Dear Sir,--The little pamphlet
herewith inclosed will give you a collective view of the alterations
which have been proposed for the new Constitution. Various and numerous
as they appear, they certainly omit many of the true grounds of
opposition. The articles relating to Treaties, to paper money, and to
contracts, created more enemies than all the errors in the system,
positive and negative, put together.
It is true, nevertheless, that
not a
few, particularly in Virginia, have contended for the proposed
alterations from the most honorable and patriotic motives; and that
among the advocates for the Constitution there are some who wish for
further guards to public liberty and individual rights. As far as these
may consist of a constitutional declaration of the most essential
rights, it is probable they will be added; though there are many who
think such addition unnecessary, and not a few who think it misplaced
in such a Constitution. There is scarce any point on which the party in
opposition is so much divided as to its importance and its propriety.
My own opinion has always been in favor of a bill of rights, provided
it be so framed as not to imply powers not meant to be included in the
enumeration. At the same time, I have never thought the omission a
material defect, nor been anxious to supply it even by subsequent
amendment, for any other reason than that it is anxiously desired by
others. I have favored it because I supposed it might be of use, and,
if properly executed, could not be of disservice.
I have not viewed it in an
important
light--1. Because I conceive that in a certain degree, though not in
the extent argued by Mr. Wilson, the rights in question are reserved by
the manner in which the federal powers are granted. 2. Because there is
great reason to fear that a positive declaration of some of the most
essential rights could not be obtained in the requisite latitude. I am
sure that the rights of conscience in particular, if submitted to
public definition, would be narrowed much more than they are likely
ever to be by an assumed power. One of the objections in New England
was, that the Constitution, by prohibiting religious tests, opened a
door for Jews, Turks, and infidels. 3. Because the limited powers of
the federal Government, and the jealousy of the subordinate
Governments, afford a security which has not existed in the case of the
State Governments, and exists in no other. 4. Because experience proves
the inefficacy of a bill of rights on those occasions when its controul
is most needed. Repeated violations of these parchment barriers have
been committed by overbearing majorities in every State.
In Virginia, I have seen the bill
of
rights violated in every instance where it has been opposed to a
popular current. Notwithstanding the explicit provision contained in
that instrument for the rights of conscience, it is well known that a
religious establishment would have taken place in that State, if the
Legislative majority had found, as they expected, a majority of the
people in favor of the measure; and I am persuaded that if a majority
of the people were now of one sect, the measure would still take place,
and on narrower ground than was then proposed, notwithstanding the
additional obstacle which the law has since created.
Wherever the real
power in a
Government lies, there is the danger of oppression. In our Governments
the real power lies in the majority of the community, and the invasion
of private rights is chiefly to be apprehended, not from acts of
Government contrary to the sense of its constituents, but from acts in
which the Government is the mere instrument of the major number of the
Constituents. This is a truth of great importance, but not yet
sufficiently attended to; and is probably more strongly impressed on my
mind by facts and reflections suggested by them than on yours, which
has contemplated abuses of power issuing from a very different quarter.
Wherever there is an interest and power to do wrong, wrong will
generally be done, and not less readily by a powerful and interested
party than by a powerful and interested prince. The difference, so far
as it relates to the superiority of republics over monarchies, lies in
the less degree of probability that interest may prompt abuses of power
in the former than in the latter; and in the security in the former
against an oppression of more than the smaller part of the Society,
whereas, in the latter, it may be extended in a manner to the whole.
The difference, so far as it
relates
to the point in question--the efficacy of a bill of rights in
controuling abuses of power--lies in this: that in a monarchy the
latent force of the nation is superior to that of the Sovereign, and a
solemn charter of popular rights must have a great effect as a standard
for trying the validity of public acts, and a signal for rousing and
uniting the superior force of the community; whereas, in a popular
Government, the political and physical power may be considered as
vested in the same hands, that is, in a majority of the people, and,
consequently, the tyrannical will of the Sovereign is not to be
controuled by the dread of an appeal to any other force within the
community.
What use, then, it may be asked,
can
a bill of rights serve in popular Governments? I answer, the two
following, which, though less essential than in other Governments,
sufficiently recommend the precaution: 1. The political truths declared
in that solemn manner acquire by degrees the character of fundamental
maxims of free Government, and as they become incorporated with the
National sentiment, counteract the impulses of interest and passion. 2.
Although it be generally true, as above stated, that the danger of
oppression lies in the interested majorities of the people rather than
in usurped acts of the Government, yet there may be occasions on which
the evil may spring from the latter source; and on such, a bill of
rights will be a good ground for an appeal to the sense of the
community. Perhaps, too, there may be a certain degree of danger that a
succession of artful and ambitious rulers may, by gradual and
well-timed advances, finally erect an independent Government on the
subversion of liberty. Should this danger exist at all, it is prudent
to guard against it, especially when the precaution can do no injury.
Governments to danger on that
side.
It has been remarked that there is a tendency in all Governments to an
augmentation of power at the expense of liberty. But the remark, as
usually understood, does not appear to me well founded. Power, when it
has attained a certain degree of energy and independence, goes on
generally to further degrees. But when below that degree, the direct
tendency is to further degrees of relaxation, until the abuses of
liberty beget a sudden transition to an undue degree of power. With
this explanation the remark may be true; and in the latter sense only
is it, in my opinion, applicable to the existing Governments in
America. It is a melancholy reflection that liberty should be equally
exposed to danger whether the Government have too much or too little
power, and that the line which divides these extremes should be so
inaccurately defined by experience.
Supposing a bill of rights to be
proper, the articles which ought to compose it admit of much
discussion. I am inclined to think that absolute restrictions in cases
that are doubtful, or where emergencies may overrule them, ought to be
avoided. The restrictions, however strongly marked on paper, will never
be regarded when opposed to the decided sense of the public; and after
repeated violations, in extraordinary cases will lose even their
ordinary efficacy. Should a Rebellion or insurrection alarm the people
as well as the Government, and a suspension of the Habeas Corpus be
dictated by the alarm, no written prohibitions on earth would prevent
the measure. Should an army in time of peace be gradually established
in our neighborhood by Britain or Spain, declarations on paper would
have as little effect in preventing a standing force for the public
safety. The best security against these evils is to remove the pretext
for them.
With regard to Monopolies, they
are
justly classed among the greatest nuisances in Government. But is it
clear that, as encouragements to literary works and ingenious
discoveries, they are not too valuable to be wholly renounced? Would it
not suffice to reserve in all cases a right to the public to abolish
the privilege, at a price to be specified in the grant of it? Is there
not, also, infinitely less danger of this abuse in our Governments than
in most others? Monopolies are sacrifices of the many to the few. Where
the power is in the few, it is natural for them to sacrifice the many
to their own partialities and corruptions. Where the power, as with us,
is in the many, not in the few, the danger cannot be very great that
the few will be thus favored. It is much more to be dreaded that the
few will be unnecessarily sacrificed to the many. . . .
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