JAMES WILSON: This will be a proper time for making an observation or two, on what may be called the Preamble to this Constitution. I had occasion, on a former day [24 November], to mention that the leading principle in politics, and that which pervades the American constitutions, is, that the supreme power resides in the people; this Constitution, Mr. President, opens with a solemn and practical recognition of that principle: "WE, THE PEOPLE OF THE UNITED STATES, in order to form a more perfect union, establish justice, &c. DO ORDAIN AND ESTABLISH this constitution, for the United States of America." It is announced in their name, it receives its political existence from their authority—they ordain and establish. What is the necessary consequence? Those who ordain and establish have the power, if they think proper, to repeal and annul. A proper attention to this principle may, perhaps, give ease to the minds of some, who have heard much concerning the necessity of a bill of rights.
Its establishment, I apprehend, has more force, than a volume written on the subject—it renders this truth evident, that the people have a right to do what they please, with regard to the government. I confess, I feel a kind of pride, in considering the striking difference between the foundation, on which the liberties of this country are declared to stand in this Constitution, and the footing on which the liberties of England are said to be placed. The Magna Charta of England is an instrument of high value to the people of that country. But, Mr. President, from what source does that instrument derive the liberties of the inhabitants of that kingdom? Let it speak for itself. The king says, "we have given and granted to all archbishops, bishops, abbots, priors, earls, barons, and to all the freemen of this our realm, these liberties following, to be kept in our kingdom of England forever." When this was assumed as the leading principle of that government, it was no wonder that the people were anxious to obtain bills of rights, and to take every opportunity of enlarging and securing their liberties. But, here, sir, the fee simple remains in the people at large, and, by this Constitution, they do not part with it.
JAMES WILSON: I am called upon to give a reason, why the Convention omitted to add a bill of rights to the work before you. I confess, sir, I did think that in point of propriety, the honorable gentleman [John Smilie] ought first to have furnished some reasons, to show such an addition to be necessary; it is natural to prove the affirmative of a proposition; and if he had established the propriety of this addition, he might then have asked, why it was not made.
I cannot say, Mr. President, what were the reasons, of every member of that Convention, for not adding a bill of rights; I believe the truth is, that such an idea never entered the mind of many of them. I don't recollect to have heard the subject mentioned, till within about three days of the time of our rising, and even then there was no direct motion offered for anything of this kind. I may be mistaken in this; but as far as my memory serves me, I believe it was the case. A proposition to adopt a measure, that would have supposed that we were throwing into the general government every power not expressly reserved by the people would have been spurned at, in that house, with the greatest indignation; even in a single government, if the powers of the people rest on the same establishment, as is expressed in this Constitution, a bill of rights is by no means a necessary measure. In a government possessed of enumerated powers, such a measure would be not only unnecessary, but preposterous and dangerous. Whence comes this notion, that in the United States there is no security without a bill of rights? Have the citizens of South Carolina no security for their liberties? They have no bill of rights. Are the citizens on the eastern side of the Delaware less free, or less secured in their liberties, than those on the western side? The State of New Jersey has no bill of rights. The State of New York has no bill of rights. The states of Connecticut and Rhode Island have no bills of rights. I know not whether I have exactly enumerated the states who have thought it unnecessary to add a bill of rights to their constitutions; but this enumeration, sir, will serve to show by experience, as well as principle, that even in single governments, a bill of rights is not an essential or necessary measure. But in a government consisting of enumerated powers, such as is proposed for the United States, a bill of rights would not only be unnecessary, but, in my humble judgment, highly imprudent. In all societies, there are many powers and rights, which cannot be particularly enumerated. A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given. The consequence is, that an imperfect enumeration would throw all implied power into the scale of the government; and the rights of the people would be rendered incomplete. On the other hand, an imperfect enumeration of the powers of government reserves all implied power to the people; and, by that means the constitution becomes incomplete; but of the two it is much safer to run the risk on the side of the constitution; for an omission in the enumeration of the powers of government is neither so dangerous, nor important, as an omission in the enumeration of the rights of the people.
Mr. President, as we are drawn into this subject, I beg leave to pursue its history little further. The doctrine and practice of declarations of rights have been borrowed from the conduct of the people of England, on some remarkable occasion; but the principles and maxims, on which their government is constituted, are widely different from those of ours. I have already stated the language of Magna Charta. After repeated confirmations of that instrument, and after violations of it, repeated equally often, the next step taken in this business was when the Petition of Rights was presented to Charles I.
It concludes in this manner, "all of which they most humbly pray to be allowed, as their rights and liberties, according to the laws and statutes of this realm." One of the most material statutes of the realm was Magna Charta; so that we find they continue upon the old ground, as to the foundation on which they rest their liberties. It was not till the era of the Revolution [of 1688] , that the two houses assume an higher tone, and "demand and insist upon all the premises as their undoubted rights and liberties" But when the whole transaction is considered, we shall find that those rights, and liberties, are claimed only on the foundation of an original contract, supposed to have been made at some former period, between the king and the people.
But, in this Constitution, the citizens of the United States appear dispensing part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with. When, therefore, they possess, as I have already mentioned, the fee simple of authority, why should they have recourse to the minute and subordinate remedies, which can be necessary only to those, who pass the fee, and reserve only a rent charge?
To every suggestion concerning bill of rights, the citizens of the United States may always say, WE reserve the right to do what we please.
JAMES WILSON: I concur most sincerely, with the honorable gentleman who was last up, in one sentiment, that if our liberties will be insecure under this system of government, it will become our duty not to adopt, but to reject it.1
On the contrary, if it will secure the liberties of the citizens of America, if it will not only secure their liberties, but procure them happiness, it becomes our duty, on the other hand, to assent to and ratify it. With a view to conduct us safely, and gradually, to the determination of that important question, I shall beg leave to notice some of the objections that have fallen from the honorable gentlemen from Cumberland (Robert Whitehill). But, before I proceed, permit me to make one general remark. Liberty has a formidable enemy on each hand; on one there is tyranny, on the other licentiousness. In order to guard against the latter, proper powers ought to be given to government; in order to guard against the former, those powers ought to be properly distributed. It has been mentioned, and attempts have been made to establish the position, that the adoption of this Constitution will necesarily be followed by the annihilation of all the state governments. If this was a necessary consequence, the objection would operate in my mind with exceeding great force. But, sir, I think the inference is rather unnatural that a government will produce the annihilation of others, upon the very existence of which its own existence depends. Let us, sir, examine this Constitution and mark its proportions and arrangements. It is composed of three great constituent parts, the legislative department, the executive department, and the judicial department. The legislative department is subdivided into two branches, the House of Representatives and the Senate. Can there be a House of Representatives, in the general government, after the state governments are annihilated? Care is taken to express the character of the electors in such a manner, that even the popular branchof the general government cannot exist unless the governments of the states continue in existence.
How do I prove this? By the regulation that is made concerning the important subject of giving suffrage. Article the first, section second, "and the electors in each state, shall have the qualifications for electors of the most numerous branch of the state legislature." Now, sir, in order to know who are qualified to be electors of the House of Representatives, we are to inquire, who are qualified to be electors of the legislature of each state; if there be no legislatures in the states, there can be no electors of them. If there be no such electors, there is [no] criterion to know who are qualified to elect members of the House of Representatives. By this short, plain deduction, the existence of state legislatures is proved to be essential to the existence of the general government.
Let us proceed now to the second branch of the legislative department. In the system before you, the Senators, sir, those tyrants that are to devour the legislatures of the states, are to be chosen by the state legislatures themselves.4
Need anything more be said on this subject? So far is the principle of each state's retaining the power of self-preservation, from being weakened or endangered by the general government, that the Convention went further, perhaps, than was strictly proper, in order to secure it; for in this second branch of the legislature, each state, without regard to its importance, is entitled to an equal vote. And in the articles, respecting amendments of this Constitution, it is provided "that no state, without its consent, shall be deprived of its equal suffrage in the senate''.
Does it appear then, that provision for the continuance of the state governments was neglected, in framing this Constitution? On the contrary, it was a favorite object in the Convention to secure them.
The President of the United States is to be chosen by Electors appointed in the different states, in such manner as the legislature shall direct. Unless there be legislatures to appoint Electors, the President cannot be chosen; the idea, therefore, of the existing government of the states is presupposed in the very mode of constituting the legislative and the executive departments of the general government.5
The same principle will apply to the judicial department.
The judges are to be nominated by the President, and appointed by him, with the advice and consent of the Senate. This shows, that the judges cannot exist without the President and Senate. I have already shown that the President and Senate cannot exist without the existence of the state legislatures. Have I misstated anything? Is not the evidence indisputable, that the state governments will be preserved, or that the general government must tumble amidst their ruins?6
It is true, indeed, sir, although it presupposes the existence of state governments, yet this Constitution does not suppose them to be the sole power to be respected.
In the Articles of Confederation the people are unknown, but in this plan they are represented; and in one of the branches of the legislature they are represented, immediately, by persons of their own choice.
I hope these observations, on the nature and formation of this system, are seen in their full force; many of them were so seen by some gentlemen of the late Convention. After all this, could it have been expected that assertions, such as have been hazarded on this floor, would have been made, "that it was the business of their deliberations, to destroy the state governments, that they employed four months to accomplish this object, and that such was their intentions?" That honorable gentleman [Robert Whitehill] may be better qualified to judge of their intentions than themselves. I know my own, and, as to those of the other members, I believe that they have been very improperly and unwarrantably represented; intended to destroy! Where did he obtain his information? Let the tree be judged of by its fruit.
Mr. President, the only proof that is attempted to be drawn from the work itself is that which has been urged from the fourth section of the first Article. I will read it. "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."
And is this a proof, that it was intended to carry on this government, after the state government should be dissolved and abrogated? This clause is not only a proper, but a necessary one. I have already shown what pains have been taken in the Convention to secure the preservation of the state governments. I hope, sir that it was no crime, to sow the seed self-preservation in the federal government; without this clause it would not possess self-preserving power. By this clause the times, places, and manner of holding elections shall be prescribed in each state, by the legislature thereof. I think it highly proper that the federal government should throw the exercise of this power into the hands of the state legislatures; but not that it should be placed there entirely without control.
If the Congress had it not in their power to make regulations, what might be the consequences? Some states might make no regulations at all on the subject.
And shall the existence of the House of Representatives, the immediate representation of the people in Congress, depend upon the will and pleasure of the state governments? Another thing may possibly happen, I don't say it will; but we were obliged to guard even against possibilities, as well as probabilities. A legislature may be willing to make the necessary regulations, yet the minority of that legislature may, by absenting themselves, break up the house and prevent the execution of the intention of the majority. I have supposed the case, that some state governments may make no regulations at all; it is possible also that they may make improper regulations. I have heard it surmised by the opponents of this Constitution, that the Congress may order the election for Pennsylvania to be held at Pittsburgh, and thence conclude, that it would be improper for them to have the exercise of the power; but suppose on the other hand, that the Assembly should order an election to be held at Pittsburgh, ought not the general government to have the power to alter such improper election of one of its own constituent parts? But there is an additional reason still, that shows the necessity of this provisionary clause. The members of the Senate are elected by the state legislatures. If those legislatures possessed, uncontrolled, the power of prescribing the times, places, and manner of electing members of the House of Representatives, the members of one branch of the general legislature would be the tenants at will of the electors of the other branch; and the general government would lie prostrate at the mercy of the legislatures of the several states.10
I will ask now, is the inference fairly drawn, that the general government was intended to swallow up the state governments, or was it calculated to answer such end, or do its framers deserve such censure from honorable gentlemen? We find on examining this paragraph that it contains nothing more than the maxims of self-preservation, so abundantly secured by this Constitution to the individual states. Several other objections have been mentioned; I will not, at this time, enter into a discussion of them, though I may hereafter take notice of such as have any show of weight. But I thought it necessary to offer at this time, the observations I have made; because I consider this as an important subject; and think the objection would be a strong one, if it was well-founded.