Wednesday, May 17, 2006

Two sides to every coin.....

Federal Farmer, no. 4
12 Oct. 1787 Storing 2.8.50--54
It is said, that when the people make a constitution, and delegate powers that all powers not delegated by them to those who govern is [sic] reserved in the people: and that the people, in the present case, have reserved in themselves, and in their state governments, every right and power not expressly given by the federal constitution to those who shall administer the national government. It is said on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves. The truth is, in either case, it is mere matter of opinion and men usually take either side of the argument, as will best answer their purposes: But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favourably for encreasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved. By the state constitutions, certain rights have been reserved in the people; or rather, they have been recognized and established in such a manner, that state legislatures are bound to respect them, and to make no laws infringing upon them. The state legislatures are obliged to take notice of the bills of rights of their respective states. The bills of rights, and the state constitutions, are fundamental compacts only between those who govern, and the people of the same state.

In the year 1788 the people of the United States make a federal constitution, which is a fundamental compact between them and their federal rulers; these rulers, in the nature of things, cannot be bound to take notice of any other compact. It would be absurd for them, in making laws, to look over thirteen, fifteen, or twenty state constitutions, to see what rights are established as fundamental, and must not be infringed upon, in making laws in the society. It is true, they would be bound to do it if the people, in their federal compact, should refer to the state constitutions, recognize all parts not inconsistent with the federal constitution, and direct their federal rulers to take notice of them accordingly; but this is not the case, as the plan stands proposed at present; and it is absurd, to suppose so unnatural an idea is intended or implied. I think my opinion is not only founded in reason, but I think it is supported by the report of the convention itself. If there are a number of rights established by the state constitutions, and which will remain sacred, and the general government is bound to take notice of them--it must take notice of one as well as another; and if unnecessary to recognize or establish one by the federal constitution, it would be unnecessary to recognize or establish another by it. If the federal constitution is to be construed so far in connection with the state constitutions, as to leave the trial by jury in civil causes, for instance, secured; on the same principles it would have left the trial by jury in criminal causes, the benefits of the writ of habeas corpus, etc. secured; they all stand on the same footing; they are the common rights of Americans, and have been recognized by the state constitutions: But the convention found it necessary to recognize or re-establish the benefits of that writ, and the jury trial in criminal cases. As to expost facto laws, the convention has done the same in one case, and gone further in another. It is part of the compact between the people of each state and their rulers, that no expost facto laws shall be made. But the convention, by Art. I Sect. 10 have put a sanction upon this part even of the state compacts. In fact, the 9th and 10th Sections in Art. I. in the proposed constitution, are no more nor less, than a partial bill of rights; they establish certain principles as part of the compact upon which the federal legislators and officers can never infringe. It is here wisely stipulated, that the federal legislature shall never pass a bill of attainder, or expost facto law; that no tax shall be laid on articles exported, etc. The establishing of one right implies the necessity of establishing another and similar one.

On the whole, the position appears to me to be undeniable, that this bill of rights ought to be carried farther, and some other principles established, as a part of this fundamental compact between the people of the United States and their federal rulers.

It is true, we are not disposed to differ much, at present, about religion: but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact. There are other essential rights, which we have justly understood to be the rights of freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men's papers, property, and persons. The trials by jury in civil causes, it is said, varies so much in the several states, that no words could be found for the uniform establishment of it. If so, the federal legislation will not be able to establish it by any general laws. I confess I am of opinion it may be established, but not in that beneficial manner in which we may enjoy it, for the reasons beforementioned. When I speak of the jury trial of the vicinage, or the trial of the fact in the neighbourhood--I do not lay so much stress upon the circumstance of our being tried by our neighbours: in this enlightened country men may be probably impartially tried by those who do not live very near them: but the trial of facts in the neighbourhood is of great importance in other respects. Nothing can be more essential than the cross examining witnesses, and generally before the triers of the facts in question. The common people can establish facts with much more ease with oral than written evidence; when trials of facts are removed to a distance from the homes of the parties and witnesses, oral evidence becomes intolerably expensive, and the parties must depend on written evidence, which to the common people is expensive and almost useless; it must be frequently taken ex parte, and but very seldom leads to the proper discovery of truth.

The trial by jury is very important in another point of view. It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department. To hold open to them the offices of senators, judges, and offices to fill which an expensive education is required, cannot answer any valuable purposes for them; they are not in a situation to be brought forward and to fill those offices; these, and most other offices of any considerable importance, will be occupied by the few. The few, the well born, etc. as Mr. Adams calls them, in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favour those of their own description.

A Democratic Federalist
(In answer to Federal Farmer, no. 4).
17 Oct. 1787 Storing 3.5.1--4

The arguments of the Honorable Mr. Wilson, expressed in the speech he made at the state-house on the Saturday preceding the general election (as stated in the Pennsylvania Herald,) although extremely ingenious and the best that could be adduced in support of so bad a cause, are yet extremely futile, and will not stand the test of investigation.
In the first place, Mr. Wilson pretends to point out a leading discrimination between the State Constitutions, and the Constitution of the United States.--In the former, he says, every power which is not reserved is given, and in the latter, every power which is not given is reserved: And this may furnish an answer, he adds, to those who object, that a bill of rights has not been introduced in the proposed Federal Constitution. If this doctrine is true, and since it is the only security that we are to have for our natural rights, it ought at least to have been clearly expressed in the plan of government. The 2d. section of the present articles of confederation says: Each State retains its sovereignty, freedom and independance, AND EVERY POWER, JURISDICTION AND RIGHT WHICH IS NOT BY THIS CONFEDERATION EXPRESSLY DELEGATED TO THE United States in Congress assembled.--This declaration (for what purpose I know not) is entirely omitted in the proposed Constitution. And yet there is a material difference between this Constitution and the present confederation, for Congress in the latter are merely an executive body; it has no power to raise money, it has no judicial jurisdiction. In the other, on the contrary, the federal rulers are vested with each of the three essential powers of government--their laws are to be paramount to the laws of the different States, what then will there be to oppose to their encroachments? Should they ever pretend to tyrannize over the people, their standing army, will silence every popular effort, it will be theirs to explain the powers which have been granted to them; Mr. Wilson's distinction will be forgot, denied or explained away, and the liberty of the people will be no more.
It is said in the 2d. section of the 3d. article of the Federal Plan: "The judicial power shall extend to ALL CASES in law and equity, arising under this constitution." It is very clear that under this clause, the tribunal of the United States, may claim a right to the cognizance of all offences against the general government, and libels will not probably be excluded. Nay, those offences may be by them construed, or by law declared, misprision of treason, an offence which comes literally under their express jurisdiction.--Where is then the safety of our boasted liberty of the press? And in case of a conflict of jurisdiction between the courts of the United States, and those of the several Commonwealths, is it not easy to foresee which of the two will obtain the advantage?
Under the enormous power of the new confederation, which extends to the individuals as well as to the States of America, a thousand means may be devised to destroy effectually the liberty of the press--There is no knowing what corrupt and wicked judges may do in process of time, when they are not restrained by express laws. The case of John Peter Zenger of New-York, ought still to be present to our minds, to convince us how displeasing the liberty of the press is to men in high power--At any rate, I lay it down as a general rule, that wherever the powers of a government extend to the lives, the persons, and properties of the subject, all their rights ought to be clearly and expressly defined--otherwise they have but a poor security for their liberties.
Ummmm.....Think I'll take door number two!


strehlem said...

love your blog - watch your posts at Keep and Bear regularly.

Keep the faith...


E. David Quammen said...

Have seen your posts on KABA to bud. Keep up the good fight!