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title:“Observations by [Luther Martin?]”
authors:Luther Martin
date written:1788-6-3

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retrieved:Jan. 18, 2018, 5:31 p.m. UTC

Martin, Luther. "Observations by [Luther Martin?]." Supplement to Max Farrand's The Records of the Federal Convention of 1787. Ed. James H. Hutson. New Haven: Yale University Press, 1987. 291-95. Print.

Observations by [Luther Martin?] (June 3, 1788)

Constitution as agreed to by the Convention at Philadelphia, until within a few days of their rising. I. WE, the people, of the States of New-Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, N. York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North- Carolina, South-Carolina and Georgia, do ordain, declare and establish the following Constitution for ourselves and posterity.
ART. I, The style of this Government shall be the United States of America.
Constitution as altered a few days before the Convention rose, and as now offered to the United States.
We, the people, of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the general welfare and secure the blessings of liberty to ourselves and posterity, do ordain and establish this Constitution for the United States of America. Struck out.
REMARKS. As the Constitution was first agreed to, it exhibits the people as already associated in politic capacities, as the people of New-Hampshire, Massachusetts Bay, &c. and, of course maintaining those governments; and although they in that corporate capacity establish the following Constitution for themselves and their posterity, yet still it is done with respect to the governments then existing, and not by any means throwing off the existing bills of rights.1
compacts, and acting as unassociated individuals.—As altered, every appearance of the existing governments, under their respective Constitutions, is relinquished, the very names struck out, general purposes and powers given extending to every purpose of the social compact, and then this Constitution including all these purposes, is made the Constitution of the United States, without any reserve of the several States and their Constitutions then existing; and then this Constitution enacted for these unlimited purposes, we afterwards find is expressly declared paramount to all Constitutions, and laws existing in the States.—It is said the alterations of nine States being sufficient to render it binding required this.2 It is nonsense, for if only nine States agree they are no more the people of the United States, than they are the people of the disagreeing States by name; but why put in those general and unlimited purposes and powers, and why strike out the first article containing the style of the government, which is that of a confederacy, and could only operate to resist the idea of one great consolidated government?
The times, places, and manner of holding elections of the members of each house, shall be prescribed by the legislature of each State, but their provisions, concerning them, may at any time be altered by the legislature of the United States.
The times, places, and manner of holding elections for senators and representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law, make, or alter such regulations, except as to the places of chusing senators. REMARKS.
The insertion of the word make, gives Congress an original power in this business, which could only be necessary in case the States are at some period to lose all existence; for the word altering as it at first stood, would extend to every necessary purpose, supposing the States continued in their existence.
Sect. The legislature of the United States, shall have power to lay and collect taxes, duties, imposts and exises.
The Congress shall have power to lay and collect taxes, duties, imposts and exises, to pay the debts, and provide for the common defence and general welfare of the United States.
The original Constitution was very clear and express, cautiously avoiding the conferring of general powers, or powers in general terms, which amounts to the same thing—If these last powers are construed to extend to explain purposes to which money is to be applied, they are unnecessary; for the clause declaring and defining the manner of appropriation is JUNE 3, 1788
and in every view supposing it was intended to give a general and undefined power, I know of no manner so effectual as this giving them money for this general and undefined purpose.
To call forth the aid of the militia to execute the laws of the union, enforce treaties, suppress insurrections, and repel invasions.
To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions—To provide for organizing, arming and disciplining the militia, and governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress.
REMARKS. As the Constitution stood at first, to call forth the aid, &c. it was in the style of requisition, in which all original power remained with the State.— The word PROVIDE gives an original power; lest the providing which must mean making provisions or laws for organizing, arming, disciplining and governing the militia, gives a compleat power, and subjects the yeomanry of this country, at any, and all times, to martial law, which is not restrained in this Constitution, as it is in Great-Britain.—The infering treatice2 is indeed struck out—but treaties being by a subsequent clause made laws of the land it became unnecessary, as they may be called to execute treaties as laws—and the compleat power over militia being given Congress, the States can have no defence left to support their rights, if they have any.
No navigation act shall be passed without the consent of two-thirds of the members present in each house.
Struck out entirely, and it ought to be a sine qua non with the southern States.
The Executive power, &c. but shall not be elected a second time. The ineligibility struck out.
The Judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time time to time, be constituted by the legislature of the U. States.
The Judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as Congress may from to time ordain and establish.
Sect. 3. The jurisdiction of the Supreme Court, &c.
The Judicial power shall extend, &c.
The manifest idea of the first Constitution was to confine the jurisdiction of the United States to one general supreme court, with an appeal from the State courts in particular cases—although, if necessary (which was then only explained to extend to revenue cases) they might establish some inferior courts, but no jurisdiction was assigned them by the Constitution, but by the alteration all the powers of jurisdiction are extended to all inferior federal courts, which will render them very numerous of course, and lay the foundation of swallowing up the State jurisdictions.
The acts of the legislature of the United States, made in pursuance of this Constitution, and all treaties made under the authority of the United States, shall be the supreme law of the several States, and the judges of the several States shall be bound thereby in their decisions; any thing in the Constitutions or laws of the several States to the contrary notwithstanding.
This Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby; any thing in the Constitution or laws of any State to the contrary notwithstanding.
A careful attention to the change in this clause will serve as a clue to all the other changes—in the clause as it first stood, only the acts of the legislature in pursuance of defined Constitution, which admitted of no general expression, were to be construed paramount to the Constitution and laws—As it is altered—an undefined Constitution with full general powers is declared to supercede all the State Constitutions and whether in part, or in what part, or whether in toto, no man can presume to say— secondly, by inserting after treaties made these words and shall be made the Constitution has an expost facto force, which is contrary to those very principles it seems anxious to establish—but thirdly, the original clause, clearly demonstrated that it was the intention of the Convention to execute this new Constitution by means, and thro' the intervention of the States, as it says—they shall be the supreme law of the several States, and the judges of the several States, but the alteration into supreme law of the land, and the judges in the several States, discover plainly the design of erecting one consolidating government universally pervading the land, and to be executed independant of the States and of course from necessity and on JUNE 3, 1788
purpose abolishing them gradually, if it is not absolutely done by the very first alteration.—
Besides this, an appeal was then given both as to law and fact, at that late stage of the business, which effectually destroys the trial by jury in civil cases and may elude it in criminal cases—the establishment of the trial by jury in criminal cases only was not so important whilst it was intended to execute the Constitution thro' the medium of the State courts— nor would a bill of rights have been so essential as the bills of rights of the several States and rights incorporated in the Constitutions of the several States, would have been binding on the State courts, where not expressly done away by the new Constitution, but the executing the laws of Congress by national courts, who cannot be bound by these bills of rights totally reverses the subject. Almost all the objections to the proposed Constitution are grounded on these alterations, effected contrary to the sense of the Convention until within a few days of the end of their session.