform to the spirit of the said amendments, as far as the Const.i.tution will admit.--_Elliot's Debates, Vol. 1, p. 335._

The New York convention, that ratified the const.i.tution, proposed a great many amendments, and added:

And the Convention do, in the name and behalf of the people of the State of New York, enjoin it upon their representatives in congress, to exert all their influence, and use all reasonable means, to obtain a ratification of the following amendments to the said Const.i.tution, in the manner prescribed therein; and in all laws to be pa.s.sed by the congress, in the mean time, to conform to the spirit of the said amendments as far as the Const.i.tution will admit.--_Elliot's Debates, Vol. 1, p. 329._

The New York convention also addressed a "CIRCULAR LETTER" to the governors of all the other States, the first two paragraphs of which are as follows:

THE CIRCULAR LETTER,

_From the Convention of the State of New York to the Governors of the several States in the Union._

POUGHKEEPSIE, JULY 28, 1788.

Sir, We, the members of the Convention of this State, have deliberately and maturely considered the Const.i.tution proposed for the United States. Several articles in it appear so exceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revision of them by a general convention, and an invincible reluctance to separating from our sister States, could have prevailed upon a sufficient number to ratify it, without stipulating for previous amendments. We all unite in opinion, that such a revision will be necessary to recommend it to the approbation and support of a numerous body of our const.i.tuents.

We observe that amendments have been proposed, and are anxiously desired, by several of the States, as well as by this; and we think it of great importance that effectual measures be immediately taken for calling a convention, to meet at a period not far remote; for we are convinced that the apprehensions and discontents, which those articles occasion, cannot be removed or allayed, unless an act to provide for it be among the first that shall be pa.s.sed by the new congress.--_Elliot's Debates, Vol. 2, p. 413._

In the Maryland convention, numerous amendments were proposed, and thirteen were agreed to; "most of them by a unanimous vote, and all by a great majority." Fifteen others were proposed, but there was so much disagreement in regard to them, that none at all were formally recommended to congress. But, says Elliot:

All the members, who voted for the ratification [of the const.i.tution], declared that they would engage themselves, under every tie of honor, to support the amendments they had agreed to, both in their public and private characters, until they should become a part of the general government.--_Elliot's Debates, Vol. 2, pp. 550, 552-3._

The first North Carolina convention refused to ratify the const.i.tution, and

_Resolved_, That a declaration of rights, a.s.serting and securing from encroachments the great principles of civil and religious liberty, and the inalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said const.i.tution of government, ought to be laid before congress, and the convention of States that shall or may be called for the purpose of amending the said Const.i.tution, for their consideration, previous to the ratification of the Const.i.tution aforesaid, on the part of the State of North Carolina.--_Elliot's Debates, Vol. 1, p. 332._

The South Carolina convention, that ratified the const.i.tution, proposed certain amendments, and

_Resolved_, That it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the General Government, to exert their utmost abilities and influence to effect an alteration of the Const.i.tution, conformably to the foregoing resolutions.--_Elliot's Debates, Vol. 1. p. 325._

In the Pennsylvania convention, numerous objections were made to the const.i.tution, but it does not appear that the convention, as a convention, recommended any specific amendments. But a strong movement, outside of the convention, was afterwards made in favor of such amendments. ("Elliot's Debates," Vol. 2, p. 542.)

Of the debates in the Connecticut convention, Elliot gives only what he calls "_A Fragment_."

Of the debates in the conventions of New Jersey, Delaware, and Georgia, Elliot gives no accounts at all.

I therefore cannot state the grounds, on which the adoption of the const.i.tution was opposed. They were doubtless very similar to those in the other States. This is rendered morally certain by the fact, that the amendments, soon afterwards proposed by congress, were immediately ratified by all the States. Also by the further fact, that these States, by reason of the smallness of their representation in the popular branch of congress, would naturally be even more jealous of their rights, than the people of the larger States.

It is especially worthy of notice that, in some, if not in all, the conventions that ratified the const.i.tution, although the ratification was accompanied by such urgent recommendations of amendments, and by an almost absolute a.s.surance that they would be made, it was nevertheless secured only by very small majorities.

Thus in Virginia, the vote was only 89 ayes to 79 nays. (Elliot, Vol. 3, p. 654.)

In Ma.s.sachusetts, the ratification was secured only by a vote of 187 yeas to 168 nays. (Elliot, Vol. 2, p. 181.)

In New York, the vote was only 30 yeas to 27 nays. (Elliot, Vol. 2, p.

413.)

In New Hampshire and Rhode Island, neither the yeas nor nays are given.

(Elliot, Vol. 1, pp. 327-335.)

In Connecticut, the yeas were 128; _nays not given_. (Elliot, Vol. 1. p.

321-2.)

In New Jersey, the yeas were 38; _nays not given_. (Elliot, Vol. 1, p.

321.)

In Pennsylvania, the yeas were 46; _the nays not given_. (Elliot, Vol.

1, p. 320.)

In Delaware, the yeas were 30; _nays not given_. (Elliot, Vol. 1, p.

319.)

In Maryland, the vote was 57 yeas; _nays not given_. (Elliot, Vol. 1, p.

325.)

In North Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1, p. 333.)