"In the course of the argument, The Federalist has been quoted ; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution."--Chief Justice John Marshall, U.S. Supreme Court, McCULLOCH v. MARYLAND, [4 Wheaton 316.] 1819.
"The opinion of the Federalist has always been considered as of great authority. It is a complete commentary on our Constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank; and the part two of its authors performed in framing the constitution, put it very much in their power to explain the views with which it was framed..."--Chief Justice John Marshall, U.S. Supreme Court, Cohens v. Virginia (1821)."It is a rule of law that, in order to ascertain the import of a contract, the evident intention of the parties, at the time of forming it, is principally to be regarded. Previous to the formation of this Constitution, there existed certain principles of the law of nature and nations, consecrated by time and experience, in conformity to which the Constitution was formed."-- Mr. Elliot, Debate in U.S. House of Representatives, Oct. 25, 1803 (The Debates in the Several State Conventions on the Adoption of the Federal Constitution), [Elliot's Debates, Volume 4]
"The Federalist is regarded as the highest contemporary authority on the construction of the Constitution...."-- Salmon P. Chase, Chief Justice of the U.S. Supreme Court. [Journal of the Senate of the United States of America, WEDNESDAY, March 4, 1868.]
"But if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments could not interrupt their progress without an open and violent exertion of an unconstitutional power. No omissions nor evasions would answer the end. They would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights. An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority."--Alexander Hamilton, Federalist No. 16, Tuesday, December 4, 1787.
“For it is a truth, which the experience of all ages has attested, that the people are commonly most in danger when the means of insuring their rights are in the possession of those of whom they entertain the least suspicion.”--Alexander Hamilton, The Federalist Papers, No. 25.
"If the representatives of the
people betray their constituents, there is then no resource left but
in the exertion of that original right of self-defense which is
paramount to all positive forms of government . . . The citizens must
rush tumultuously to arms..."--Alexander Hamilton, The
Federalist Papers No. 28.
"...Little more can reasonably be
aimed at, with respect to the PEOPLE AT LARGE, than to have them
properly ARMED and EQUIPPED .... but if circumstances should at any
time oblige the government to form an army of any magnitude, that
army can never be formidable to the liberties of the people, while
there is a large body of citizens, LITTLE, if at ALL, INFERIOR to
them in discipline and the USE OF ARMS, who stand ready to DEFEND
THEIR OWN RIGHTS, and those of their fellow citizens. This appears to
me the only substitute that can be devised for a standing army; and
the best possible security against it, if it should
exist."--Alexander Hamilton, The Federalist No. 29, Independent
Journal, Wednesday, January 9, 1788.
"... Among the lesser criticisms which have been exercised on
the Constitution, it has been remarked that the validity of engagements ought to
have been asserted in favor of the United States, as well as against them; and
in the spirit which usually characterizes little critics, the omission has been
transformed and magnified into a plot against the national rights. The authors
of this discovery may be told, what few others need to be informed of, that as
engagements are in their nature reciprocal, an assertion of their validity on
one side, necessarily involves a validity on the other side; and that as the
article is merely declaratory, the establishment of the principle in one case is
sufficient for every case. They may be further told, that every constitution
must limit its precautions to dangers that are not altogether imaginary; and
that no real danger can exist that the government would dare, with, or
even without, this constitutional declaration before it, to remit the debts
justly due to the public, on the pretext here condemned.
"8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only."
"That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.
"9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same."
"This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.
"Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
"The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.
"The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.
PUBLIUS"----James Madison, The Federalist No. 43, Independent Journal, Wednesday, January 23, 1788.
"The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ULTIMATE AUTHORITY, wherever the derivative may be found, RESIDES IN THE PEOPLE ALONE, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. TRUTH, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."--James Madison, The Federalist No. 46, Tuesday, January 29, 1788.
"8. "To provide for amendments to be ratified by three fourths of the States under two exceptions only."
"That useful alterations will be suggested by experience, could not but be foreseen. It was requisite, therefore, that a mode for introducing them should be provided. The mode preferred by the convention seems to be stamped with every mark of propriety. It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other. The exception in favor of the equality of suffrage in the Senate, was probably meant as a palladium to the residuary sovereignty of the States, implied and secured by that principle of representation in one branch of the legislature; and was probably insisted on by the States particularly attached to that equality. The other exception must have been admitted on the same considerations which produced the privilege defended by it.
"9. "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States, ratifying the same."
"This article speaks for itself. The express authority of the people alone could give due validity to the Constitution. To have required the unanimous ratification of the thirteen States, would have subjected the essential interests of the whole to the caprice or corruption of a single member. It would have marked a want of foresight in the convention, which our own experience would have rendered inexcusable.
"Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it? 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it?
"The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on ordinary acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach, committed by either of the parties, absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate.
"The second question is not less delicate; and the flattering prospect of its being merely hypothetical forbids an overcurious discussion of it. It is one of those cases which must be left to provide for itself. In general, it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force, and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and, above all, the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other.
PUBLIUS"----James Madison, The Federalist No. 43, Independent Journal, Wednesday, January 23, 1788.
"The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ULTIMATE AUTHORITY, wherever the derivative may be found, RESIDES IN THE PEOPLE ALONE, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. TRUTH, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents."--James Madison, The Federalist No. 46, Tuesday, January 29, 1788.
"Besides the advantage of being
armed, which the Americans possess over the people of almost every
other nation, the existence of subordinate governments, to which the
people are attached, and by which the militia officers are appointed,
forms a barrier against the enterprises of ambition, more
insurmountable than any which a simple government of any form can
admit of. Notwithstanding the military establishments in the several
kingdoms of Europe, which are carried as far as the public resources
will bear, the governments are afraid to trust the people with arms.
And it is not certain, that with this aid alone they would not be
able to shake off their yokes . . . . Let us not insult the free and
gallant citizens of America with the suspicion, that they would be
less able to defend the rights of which they would be in actual
possession, than the debased subjects of arbitrary power would be to
rescue theirs from the hands of their oppressors. Let us rather no
longer insult them with the supposition that they can ever reduce
themselves to the necessity of making the experiment, by a blind and tame submission to the long
train of insidious measures which must precede and produce
it."--James Madison, The Federalist Papers No. 46,
Tuesday, January 29, 1788.
"...According to the plan of the
convention, all judges who may be appointed by the United States are
to hold their offices during good behavior; . . . The standard of
good behavior for the continuance in office of the judicial
magistracy, is certainly one of the most valuable of the modern
improvements in the practice of government. In a monarchy it is an
excellent barrier to the despotism of the prince; in a republic it is
a no less excellent barrier to the encroachments and oppressions of
the representative body. And it is the best expedient which can be
devised in any government, to secure a steady, upright, and impartial
administration of the laws...."
"...The complete independence of
the courts of justice is peculiarly essential in a limited
Constitution. By a limited Constitution, I understand one which
contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no
ex post facto laws, and the like. Limitations of this kind can be
preserved in practice no other way than through the medium of courts
of justice, whose duty it must be to declare all acts contrary to the
manifest tenor of the Constitution void. Without this,
all the reservations of particular rights or privileges would amount
to nothing. . . ."
"...There is no position which
depends on clearer principles, than that every act of a delegated
authority, contrary to the tenor of the commission
under which it is exercised, is void. No legislative act, therefore,
contrary to the Constitution, can be valid. To deny this, would be to
affirm, that the deputy is greater than his principal; that the
servant is above his master; that the representatives of the people
are superior to the people themselves; that men acting by virtue of
powers, may do not only what their powers do not authorize, but what
they forbid...."
"...It is not otherwise to be
supposed, that the Constitution could intend to enable the
representatives of the people to substitute their will to that of
their constituents. It is far more rational to suppose, that the courts were designed to be an
intermediate body between the people and the legislature, in order,
among other things, to keep the latter within the limits assigned to
their authority. The interpretation of the laws is the proper and
peculiar province of the courts. A
constitution is, in fact, and must be regarded by the judges, as a
fundamental law. It therefore belongs to them to ascertain
its meaning, as well as the meaning of any particular act proceeding
from the legislative body. If there should happen to be an
irreconcilable variance between the two, that which has the superior
obligation and validity ought, of course, to be preferred; or, in
other words, the Constitution ought to be preferred to the statute,
the intention of the people to the intention of their agents.
"Nor does this conclusion by any
means suppose a superiority of the judicial to the legislative power.
It only supposes that the POWER of the PEOPLE is SUPERIOR TO BOTH;
and that where the will of the legislature, declared in its statutes,
stands in opposition to that of the people, DECLARED IN THE
CONSTITUTION, the judges ought to be governed by the latter rather
than the former. They ought to regulate their decisions by the
FUNDAMENTAL LAWS, rather than by those which are NOT fundamental...."
"...But it is not with a view to
infractions of the Constitution only, that the independence of the
judges may be an essential safeguard against the effects of
occasional ill humors in the society. These sometimes extend no
farther than to the injury of the private rights of particular
classes of citizens, by unjust and partial laws. Here also the
firmness of the judicial magistracy is of vast importance in
mitigating the severity and confining the operation of such laws. . .
."
"...That inflexible and uniform
adherence to the rights of the Constitution, and of individuals,
which we perceive to be indispensable in the
courts of justice, can certainly not be expected from judges who hold
their offices by a temporary commission. . . ."
"The Judiciary...has no
influence over either the sword or the purse; no
direction either of the strength or of the wealth of the society, and
can take no active resolution whatever. It may
truly be said to have neither force nor will."--Alexander
Hamilton, The Federalist No. 78, Saturday, June 14, 1788.
"Until the people have, by some
solemn and authoritative act, annulled or changed the established
form, it is binding upon themselves collectively, as well as
individually; and no presumption, or even knowledge, of their
sentiments, can warrant their representatives in a departure from it,
prior to such an act."--- Alexander Hamilton, Federalist
No. 78, Independent Journal, Saturday, June 14, 1788.
"...To the second, that is, to the pretended establishment of the common and statute law by the constitution, I answer, that they are expressly made subject "to such alterations and provisions as the legislature shall from time to time make concerning the same." They are therefore at any moment liable to repeal by the ordinary legislative power, and of course have no constitutional sanction. The only use of the declaration was to recognize the ancient law, and to remove doubts which might have been occasioned by the revolution. This consequently can be considered as no part of a declaration of rights, which under our constitutions must be intended as limitations of the power of the government itself.
"It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America."
"Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
"But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."-- Alexander Hamilton, Federalist No 84, Independent Journal, Wednesday, July 16, Saturday, July 26, Saturday, August 9, 1788.
"It has been several times truly remarked, that bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the Barons, sword in hand, from king John. Such were the subsequent confirmations of that charter by subsequent princes. Such was the petition of right assented to by Charles the First, in the beginning of his reign. Such also was the declaration of right presented by the lords and commons to the prince of Orange in 1688, and afterwards thrown into the form of an act of parliament, called the bill of rights. It is evident, therefore, that according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. "We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America."
"Here, in strictness, the people surrender nothing; and as they retain every thing they have no need of particular reservations. "WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." Here is a better recognition of popular rights, than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.
"But a minute detail of particular rights is certainly far less applicable to a Constitution like that under consideration, which is merely intended to regulate the general political interests of the nation, than to a constitution which has the regulation of every species of personal and private concerns. If, therefore, the loud clamors against the plan of the convention, on this score, are well founded, no epithets of reprobation will be too strong for the constitution of this State. But the truth is, that both of them contain all which, in relation to their objects, is reasonably to be desired.
"I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power. They might urge with a semblance of reason, that the Constitution ought not to be charged with the absurdity of providing against the abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulations concerning it was intended to be vested in the national government. This may serve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for bills of rights."-- Alexander Hamilton, Federalist No 84, Independent Journal, Wednesday, July 16, Saturday, July 26, Saturday, August 9, 1788.
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