The Meaning of the Constitution

[Tidewater]

[ed. William Lenoir, opponent of ratification, concluded his argument against ratifying the Constitution.]
it is urged that we ought to adopt, because so many other states have. In those states which have patronized and ratified it, many great men have opposed it. The motives of those states I know not. It is the goodness of the Constitution we are to examine. We are to exercise our own judgments, and act independently. And as I conceive we are not out of the Union, I hope this Constitution will not be adopted till amendments are made. [ed. Since nine conventions had ratified by this date, the Constitution would go into effect the next spring, and any non-ratifiers would be out of the Union, but as of July 1788, the old Union had not yet been dissolved.]
There was a very necessary clause in the Confederation, which is omitted in this system. That was a clause declaring that every power, &c., not given to Congress, was reserved to the states. The omission of this clause makes the power so much greater. Men will naturally put the fullest construction on the power given them. Therefore lay all restraint on them, and form a plan to be understood by every gentleman of this committee, and every individual of the community.

[ed. Richard Spaight, who had represented NC in the Philadelphia Convention, spoke.] I am one of those who formed this Constitution. … What the Convention has done is a mere proposal. … The proposing a new system, to be established by the assent and ratification of nine states, arose from the necessity of the case. It was thought extremely hard that one state, or even three or four states, should be able to prevent necessary alterations. The very refractory conduct of Rhode Island … taught us how impolitic it would be to put the general welfare in the power of a few members of the Union. It was, therefore, thought by the Convention, that, if so great a majority as nine states should adopt it, it would be right to establish it. … As to the subject of religion, I thought what had been said would fully satisfy that gentleman and every other. No power is given to the general government to interfere with it at all. Any act of Congress on this subject would be a usurpation. … The question, then, is, not whether the Constitution be good, but whether we will or will not confederate with the other states. The gentleman supposes that the liberty of the press is not secured. The Constitution does not take it away. It says nothing of it, and can do nothing to injure it. [ed. Again, from an advocate of ratification, silence in the Constitution means the power is denied to the federal government.] But it is secured by the constitution of every state in the Union in the most ample manner. … Treason is there [ed. in the Constitution] defined. It says, expressly, that treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. Complaining, therefore, or writing, cannot be treason. … I am amazed he should call the powers of the general government indefinite. It is the first time I heard the objection. I will venture to say they are better defined than the powers of any government he ever heard of.

 

[Tidewater]

[ed. Willie Jones, chief of the opponents of ratification in NC, moved "the previous question," a parliamentary procedure to cut off debate.] He moved that the previous question might be put, … to introduce a resolution which he had in his hand, … stipulating for certain amendments to be made previous to the adoption by this state.

[ed. James Iredell, chief proponent of ratification opposed this.] The consequence of the previous question, if carried, would be an exclusion of this state out of the Union. He contended that the house had no right to make a conditional ratification; and, if excluded from the Union, they could not be assured of an easy admission at a future day, though the impossibility of existing out of the Union must be obvious to every thinking man. … The general ground of the objections seems to be, that the power proposed to the general government may be abused. If we give no power but such as may not be abused, we shall give none; for all delegated powers may be abused. There are two extremes equally dangerous to liberty. These are tyranny and anarchy. The medium between these two is the true government to protect the people. … They [ed. Congress] have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations. They have no power to define any other crime whatever. … They are to have exclusive power of legislation, but how? Wherever they may have this district [ed. the federal district], they must possess it from the authority of the state within which it lies; and that state may stipulate the conditions of the cession. Will not such state take care of the liberties of its own people? What would be the consequence if the seat of the government of the United States, with all the archives of America, was in the power of any one particular state? Would not this be most unsafe and humiliating? Do we not all remember that, in the year 1783, a band of soldiers went and insulted Congress? The sovereignty of the United States was treated with indignity. They applied for protection to the state they resided in, but could obtain none. It is to be hoped such a disgraceful scene will never happen again; but that, for the future, the national government will be able to protect itself. The powers of the government are particularly enumerated and defined: they can claim no others but such as are so enumerated. In my opinion, they are excluded as much from the exercise of any other authority as they could be by the strongest negative clause that could be framed.
[ed. Here, debates for July 30, 1788 ended.]

 

[Tidewater]

[ed. On the evening of July 30-31, there seems to have been some discussion of neither ratifying nor rejecting the Constitution. Gov. Johnston, one of the leading advocates of ratification tells the Convention what he believes will happen if the Convention does this.]
If we do not decide upon the Constitution, we shall have nothing to report to Congress. We shall be entirely out of the Union, and stand by ourselves. … We shall have no representatives to introduce them [ed. desired amendments]. We may indeed appoint ambassadors to the United States of America, to represent what scruples North Carolina has in regard to their Constitution. … It is true, the United States may admit us hereafter. But they may admit us on terms unequal and disadvantageous to us. In the mean time, many of their laws, by which we shall be hereafter bound, may be particularly injurious to the interests of this state, as we shall have no share in their formation. Gentlemen say they will not be influenced by what others have done. I must confess that the example of great and good men, and wise states, has great weight with me.
It is said there is a probability New York will not adopt this Constitution. Perhaps she may not. But it is generally supposed that the principal reason of her opposing it arises from a selfish motive. She has it now in her power to tax indirectly two contiguous states. Connecticut and New Jersey contribute to pay a great part of the taxes of that state, by consuming large quantities of goods, the duties of which are now levied for the benefit of New York only. [ed. Note that this is the main reason why the drafters inserted the "interstate commerce" clause into the Constitution: to prevent NY from taking advantage of its geography to injure neighboring states.] A similar policy may induce the United States to lay restrictions on us, if we are out of the Union.

[ed. Willie Jones, the leader of the opponents of ratification responded.]
Are we to ratify it at all events? Have we not an equal right to reject? We do not determine by neither rejecting nor adopting. It is objected we shall be out of the Union. So I wish to be. We are left at liberty to come in at any time. … I have a resolution in my pocket, which I intend to introduce if this resolution is carried, recommending it to the legislature to lay an impost, for the use of Congress, on goods imported into this state, similar to that which may be laid by Congress on goods imported into the adopting states. … The gentleman further said that we could send no representatives, but must send ambassadors to Congress, as a foreign power. I assert the contrary; and that, whenever a convention of the states is called, North Carolina will be called upon like the rest. [ed. In other words, Jones said NC would not be in the Union but would mitigate the injuries of not being in.]

 

[Tidewater]

[ed. Samuel Spencer, opponent of ratification, recommended a course of action.] He always thought it more proper, and agreeable to prudence, to propose amendments previous, rather, than subsequent, to ratification. He said that, if two or more persons entered into a copartnership, and employed a scrivener to draw up the articles of copartnership in a particular form, and, on reading them, they found them to be erroneous, it would be thought very strange if any of them should say, "Sign it first, and we shall have it altered hereafter." If it should be signed before alteration, it would be considered as an act of indiscretion. … It was a maxim of law that the same solemnities were necessary to destroy, which were necessary to create, a deed or contract. … each state might come into the Union when She thought proper. He confessed it gave him some concern, but he looked on the short exclusion of eighteen months if it might be called exclusion as infinitely less dangerous than an unconditional adoption. He expected the amendments would be adopted, and when they were, this state was ready to embrace it. No great inconvenience could result from this.

 

[Tidewater]

[ed. James Iredell responded.]
It is true that, by the Articles of Confederation, the consent of each state was necessary for any alteration. It is also true that the consent of nine states renders the Constitution binding on them. The unhappy consequences of that unfortunate article in this Confederation produced the necessity of this article in the Constitution. Every body knows that, through the peculiar obstinacy of Rhode Island, many great advantages were lost. Notwithstanding her weakness, she uniformly opposed every regulation for the benefit and honor of the Union at large. The other states were driven to the necessity of providing for their own security and welfare, without waiting for the consent of that little state. The deputies from twelve states unanimously concurred in opinion that the happiness of all America ought not to be sacrificed to the caprice and obstinacy of so inconsiderable a part.
… The great principle is, the safety of the people is the supreme law. Government was originally instituted for their welfare, and whatever may be its form, this ought to be its object. This is the fundamental principle on which our government is founded, In other countries, they suppose the existence of and infer that, if the sovereign violates his part of it, the people have a right to resist. If he does not, the government must remain unchanged, unless the sovereign consents to an alteration. In America, our governments have been clearly created by the people themselves. The same authority that created can destroy; and the people may undoubtedly change the government, not because it is ill exercised, but because they conceive another form will be more conducive to their welfare. … It is suggested, indeed, that, though ten states have adopted this new Constitution, yet, as they had no right to dissolve the old Articles of Confederation, these still subsist, and the old Union remains, of which we are a part. The truth of that suggestion may well be doubted, on this ground: when the principles of a constitution are violated, the constitution itself is dissolved, or may be dissolved at the pleasure of the parties to it. … every state has committed repeated violations of the demands of Congress. … The consequence is that, ... the Articles of Confederation are no longer binding. … When any state has once rejected the Constitution, it cannot claim to come in afterwards as a matter of right.
If it does not, in plain terms, reject, but refuses to accede for the present [ed. as seemed to be the intention of the opponents at this point], I think the other states may regard this as an absolute rejection, and refuse to admit us afterwards but at their pleasure, and on what terms they please. … "If you are willing to enjoy the benefits of the Union, you must be subject to all the laws of it. We will make no partial agreement with you."

 

[Tidewater]

[ed. Timothy Bloodworth, opponent of ratification, spoke in favor of declining to ratify.] As to the disadvantages of a temporary exclusion from the Union, he thought them trifling.
[ed. William R. Davie argued that NC should ratify so they could join in the debates for amendments.] If two thirds of both houses [of Congress] are necessary to send forward amendments to the states, would it not be prudent that we should be there, and add our vote to the number of those states who are of the same sentiment?
[ed. Matthew Locke, opponent of ratification, favored not ratifying until amendments had been adopted.] He thought a previous ratification dangerous. The worst that could happen would be, that we should be thrown out of the Union. He would rather that should be the case, than embrace a tyrannical government, and give away our rights and privileges. He was therefore determined to vote for the resolutions of the gentleman from Halifax [Willie Jones].

[Here debates on July 31 ended.]

 

[Tidewater]

[ed. On August 1, 1788, Lenoir introduced the resolutions of the Committee of the Whole, which consisted of a declaration of rights and some proposed amendments to the Constitution.]
"DECLARATION OF RIGHTS.
"1. That there are certain natural rights, of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.
"2. That all power is naturally vested in, and consequently derived from, the people; that magistrates, therefore, are their trustees and agents, and at all times amenable to them.
"3. That government ought to be instituted for the common benefit, protection, and security, of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind. ...
"16. That the people have a right to freedom of speech, and of writing and publishing their sentiments that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.
"17. That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that. in all cases, the military should be under strict subordination to, and governed by, the civil power. ...
"20. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence: and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular religious sect or society ought to be favored or established by law in preference to others."

"AMENDMENTS TO THE CONSTITUTION.
"1. That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government. …
"12. That Congress shall not declare any state to be in rebellion, without the consent of at least two thirds of all the members present, in both houses. …
"18. That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the power of Congress; but that they be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution. …

 

[Tidewater]

[ed. James Iredell proposed this as an alternative.]
"this Convention, [is] of opinion that, though certain amendments to the said Constitution may be wished for, yet that those amendments should be proposed subsequent to the ratification on the part of this state, and not previous to it: they do, therefore, … ratify the said Constitution … and … recommend … the following amendments …
1. Each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the general government; nor shall the said Congress, nor any department of the said government, exercise any act of authority over any individual in any of the said states, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn Instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed. [etc. This motion was negatived 84-184.]
[ed. Thus both the advocates and opponents were dedicated to the idea that the federal government should be bound by the powers delegated in the Constitution. Nobody was on record as favoring a federal government who powers would proceed from "penumbras and emanations."]

[ed. Then Willie Jones , opponent of ratification, proposed this motion.]
This Convention has thought proper neither to ratify nor reject the Constitution proposed for the government of the United States, and as Congress will proceed to act under the said Constitution, ten states having ratified the same, and probably lay an impost on goods imported into the said ratifying states,
Resolved, That it be recommended to the legislature of this state, that whenever Congress shall pass a law for collecting an impost in the states aforesaid, this state enact a law for collecting a similar impost on. goods imported into this state, and appropriate the money arising therefrom to the use of Congress.

[ed. Thus North Carolina would be out of the Union when the new government met in the spring of 1789, but would act in terms of the tariff as if it were still in the Union. The Convention then adjourned sine die.]

 

[crimsonaudio]

1. Each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the general government; nor shall the said Congress, nor any department of the said government, exercise any act of authority over any individual in any of the said states, but such as can be justified under some power particularly given in this Constitution; but the said Constitution shall be considered at all times a solemn Instrument, defining the extent of their authority, and the limits of which they cannot rightfully in any instance exceed.

Good grief, this idea is so far from where we are now it's incredible.

 

[Tidewater]

Good grief, this idea is so far from where we are now it's incredible.

I sometimes wonder if any member of the federal judiciary (or legislature for that matter) has ever read to proceedings of the state conventions that ratified the Constitution.

 

[Tidewater]

Here, a little context is necessary.

The elections happened in the autumn of 1788. George Washington won the Presidency without any electoral college votes from North Carolina and Rhode Island. They were not in the Union.

The new government was supposed to be inaugurated on March 4, 1789. Congress met (late) in April 1789. President Washington reported for duty (very late) on 30 April 1789.

Congress passed the Judiciary Act, creating one federal court district in each state (plus Kentucky and Maine) but not in NC & RI (which were out of the Union). Congress adopted a tariff, taxing imports to the US (temporarily exempting good from NC & RI). Foreign goods imported through NC & RI were taxed.

In September 1789, Congress adopted twelve amendments. Amendment 1 (about congressional apportionment) is still pending. Amendment 2, about compensation for members of Congress, was ratified in 1992 as the XXVII Amendment. The third through twelfth became the Bill of Rights, Amendments I-X.

The IX Amendment says, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The X Amendment says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In light of the debates in the state conventions which Madison wrote gave the Constitution “all the meaning it possesses,” the meaning of these two amendments is obvious. They codify the understanding of the advocates of ratification that the federal government would only be able to exercise those powers expressly delegated to it without a palpable violation of the Constitution and if the federal government went beyond those delegated powers, it would start violating peoples’ rights.

Since the amendments had passed Congress and were working their way through the states, NC had a second Convention which met in Fayetteville in November 1789. As soon as the Convention organized itself (elected a president, a clerk, etc.), William Davie moved that the Convention ratify the Constitution, which was approved 195-77. That made twelve states.

Only Rhode Island remained aloof.

 

[Tidewater]

[RI sat aloof for 14 months. During that time, Congress enacted a tariff, and (temporarily) exempted NC & RI products from that tariff. Over time, RI opposition to the Constitution softened and in January 1790, the state legislature called for a state convention to consider ratifying the Constitution.]

[On March 3, Art. I, Section 9, including the allowance of the transatlantic slave trade until 1808, was read.]

[Benjamin Bourne, an advocate of ratification spoke.] it is singular that a Gentleman who has advocated that no powers of Congress ought to have been given more than were allowed by the old Congress—That the old Congress had no Power to interfere [with slavery in the states]. By this Constitution the Congress may abolish that [slave] Trade in 20 Years—[this is] a valuable Acquisition …

[Job Comstock, an opponent of ratification, replied.] The Trade iniquitous—Righteousness exalteth a Nation But Iniquity is a Reproach to any People. … Former congress [ed. Under the Article of Confederation] said they never would import slaves. the importing slaves wicked and iniquitous we have lost sight of Virtue.

[ed. Jonathan Hazard, advocate of ratification, replied.] The southern states must answer for themselves—They must Conduce their own Legislation as they please—They can regulate their Trade as they please—We are not interested [on] one Hand nor answerable in our Consciences on the other—They must answer for [their] own Crimes—The southern states will separate from us before they will agree to this Alternate proposed—They will say that they do not interfere with our [Northern?] Legislatures why should we with theirs—The Constitution does not prevent any of the states from suppressing the Trade—to move for this Amendment will be to abridge the sovereignty of the states …

[ed. Job Comstock countered.] Why should we not insist on the Southern states giving up an iniquitous Measure—We are commendable for the Laws we have made—We ought to address Congress on the subject—to bear Testimony against. Shall the same Community of which [we] are a part Join in Abominations…

[ed. George Champlin, advocate of ratification agrees with J. Hazard.] The Convention of Philadelphia were disposed to suppress slavery—They found great Difficulties. Did what they could—could agree on no other Measure.—At the End of 20 Years they can—If we move for an Amendment on this Head it will lessen our Influence on the Account of other Amendments. This Constitution has no Influence on the Laws of the states—Mentions the Laws we passed—They are sufficient—if any have more tender feelings…

[ed. Col. William Barton, an advocate of ratification spoke.] I think this a Matter of very great Consequence. We are all on board of one ship—The Ship of Liberty—to enjoy it ourselves but that it may spread through the World—he concludes it is the Wishes of every person composing this Convention…

 

[Tidewater]

[ed. On March 4th, the convention again debated religion.]

[ed. James Sheldon, opponent of ratification, commented on the federal Bill of Rights.] Thinks That every State ought to [be] precluded from making any Law respecting Religion or abridging the Rights of Conscience

(article 3d. [sic. The article that eventually became the I Amendment] objected to by Sheldon—Congress has no right to alter religious establish[men]t nor over our State—)

[ed. Henry Marchant, advocate of ratification, replied.] it will be dangerous to attempt such a Measure— every state will [defend their own religious preference?]

[ed. James Sheldon replied.] If it is right that Congress should not make any Laws respecting it, no State ought to have the Right.

[ed. Benjamin Bourne, advocate, joins in.] there is no Danger of an Establishment of any Mode of Religion whether we would not appoint a Chaplin’. The Persecutions in the other States of our Ancestors* was an Advantage to this state—and should they persecute them it will be a Means of Accession to this state. We are perfectly Safe no danger of our establishi[n]g any mode of Religion we have even refused the accepting of a Chaplain. If an Establishmt take place in other State, [it would be] an advantage to us.

[ed. Henry Marchant, another advocate of ratification, responded.] I wish all Men would agree not to establish any Religion—enough for us to keep it out of the General Government.


[* Massachusetts had expelled those who refused to embrace the Congregational faith, up to and including killing dissidents. Many dissidents had fled Massachusetts for what became Rhode Island.]

 

[Tidewater]

[Ed. On March 5th 1790, Gov. Bowen seconds the Motion of Henry Marchant that the Bill of Rights be proceeded on and finished before the Consideration of the Amendments. Voted that the Amendment proposed by Marchant be agreed to and the Report altered accordingly.

Henry Marchant says If we reckon 3/5ths of all the Blacks in the southern states in proportioning the Taxes and will not allow a Representation according|ly] it will have an unfavorable appearance—wishes the Gentleman to explain …

Marchant has no Objection but this. When we propose Amendments merely local it excites Jealousy—the Amendment respecting the Blacks of this Kind—The southern states think it of great Consequence to them that No Innovations be made on this Policy Respecting their states—having been driving hard to obtain a Representation of them— Wishes not to hold up any thing which gives ground of uneasiness— and recommends that this do not pass as an Amendment.

Jonathan Hazard [advocate] It rests on this whether we value the Representation of the Blacks in the southern states of more Consequence than the Liberty of ourselves. We had better let the southern states trade to Africa than to expose our own Liberty. We ought to take Care at home before we look abroad—

 

[Tidewater]

[Ed. On March 6th, the RI Convention spent the day debating a RI Bill of Rights and recommended amendments to the federal Constitution. Much of the debate centered around the proposal to curtail the slave trade before 1808.]
[Comstock objected to the slave trade.] He objected before—our Duty at all Times to declare our Sentiments respecting Freedom and Liberty—Thinks the Article allowing the Importation of Slaves wrong—[but said] That our Citizens carry on that Traffick.
[ed. Stanton spoke against the slave trade.] It is apparent why it is continued by the Southern States to the Year 1808. The Power and Influence of the southern states—If the Angells should decree such a Traffick in Heaven he should [oppose them?]
[ed. Champlin supported leaving the Constitution as it was on the slave trade.] He hopes that those who vote against the Amendment will not be considered as Friends to Slavery.—He has done much toward the Freedom of the Blacks. He is Friend to General Liberty and the Happiness of all Men. Will offend [...].
[Gov. Bradford also spoke.] He abhors the Slave Trade— has as much Regard as any Man to the Liberties of the Poor and the Depressed.—This Measure promoted only for the Purpose of Party in this State—The southern States so tenacious of the Trade.
[Benjamin Bourne replied.] He has been branded as being advocate for Slavery— Highly injured by this Reflection—He is friend to the Freedom of all Men if he could accomplish the Plan before he slept.
[ed. The convention concluded by voting an extended adjournment so the people of RI could consider the Bill of Rights and instruct their delegates. The Convention would meet on May 24, 1790 at Newport.]

 

[Tidewater]

[ed. The Rhode Island Convention adjourned to send the following to town meetings so the people of Rhode Island could debate them and instruct their delegates on how to vote. For our purposes, here are the relevant ones.]

DECLARATION of RIGHTS.
… 2. That all power is naturally vested in and consequently derived from the people: That magistrates, therefore, are their trustees and agents, and at all times amenable to them.
3. That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:—That the rights of the States respectively to nominate and appoint all State officers, and every other power, jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or to the departments of government thereof, remain to the people of the several States, or their respective State governments, to whom they may have granted the same;—and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said Constitution;—but such clauses are to be construed, either as exceptions to certain specified powers, or as inserted merely for greater caution.
4. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence—and therefore all men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience;—and that no particular religious sect, or society, ought to be favoured or established by law, in preference to others. …
17. That the people have a right to keep and bear arms:—That a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defence of a free State:—That the militia shall not be subject to martial law, except in time of war, rebellion or insurrection:—That standing armies in time of peace are dangerous to liberty, and ought not to be kept up, except in cases of necessity;—and that at all times the military should be under strict subordination to the civil power:—That in time of peace no soldier ought to be quartered in any house without the consent of the owner— and in time of war, only by the civil magistrate, in such manner as the law directs. …

AMENDMENTS to the CONSTITUTION of the UNITED STATES.
1. The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this Constitution expressly delegated to the United States. …
17. As a traffic tending to establish or continue the slavery of any part of the human species, is disgraceful to the cause of liberty and humanity—that Congress shall, as soon as may be, promote and establish such laws and regulations as may effectually prevent the importation of slaves of every description into the United States.

[ed. The Rhode Island Convention would meet again on May 24, 1790.]

 

[Tidewater]

[Ed. While the Rhode Island convention was in recess, parties in Congress lost their patience. On January 14, 1790, Alexander Hamilton presented to Congress his proposal that the Federal government assume the debt that the states had incurred in fighting the American Revolution. On February 23, Congress extended Rhode Island's exemption from the tariff law until "the first of April, and no longer." Finally Congress pulled all the restraints. On May 11, the U.S. Senate debated a bill that would prohibit all commerce with Rhode Island and would authorize the President to demand that Rhode Island pay her $27,000 share of the national debt incurred during the Revolution. The bill passed the Senate on May 18, and went over to the House. Against this backdrop, the Rhode Island convention reconvened on May 24th.]

WE THE DELEGATES OF THE PEOPLE of the State of Rhode Island and Providence Plantations, … do declare and make known:

1st. That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtain- ing happiness and safety.

2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees and agents, and at all times amenable to them.

3d. That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness.—That the rights of the States respectively, to nominate and appoint all state Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same, and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.

4th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence, and therefore all men, have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favoured, or established by law in preference to others. …

17th. That the people have a right to keep and bear arms, that a well regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defence of a free state….

UNDER THESE IMPRESSIONS, [ed. in other word, these were conditions of ratification] and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistant with the said constitution, and in confidence that the amendments hereafter mentioned, will receive an early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof. WE the said delegates, in the name, and in the behalf of the PEOPLE of the STATE OF RHODE-ISLAND AND PROVIDENCE-PLANTATIONS, do by these Presents, assent to and ratify the said CONSTITUTION. In full confidence nevertheless, that until the amendments hereafter proposed and undermentioned shall be agreed to and ratified, pursuant to the aforesaid fifth article, the militia of this state will not be continued in service out of this State for a longer term than six weeks, without the consent of the legislature thereof; That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators or representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that in those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises, that the Congress will not lay direct taxes within this State, but when the monies arising from the impost, Tonnage and Excise shall be insufficient for the publick exigencies, nor until the Congress shall have first made a requisition upon this State to assess, levy and pay the amount of such requisition, made agreeable to the census fixed in the said constitution, in such way and manner, as the legislature of this State shall judge best, and that the Congress will not lay any capitation or poll tax. …

AND THE CONVENTION, do in the name and behalf of the PEOPLE of the STATE OF RHODE-ISLAND AND PROVIDENCE PLANTATIONS, enjoin it upon their Senators and Representative or Representatives, which may be elected to represent this State in Congress, to exert all their influence, and use all reasonable means to obtain a ratification of the following Amendments to the said Constitution, in the manner prescribed therein, and in all laws to be passed by the Congress in the mean time, to conform to the spirit of the said amendments, as far as the constitution will admit.

1st. The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this constitution expressly delegated to the United States. …

17th. As a traffick tending to establish or continue the slavery of any part of the human species, is disgraceful to the cause of liberty and humanity, that Congress shall, as soon as may be, promote and establish such laws and regulations, as may effectually prevent the importation of slaves of every description into the United States.

18th. That the State Legislatures have power to recall, when they think it expedient, their federal senators, and to send others in their stead.

19th. That Congress have power to establish a uniform rule of inhabitancy, or settlement of the poor of the different States throughout the United States.

20th. That Congress erect no company with exclusive advantages of commerce. …

DONE in Convention at Newport in the County of Newport in the STATE OF RHODE-ISLAND AND PROVIDENCE PLANTATIONS, the twenty ninth day of May, in the year of our LORD one thousand seven hundred and ninety, and the fourteenth year of the independence of the United States of America.

By order of the Convention.
Daniel Owen President.

[ed. With this, Rhode Island voted narrowly, 34-32 to ratify the Constitution. The adoption of the Constitution by all thirteen states was complete.]

 

[Tidewater]

The recapitulation by states on the enumeration of federal powers.

The transition from the federal convention which drafted the Constitution to the state conventions which ratified it, James Wilson (who served in both, said, “the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. … everything which is not given is reserved."

Delaware left no record of note.

In Pennsylvania Thomas M’Kean said, “the powers of Congress, being derived from the people in the mode pointed out by this Constitution, and being therein enumerated and positively granted, can be no other than what this positive grant conveys.”

Immediately after New Jersey ratified, the New Jersey Journal, in responding to George Mason’s critique of the lack of bill of rights, argued, the people “must necessarily be still vested with all power and sovereignty not expressly given away by their act of delegation.”

Georgia delegate wrote, “It may be thought prudent, … to adopt the Constitution only for a certain period of time during which they will have a fair trial of its effects, and at the expiration of that time be at liberty and have it in their own power to adopt it again if they please for another period, either without or with any amendments they may find necessary.”

In Connecticut, Oliver Ellsworth said, “I grant that both [Congress and the state legislature] cannot legislate upon the same object at the same time, and carry into effect laws which are contrary to each other. But the Constitution excludes every thing of this kind. Each legislature has its province; their limits may be distinguished.”

In Massachusetts, Ames said, “Every citizen grows up with a knowledge of the local circumstances of the state. But the business of the federal government will be very different. The objects of their power are few and national.”

In Maryland, the committee tasked with proposing amendments wrote, “That Congress shall exercise no power but what is expressly delegated by this Constitution [because] the exercise of constructive powers [would be] wholly prevented.

In South Carolina, Charles Pinckney said, “The distinction which has been taken between the nature of a federal and state government appeared to be conclusive—that in the former, no powers could be executed, or but such as were expressly delegated.”

In New Hampshire, Joshua Atherton spoke about “the detestable custom of enslaving the African” when he said “There is a great distinction in not taking a part in the most barbarous violation of the sacred laws of God and humanity, and our becoming guaranties for its exercise for a term of years.”

Virginia declared, “that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained.”

New York, declared that “the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments.

In North Carolina Governor Johnston stated, “The Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution.”

Rhode Island declared that “every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments.”

The idea that the federal government will be able to exercise on those powers expressly delegated to it was widespread among advocates of ratification.

On the other side of the equation, no delegate in any state on any day ever said, "We should ratify because the federal government will be able to exercise powers it feels is 'necessary and proper.'" No delegate in any state convention on any day ever said, "We should ratify because the 'general welfare' clause means the federal government can do whatever it feels is needed for the general welfare." Nobody ever said, "the federal government will be able to pass a law as long as it has any influence however small on interstate commerce, including things that have no influence on any commerce at all."