Newspaper Report of the House of Representatives Debates on August 15, 1789 (August 17, 1789)

The House went into a committee on the amendments to the Constitution.

Mr. BOUDINOT in the chair.

The committee took up the fourth amendment-Art. 1 Sec. 9. Between par 2 and 3 insert, "no religion shall be established by law nor shall the equal rights of conscience be infringed."

Mr. LIVERMORE moved to strike out this clause and to substitute one to the following effect-"The Congress shall make no laws touching religion or the rights of conscience He observed that tho' the sense of both provisions was the same, yet the former might seem to wear an ill face and was subject to misconstruction.

The question on this motion was carried.

Fifth amendment—"The freedom of speech, and of the press, and of the right of the people peaceably to assemble and consult for their common good, and to apply to the government for redress of grievances, shall not be infringed3."

Mr. TUCKER moved to insert between the words "common good," "and to" in this paragraph, these words "to instruct their representatives."

On this motion a long debate ensued.

Mr. HARTLEY said it was a problematical subject. The practice on this principal might be attended with danger. There were periods when from various causes the popular mind was in a state of fermentation and incapable of acting wisely—This had frequently been experienced in the mother country, and once in a sister State. In such cases it was a happiness to obtain representation who might be free to exert their abilities against the popular errors and passions. The power of instructing might be liable to great abuses; it would generally be exercised in times of public disturbance, and would express rather the prejudices of faction, than the voice of policy; thus it would convey improper influences into the government. He said he had seen so many unhappy examples of the influence of the popular humours in public bodies, that he hoped they would be provided against in this government.

Mr. PAGE was in favor of the motion.

Mr. CLYMER remarked that the principle of the motion was a dangerous one. It would take away all the freedom and independence of the representatives, it would destroy the very spirit of representation itself, by rendering Congress a passive machine instead of a deliberative body.

Mr. SHERMAN insisted that instructions were not a proper rule for the representation, since they were not adequate to the purposes for which he was delegated. He was to consult the common good of the whole, and was the servant of the people at large. If they should coincide with his ideas of the common good, they would be unnecessary; if they contradicted them, he would be bound by every principle of justice to disregard them.

Mr. JACKSON also opposed the motion.

Mr. Gerry advocated the proposition—he said the power of instructing was essential in order to check an administration which should beguilty of abuses. Such things would probably happen. He hoped gentlemen would not arrogate to themselves more perfection, than any other government had been found to possess, or more at all times than the body of people. It had he said been always contended by the friends of this government that the sovereignty resided in the people. That principle seemed inconsistent with what gentlemen now asserted; if the people were the sovereign he could not conceive why they had not the right to instruct and direct their agents at their pleasure.

Mr. MADISON observed that the existence of this right of instructing was at least a doubtful right. He wished that the amendments which were to go to the people should consist of an enumeration of simple and acknowledged principles. Such rights only ought to be expressly secured as were certain and fixed. The insertion of propositions that were of a doubtful nature, would have a tendency to prejudice the whole system of amendments, and render their adoption difficult. The right suggested was doubtful, and would be so considered by many of the states. In some degree the declaration of this right might be true; in other respects false. If by instructions were meant a given advice, or expressing the wishes of the people, the proposition was true, but still was unnecessary, since that right was provided for already. The amendments already passed had declared that the press should be free, and that the people should have The freedom of speech and petitioning: therefore the people might speak to their representatives, might address them through the medium of the press, or by petition to the whole body. They might freely express their wills by these several modes. But if it was false. Suppose the representatives were instructed to do any act incompatible with the constitution, would he be bound to obey those instructions? Suppose he was directed to do what he knew was contrary to the public good, would {he} be bound to sacrifice his own opinion? Would not the vote of a representative contrary to his instructions be as binding on the people as a different one? If these things then be true, where is the right of the constituent? or where is the advantage to result from. It must either supercede all the other obligations, the most sacred, or it could be of no benefit to the people. The gentleman says, the people are the sovereign—True. But who are the people? Is every small district, the PEOPLE? and do the inhabitants of this district express the voice of the people, when they may not be a thousandth part, and although their instructions may contradict the sense of the whole people besides? Have the people in detached assemblies a right to violate the constitution or controul the actions of the whole sovereign power? This would be setting up a hundred sovereignties to the place of one.5 Mr. SMITH (S. C.) was opposed to the motion—He said the doctrine of Instructions in practice would operate partially. The States who were near the seat of government would have an advantage over those more distant. Particular instructions might be necessary for a particular measure; such could not be obtained by the members of the distant states. He said there was no need of a large representation, if in all important matters they were to be guided by express instructions—One member from each state would serve every purpose. It was inconsistent with the principle of the amendment which had been adopted the preceding day.

Mr. STONE. differed with Mr. Madison, that the members would not be bound by instruction— He said when this principle was inserted in the constitution, it would render instructions sacred and obligatory in all cases, but he looked on this as one of the greatest evils. He believed this would change the nature of the constitution—Instead of being a representative government, it would be a singular kind of democracy, and whenever a question arose what was the law, it would not properly be decided by recurring to the codes and institutions of Congress, but by collecting and examining the various instructions of different parts of the Union.

Several of the members spoke, and the debate was continued in a desultory manner—and at last the motion was negatived by a great majority—The question on the amendment was then put, and carried in the affirmative.