The Meaning of the Constitution

[Tidewater]

[Ed Henry continued.]

The real rock of political salvation is self-love, perpetuated from age to age in every human breast, and manifested in every action. If they can stand the temptations of human nature, you are safe. If you have a good President, senators, and representatives, there is no danger. But can this be expected from human nature? Without real checks, it will not suffice that some of them are good. A good President, or senator, or representative, will have a natural weakness. Virtue will slumber. The wicked will be continually watching: consequently you will be undone. ...
[A]s Montesquieu says, when you give titles of nobility, you know what you give; but when you give power, you know not what you give. If you say that, out of this depraved mass, you can collect luminous characters, it will not avail, unless this luminous breed will be propagated from generation to generation; and even then, if the number of vicious characters will preponderate, you are undone. And that this will certainly be the case is, to my mind, perfectly clear. In the British government there are real balances and checks: in this system there are only ideal balances. Till I am convinced that there are actual efficient checks, I will not give my assent to its establishment. ...
When the commons of England, in the manly language which became freemen, said to their king, You are our servant, then the temple of liberty was complete. From that noble source have we derived our liberty: that spirit of patriotic attachment to one's country, that zeal for liberty, and that enmity to tyranny, which signalized the then champions of liberty, we inherit from our British ancestors. ...
I shall be told in this place that those who are to tax us are our representatives. To this I answer, that there is no real check to prevent their ruining us. There is no actual responsibility. The only semblance of a check is the negative power of not reëlecting them. This, sir, is but a feeble barrier, when their personal interest, their ambition and avarice, come to be put in contrast with the happiness of the people. All checks founded on any thing but self-love will not avail. ...

 

[Tidewater]

[Ed. Henry continued.]

Such is the danger of the abuse of implied power, that it would be safer at once to have seven representatives, the number to which we are now entitled, than depend on the uncertain and ambiguous language of that paper. The number may be lessened, instead of being increased; and yet, by argumentative, constructive, implied power, the proportion of taxes may continue the same, or be increased. Nothing is more perilous than constructive power, which gentlemen are so willing to trust their happiness to. ...
Are we not told that it shall be treason to levy war against the United States? Suppose an insult offered to the federal laws at an immense distance from Philadelphia;—will this be deemed treason? And shall a man be dragged many hundred miles, to be tried as a criminal, for having, perhaps justifiably, resisted an unwarrantable attack upon his person or property? ...
There are to be a number of places fitted out for arsenals and dockyards in the different states. Unless you sell to Congress such places as are proper for these, within your state, you will not be consistent after adoption: it results, therefore, clearly, that you are to give into their hands all such places as are fit for strongholds. When you have these fortifications and garrisons within your state, your legislature will have no power over them, though they see the most dangerous insults offered to the people daily. They are also to have magazines in each state. These depositories for arms, though within the state, will be free from the control of its legislature. Are we at last brought to such an humiliating and debasing degradation, that we cannot be trusted with arms for our own defence? Where is the difference between having our arms in our own possession and under our own direction, and having them under the management of Congress? If our defence be the real object of having those arms, in whose hands can they be trusted with more propriety, or equal safety to us, as in our own hands? If our legislature be unworthy of legislating for every foot in this state, they are unworthy of saying another word.

[Ed. Some of Henry's warnings seemed prophetic.]

 

[Tidewater]

[Henry continued to explain his opposition.]

The clause which says that Congress shall "provide for arming, organizing, and disciplining the militia, and for 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," seemed to put the states in the power of Congress. I wished to be informed, if Congress neglected to discipline them, whether the states were not precluded from doing it. Not being favored with a particular answer, I am confirmed in my opinion, that the states have not the power of disciplining them, without recurring to the doctrine of constructive implied powers. If, by implication, the states may discipline them, by implication, also, Congress may officer them; because, in a partition of power, each has a right to come in for part; and because implication is to operate in favor of Congress on all occasions, where their object is the extension of power, as well as in favor of the states. ... [Ed. Here, Henry opposes ratification because he opposes "constructive, implied powers," and says that Congress and the states will wield implied powers. We will return to this question later.]
Where and when did freedom exist, when the sword and purse were given up from the people? Unless a miracle in human affairs interposed, no nation ever retained its liberty after the loss of the sword and purse. ...
The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them. The most iniquitous plots may be carried on against their liberty and happiness. I am not an advocate for divulging indiscriminately all the operations of government, though the practice of our ancestors, in some degree, justifies it. Such transactions as relate to military operations or affairs of great consequence, the immediate promulgation of which might defeat the interests of the community, I would not wish to be published, till the end which required their secrecy should have been effected. But to cover with the veil of secrecy the common routine of business, is an abomination in the eyes of every intelligent man, and every friend to his country.

[Ed. Henry is arguing for transparency. He could not have imagined the C-SPAN effect, which transformed the houses of Congress from deliberative bodies into performative theaters of the absurd.]

 

[Tidewater]

[Ed. Henry wraps up his reasons for disapproving the Constitution with a bit of what he called "political anatomy."]

In the brain it [the Constitution] is national; the stamina are federal; some limbs are federal, others national. The senators are voted for by the state legislatures; so far it is federal. Individuals choose the members of the first branch; here it is national. It is federal in conferring general powers, but national in retaining them. It is not to be supported by the states; the pockets of individuals are to be searched for its maintenance. What signifies it to me that you have the most curious anatomical description of it in its creation? To all the common purposes of legislation, it is a great consolidation of government....
It is cried out that those in opposition wish disunion. This is not true. They are the most strenuous enemies to it. This government will clearly operate disunion....
I am constrained to make a few remarks on the absurdity of adopting this system, and relying on the chance of getting it amended afterwards. When it is confessed to be replete with defects, is it not offering to insult your understandings to attempt to reason you out of the propriety of rejecting it till it be amended? Does it not insult your judgments to tell you, "Adopt first, and then amend!" Is your rage for novelty so great, that you are first to sign and seal, and then to retract?...
Gentlemen may retain their opinions; but I look on that paper as the most fatal plan that could possibly be conceived to enslave a free people.

 

[Tidewater]

[Ed. light Horse Harry Lee spoke in favor of ratification.]

[Ed. Henry asserted that pro-ratifiers were willing to accept despotism. Lee responded to the charge.]
I trust the friends of that government will oppose the efforts of despotism as firmly as its opposers. ...
In the course of Saturday, and some previous harangues, from the terms in which some of the Northern States were spoken of, one would have thought that the love of an American was in some degree criminal, as being incompatible with a proper degree of affection for a Virginian. The people of America, sir, are one people. I love the people of the north, not because they have adopted the Constitution, but because I fought with them as my countrymen, and because I consider them as such. ...
If this were a consolidated government, ought it not to be ratified by a majority of the people as individuals, and not as states? Suppose Virginia, Connecticut, Massachusetts, and Pennsylvania, had ratified it; these four states, being a majority of the people of America, would be their adoption, have made it binding on all the states, had this been a consolidated government. But it is only the government of those seven states who have adopted it. ...

 

[Tidewater]

[Ed. Lee concluded.]

The purse of the people of Virginia is not given up by that paper: they [ed. the federal government] can take no more of our money than is necessary to pay our share of the public debts, and provide for the general welfare. Were it otherwise, no man would be louder against it than myself. ... [Ed. note that, in Lee's view, the "general welfare" clause in the taxing clause merely declares the purposes for which taxes can be raised.]
Mr. Lee then said, that, under the state governments, the people reserved to themselves certain enumerated rights, and that the rest were vested in their rulers; that, consequently, the powers reserved to the people were but an inconsiderable exception from what were given to their rulers; but that, in the federal government, the rulers of the people were vested with certain defined powers, and that what were not delegated to those rulers were retained by the people. The consequence of this, he said, was, that the limited powers were only an exception to those which rested in the people, and that they knew what they had given up, and could be in no danger....

[Ed. Once again, the Founders stated that the powers delegated to the state governments were broad and undefined, while the powers delegated to the federal government are defined and limited. There are implied powers of the state governments. There are no implied powers of the federal government.]

 

[TIDE-HSV]

[Ed. Lee concluded.]

The purse of the people of Virginia is not given up by that paper: they [ed. the federal government] can take no more of our money than is necessary to pay our share of the public debts, and provide for the general welfare. Were it otherwise, no man would be louder against it than myself. ... [Ed. note that, in Lee's view, the "general welfare" clause in the taxing clause merely declares the purposes for which taxes can be raised.]
Mr. Lee then said, that, under the state governments, the people reserved to themselves certain enumerated rights, and that the rest were vested in their rulers; that, consequently, the powers reserved to the people were but an inconsiderable exception from what were given to their rulers; but that, in the federal government, the rulers of the people were vested with certain defined powers, and that what were not delegated to those rulers were retained by the people. The consequence of this, he said, was, that the limited powers were only an exception to those which rested in the people, and that they knew what they had given up, and could be in no danger....

[Ed. Once again, the Founders stated that the powers delegated to the state governments were broad and undefined, while the powers delegated to the federal government are defined and limited. There are implied powers of the state governments. There are no implied powers of the federal government.]

Sneaky, the way he keeps inserting the term "rulers" in describing the federal government...

 

[Tidewater]

Sneaky, the way he keeps inserting the term "rulers" in describing the federal government...

Having read the entire speech in order to present the snippets above, I did not get the sense that Light Horse Harry was suspicious of "rulers." Lee was a fervent advocate of ratification of the Constitution and thought Patrick Henry's warnings were unwarranted.
Lee calling men people of the north "my countrymen" because they had fought together was remarkable for the time. Most people would say, "My country, Virginia ... " or "Massachusetts is my country."

 

[Tidewater]

[Ed. On June 9th, Gov. Randolph answered Henry's objections.]

What have we to do with bills of rights? Six or seven states have none. Massachusetts has declared her bill of rights as no part of her Constitution. Virginia has a bill of rights, but it is no part of her Constitution. By not saying whether it is paramount to the Constitution or not, it has left us in confusion. Is the bill of rights consistent with the Constitution? Why, then, is it not inserted in the Constitution? Does it add any thing to the Constitution? Why is it not in the Constitution? Does it except any thing from the Constitution? Why not put the exceptions in the Constitution? Does it oppose the Constitution? This will produce mischief. The judges will dispute which is paramount. Some will say, the bill of rights is paramount: others will say, that the Constitution, being subsequent in point of time, must be paramount. A bill of rights, therefore, accurately speaking, is quite useless, if not dangerous to a republic. [Ed. Echoes of the idea that it is dangerous to list the rights the people retain, because subsequent generations would say, "This unmentioned right that we now want to violate was not mentioned in the Bill of Rights, therefore it is not retained and we can violate it with government policy.]
I had objections to this Constitution. I still have objections to it. [Here he read the objections which appeared in his public letter.] The gentleman asks, How comes it to pass that you are now willing to take it? I answer, that I see Virginia in such danger, that, were its defects greater, I would adopt it. These dangers, though not immediately present to our view, yet may not be far distant, if we disunite from the other states. I will join any man in endeavoring to get amendments, after the danger of disunion is removed by a previous adoption...
Shall we ever be at peace, because we are so now? Is it unnecessary to provide against future events? His objection goes to prove that Virginia can stand by herself. The advice that would attempt to convince me of so pernicious an error I treat with disdain. Our negroes are numerous, and are daily becoming more so. When I reflect on their comparative number, and comparative condition, I am the more persuaded of the great fitness of becoming more formidable than ever.

[Ed. Here the convention adjourned for the day.]

 

[Tidewater]

[Ed. On June 10, Gov. Randolph continued his response to Patrick Henry.]

What will be the consequence if we reject this Constitution? Shall we recur to separate confederacies? The honorable gentleman acknowledges them to be evils which ought not to be resorted to but on the last necessity—they are evils of the first magnitude. ...
[Speaking of] separate confederacies. ...If there is a gentleman here who harbors in his mind the idea of a separate confederacy, I beg him to consider the sequence. Where shall we find refuge in the day of calamity? The different confederacies will be rivals in power and commerce, and therefore will soon be implacable enemies of one another. ...

[Ed. While breaking up the Union was inadvisable, but it was not unconstitutional, despite the Articles of Confederation aspiration to being "perpetual."]

 

[Tidewater]

[Ed. Gov. Randolph continued.]

Theoretic writers have adopted a position that extensive territories will not admit of a republican government. These positions were laid down before the science of government was as well understood as it is now. [Ed. Again, we see the "large countries will end up despotic" argument. Randolph counters.]
If laws are to be made by the people themselves, in their individual capacities, it is evident that they cannot conveniently assemble together, for this purpose, but in a very limited sphere; but if the business of legislation be transacted by representatives, chosen periodically by the people, it is obvious that it may be done in any extent of country. The experience of this commonwealth, and of the United States, proves this assertion.

[Ed. Henry had invoked the name of Jefferson as an opponent of the Constitution.]
Notwithstanding the celebrity of his [ed. Jefferson's] character, his name cannot be used as authority against the Constitution. I know not his [ed. Henry's] authority. I have had no letter from him [ed. Jefferson]. As far as my information goes, it is only a report circulated through the town, that he wished nine states to adopt, and the others to reject it, in order to get amendments. Which is the ninth state to introduce the government? That illustrious citizen tells you, that he wishes the government to be adopted by nine states, to prevent a schism in the Union. This, sir, is my wish. I will go heart and hand to obtain amendments, but I will never agree to the dissolution of the Union. But unless a ninth state will accede, this must inevitably happen.

[Ed. Note that Randolph believes the dissolution of the Union is not advisable, but he does not believe it is unconstitutional.]

 

[Tidewater]

[Ed. Randolph continues, here addressing the executive branch, and compares the federal executive to the state executives.]

How is the President elected? By the people—on the same day throughout the United States [ed. early voting was not something Randolph contemplated]—by those whom the people please. There can be no concert between the electors. The votes are sent sealed to Congress, What are his powers? To see the laws executed. Every executive in America has that power. He is also to command the army: this power also is enjoyed by the executives of the different states. He can handle no part of the public money except what is given him by law. At the end of four years, he may be turned out of his office. If he misbehaves he may be impeached, and in this case he will never be reëlected. I cannot conceive how his powers can be called formidable. Both houses are a check upon him. He can do no important act without the concurrence of the Senate.

[ed. I believe what Randolph means on impeachment is that any president who gets impeached and removed would be so disgraced that nobody would every look to him in the future.]

 

[BamaFlum]

“Both houses are a check upon him. He can do no important act without the concurrence of the Senate.”

Wow, how far we have strayed.

 

[dtgreg]

“Both houses are a check upon him. He can do no important act without the concurrence of the Senate.”

Wow, how far we have strayed.

Blame the atom bomb.

 

[Tidewater]

Blame the atom bomb.

Yes, but I think it was a process before the Bomb.
The Founders believed that the president could do very little besides execute the orders of the legislature. Whig politicians went so far as to promise never to veto a bill from Congress.
The Progressives (in both parties) gradually expanded what they believed a president could do. Teddy Roosevelt, Woodrow Wilson, FDR all greatly expanded executive authority.
The Bomb added to that.

 

[Tidewater]

[Ed. Gov. Randolph continues]
Our government is founded upon real checks. … Who are your representatives? They are chosen by the people for two years. Who are your senators? They are chosen by the legislatures, and a third of them go out of the Senate at the end of every second year. They may also be impeached. There are no better checks upon earth....
The liberty of the press is supposed to be in danger. If this were the case, it would produce extreme repugnancy in my mind. If it ever will be suppressed in this country, the liberty of the people will not be far from being sacrificed. Where is the danger of it? He says that every power is given to the general government that is not reserved to the states. Pardon me if I say the reverse of the proposition is true. I defy any one to prove the contrary. Every power not given it by this system is left with the states. This being the principle, from what part of the Constitution can the liberty of the press be said to be in danger? [Ed. Once again, we see an advocate of ratification saying that the federal government has only those powers expressly delegated to it, and that the states retain every power not given away by the people's ratification of the Constitution. If a power is in question, silence in the Constitution means the federal government does not have that power. Silence in the Constitution means the states do retain that power.]

 

[Tidewater]

[Ed. Gov. Randolph continued.]

Freedom of religion is said to be in danger. I will candidly say, I once thought that it was, and felt great repugnance to the Constitution for that reason. I am willing to acknowledge my apprehensions removed; and I will inform you by what process of reasoning I did remove them. The Constitution provides that "the senators and representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States." It has been said that, if the exclusion of the religious test were an exception from the general power of Congress, the power over religion would remain. I inform those who are of this opinion, that no power is given expressly to Congress over religion. The senators and representatives, members of the state legislatures, and executive and judicial officers, are bound, by oath or affirmation, to support this Constitution. This only binds them to support it in the exercise of the powers constitutionally given it. The exclusion of religious tests is an exception from this general provision, with respect to oaths or affirmations. Although officers, &c., are to swear that they will support this Constitution, yet they are not bound to support one mode of worship, or to adhere to one particular sect. It puts all sects on the same footing. A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States. I am a friend to a variety of sects, because they keep one another in order. How many different sects are we composed of throughout the United States! How many different sects will be in Congress! We cannot enumerate the sects that may be in Congress! And there are now so many in the United States, that they will prevent the establishment of any one sect, in prejudice to the rest, and will forever oppose all attempts to infringe religious liberty. If such an attempt be made, will not the alarm be sounded throughout America? If Congress should be as wicked as we are foretold they will be, they would not run the risk of exciting the resentment of all, or most, of the religious sects in America.

[Ed. Again, echoes of the idea that a religious liberty is safe because the Congress will only be allowed to exercise powers specifically delegated to it. Since the Constitution does not specifically delegate to Congress any power over religion, Congress has no power over it, and religious liberty is safe. And this came from an advocate of ratification.]

 

[Tidewater]

[Ed. Randolph continued.]

They [ed. opponents of ratification] say that the adoption of this system will occasion an augmentation of taxes. To object to it on this ground, is as much as to say, No Union—stand by yourselves! An increase of taxes is a terror that no friend to the Union ought to be alarmed at. The impost must produce a great sum. The contrary cannot be supposed. I conceive the particular expense of particular states will be diminished, and that diminution will, to a certain extent, support the Union. Either disunion, or separate confederacies, will enhance the expense. [Ed. An argument strangely similar to the "Remain" camp during Brexit.] A union of all the states will be, even on economical principles, more to the interest of the people of Virginia than either separate confederacies or disunion. [Ed. Again, a Founder believed that disunion would be bad policy, but not unconstitutional.]

Another construction he gives is, that it is exclusively in the power of Congress to arm the militia, and that the states could not do it if Congress thought proper to neglect it. I am astonished how this idea could enter into the gentleman's mind, whose acuteness no man doubts. How can this be fairly deduced from the following clause?—"To provide for the organizing, arming, and disciplining the militia, and for 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." He complains much of implication; but in this case he has made use of it himself, for his construction of this clause cannot possibly be supported without it. It is clear and self-evident that the pretended danger cannot result from the clause. Should Congress neglect to arm or discipline the militia, the states are fully possessed of the power of doing it; for they are restrained from it by no part of the Constitution. [Ed. Again, when considering a concurrent power, shared between the federal government and the states, the states can do whatever is not prohibited by the federal Constitution (and presumably that state's constitution). For the federal government, silence in the Constitution means the power is prohibited, for the states, silence means the power is permitted.]

 

[Tidewater]

[Ed. Gov. Randolph concludes and makes the most important points of his speech.]

The sweeping clause as it is called, [the "necessary and proper" clause*; see Federalist #33], is much dreaded. I find that I differ from several gentlemen on this point. This formidable clause does not in the least increase the powers of Congress. It is only inserted for greater cautions and to prevent the possibility of encroaching upon the powers of Congress. No sophistry will be permitted to be used to explain away any of those powers; nor can they [ed. Congress] possibly assume any other power, but what is contained in the Constitution, without absolute usurpation.
Another security is that, if they attempt such a usurpation, the influence of the state governments will nip it in the bud of hope. I know this government will be cautiously watched. The smallest assumption of power will be sounded in alarm to the people, and followed by bold and active opposition. I hope that my countrymen will keep guard against every arrogation of power.
I shall take notice of what the honorable gentleman said with respect to the power to provide for the general welfare. The meaning of this clause has been perverted, to alarm our apprehensions. The whole clause has not been read together. It enables Congress "to lay and collect taxes, duties, imposts, and excises; to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises, shall be uniform throughout the United States." The plain and obvious meaning of this is, that no more duties, taxes, imposts, and excises, shall be laid, than are sufficient to pay the debts, and provide for the common defence and general welfare, of the United States. [Ed. In other words, the "general welfare" clause is not in addition to the powers delegated to Congress. It is why they Founders delegated the taxing power. It is why Congress can tax and limits how much Congress can tax. It does not, in itself, delegate any powers to Congress.
Gov. Edmund Randolph had been a member of the Philadelphia Convention that draft the Constitution and, in Richmond, was an advocate of ratification.]


* The "necessary and proper" clause, known as the "sweeping clause" by opponents of ratification because opponents believed it delegated sweeping powers to the federal government, comes at the end of the exclusive list of all of Congress's powers: "Congress shall have the power ....," then comes the list of congressional powers. The list concludes with this: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

 

[Tidewater]

[Ed. James Monroe was the next speaker.]

Monroe said, ... A recurrence has been had to history. Ancient and modern leagues have been mentioned, to make impressions. Will they admit of any analogy with our situation? The same principles will produce the same effects. Permit me to take a review of those leagues which the honorable gentleman has mentioned; which are, 1st, the Amphictyonic council; 2nd, the Achæan league; 3rd, the Germanic system; 4th, the Swiss Cantons; 5th, the United Netherlands; and 6th, the New England confederacy. Before I develop the principles of these leagues, permit me to speak of what must influence the happiness and duration of leagues. These principally depend on the following circumstances: 1st, the happy construction of the government of the members of the union; 2d, the security from foreign danger. For instance, monarchies united would separate soon; aristocracies would preserve their union longer; but democracies, unless separated by some extraordinary circumstance, would last forever. The causes of half the wars that have thinned the ranks of mankind, and depopulated nations, are caprice, folly, and ambition: these belong to the higher orders of governments, where the passions of one, or of a few individuals, direct the fate of the rest of the community. But it is otherwise with democracies, where there is an equality among the citizens, and a foreign and powerful enemy, especially a monarch, may crush weaker neighbors. Let us see how far these positions are supported by the history of these leagues, and how far they apply to us. ...
The Achæan league had more analogy to ours, and gives me great hopes that the apprehensions of gentlemen with respect to our confederacy are groundless. They were all democratic, and firmly united. What was the effect? The most perfect harmony and friendship subsisted between them, and they were very active in guarding their liberties. The history of that confederacy does not present us with those confusions and internal convulsions which gentlemen ascribe to all governments of a confederate kind. The most respectable historians prove this confederacy to have been exempt from those defects.
[Here Mr. Monroe read several passages in Polybius, tending to elucidate and prove the excellent structure of the Achæan league, and the consequent happy effects of this excellency.] ...
The individual cantons [of Switzerland] composing the league are chiefly aristocratic. What an opportunity does this offer to foreign powers to disturb them by bribing and corrupting their aristocrats! [Ed. History does not repeat itself, but it does rhyme and echo.]