Commentaries on the Constitution of the United States (1833)
by Joseph L. Story
Objections to the Constitution
§ 281. LET it not, however, be supposed, that a constitution, which is now looked upon with such general favour and affection by the people, had no difficulties to encounter at its birth. The history of those times is full of melancholy instruction on this subject, at once to admonish us of past dangers, and to awaken us to a lively sense of the necessity of future vigilance. The constitution was adopted unanimously by Georgia, New-Jersey, and Delaware. It was supported by large majorities in Pennsylvania, Connecticut, Maryland, and South Carolina It was carried in the other states by small majorities, and especially in Massachusetts, New-York, and Virginia by little more than a preponderating vote.1 Indeed, it is believed, that in each of these states, at the first assembling of the conventions, there was a decided majority opposed to the constitution. The ability of the debates, the impending evils, and the absolute necessity of the case seem to have reconciled some persons to the adoption of it, whose opinions had been strenuously the other way.2 “In our endeavours,” said Washington, “to establish a new general government, the contest nationally considered, seems not to have been so much for glory, as for existence. It was for a long time doubtful, whether we were to survive, as an independent republic, or decline from our federal dignity into insignificant and withered fragments of empire.”3
§ 282. It is not difficult to trace some of the more important causes, which led to so formidable an opposition, and made the constitution at that time a theme, not merely of panegyric, but of severe invective, as fraught with the most alarming dangers to public liberty, and at once unequal, unjust, and oppressive.
§ 283. Almost contemporaneously with the first proposition for a confederation, jealousies began to be entertained in respect to the nature and extent of the authority, which should be exercised by the national government. The large states would naturally feel, that in proportion as congress should exercise sovereign powers, their own local importance and sovereignty would be diminished injuriously to their general influence on other states from their strength, population, and character. On the other hand, by an opposite course of reasoning, the small states had arrived nearly at the same result. Their dread seems to have been, lest they should be swallowed up by the power of the large states in the general government, through common combinations of interest or ambition.4
§ 284. There was, besides, a very prevalent opinion, that the interests of the several states were not the same; and there had been no sufficient experience during their colonial dependence and intercommunication to settle such a question by any general reasoning, or any practical results. During the period, therefore, in which the confederation was under discussion in congress, much excitement and much jealousy as exhibited on this subject. The original draft, submitted by Dr. Franklin, in July, 1775, contained a much more ample grant of powers, than that actually adopted; for congress were to be invested with power to make ordinances relating “to our general commerce, or general currency,” to establish posts, etc. and to possess other important powers of a different character.5 The draft submitted by Mr. Dickenson, on the 12th of July, 1776, contains less ample powers; but still more broad, than the articles of confederation.6 In the subsequent discussions few amendments were adopted, which were not of a restrictive character; and the real difficulties of the task of overcoming the prejudices, and soothing the fears of the different states, are amply displayed in the secret journals now made public. In truth, the continent soon became divided into two great political parties, “the one of which contemplated America as a nation, and laboured incessantly to invest the federal head with powers competent to the preservation of the Union; the other attached itself to the state authorities; viewed all the powers of congress with jealousy; and assented reluctantly to measures, which would enable the head to act in any respect independently of the members.”7 During the war, the necessities of the country confined the operations of both parties within comparatively narrow limits. But the return of peace, and the total imbecility of the general government, gave (as we have seen) increased activity and confidence to both.
§ 285. The differences of opinion between these parties were too honest, too earnest, and too deep to be reconciled, or surrendered. They equally pervaded the public councils of the states, and the private intercourse of social life. They became more warm, not to say violent, as the contest became more close, and the exigency more appalling. They were inflamed by new causes, of which some were of a permanent, and some of a temporary character, The field of argument was wide; and experience had not, as yet, furnished the advocates on either side with such a variety of political tests, as were calculated to satisfy doubts, allay prejudices, or dissipate the rears and illusions of the imagination.
§ 286. In this state of things the embarrassments of the country in its financial concerns, the general pecuniary distress among the people from the exhausting operations of the war, the total prostration of commerce, and the languishing unthriftiness of agriculture, gave new impulses to the already marked political divisions in the legislative councils. Efforts were made, on one side, to relieve the pressure of the public calamities by a resort to the issue of paper money, to tender laws, and instalment and other laws, having for their object the postponement of the payment of private debts, and a diminution of the public taxes. On the other side, public as well as private creditors became alarmed from the increased dangers to property, and the increased facility of perpetrating frauds to the destruction of all private faith and credit. And they insisted strenuously upon the establishment of a government, and system of laws, which should preserve the public faith, and redeem the country from that ruin, which always follows upon the violation of the principles of justice, and the moral obligation of contracts. “At length,” we are told,8 “two great parties were formed in every state, which were distinctly marked, and which pursued distinct objects with systematic arrangement. The one struggled with unabated zeal for the exact observance of public and private engagements. The distresses of individuals were, they thought, to be alleviated by industry and frugality, and not by a relaxation of the laws, or by a sacrifice of the rights of others. They were consequently uniform friends of a regular administration of justice, and of a vigorous course of taxation, which would enable the state to comply with its engagements. By a natural association of ideas, they were also, with very few exceptions, in favour of enlarging the powers of the federal government, and of enabling it to protect the dignity and character of the nation abroad, and its interests at home. The other party marked out for itself a more indulgent course. They were uniformly in favour of relaxing the administration of justice, of affording facilities for the payment of debts, or of suspending their collection, and of remitting taxes. The same course of opinion led them to resist every attempt to transfer from their own hands into those of congress powers, which were by others deemed essential to the preservation of the Union. In many of the states the party last mentioned constituted a decided majority of the people; and in all of them it was very powerful.” Such is the language of one of our best historians in treating of the period immediately preceding the formation of the constitution of the United States.9
§ 287. Without supposing, that the parties, here alluded to, were in all respects identified with those, of which we have already spoken, as contemporaneous with the confederation, it is easy to perceive, what prodigious means were already in existence to oppose a new constitution of government, which not only transferred from the states some of the highest sovereign prerogatives, but laid prohibitions upon the exercise of other powers, which were at that time in possession of the popular favour. The wonder, indeed, is not, under such circumstances, that the constitution should have encountered the most ardent opposition; but that it should ever have been adopted at all by a majority of the states.
§ 288. In the convention itself, which framed it, there was a great diversity of judgment, and upon some vital subjects, an intense and irreconcilable hostility of opinion.10 It is understood, that at several periods, the convention were upon the point of breaking up without accomplishing any thing.11 In the state conventions, in which the constitution was presented for ratification, the debates were long, and animated, and eloquent; and, imperfect as the printed collections of those debates are, enough remains to establish the consummate ability, with which every part of the constitution was successively attacked, and defended.12 Nor did the struggle end here. The parties, which were then formed, continued for a long time afterwards to be known and felt in our legislative and other public deliberations. Perhaps they have never entirely ceased.
§ 289. Perhaps, from the very nature and organization of our government, being partly federal and partly national in its character, whatever modifications in other respects parties may undergo, there will forever continue to be a strong line of division between those, who adhere to the state governments, and those, who adhere to the national government, in respect to principles and policy. It was long ago remarked, that in a contest for power, “the body of the people will always be on the side of the state governments. This will not only result from their love of liberty and regard to their own safety, but from other strong principles of human nature. The state governments operate upon those familiar personal concerns, to which the sensibility of individuals is awake. The distribution of private justice, in a great measure belonging to them, they must always appear to the sense of the people, as the immediate guardians of their rights. They will of course have the strongest hold on their attachment, respect, and obedience.”13 To which it may be added, that the state governments must naturally open an easier field for the operation of domestic ambition, of local interests, of personal popularity, and of flattering influence to those, who have no eager desire for a wide spread fame, or no acquirements to justify it.
§ 290. On the other hand, if the votaries of the national government are fewer in number, they are likely to enlist in its favour men of ardent ambition, comprehensive views, and powerful genius. A love of the Union; a sense of its importance, nay, of its necessity, to secure permanence and safety to our political liberty; a consciousness, that the powers of the national constitution are eminently calculated to preserve peace at home, and dignity abroad, and to give value to property, and system and harmony to the great interests of agriculture, commerce, and manufactures; a consciousness, too, that the restraints, which it imposes upon the states, are the only efficient means to preserve public and private justice, and to ensure tranquility amidst the conflicting interests and rivalries of the states: – these will, doubtless, combine many sober and reflecting minds in its support. If to this number we add those, whom the larger rewards of fame, or emolument, or influence, connected with a wider sphere of action, may allure to the national councils, there is much reason to presume, that the Union will not be without resolute friends.
§ 291. This view of the subject, on either side, (for it is the desire of the commentator to abstain, as much as possible, from mere private political speculation,) is not without its consolations. If there were but one consolidated national government, to which the people might look up for protection and support, they might in time relax in that vigilance and jealousy, which seem so necessary to the wholesome growth of republican institutions. If, on the other hand, the state governments could engross all the affections of the people, to the exclusion of the national government, by their familiar and domestic regulations, there would be danger, that the Union, constantly weakened by the distance and discouragements of its functionaries, might at last become, as it was under the confederation, a mere show, if not a mockery of sovereignty. So, that this very division of empire may, in the end, by the blessing of Providence, be the means of perpetuating our rights and liberties, by keeping alive in every state at once a sincere love of its own government, and a love of the Union, and by cherishing in different minds a jealousy of each, which shall check, as well as enlighten, public opinion.
§ 292. The objections raised against the adoption of the constitution were of very different natures, and, in some instances, of entirely opposite characters. They will be round embodied in various public documents, in the printed opinions of distinguished men, in the debates of the respective state conventions, and in a still more authentic shape in the numerous amendments proposed by these conventions, and accompanying their acts of ratification. It is not easy to reduce them all into general heads; but the most material will here be enumerated, not only to admonish us of the difficulties of the task of framing a general government; but to prepare us the better to understand, and expound the constitution itself.
§ 293. Some of the objections were to the supposed defects and omissions in the instrument; others were to the nature and extent of the powers conferred by it; and others again to the fundamental plan or scheme of its organization.
(1.) It was objected in the first place, that the scheme of government was radically wrong, because it was not a confederation of the states; but a government over individuals.14 It was said, that the federal form, which regards the Union, as a confederation of sovereign states, ought to have been preserved; instead of which the convention had framed a national government, which regards the Union, as a consolidation of states.15 This objection was far from being universal; for many admitted, that there ought to be a government over individuals to a certain extent, but by no means to the extent proposed. It is obvious, that this objection, pushed to its full extent, went to the old question of the confederation; and was but a reargument of the point, whether there should exist a national government adequate to the protection and support of the Union. In its mitigated form it was a mere question, as to the extent of powers to be confided to the general government, and was to be classed accordingly. It was urged, however, with no inconsiderable force and emphasis; and its supporters predicted with confidence, that a government so organized would soon become corrupt and tyrannical, “and absorb the legislative, executive, and judicial powers of the several states, and produce from their ruins one consolidated government, which, from the nature of things, would be an iron-handed despotism.”16 Uniform experience (it was said) had demonstrated,17 “that a very extensive territory cannot be governed on the principles of freedom otherwise, than by a confederacy of republics, possessing all the powers of internal government, but united in the management of their general and foreign concerns.”18 Indeed, any scheme of a general government, however guarded, appeared to some minds (which possessed the public confidence) so entirely impracticable, by reason of the extensive territory of the United States, that they did not hesitate to declare their opinion, that it would be destructive of the civil liberty of the citizens.19 And others of equal eminence foretold, that it would commence in a moderate aristocracy, and end either in a monarchy, or a corrupt, oppressive aristocracy.20 It was not denied, that, in form, the constitution was strictly republican; for all its powers were derived directly or indirectly from the people, and were administered by functionaries holding their offices during pleasure, or for a limited period, or during good behaviour; and in the serespects it bore an exact similitude to the state governments, whose republican character had never been doubted.21
§ 294. But the friends of the constitution met the objection by asserting, the indispensable necessity of a form of government, like that proposed, and demonstrating the utter imbecility of a mere confederation, without powers acting directly upon individuals. They considered, that the constitution was partly federal, and partly national in its character, and distribution of powers. In its origin and establishment it was federal.22 In some of its relations it was federal; in others, national. In the senate it was federal; in the house of representatives it was national; in the executive it was of a compound character; in the operation of its powers it was national; in the extent of its powers, federal. It acted on individuals, and not on states merely. But its powers were limited, and left a large mass of sovereignty in the states. In making amendments, it was also of a compound character, requiring, the concurrence of more than a majority, and less than the whole of the states. So, that on the whole their conclusion was, that “the constitution is, in strictness, neither a national nor a federal constitution, but a composition of both. In its foundation it is federal, not national; in the sources, from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers it is national, not federal; in the extent of them again it is federal, not national; and, finally, in the authoritative mode of introducing amendments it is neither wholly federal, nor wholly national.23
§ 295. Time has in this, as in many other respects, assuaged the fears, and disproved the prophesies of the opponents of the constitution. It has gained friends in its progress. The states still flourish under it with a salutary and invigorating energy; and its power of direct action upon the people has hitherto proved a common blessing, giving dignity and spirit to the government, adequate to the exigencies of war, and preserving us from domestic dissensions, and unreasonable burthens in times of peace.
§ 296. If the original structure of the government was, as has been shown, a fertile source of opposition, another objection of a more wide and imposing nature was drawn from the nature and extent of its powers. This, indeed, like the former, gave rise to most animated discussions, in which reason was employed to demonstrate the mischiefs of the system, and imagination to portray them in all the exaggerations, which fear and prophesy could invent. Looking back, indeed, to that period with the calmness, with which we naturally review events and occurrences, which are now felt only as matters of history, one is surprised at the futility of some of the objections, the absurdity of others, and the overwrought colouring of almost all, which were urged on this head against the constitution. That some of them had a just foundation, need not be denied or concealed; for the system was human, and the result of compromise and conciliation, in which something of the correctness of theory was yielded to the interests or prejudices of particular states, and something of inequality of benefit borne for the common good.
§ 297. The objections from different quarters were not only of different degrees and magnitude, but often of totally opposite natures. With some persons the mass of the powers was a formidable objection; with others, the distribution of those powers. With some the equality of vote in the senate was exceptionable; with others the inequality of representation in the house. With some the power of regulating the times and places of elections was fatal; with others the power of regulating commerce by a bare majority. With some the power of direct taxation was an intolerable grievance; with others the power of indirect taxation by duties on inposts. With some the restraint of the state legislatures from laying duties upon exports and passing ex post facto laws was incorrect; with others the lodging of the executive power in a single magistrate.24 With some the term of office of the senators and representatives was too long; with others the term of office of the president was obnoxious to a like censure, as well as his reeligibility.25
With some the intermixture of the legislative, executive, and judicial functions in the senate was a mischievous departure from all ideas of regular government; with others the non-participation of the house of representatives in the same functions was the alarming evil. With some the powers of the president were alarming and dangerous to liberty; with others the participation of the senate in some of those powers. With some the powers of the judiciary were far too extensive; with others the power to make treaties even with the consent of two thirds of the senate. With some the power to keep up a standing army was a sure introduction to despotism; with others the power over the militia.26 With some the paramount authority of the constitution, treaties, and laws of the United States was a dangerous feature; with others the small number composing the senate and the house of representatives was an alarming and corrupting evil.27
§ 298. In the glowing language of those times the people were told, “that the new government will not be a confederacy of states, as it ought, but one consolidated government, founded upon the destruction of the several governments of the states. The powers of congress, under the new constitution, are complete and unlimited over the purse and the sword, and are perfectly independent of, and supreme over the state governments, whose intervention in these great points is entirely destroyed. By virtue of their power of taxation, congress may command the whole, or any part of the properties of the people. They may impose what imposts upon commerce, they may impose what land taxes, and taxes, excises, and duties on all instruments, and duties on every fine article, that they may judge proper.” “Congress may monopolize every source of revenue, and thus indirectly demolish the state governments; for without funds they could not exist.” “As congress have the control over the time of the appointment of the president, of the senators, and of the representatives of the United States, they may prolong their existence in office for life by postponing the time of their election and appointment from period to period, under various presences.” “When the spirit of the people shall be gradually broken; when the general government shall be firmly established; and when a numerous standing army shall render opposition vain, the congress may complete the system of despotism in renouncing all dependence on the people, by continuing themselves and their children in the government.”28
§ 299. A full examination of the nature and extent of the objections to the several powers given to the general government will more properly find a place, when those powers come successively under review in our commentary on the different parts of the constitution itself. The outline here furnished may serve to show what those were, which were presented against them, as an aggregate or mass. It is not a little remarkable, that some of the most formidable applied with equal force to the articles of confederation, with this difference only, that though unlimited in their terms, they were in some instances checked by the want of power to carry them into effect, otherwise than by requisitions on the states. Thus presenting, as has been justly observed, the extraordinary phenomenon of declaring certain powers in the federal government. absolutely necessary, and at the same time rendering them absolutely nugatory.29
§ 300. Another class of objections urged against the constitution was founded upon its deficiencies and omissions. It cannot be denied, that some of the objections on this head were well taken, and that there was a fitness in incorporating some provision on the subject into the fundamental articles of a free government. There were others again, which might fairly enough be left to the legislative discretion and to the natural influences of the popular voice in a republican form of government. There were others again so doubtful, both in principle and policy, that they might properly be excluded from any system aiming at permanence in its securities as well as its foundations.
§ 301. Among the defects which were enumerated, none attracted more attention, or were urged with more zeal, than the want of a distinct bill of rights, which should recognise the fundamental principles of a free republican government, and the right of the people to the enjoyment of life, liberty, property, and the pursuit of happiness. It was contended, that it was indispensable, that express provision should be made for the trial by jury in civil cases, and in criminal cases upon a presentment by a grand jury only; and that all criminal trials should be public, and the party be confronted with the witnesses against him; that freedom of speech and freedom of the press should be secured; that there should be no national religion, and the rights of conscience should be inviolable; that excessive bail should not be required, nor cruel and unusual punishments inflicted; that the people should have a right to bear arms; that persons conscientiously scrupulous should not be compelled to bear arms; that every person should be entitled of right to petition for the redress of grievances; that search warrants should not be granted without oath, nor general warrants at all; that soldiers should not be enlisted except for a short, limited term; and not be quartered in time of peace upon private houses without the consent of the owners; that mutiny bills should continue in force for two years only; that causes once tried by a jury should not be reexaminable upon appeal, otherwise than according to the course of the common law; and that the powers not expressly delegated to the general government should be declared to be reserved to the states. In all these particulars the constitution was obviously defective; and yet (it was contended) they were vital to the public security.30
§ 302. Besides these, there were other defects relied on, such as the want of a suitable provision for a rotation in office, to prevent persons enjoying them for life; the want of an executive council for the president; the want of a provision limiting the duration of standing armies; the want of a clause securing the people the enjoyment of the common law;31 the want of security for proper elections of public officers; the want of a prohibition of members of congress holding any public offices, and of judges holding any other offices; and finally the want of drawing a clear and direct line between the powers to be exercised by congress and by the states.32
§ 303. Many of these objections found their way into the amendments, which, simultaneously with the ratification, were adopted in many of the state conventions. With the view of carrying into effect the popular will, and also of disarming the opponents of the constitution of all reasonable grounds of complaint, congress, at its very. first session, took into consideration the amendments so proposed; and by a succession of supplementary articles provided, in substance, a bill of rights, and secured by constitutional declarations most of the other important objects thus suggested. These articles (in all, twelve) were submitted by congress to the states for their ratification; and ten of them were finally ratified by the requisite number of states; and thus became incorporated into the constitution.33 It is a curious fact, however, that although the necessity of these amendments had been urged by the enemies of the constitution, and denied by its friends, they encountered scarcely any other opposition in the state legislatures, than what was given by the very party, which had raised the objections.34 The friends of the constitution generally supported them upon the ground of a large public policy, to quiet jealousies, and to disarm resentments.
§ 304. It is perhaps due to the latter to state, that they believed, that some of the objections to the constitution existed only in imagination, and that others derived their sole support from an erroneous construction of that instrument.35 In respect to a bill of rights, it was stated, that several of the state constitutions contained none in form; and yet were not on that account thought objectionable. That it was not true, that the constitution of the United States did not, in the true sense of the terms, contain a bill of rights. It was emphatically found in those clauses, which respected political rights, the guaranty of republican forms of government, the trial of crimes by jury, the definition of treason, the prohibition against bills of attainder and ex post facto laws and titles of nobility, the trial by impeachment, and the privilege of the writ of habeas corpus. That a general bill of rights would be improper in a constitution of limited powers, like that of the United States; and might even be dangerous, as by containing exceptions from powers not granted it might give rise to implications of constructive power. That in a government, like ours, founded by the people, and managed by the people, and especially in one of limited authority, there was no necessity of any bill of rights; for all powers not granted were reserved; and even those granted might at will be resumed, or altered by the people. That a bill of rights might be fit in a monarchy, where there were struggles between the crown and the people about prerogatives and privileges. But, here, the government is the government of the people; all its officers are their officers; and they can exercise no rights or powers, but such as the people commit to them. In such a case the silence of the constitution argues nothing. The trial by jury, the freedom of the press, and the liberty of conscience are not taken away, because they are not secured. They remain with the people among the mass of ungranted powers, or find an appropriate place in the laws and institutions of each particular state.36
§ 305. Notwithstanding the force of these suggestions, candour will compel us to admit, that as certain fundamental rights were secured by the constitution, there seemed to be an equal propriety in securing in like manner others of equal value and importance. The trial by jury in criminal cases was secured; but this clause admitted of more clear definition, and of auxiliary provisions. The trial by jury in civil cases at common law was as dear to the people, and afforded at least an equal protection to persons and property. The same remark may be made of several other provisions included in the amendments. But these will more properly fall under consideration in our commentary upon that portion of the constitution. The promptitude, zeal, and liberality, with which the friends of the constitution supported these amendments, evince the good faith and sincerity of their opinions, and increase our reverence for their labours, as well as our sense of their wisdom and patriotism.