In committee of the whole, on amendments to the constitution—the fourth amendment under consideration; viz. Art. I. 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. SILVESTER said he doubted the propriety of the mode of expression used in this paragraph; he thought it was liable to a construction different from what was intended by the committee.
Mr. SHERMAN. It appears to me best that this article should be omitted intirely: Congress has no power to make any religious establishments, it is therefore unnecessary.
Mr. CARROLL, Mr. HUNTINGTON, Mr. MADISON, and Mr. LIVERMORE made some observations: The last proposed that the words should be struck out to substitute these words, "Congress shall make no laws touching religion or the rights of conscience."
The question on this motion was carried. Fifth amendment. The freedom of speech, and of the press, and of the rights of the people peaceably to assemble and consult for their common good, and to apply to government for the redress of grievances shall not be infringed.
Mr. SEDGWICK moved to strike out the words "assemble and." This is a self evident unalienable right of the people, said he, and it does appear to me below the dignity of this house, to insert such things in the constitution.
The right will be as fully recognized if the words are struck out, as if they were retained: For if the people may converse, they must meet for the purpose.
This motion was opposed by Mr. GERRY, Mr. PAGE, Mr. VINING and Mr. HARTLEY; and the question being taken it was negatived.
Mr. TUCKER moved to insert these words, to instruct their representatives. This produced a long debate.
Mr. HARTLEY. I could wish, Mr. chairman, that these words had not been proposed. Representatives ought to possess the confidence of their constituents; they ought to rely on their honour and integrity. The practice of instructing representatives may be attended with danger; we have seen it attended with bad consequences; it is commonly resorted to for party purposes, and when the passions are up. It is a right, which even in England is considered problematical. The right of instructing is liable to great abuses; it will generally be exercised in times of popular commotion; and these instructions will rather express the prejudices of party, than the dictates of reason and policy. I have known, Sir, so many evils arise from adopting the popular opinion of the moment, that I hope this government will be guarded against such an influence; and wish the words may not be inserted.
Mr. PAGE was in favour of the motion. He said, that the right may well be doubted in a monarchy; but in a government instituted for the sole purpose of guarding the rights of the people, it appears to me to be proper.
Mr. CLYMER: I hope, Sir, the clause will not be adopted, for if it is, we must go further, and say, that the representatives are bound by the instructions, which is a most dangerous principle, and is destructive of all ideas of an independent and deliberative body.
Mr. SHERMAN said, these words had a tendency to mislead the people, by conveying an idea that they had a right to controul the debates of the federal legislature. Instructions cannot be considered as a proper rule for a representative to form his conduct by; they cannot be adequate to the purpose for which he is delegated. He is to consult the good of the whole: Should instructions therefore coincide with his ideas of the common good, they would be unnecessary: If they were contrary, he would be bound by every principle of justice to disregard them Mr. JACKSON opposed the motion: He said this was a dangerous article, as its natural tendency is to divide the house into factions: He then adverted to the absurdities and inconsistencies which would be involved in adopting the measure.
Mr. GERRY supported the motion: He observed, that to suppose we cannot be instructed, is to suppose that we are perfect: The power of instruction is in my opinion essential to check an administration which should be guilty of abuses: No one will deny that these may not happen: To deny the people this right is to arrogate to ourselves more wisdom than the whole body of the people possess. I contend, Sir, that our constituents have not only a right to instruct, but to bind this legislature—It has been contended by the friends to the constitution, that the people are sovereign: if so it involves an absurdity to suppose that they cannot, not only instruct, but controul the house: Debates may create factions, as well as instructions: We cannot be too well informed; this is the best method of obtaining information, and I hope we shall never shut our ears against that information which is to be derived from the voice of the people.
Mr. MADISON observed, that the existence of this right is at least doubtful. I wish that the amendments may consist of an enumeration of simple and acknowledged principles: The insertion of propositions that are of a doubtful nature, will have a tendency to prejudice the whole system of amendments: The right now suggested is doubtful, and will be so considered by many of the States: In some respects the declaration of this right may be true, in others it is false: If we mean nothing more by it than this, that the people have a right to give advice or express their sentiments and wishes it is true; but still unnecessary as such a right is already recognized: The press shall be free, and the people shall have the same freedom of speech and petitioning: but if it is meant that the representatives are to be bound by these instructions, the principle is false: Suppose a representative is instructed to do what is contrary to the public good? Would he be bound to sacrifice his own opinion? Or will not the vote of a representative contrary to his instruction be as binding on the people as a different one? If these things are true, where is the right of the constituent to instruct? or where is the advantage to result from it? It must either supercede all other obligations, the most sacred; or it can be of no benefit to the people.
The gentleman says, the people are the sovereign; but who are the people? Is every small district the PEOPLE? And can the inhabitants of this district express the voice of the people, when they may not be a thousandth part, and all 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 whole sovereign power? This would be setting up an hundred sovereignties in the place of one.3
Mr. SMITH (S. C.) was opposed to the motion: The doctrine of instructions would, in practice, operate partially: The States near the seat of government will have an obvious advantage over those remote from it: There is no necessity for so large a representation as has been determined on, if the members are to be guided in all their deliberations by positive instructions; one member from a State will serve every purpose; but then the nature of the assembly will be changed from a legislative to a diplomatic body: It would in fact be turning all our representatives into ambassadors.
Mr. STONE observed that to adopt this motion would change the nature of the constitution; instead of being a representative government, it would be a singular kind of democracy; in which, whenever a question arises, what is the law? It will not be determined by recurring to the codes and institutions of Congress, but by collecting the various instructions from different parts of the Union.
Mr. GERRY observed that several of the States had proposed this amendment, which rendered it proper to be attended to: In answer to Mr Madison's query he said, he meant that instructions should be consistent with the laws and the constitution.
Mr. LIVERMORE said that though no particular districts could instruct, yet the Legislatures of the States most undoubtedly possessed this right.
This assertion of Mr. LIVERMORE was controverted by several gentlemen—by Mr. SEDGWICK, Mr. SMITH, Mr. AMES, and Mr. WADSWORTH: The last, speaking on the subject of instructions in general, said, I never knew merely political instructions to be observed; and I never knew a representative brought to an account for it: But I have known representatives follow instructions, contrary to their private sentiments, and they have ever been despised for it. Others have disregarded their instructions, and have been re-elected, and caressed. Now if the people considered it as an inherent right in them to instruct their representatives, they would undoubtedly have punished the violation of such instructions; but this I believe has never been the case. I consider the measure as having a mischievous tendency.
The debate was continued much longer, but in a desultory way as the speakers appeared to take it for granted, that they might touch upon collateral circumstances. The question on the motion being at length taken, it was negatived by a large majority; and then the committee agreed to the amendment in its original form.