The Bill of Rights becomes law

December 15, 2013

On December 15, 1791, Virginia became the last state to ratify the Bill of Rights, making the first ten amendments to the Constitution law and completing the revolutionary reforms begun by the Declaration of Independence. Before the Massachusetts ratifying convention would accept the Constitution, which they finally did in February 1788, the document’s Federalist supporters had to promise to create a Bill of Rights to be amended to the Constitution immediately upon the creation of a new government under the document.

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The Anti-Federalist critics of the document, who were afraid that a too-strong federal government would become just another sort of the monarchical regime from which they had recently been freed, believed that the Constitution gave too much power to the federal government by outlining its rights but failing to delineate the rights of the individuals living under it. The promise of a Bill of Rights to do just that helped to assuage the Anti-Federalists’ concerns.

The newly elected Congress drafted the Bill of Rights on December 25, 1789. Virginia’s ratification on this day in 1791 created the three-fourths majority necessary for the ten amendments to become law. Drafted by James Madison and loosely based on Virginia’s Declaration of Rights, the first ten amendments give the following rights to all United States citizens:

  1. Freedom of religion, speech and assembly
  2. Right to keep and bear arms for the purpose of a well-regulated militia
  3. No forcible quartering of soldiers during peacetime
  4. Freedom from unreasonable search and seizure
  5. Right to a grand jury for capital crimes and due process. Protection from double jeopardy, self-incrimination and public confiscation of private property without just compensation.
  6. Right to speedy and public trial by jury and a competent defense
  7. Right to trial by jury for monetary cases above $20
  8. Protection against excessive bail or fines and cruel and unusual punishments
  9. Rights not enumerated are retained by the people
  10. Rights not given to the federal government or prohibited the state governments by the Constitution, are reserved to the States… or to the people

William Branch Giles, Virginia statesman and supporter of James Madison

August 9, 2012

 

William Branch Giles (the name is pronounced jyles) was an American statesman, long-term Senator from Virginia, and the 24th Governor of Virginia. He served in the House of Representatives from 1790 to 1798, and again from 1801 to 1803; in between, he was a member of the Virginia House of Delegates, and was an Elector for Jefferson (and Aaron Burr) in 1800. He served as United States Senator from 1804 to 1815, and then served briefly in the House of Delegates again. After a time in private life, he joined the opposition to John Quincy Adams and Henry Clay, in 1824; he ran for Senate again in 1825, and was defeated, but appointed Governor for three one-year terms in 1827; he was succeeded by John Floyd, in the year of his death.

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United States Senator from Virginia

He was born on August 12, 1762, and died December 4, 1830, in Amelia County, Virginia, where he built his home, The Wigwam. Giles attended Prince Edward Academy, now Hampden-Sydney College, and the College of New Jersey, now Princeton University; he probably followed Samuel Stanhope Smith, who was teaching at Prince Edward Academy when he was appointed President of the College in 1779. He then went on to study law with Chancellor George Wythe and at the College of William and Mary; he was admitted to the bar in 1786. Giles supported the new Constitution during the ratification debates of 1788, but was not a member of the ratifying convention.

Giles was elected to the U.S. House of Representatives in a special election in 1790, taking the seat of Theodorick Bland, who had died in office on June 1; he is believed to be the first member of the United States Congress elected in a special election. He was to be re-elected three times; he resigned October 2, 1798, on the grounds of ill health, and in disgust at the Alien and Sedition Acts. During this first period in Congress, he fervently supported his fellow Virginian James Madison against Alexander Hamilton. He introduced three sets of resolutions in 1793, which criticized Hamilton’s conduct as Secretary of the Treasury to the point of accusing him of misconduct in office; he opposed the first Bank of the United States and Jay’s Treaty; he resisted naval appropriations during the Quasi-War of 1798. In the same year, he voted for the Virginia Resolutions in the House of Delegates.

After another term in the House, from 1801 to 1803, Giles was appointed as a Senator from Virginia after the resignation of Wilson Cary Nicholas in 1804. Giles served in the U.S. Senate, being reappointed in 1810, until he resigned on March 3, 1815. Senator Giles strongly advocated the removal of Justice Samuel Chase after his impeachment, urging the Senate to consider it as a political decision (whether the people of the United States should have confidence in Chase) rather than a trial.

Giles was deeply disappointed by the acquittal of Chase. He supported the election of Madison as President in 1808, in preference to the Old Republican insurgents’ candidate, James Monroe, and definitely to the Federalist Charles Cotesworth Pinckney. In fact, Giles was Madison’s chief advocate in Virginia.

After the election, however, he joined with Senator Samuel Smith of Maryland and his brother Robert Smith, the Secretary of State, in criticizing Madison; first as too weak on England, and then, in 1812, as too precipitate in going to war – he did, however, vote for the declaration of war. He particularly disliked Albert Gallatin, the Secretary of the Treasury, and was largely responsible for preventing his nomination as Secretary of State and for defeating Gallatin’s bill of 1811 for a new Bank of the United States.

Giles’ refusal to accept the General Assembly’s instructions led to his rejection at the next poll for a senator. (Senators in those days were elected by the state legislatures.) Giles served one relatively uneventful term in the Virginia House of Delegates in 1816–17, and then retired from political office for a time. He did, however, publish opinion pieces and columns, chiefly in the Richmond, Virginia, Enquirer, in which he deplored the Era of Good Feeling as a false prosperity, given over to banks, tariffs, and fraudulent internal improvements; these would centralize and corrupt government, and ruin the farmers. He attacked John Quincy Adams and Henry Clay as he had attacked Hamilton, as corrupt Anglophiles.

Giles also published a perceptive criticism of the Jeffersonian program for public education. As Giles explained, it was unjust to tax one man to educate another man’s children, and the teachers the government employed would constitute a special interest always at the ready to vote for higher taxes and higher government spending. Besides, he said, giving every boy in Virginia three years of school would have limited practical utility, would deprive farm families of much-needed labor power, and would leave the typical “scholar” unfitted for the return to hard labor that awaited him.

When James Barbour left the Senate in 1825, Giles attempted to persuade the Legislature to appoint him as replacement; they appointed John Randolph instead. In 1826, Giles was again elected to the House of Delegates, and in 1827 he was elected Governor; Giles served as Governor of Virginia for three terms, from March 4, 1827 to March 4, 1830. From the governorship, Giles encouraged Virginia’s Senator Littleton Waller Tazewell to organize a southern resistance to the American System of Henry Clay centered on a boycott on northern manufactures. Tazewell found little support for it among southern senators.

In Giles’ last term, he was a member of the Virginia Constitutional Convention of 1829–30; he strongly supported the existing apportionment of the House of Delegates, which gave the eastern counties of Virginia, with a minority of the voters, control of the legislature. He did favor reform of the suffrage requirements, however. Giles also opposed the movement in the Convention to strengthen his own office, the governorship. Strong governorships in other states, such as New York, were at the center of political machines kept together by patronage and corruption, he said, and the reason Virginians had not suffered from those ills was that there was no point in fighting for control of Virginia’s weak governorship. Rather than follow the example of New York, with its Clintonian party machine, it was better for Virginia to retain George Mason’s executive model. Giles lost on this point to some extent: while the governor’s term remained short and he was still accountable to the General Assembly, the Constitution of 1830 abolished the Council—and thus made the governorship a bit more independent.

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The Wigwam, located 8 miles northwest of Chula, Virginia, was nominated to the National Registry of History Places on November 25, 1969.

Giles married twice; first, Martha Peyton Tabb in 1797; he built his 28-room house, “The Wigwam”, for her. After she died, in 1808, he married Frances Ann Gwynn in 1810. His surviving children, one son and two daughters, appear to have been from the second marriage.

Counties in two states were named in his honor. One in the state of Virginia, Giles County, Virginia, and one in the state of Tennessee, Giles County, Tennessee.

References

  • F. Thornton Miller, “Giles, William Branch”; American National Biography Online, Feb. 2000. Access Date: Wed Nov 26 16:23:26 EST 2008 (link requires subscription
  • W. Frank Craven, “William Branch Giles” in Princetonians, 1776–1783; a Biographical Dictionary, Princeton University Press, 1981.

Bibliography

  • Dice Anderson, William Branch Giles; A Study in the Politics of Virginia and the Nation from 1790 to 1830, George Banta, 1914 and William Branch Giles, a Life, George Banta, 1915.
  • Mary A. Giunta, The Public Life of William Branch Giles, Republican, 1790–1815, PhD dissertation, Catholic University, 1980. For some reason, this study leaves off before Giles’ editorial and gubernatorial career.
  • Kevin R. C. Gutzman, Virginia’s American Revolution: From Dominion to Republic, 1776–1840, Lexington Books, 2007.
  • Kevin R. C. Gutzman, “Preserving the Patrimony: William Branch Giles and Virginia vs. The Federal Tariff,” The Virginia Magazine of History and Biography” 104 (Summer 1996), 341–72.

The Virginia Plan for the Constitution

June 14, 2012

 

The Virginia Plan (also known as the Randolph Plan, after its sponsor, or the Large-State Plan) was a proposal by Virginia delegates for a bicameral legislative branch.[1] The plan was drafted by James Madison while he waited for a quorum to assemble at the Constitutional Convention of 1787.[2][3] The Virginia Plan was notable for its role in setting the overall agenda for debate in the convention and, in particular, for setting forth the idea of population-weighted representation in the proposed national legislature.

The Constitutional Convention gathered in Philadelphia to revise the Articles of Confederation. The Virginia delegation took the initiative to frame the debate by immediately drawing up and presenting a proposal, for which delegate James Madison is given chief credit. It was, however, Edmund Randolph, the Virginia governor at the time, who officially put it before the convention on May 29, 1787, in the form of 15 resolutions.[4]

The scope of the resolutions, going well beyond tinkering with the Articles of Confederation, succeeded in broadening the debate to encompass fundamental revisions to the structure and powers of the national government. The resolutions proposed, for example, a new form of national government having three branches (legislative, executive and judicial). One contentious issue facing the convention was the manner in which large and small states would be represented in the legislature, whether by equal representation for each state, regardless of its size and population, or proportionate to population, with larger states having more votes than less-populous states. Under the Articles of Confederation, each state was represented in Congress by one vote. It was also unicameral.

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Front side of the Virginia Plan

The Virginia Plan proposed a legislative branch consisting of two chambers (bicameral legislature), with the dual principles of rotation in office and recall applied to the lower house of the national legislature.[5] Each of the states would be represented in proportion to their “Quotas of contribution, or to the number of free inhabitants.”[6] States with a large population, like Virginia (which was the most populous state at the time), would thus have more representatives than smaller states. Large states supported this plan, and smaller states generally opposed it, preferring an alternative put forward on June 15. The New Jersey Plan proposed a single-chamber legislature in which each state, regardless of size, would have one vote, as under the Articles of Confederation. In the end, the convention settled on the Connecticut Compromise, creating a House of Representatives apportioned by population and a Senate in which each state is equally represented.

In addition to dealing with legislative representation, the Virginia Plan addressed other issues as well, with many provisions that did not make it into the Constitution that emerged. It called for a national government of three branches: legislative, executive, and judicial. Members of one of the two legislative chambers would be elected by the people; members of that chamber would then elect the second chamber from nominations submitted by state legislatures. The executive would be chosen by the legislative branch.

Terms of office were unspecified, but the executive and members of the popularly elected legislative chamber could not be elected for an undetermined time afterward. The legislative branch would have the power to negate state laws if they were deemed incompatible with the articles of union. The concept of checks and balances was embodied in a provision that legislative acts could be vetoed by a council composed of the executive and selected members of the judicial branch; their veto could be overridden by an unspecified legislative majority.

References

  1. Frantzich, Stephen E.; Howard R. Ernst (2008). The Political Science Toolbox: A Research Companion to the American Government. Rowman & Littlefield. pp. 24. ISBN 0742547620. http://books.google.com/?id=Ua_0ev7pRLUC&pg=PA24&lpg=PA24.
  2. Roche, John P. (December 1961). “The Founding Fathers: A Reform Caucus in Action”. American Political Science Review 55.
  3. Ann Marie Dube (May 1996). “A Multitude of Amendments, Alterations and Additions”. National Park Service. http://www.nps.gov/history/history/online_books/dube/inde4.htm.
  4. Transcription of the Virginia Plan
  5. “Res[olved] that the members of the first branch of the National Legislature ought to be elected by the people of the several States every for the term of;___…to be incapable of reelection for the space of ___after the expiration of their term of service; and to be subject to recall.” Max Farrand, ed., The Records of the Federal Convention of 1787, 4 vols. (New Haven: Yale University Press, 1911), 1:20.
  6. “Variant Texts of the Virginia Plan, Presented by Edmund Randolph to the Federal Convention, May 29, 1787. Text A.”, The Avalon Project at Yale Law School

William Eustis, Revolutionary War surgeon and Governor of Massachusetts

June 7, 2012

William Eustis was an early American physician, politician, and statesman. Trained in medicine, he served as a surgeon during the American Revolutionary War before entering into politics. He served several terms in the United States Congress representing Massachusetts, and was serving as Secretary of War under President James Madison at the outbreak of the War of 1812. He then served as minister of the United States to the Netherlands before returning to Massachusetts. He was twice elected Governor of Massachusetts, and died in office.

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He was born in Cambridge, Massachusetts on June 10, 1753 and studied at the Boston Latin School before he entered Harvard College, from which he graduated in 1772. He studied medicine under Dr. Joseph Warren and helped care for the wounded at the Battle of Bunker Hill, where Warren was killed. He served the Continental Army during the American Revolutionary War as surgeon of the artillery regiment at Cambridge and then as a hospital surgeon.

He entered medical practice in Boston after the war and served as surgeon with the Shays’ Rebellion expedition of 1786–1787.

He became vice president of the Society of the Cincinnati, serving from 1786 to 1810 and again in 1820.

He was elected to the Massachusetts General Court from 1788 to 1794 and was a member of the Governor’s Council for two years. Following this he served two terms in the United States House of Representatives from 1801 to 1804, representing Massachusetts in the 7th and 8th Congresses, and having won close races over Josiah Quincy III and John Quincy Adams. While in the House he was one of the managers appointed by the House of Representatives in 1804 to conduct the impeachment proceedings against John Pickering, judge of the United States District Court for New Hampshire. He failed to win reelection in 1804.

He served as United States Secretary of War from March 7, 1809 to January 13, 1813. During his tenure, he attempted to prepare the U.S. Army for the outbreak of the War of 1812, and resigned in the face of criticism following American reversal on the battlefield.

He was appointed minister of the United States to the Netherlands by President James Madison, serving from 1814 to 1818.

He returned home from Europe because of ill health, at which time he purchased and resided in the mansion in Roxbury built by royal governor William Shirley in the 1750s (now known as the Shirley-Eustis House). He was again elected to the United States House of Representatives and served 1820 to 1823, presiding as chairman of the U.S. House Committee on Military Affairs during this time. He ran unsuccessfully for Governor of Massachusetts three times (in 1820, 1821 and 1822) and was finally elected governor and served two terms, from 1823 to 1825.

He died in Boston while governor in February 6, 1825 and is buried at the Old Burying Ground in Lexington, Massachusetts.

Sources


The Constitutional Convention, forming a new government

May 27, 2012

Even before Shays’ Rebellion, prominent Americans were thinking of means to strengthen the Articles of Confederation. James Madison and others met with George Washington at Mount Vernon in 1785, to discuss commercial issues relating to Virginia and Maryland.

One recommendation from that meeting was to convene a group of delegates from the states to discuss alterations of the Articles. Only five states sent representatives to Annapolis in the fall of 1786, but Alexander Hamilton’s recommendation to convene another reform meeting in Philadelphia in the spring of 1787, was forwarded to the Continental Congress.

Two ground rules would govern the convention proceedings. First, all deliberations were to be kept secret. Detailed word about the debates remained guarded until the publication of Madison’s notes in 1840. Second, no issue was to be regarded as closed and could be revisited for debate at any time.

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The Convention convened on May 25, 1787, at the State House (now Independence Hall) in Philadelphia. It opened eleven days later than planned because of the slow arrival of some delegates. All of the states were represented except for Rhode Island, which declined to attend.

Washington, noted for his patience and fairness, was selected as the presiding officer. In all, 55 delegates attended. Though often regarded as great sages by later generations, the delegates were largely lawyers, merchants, and planters who represented their personal and regional interests.

What was remarkable, however, was the degree to which the delegates managed to subordinate those interests at crucial times in order to reach a series of compromises. Many were experienced in colonial and state government, and others had records of service in the army and in the courts. Eight had signed the Declaration of Independence and 17 were slave owners.

Interestingly, a number of prominent figures of the day did not attend, including Richard Henry Lee, Patrick Henry, Thomas Jefferson, John Adams, Samuel Adams, and John Hancock.

The stated goal of the Convention — the revision of the Articles of Confederation — was quickly discarded, and attention given to more sweeping changes. Discussion turned instead to two competing concepts of how a new government should be formed, the Virginia Plan and the New Jersey Plan.

The Virginia Plan was favored by the big states. It envisioned a bicameral legislature with both houses having membership proportional to population. The New Jersey plan was favored by the small states. It called for each state’s representation in each house to be equal to every other state’s. The impasse was resolved by the Connecticut Compromise, which split the difference. The upper house (Senate) would have equal representation from each state. The lower house (House of Representatives) would allocate membership in proportion to population.

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Although not present in Philadelphia, Thomas Jefferson kept abreast of developments from his post in Paris and corresponded regularly with acquaintances in Congress and at the convention. One of the points he strove to make was the need for an independent executive, to attend to the details that the Congress was incapable of handling.

The delegates considered whether the legislature should be elected directly by the people or by the state legislatures. The usual arguments against allowing too great an influence from an unsophisticated electorate were met by George Mason, who observed that legislatures were subject to improper pressures, and Madison, who argued that at least one of the two bodies should be elected directly. This became the compromise position.

In determining the population which, in turn, would determine the number of members each state would have in the House of Representatives, the question of slaves was considered. No one suggested that slaves should vote, and the free states argued that they should not be counted at all. The slaveholding states, on the other hand, felt that free and slave should all be counted. The final compromise was the make the House depend on the free population plus three fifths of the slaves.

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At one point, Elbridge Gerry of Massachusetts observed to the delegates that if they admitted too many Western states, they would eventually “oppress our commerce and drain out wealth into the Western country.” He proposed limiting the number of potential new states so that they would never outnumber the Eastern states. In response, Sherman retorted that there was no probability that the new Western states would ever outnumber the original thirteen. Gerry’s recommendation was defeated.

The finished Constitution has been referred to as a “bundle of compromises.” It was only through give-and-take that a successful conclusion was achieved. The Framers of the Constitution had gone far beyond revising the Articles of Confederation.

By conferring extensive new powers, the Convention gave the federal government full power to levy taxes, borrow money, establish uniform duties and excise taxes, coin money, fix weights and measures, grant patents and copyrights, set up post offices, and build post roads.

The national government also had the power to raise and maintain an army and navy and to regulate interstate commerce. It was given the management of Indian affairs, foreign policy and war. It could pass laws for naturalizing foreigners and controlling public lands, and it could admit new states on a basis of absolute equality with the old.

The power to pass all necessary and proper laws for executing these clearly defined powers, enabled the federal government to meet the needs of later generations and of a greatly expanded body politic.

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On the final day, Benjamin Franklin acknowledged that there were parts of the proposed constitution that were not to his liking, but also noted that he had been obliged at times in his life to change what he had considered to be a settled opinion. He urged all the delegates to lay aside any reservations they felt and sign the document with him.

At the end of three and a half months, 38 of the 55 delegates signed the document and adjourned to the City Tavern for libations and a final dinner. The Constitution was conveyed to the Congress, which, in turn, decided to pass the matter along to the states for ratification.


The Founding Fathers on Constitutional War Power

March 9, 2012

Photo of the Constitution of the United States of America. A feather quill is included in the photo.The Constitution of the United States is the supreme law of the United States of America and is the oldest codified written national constitution still in force. It was completed on September 17, 1787.

The Congress shall have Power…To declare War… – The Constitution of the United States, Article I, Section 8, Clause 11

Justice Joseph Story

Justice Joseph Story

“The power to declare war is exclusive in congress.” – Commentaries Volume III, Chapter XXI, Paragraph 1172, 1833

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Alexander Hamilton

The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He is to have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment; to recommend to the consideration of Congress such measures as he shall judge necessary and expedient; to convene, on extraordinary occasions, both houses of the legislature, or either of them, and, in case of disagreement between them with respect to the time of adjournment, to adjourn them to such time as he shall think proper; to take care that the laws be faithfully executed; and to commission all officers of the United States.” – Alexander Hamilton, Federalist No. 69, “The Real Character of the Executive,” New York Packet, March 14, 1788

While, therefore, the Legislature can alone declare war, can alone actually transfer the nation from a state of peace to a state of hostility, it belongs to the “executive power” to do whatever else the law of nations, co-operating with the treaties of the country, enjoin in the intercourse of the United States with foreign Powers. – Pacificus No. 1, June 29, 1793; Works: Vol. 4

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Thomas Jefferson

We have already given, in example, one effectual check to the dog of war, by transferring the power of declaring war from the executive to the legislative body, from those who are to spend, to those who are to pay. – Letter to James Madison, Paris, September 6, 1789; Bergh 7:461

Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided. – Confidential message to Congress on Spanish Spoliations, December 6, 1805; Bergh 3:400

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James Madison

Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging of the causes of war, is fully and exclusively vested in the legislature; that the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war; that the right of convening and informing congress, whenever such a question seems to call for a decision, is all the right which the constitution has deemed requisite or proper; and that for such, more than for any other contingency, this right was specially given to the executive. – James Madison, essay, Helvidius IV, September 14, 1793; Writings: Vol. 6

“The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature. – James Madison, letter to Thomas Jefferson, April 2, 1798; Writings 6:312

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Justice William Paterson

There is a manifest distinction between our going to war with a nation at peace, and a war being made against us by an actual invasion, or a formal declaration. In the former case it is the exclusive province of Congress to change a state of peace into a state of war. – United States v. Smith, 27 F. Cas. 1192, 1806

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George Washington

The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure. – Letter to South Carolina Governor William Moultrie, Philadelphia, August 28, 1793; Fitzpatrick: 33

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James Wilson

This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war. – James Wilson, remarks in the Pennsylvania Convention to Ratify the Constitution of the United States, December 11, 1787; Works: Vol. 1, Part I


Vices of the Political System of the United States

February 16, 2012

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Vices of the Political System of the United States

James Madison
April 1787

1. Failure of the States to comply with the Constitutional requisitions.

This evil has been so fully experienced both during the war and since the peace, results so naturally from the number and independent authority of the States and has been so uniformly examplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.

2. Encroachments by the States on the federal authority.

Examples of this are numerous and repetitions may be foreseen in almost every case where any favorite object of a State shall present a temptation. Among these examples are the wars and Treaties of Georgia with the Indians–The unlicensed compacts between Virginia and Maryland, and between Pena. & N. Jersey–the troops raised and to be kept up by Massts.

3. Violations of the law of nations and of treaties.

From the number of Legislatures, the sphere of life from which most of their members are taken, and the circumstances under which their legislative business is carried on, irregularities of this kind must frequently happen. Accordingly not a year has passed without instances of them in some one or other of the States. The Treaty of peace–the treaty with France–the treaty with Holland have each been violated.[See the complaints to Congress on these subjects]. The causes of these irregularities must necessarily produce frequent violations of the law of nations in other respects.

As yet foreign powers have not been rigorous in animadverting on us. This moderation however cannot be mistaken for a permanent partiality to our faults, or a permanent security agst. those disputes with other nations, which being among the greatest of public calamities, it ought to be least in the power of any part of the Community to bring on the whole.

4. Trespasses of the States on the rights of each other.

These are alarming symptoms, and may be daily apprehended as we are admonished by daily experience. See the law of Virginia restricting foreign vessels to certain ports–of Maryland in favor of vessels belonging to her own citizens–of N. York in favor of the same.

Paper money, instalments of debts, occlusion of Courts, making property a legal tender, may likewise be deemed aggressions on the rights of other States. As the Citizens of every State aggregately taken stand more or less in the relation of Creditors or debtors, to the Citizens of every other States, Acts of the debtor State in favor of debtors, affect the Creditor State, in the same manner, as they do its own citizens who are relatively creditors towards other citizens. This remark may be extended to foreign nations. If the exclusive regulation of the value and alloy of coin was properly delegated to the federal authority, the policy of it equally requires a controul on the States in the cases above mentioned. It must have been meant 1. to preserve uniformity in the circulating medium throughout the nation. 2. to prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquility at home, or involve the Union in foreign contests.

The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive & vexatious in themselves, than they are destructive of the general harmony.

5. want of concert in matters where common interest requires it.

This defect is strongly illustrated in the state of our commercial affairs. How much has the national dignity, interest, and revenue suffered from this cause? Instances of inferior moment are the want of uniformity in the laws concerning naturalization & literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, wch. may at present be defeated by the perverseness of particular States whose concurrence is necessary.

6. want of Guaranty to the States of their Constitutions & laws against internal violence.

The confederation is silent on this point and therefore by the second article the hands of the federal authority are tied. According to Republican Theory, Right and power being both vested in the majority, are held to be synonimous. According to fact and experience a minority may in an appeal to force, be an overmatch for the majority. 1. If the minority happen to include all such as possess the skill and habits of military life, & such as possess the great pecuniary resources, one third only may conquer the remaining two thirds. 2. One third of those who participate in the choice of the rulers, may be rendered a majority by the accession of those whose poverty excludes them from a right of suffrage, and who for obvious reasons will be more likely to join the standard of sedition than that of the established Government. 3. Where slavery exists the republican Theory becomes still more fallacious.

7. want of sanction to the laws, and of coercion in the Government of the Confederacy.

A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States. From what cause could so fatal an omission have happened in the articles of Confederation? from a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals: a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies, to the acts of the federal Government, ought not be calculated on. Even during the war, when external danger supplied in some degree the defect of legal & coercive sanctions, how imperfectly did the States fulfil their obligations to the Union? In time of peace, we see already what is to be expected. How indeed could it be otherwise? In the first place, Every general act of the Union must necessarily bear unequally hard on some particular member or members of it. Secondly the partiality of the members to their own interests and rights, a partiality which will be fostered by the Courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence. Thirdly a distrust of the voluntary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all. Here are causes & pretexts which will never fail to render federal measures abortive. If the laws of the States, were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congs. which depending for their execution on the will of the state legislatures, wch. are tho’ nominally authoritative, in fact recommendatory only.

8. Want of ratification by the people of the articles of Confederation.

In some of the States the Confederation is recognized by, and forms a part of the constitution. In others however it has received no other sanction than that of the Legislative authority. From this defect two evils result: 1. Whenever a law of a State happens to be repugnant to an act of Congress, particularly when the latter is of posterior date to the former, it will be at least questionable whether the latter must not prevail; and as the question must be decided by the Tribunals of the State, they will be most likely to lean on the side of the State.

2. As far as the Union of the States is to be regarded as a league of sovereign powers, and not as a political Constitution by virtue of which they are become one sovereign power, so far it seems to follow from the doctrine of compacts, that a breach of any of the articles of the confederation by any of the parties to it, absolves the other parties from their respective obligations, and gives them a right if they chuse to exert it, of dissolving the Union altogether.

9. Multiplicity of laws in the several States.

In developing the evils which viciate the political system of the U. S. it is proper to include those which are found within the States individually, as well as those which directly affect the States collectively, since the former class have an indirect influence on the general malady and must not be overlooked in forming a compleat remedy. Among the evils then of our situation may well be ranked the multiplicity of laws from which no State is exempt. As far as laws are necessary, to mark with precision the duties of those who are to obey them, and to take from those who are to administer them a discretion, which might be abused, their number is the price of liberty. As far as the laws exceed this limit, they are a nusance: a nusance of the most pestilent kind. Try the Codes of the several States by this test, and what a luxuriancy of legislation do they present. The short period of independency has filled as many pages as the century which preceded it. Every year, almost every session, adds a new volume. This may be the effect in part, but it can only be in part, of the situation in which the revolution has placed us. A review of the several codes will shew that every necessary and useful part of the least voluminous of them might be compressed into one tenth of the compass, and at the same time be rendered tenfold as perspicuous.

10. mutability of the laws of the States.

This evil is intimately connected with the former yet deserves a distinct notice as it emphatically denotes a vicious legislation. We daily see laws repealed or superseded, before any trial can have been made of their merits: and even before a knowledge of them can have reached the remoter districts within which they were to operate. In the regulations of trade this instability becomes a snare not only to our citizens but to foreigners also.

11. Injustice of the laws of States.

If the multiplicity and mutability of laws prove a want of wisdom, their injustice betrays a defect still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights. To what causes is this evil to be ascribed?

These causes lie 1. in the Representative bodies.

2. in the people themselves.

1. Representative appointments are sought from 3 motives. 1. ambition 2. personal interest. 3. public good. Unhappily the two first are proved by experience to be most prevalent. Hence the candidates who feel them, particularly, the second, are most industrious, and most successful in pursuing their object: and forming often a majority in the legislative Councils, with interested views, contrary to the interest, and views, of their Constituents, join in a perfidious sacrifice of the latter to the former. A succeeding election it might be supposed, would displace the offenders, and repair the mischief. But how easily are base and selfish measures, masked by pretexts of public good and apparent expediency? How frequently will a repetition of the same arts and industry which succeeded in the first instance, again prevail on the unwary to misplace their confidence?

How frequently too will the honest but unenlightened representative be the dupe of a favorite leader, veiling his selfish views under the professions of public good, and varnishing his sophistical arguments with the glowing colours of popular eloquence?

2. A still more fatal if not more frequent cause lies among the people themselves. All civilized societies are divided into different interests and factions, as they happen to be creditors or debtors–Rich or poor–husbandmen, merchants or manufacturers–members of different religious sects–followers of different political leaders–inhabitants of different districts–owners of different kinds of property &c &c. In republican Government the majority however composed, ultimately give the law. Whenever therefore an apparent interest or common passion unites a majority what is to restrain them from unjust violations of the rights and interests of the minority, or of individuals? Three motives only 1. a prudent regard to their own good as involved in the general and permanent good of the Community. This consideration although of decisive weight in itself, is found by experience to be too often unheeded. It is too often forgotten, by nations as well as by individuals that honesty is the best policy. 2dly. respect for character. However strong this motive may be in individuals, it is considered as very insufficient to restrain them from injustice. In a multitude its efficacy is diminished in proportion to the number which is to share the praise or the blame. Besides, as it has reference to public opinion, which within a particular Society, is the opinion of the majority, the standard is fixed by those whose conduct is to be measured by it. The public opinion without the Society, will be little respected by the people at large of any Country. Individuals of extended views, and of national pride, may bring the public proceedings to this standard, but the example will never be followed by the multitude. Is it to be imagined that an ordinary citizen or even an assembly-man of R. Island in estimating the policy of paper money, ever considered or cared in what light the measure would be viewed in France or Holland; or even in Massts or Connect.? It was a sufficient temptation to both that it was for their interest: it was a sufficient sanction to the latter that it was popular in the State; to the former that it was so in the neighbourhood. 3dly. will Religion the only remaining motive be a sufficient restraint? It is not pretended to be such on men individually considered. Will its effect be greater on them considered in an aggregate view? quite the reverse. The conduct of every popular assembly acting on oath, the strongest of religious Ties, proves that individuals join without remorse in acts, against which their consciences would revolt if proposed to them under the like sanction, separately in their closets. When indeed Religion is kindled into enthusiasm, its force like that of other passions, is increased by the sympathy of a multitude. But enthusiasm is only a temporary state of religion, and while it lasts will hardly be seen with pleasure at the helm of Government. Besides as religion in its coolest state, is not infallible, it may become a motive to oppression as well as a restraint from injustice. Place three individuals in a situation wherein the interest of each depends on the voice of the others, and give to two of them an interest opposed to the rights of the third? Will the latter be secure? The prudence of every man would shun the danger. The rules & forms of justice suppose & guard against it. Will two thousand in a like situation be less likely to encroach on the rights of one thousand? The contrary is witnessed by the notorious factions & oppressions which take place in corporate towns limited as the opportunities are, and in little republics when uncontrouled by apprehensions of external danger. If an enlargement of the sphere is found to lessen the insecurity of private rights, it is not because the impulse of a common interest or passion is less predominant in this case with the majority; but because a common interest or passion is less apt to be felt and the requisite combinations less easy to be formed by a great than by a small number. The Society becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert. It may be inferred that the inconveniences of popular States contrary to the prevailing Theory, are in proportion not to the extent, but to the narrowness of their limits.

The great desideratum in Government is such a modification of the Sovereignty as will render it sufficiently neutral between the different interests and factions, to controul one part of the Society from invading the rights of another, and at the same time sufficiently controuled itself, from setting up an interest adverse to that of the whole Society. In absolute Monarchies, the prince is sufficiently, neutral towards his subjects, but frequently sacrifices their happiness to his ambition or his avarice. In small Republics, the sovereign will is sufficiently controuled from such a Sacrifice of the entire Society, but is not sufficiently neutral towards the parts composing it. As a limited Monarchy tempers the evils of an absolute one; so an extensive Republic meliorates the administration of a small Republic.

An auxiliary desideratum for the melioration of the Republican form is such a process of elections as will most certainly extract from the mass of the Society the purest and noblest characters which it contains; such as will at once feel most strongly the proper motives to pursue the end of their appointment, and be most capable to devise the proper means of attaining it.

12. Impotence of the laws of the States

The Papers of James Madison. Edited by William T. Hutchinson et al. Chicago and London: University of Chicago Press, 1962-77 (vols. 1-10); Charlottesville: University Press of Virginia, 1977-(vols. 11-). 9:348-57


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