The Federalists’ Moderation of Natural Rights Language in Forming the Bill of Rights
Jason R. Jividen Northern Illinois University email@example.com
Paper prepared for the Annual Meeting of the Southern Political Science Association, New Orleans, January 9, 2004
1 The Federalists’ Moderation of Natural Rights Language in Forming the Bill of Rights
In arguing for the addition of a bill of rights to the new Constitution, the AntiFederalists took their bearings from the natural rights language of the Declaration of Independence and the various state bills of rights. While the Federalists and Anti-Federalists agreed as to the fundamental principles of government by consent of the governed and that the purpose of government is to secure inalienable rights, they disagreed as to whether these principles ought to be explicitly declared in the Constitution or the Bill of Rights. Rather than frequently emphasizing the doctrine of natural rights associated with the Revolution, the Federalists thought it prudent to help to secure liberty, at least in part, through a reverence for the Constitution itself. While many associate the Federalist objections to a bill of rights with Publius’ arguments in the Federalist, the apprehensions regarding a bill of rights are by no means limited to the Federalist alone. Both before and during the various state ratifying conventions there are repeated arguments against a bill of rights being added to the new Constitution, based largely upon the same objections levied by Publius in the Federalist.1 Likewise, in the famous exchange between Madison and Jefferson concerning a bill of rights, Madison argues that a bill of rights, if not properly constructed, may undermine limited government by implying powers not meant to be included in the enumerated powers of the general government. If rights are to be protected, there is little reason to believe that this protection will come from bills of rights alone. Madison argues that such declarations of rights have been little more than parchment barriers in the past, particularly in the governments of the several states. The
See for example James Wilson’s famous “Statehouse” speech, 6 October 1787 in The Anti-Federalist Papers and the Constitutional Convention Debates. Mentor: New York. pp. 183-188.
2 very structure of the general government, and the firm adherence to a limited general government of enumerated powers will serve as the best protector of rights. However, Madison contends that insofar as a bill of rights may be carefully designed and properly executed, it may be of some service in calming Anti-Federalist opposition to the new Constitution and quieting the people in their desire for a declaration of their most essential rights.2 In Federalist #84, Publius presents what many consider to be the best summary of the arguments against a bill of rights being added to the new Constitution. Many Federalists argued that a bill of rights, as a guarantor of natural rights, would be superfluous in that these rights do not depend upon the existence of civil government, nor upon any constitution or written declarations or bills of rights. Consider Benjamin Rush’s statement that it would be absurd to frame a formal declaration that our natural rights are acquired from ourselves.3 In Federalist #84 Publius also argues that a bill of rights is indeed superfluous, but in a rather different sense than Dr. Rush, as Publius’ argument makes no mention whatsoever of a bill of rights as a reminder or guarantor of natural rights. Publius makes five key arguments against a bill of rights, which may be summarized as follows. Firstly, bills of rights have traditionally been agreements between kings and their subjects. In a government wherein all power derives from the people, bills of rights are unnecessary. Publius argues that in the very Preamble to the Constitution the phrase “’WE THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution of the United States of America’” contains
James Madison to Thomas Jefferson, 17 October 1788. The Papers of Thomas Jefferson. v.14. Princeton: Princeton University Press, 1958. pp. 16-21. cf. Madison’s qualified arguments favoring a bill of rights throughout his correspondence with Jefferson and in his Speech to Congress, 8 June 1789 in The Papers of James Madison. V.12. Ed. Charles F. Hobson and Robert A. Rutland. Charlottesville: University of Virginia Press, 1979. pp. 196210. 3 John McMaster and Frederick Stone, Pennsylvania and the Federal Constitution. Lancaster: Historical Society, 1888. p. 295.
3 “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.”4 Second, even if bills of rights were somehow necessary in popular government, under the new Constitution, a bill of rights would be inappropriate and superfluous given that the new general government is merely intended to regulate the “general political interests of the nation,” as opposed to “every species of personal and private concerns.”5 Thus, bills of rights would be more appropriate to the various state constitutions than in the new proposed Constitution, which establishes a general government with explicitly limited powers. Third, a bill of rights may actually be dangerous to good government and the protection of the very rights specified in a bill of rights. The attempt to list and specify certain rights may offer the general government pretext for the claiming that it has the lawful power to regulate such rights. Publius argues that bills of rights, under the proposed Constitution, could contain “various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”6 Fourth, Publius calls into question the meaning of phrases such as “liberty of the press,” and argues that such phrases can in no way be given a practical definition. Any definition of liberty of the press would leave the utmost latitude for evasion. Thus, the security of such a liberty is not dependent upon mere declarations of liberty but rather upon public opinion and the “general spirit of the people and of the government.”7 In other words the security of our
The Federalist. Ed. Jacob E. Cooke. Hanover: Wesleyan University Press, 1961. pp. 578-579. Ibid, p. 579. 6 Ibid. 7 Ibid, .p. 581.
4 rights depends upon the dedication of the people and its government to the security of these rights, as opposed to mere words on parchment. Finally, and perhaps most importantly, Publius argues that the Constitution is itself a bill of rights. One of the objects of a bill of rights is to declare and specify the political privileges of the citizen in the structure and administration of the government. This, Publius argues, was done in the “most ample and precise manner in the plan of the convention, comprehending various precautions for the public security, which are not to be found in any of the state constitutions.”8 If another object of bill of rights is the definition of certain immunities and modes of proceeding relative to personal and private concerns, then, Publius continues, this has also been attended to in the Constitution itself. Publius thus concludes, “Adverting therefore to the substantial meaning of a bill of rights, it is absurd to allege that it is not to be found in the work of the convention.”9 One cannot help but notice that nowhere in Publius’ discussion in Federalist #84 is there any explicit mention of natural rights, nor are there many frequent references to natural rights in the Federalist as a whole, which has led some commentators to conclude that there is little reason to believe that natural rights have much of a role at all in the Federalist, or in the American Founding itself. The rights that Publius discusses in Federalist #84 as being secured by the Constitution itself could be argued to be nothing more than civil rights, conferred by government.10 However, even without a bill of rights, the rights associated with the
Ibid. Ibid. 10 See for example, Constant Noble Stockton, “Are There Natural Rights in the Federalist?” Ethics, v.82, #1, Oct. 1971. pp. 72-82. See John Phillip Reid, “The Irrelevance of the Declaration” in New York University School of Law Series in Legal History, Volume 3: Law in the American Revolution and the Revolution in the Law. Ed. Hendrik Hartog. New York: New York University Press, 1981. pp. 46-89; cf John Philip Reid Constitutional History of the American Revolution, Volume 3: The Authority of Rights. Madison: University of Wisconsin Press, 1986. For a serious and thoughtful critique of Reid’s position, see Michael P. Zuckert. The Natural Rights Republic. University of Notre Dame Press, 1996. pp. 108-117.
5 constitutional protection of states and individuals are political rights meant to secure the natural rights to life, liberty, and the pursuit of happiness in civil society, as expressed in the Declaration of Independence.11 It is clear the Founders understood that security of life, liberty, property, and the pursuit of happiness are among the proper ends of government. It is also clear that the ends of life, liberty and property are restated throughout the Constitution and the Bill of Rights. However, nowhere in either of these two documents are these political ends explicitly said to be the result of natural equality, natural rights, or the social contract. When we compare the language of the state bills of rights and that of the Bill of Rights in the federal Constitution, we find that there are significant differences. For example, the Pennsylvania constitution began with the declaration that “all men are born equally free and independent and have certain natural, inherent and inalienable rights, amongst which are enjoying and defending life and liberty, acquiring, possessing and protecting property and pursuing and obtaining happiness and safety.” The Fifth Amendment to the U. S. Constitution merely reads that no person “shall be deprived of life, liberty or property without due process of law.” Also by way of example, the Pennsylvania constitution proclaimed that “all men have a natural and inalienable right to worship Almighty God according to the dictates of their own conscience.” However, we know that the First Amendment to the U. S. Constitution only says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”12
Even the right to revolution, obviously the most radical concept associated with the Declaration of Independence is asserted in the Federalist. See #’s 28, 33, 40, 43, 59 and 60. Madison defends the right to revolution in language similar to that of the Declaration in #40 and directly references the “laws of Nature and Nature’s God” in #43. 12 Harry M. Clor. “Reflections on the Bill of Rights” in Our Peculiar Security: The Written Constitution and Limited Government. Ed. Eugene W. Hickock Jr., Gary L. McDowell, and Philip J. Costopoulos. Boston: Rowman and Littlefield, 1993. p. 171. Cf. Bernard Schwartz, The Bill of Rights: A Documentary History. New York: Chelsea House, 1971. p. 264.
6 If the purpose of government is to secure our natural and inalienable rights to life, liberty, and the pursuit of happiness, we might wonder why phrases such as “natural and inalienable rights” ultimately fail to appear in the Constitution and the Bill of Rights. While Publius’ arguments in Federalist #84 are indeed representative of the kinds of arguments that came forth against bills of rights in the state ratifying conventions, one cannot help but wonder if, given the lack of natural rights language in the Bill of Rights, there might be more to Publius’ opposition to the more traditional bills of rights than is explicitly stated in the Federalist. In his influential essay “The Constitution and the Bill of Rights,” Herbert Storing argues that, in addition to the more explicit Federalist arguments against a bill of rights, there is a deeper element to their opposition. The Anti-Federalist support for a bill of rights went beyond specific provisions and protections of political and civil rights. The overriding AntiFederalist concern was to make sure that government was rooted firmly in natural rights and justice. A bill of rights ought to be a standard by which the people can learn and remember the fundamental principles of their regime, and free government is thought to depend upon the frequent recurrence to these principles. Storing claims that the Federalists, on the other hand, doubted that a frequent recurrence to fundamental principles is necessary for good government. In fact, the Federalists believed that frequent recurrence to fundamental principles might actually interfere with good government.13 While the principles of the Declaration of Independence do indeed serve as the proper explanation of government by consent of the governed and the ultimate expression of the proper ends of government, these principles are clearly linked to the ideas of the natural
Herbert J. Storing. “The Constitution and the Bill of Rights” in How Does the Constitution Secure Rights? Ed. Robert A. Goldwin and William A. Schambra. Washington, D.C.: AEI Press, 1985. pp. 30-32.
7 equality of all men, natural liberty, and the right to revolution. The natural rights language of the Declaration of Independence, as well as the various bills of rights among the states, could be construed to be the language of a people passionately attached to liberty. This is the language of fundamental principles--the natural rights to life, liberty, and the pursuit of happiness, natural equality, government by consent of the governed, and the right of a people to alter, or perhaps more importantly, to abolish their government if ever it should become destructive of these ends. In the debate over the Bill of Rights to be added to the Constitution, we find that the Federalists make a conscious effort to de-emphasize the extent to which these amendments employ the natural rights language characteristic of the Declaration of Independence and the various state bills of rights. In the difficult task of combining a stable and energetic government with a due respect for the liberty of the people, the Federalists recognized that the Anti-Federalist understanding of a bill of rights must be effectively narrowed in scope so as to avoid including the natural rights language associated with intensified individualism and perhaps even revolutionary fervor. The language of the state bills of rights must be modified and reworked in the federal Bill of Rights, offering a more moderate listing of traditional constitutional protections, rather than a declaration of first principles to be frequently invoked.14 These fundamental principles are the principles of the Declaration of Independence, the same principles the Anti-Federalists associate with bills of rights, and indeed the principles held sacred by the Federalists. While
Harry M. Clor offers an insightful discussion on the effort to moderate the language of natural rights and fundamental principles in forming the Bill of Rights. See “Reflections on the Bill of Rights” (n. 12 above, pp.153178). Clor’s discussion situates the American Founders on a “middle ground” between Thomas Paine, as “the patron of that libertarian school of thought for which ‘rights against the state’ is the central political preoccupation” and Edmund Burke, as offering the “most forceful critique in modernity of the modern liberal preoccupation with rights” (p.173). While Clor’s discussion appropriately characterizes the Bill of Rights as a moderate compromise between these two general positions, Clor does not discuss the degree to which, at various points, the Federalists and Anti-Federalists represent these two extremes in their debate over the Bill of Rights.
8 the Federalists and Anti-Federalists agree as to just what these fundamental principles are, they disagree as to whether or not they need to be explicitly appealed to in the Constitution.15 However, we might ask just where the Anti-Federalist emphasis upon frequent recurrence to fundamental principles comes from. What is the origin of this repeated phrase “frequent recurrence to fundamental principles” and why is it thought to be so important to the health of republican government? Gerald Stourzh has argued that the source of this notion of frequent recurrence to fundamental principles can be traced back, ultimately, to Machiavelli’s Discourses on Livy. In discussing the differences between the thought of Alexander Hamilton and Thomas Jefferson, Stourzh argues that Jefferson’s support of “a little rebellion” now and again as “a medicine necessary for the sound health of government” can be traced back to the Virginia Declaration of Rights, which proclaims the importance of “frequent recurrence to fundamental principles” as necessary to securing free government and the “blessing of liberty.”16 The author of the Virginia Declaration was of course George Mason. Stourzh argues that “a further clue to the origin and meaning” of recurrence to fundamental principles may be found in an earlier paper in which Mason remarks “it has been wisely observed by the deepest politician who ever put pen to paper, that no institution can be long preserved, but by frequent recurrence to those maxims on which it was formed.”17 Stourzh concludes that this “deepest politician” was most likely Machiavelli, whose thought had come down to Mason from James
Robert A. Goldwin. From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution. Washington, D.C.: AEI Press, 1997. p. 144. 16 Gerald Stourzh, Alexander Hamilton and the Idea of Republican Government. Stanford: Stanford University Press, 1970. pp. 9-37. cf. “The Virginia Declaration of Rights” (1776). Reprinted in Bernard Schwartz, The Bill of Rights: A Documentary History. New York: Chelsea House, 1971. pp. 234-236. cf. Thomas Jefferson to James Madison, 30 January 1787; cf. Thomas Jefferson to Colonel Smith, 13 November 1787. 17 Paper read by George Mason at a meeting of the Fairfax, Va. County Independent Company, June 1775. Cited in Stourzh, Ibid, pp. 34-35. Reproduced in Kate Mason Rowland, The Life of George Mason, 2 Volumes. New York, 1892, I, p. 430. Stourzh argues that the “most nearly satisfactory description of the ancestry of Mason’s ideas (as stated in the Declaration of Rights)” is Hugh Blair Grigsby in The Virginia Convention of 1776. Richmond, 1855, p. 164. See Stourzh, Ibid, n. 96, p. 220.
9 Burgh’s Political Disquisitions, through Thomas Gordon and John Trenchard’s Cato’s Letters, to Algernon Sidney’s Discourses Concerning Government, all of which Mason had most likely read. Burgh writes “Machiavel says, that to render a commonwealth long lived, it is necessary to correct it often, and reduce it towards its first principles, which is to be done by punishments and examples.” Gordon and Trenchard state “Machiavel tells us, that no Government can long subsist, but by recurring often to its first Principles.” Finally, Sidney wrote “all human constitutions are subject to corruption, and must perish, unless they are timely renewed, and reduced to their first principles” and that Machiavelli had proposed “reducing every state, once in an age or two, to the integrity of its first principle.”18 The ultimate source of this phrase “frequent recurrence to fundamental principles,” Stourzh claims, is Machiavelli’s Discourses on Livy. Book III, Chapter 1 of Machiavelli’s Discourses is entitled “If One Wishes a Sect or a Republic to Live Long, It Is Necessary to Draw it Back Often toward Its Beginning.” Republics, Machiavelli writes, if they are to last, must periodically be “renewed” and brought back to their founding, i.e. fear and violence. If the memory of fear fades, Machiavelli argues that men will begin to dare to try new things. Thus, in order to avoid corruption of the regime, it is necessary to draw the state “back toward its beginnings” through particularly visible public executions.19 We might wonder, however, why the Federalists would be opposed to a frequent recurrence to fundamental principles in the American regime, given that the principles of the American Revolution are widely thought to be the principles of liberty rightly understood. Leo Strauss has suggested, one might say that the United States was the only country in the
James Burgh, Political Disquisitions. 3 Volumes, London, 1774-75. III, 298; Thomas Gordon and John Trenchard. Cato’s Letters. 3rd. Edition 4 Volumes. London, 1773, I, 108-109 (No.16); Algernon Sidney, Discourses Concerning Government. Chapter II, §24. Cited in Stourzh, Ibid, p. 35. 19 Niccolo Machiavelli. Discourses on Livy. Translated by Harvey C. Mansfield and Nathan Tarcov. Chicago: University of Chicago Press, 1996. pp. 209-212.
10 world that was founded in explicit opposition to Machiavellian principles. The foundation of the United States was not laid in cruelty or crime, but rather in freedom and justice.20 After all, the American regime was not thought to be founded on Machiavellian first principles (i.e. fear and violence), but rather, as Hamilton claimed, by “reflection and choice.”21 We may also be reminded of Tocqueville’s assessment of the struggle for independence in America. Tocqueville says that the War for American independence could not properly be called “revolution” because it was caused “by a mature and thoughtful taste for freedom, not by some vague, undefined instinct for independence. No disorderly passion drove it on; on the contrary, it proceeded hand in hand with a love of order and legality.”22 The American Revolution might be thought to be, as Martin Diamond has suggested, a “revolution of sober expectations.” Thus, the American Revolution was devoted to the abstract principle of liberty, but liberty rightly understood.23 While this view may or may not accurately reflect the passion of the Revolution, it is clear that the Federalists believed that devotion to liberty in the Revolution is not sufficient to secure liberty once independence is won. Take, for example, Publius’ statement in Federalist #1, “the noble enthusiasm of liberty is too apt to be infected with a spirit of narrow and illiberal distrust”.24 An overdue emphasis on the passionate zeal for liberty might actually serve to undermine the enjoyment of liberty rightly understood. Rather than a frequent recurrence to fundamental principles, the Federalists hoped to ensure the popular perception of the legitimacy of the democratic republic in public opinion
Leo Strauss. Thoughts on Machiavelli. Chicago: University of Chicago Press, 1958. pp. 13-14. Federalist #1 in The Federalist. Ed. Jacob E. Cooke. Hanover: Wesleyan University Press, 1961. p. 3. 22 Alexis de Tocqueville. Democracy in America. Translated by George Lawrence. Edited by J. P. Mayer. New York: Harper Publishers, 1988. p. 72. 23 Martin Diamond. “The Revolution of Sober Expectations” in As Far as Republican Principles Will Admit: Essays by Martin Diamond. Edited by William A. Schambra. Washington, D. C.: The American Enterprise Institute Press, 1992. pp. 209-223. 24 The Federalist. Ed. Jacob E. Cooke. Hanover: Wesleyan University Press, 1961. p. 5.
11 and reverence for the laws.25 Hamilton in particular, while recognizing the principles of the Declaration of Independence as the proper foundation for popular government, nevertheless saw that there is a danger in the frequent recurrence to fundamental principles. Following Blackstone, Hamilton and other Federalists believed that the resort to first principles ought to be rare, only when absolutely required by prudence. To understand fundamental principles, and to understand when one ought to invoke those principles, requires more than a passionate attachment to liberty. It requires more than a declaration of those first principles. Prudence is needed to recognize the difference between revolution and anarchy, between liberty and license.26 In the debate over the bill of rights to be added to the proposed Constitution, the disagreement concerning the prudence of frequently recurring to fundamental principles becomes a key theme. In arguing for bills of rights as the guarantors and protectors of the essential and fundamental rights of the people, we find that many of the Anti-Federalists take their bearings from the best available models of bills of rights, namely the declarations of rights that preface many of the existing state constitutions at the time. If we turn to the various bills of rights among the states, we find that, in addition to many of the traditional political rights found in the final draft of the federal Bill of Rights, most of these declarations contained the natural rights language associated with the Declaration of Independence. Take for example the Virginia Declaration of Rights, which begins, “That all men are by nature equally free and independent, and have certain inherent rights, of which when they enter into a state of society, they cannot by any compact, derive or divest their posterity; namely the enjoyment of life and liberty, with
See for example Federalist #49, #50, and #84 on the importance of opinion and the attachment of the people to the regime in popular government. 26 Mackubin Thomas Owens, Jr. “Alexander Hamilton on Natural Rights and Prudence.” Interpretation. May & September 1986, v.14, # 2&3 pp. 331-351; cf. Paul A. Rahe Republics Ancient and Modern. V.3 Chapel Hill: University of North Carolina Press, 1994. p. 303, n. 39; cf. Blackstone, Commentaries on the Laws of England, I.1.157, 237-38; cf. Stourzh, Ibid, pp. 9-37.
12 the means of acquiring and possessing property, and persuing and obtaining happiness and safety.” Continuing the implications of the social contract, the Virginia Declaration states: That Government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community; of all the various modes and forms of Government that is best which is most capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that, whenever any Government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish it, in such manner as shall be judged most conducive to the publick weal.
According to Article XV of the Virginia Declaration of Rights, no government, or the blessing of liberty, can be secured to any people without a firm adherence to justice, moderation, temperance, frugality, and virtue, and by “frequent recurrence to fundamental principles.”27 We also find that, similarly, other state bills of rights echoed the fundamental principles of the Virginia declaration, employing phrases concerning the natural equality of men, social contract theory, natural and inalienable rights, and the right of a people to alter or abolish their government. In addition to the Virginia declaration, five other states included in their bills of rights the claim that good government can only exist with a “frequent recurrence to fundamental principles.”28 We find that the language of the Virginia Declaration of Rights is characteristic of the state bills of rights at the time. From this language of the various state bills of rights, as well as from the Declaration of Independence itself, the Anti-Federalists articulate one of the purposes they find in bills of rights, namely the declaration and security of inalienable natural rights.
“The Virginia Declaration of Rights” (1776). Reprinted in Bernard Schwartz, The Bill of Rights: A Documentary History. New York: Chelsea House, 1971. pp. 234-236. 28 See Pennsylvania (Article XIV), North Carolina (Article XXI), Vermont (Article XVI), Massachusetts (Article XVIII), and New Hampshire (Article XXXVIII) in Schwartz, The Bill of Rights: A Documentary History. New York: Chelsea House, 1971.
13 While opponents to the Bill of Rights argue that Article I, Section 9 of the proposed Constitution contained a statement of certain privileges and immunities, and the that the power of the general government was to extend to enumerated powers only, the Anti-Federalists feared that the liberties of the people would not be maintained absent a formal declaration of their rights against the general government. This formal declaration was thought to be particularly necessary given the power of the new general government, especially in light of the necessary and proper clause, the commerce clause, the new general government’s ability to tax, and the overall purpose of promoting the general welfare. Taking his bearings from the Virginia Declaration of Rights, Patrick Henry argues that the Constitution ought to have been prefaced with a formal declaration of rights and a statement of the “admirable maxims,” or fundamental principles of legitimate popular government. Henry cites the Virginia Declaration in noting that men are by nature free and equal, endowed with inherent rights, of which, when they enter society, they cannot by any compact deprive or divest their posterity. Namely, these rights are the enjoyment of life, liberty, the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.29 These are the fundamental principles, or admirable maxims that Henry champions in the Virginia ratifying convention. These are the words that ought to preface the new Constitution. In other words, Henry’s argument is that the Constitution ought to have been prefaced with a clear and unambiguous declaration of natural and inalienable rights, as a means to help limit the power of the general government.30
Jonathan Elliot. The Debates in the Several State Conventions on the Adoption of the Federal Constitution. Philadelphia: J. B. Lippincott, 1901. pp. 137-138. 30 Walter Berns, “The Constitution as a Bill of Rights, in How Does the Constitution Secure Rights? Ed. Robert A. Goldwin and William A. Schambra. Washington, D.C.: AEI Press, 1985. p. 51.
14 In unambiguously declaring the fundamental principles underlying legitimate popular governments, the Anti-Federalists thought that both the general government and the people ought to be reminded of the natural equality of men, the original terms of the social contract, and the purpose of government in securing inalienable rights. Moreover, both the people and the general government ought to be reminded of the ultimate right of the people to alter or abolish governments that fail to secure these rights. As Edmund Randolph states, “In the formation of this bill of rights two objectives were contemplated: one, that the legislature should not in their acts violate any of those cannons [sic]; the other, that in all the revolutions of time, of human opinion, and of government, a perpetual standard should be erected around which the people might rally, and by a notorious record be forever admonished to be watchful, firm and virtuous.”31 While declarations of rights do not establish rights, they do serve the purpose of reminding both the people and the government of these rights. This educative purpose of a bill of rights is characteristic of Anti-Federalist arguments for such declarations. Take for example the Federal Farmer’s statement that “…there are infinite advantages in particularly enumerating many of the most essential rights reserved in all cases…We do not by declarations change the nature of things, or create new truths, but we give existence, or at least establish in the mind of the people truths and principles which they might never have otherwise thought of, or soon forgot.”32
Bernard Schwartz, The Bill of Rights: A Documentary History. New York: Chelsea House, 1971. pp. 234-249. Cited in Herbert J. Storing. “The Constitution and the Bill of Rights” in How Does the Constitution Secure Rights? Ed. Robert A. Goldwin and William A. Schambra. Washington, D.C.: AEI Press, 1985. pp. 30-32. 32 “Letters of the Federal Farmer,” VII.2.8.196. in The Anti-Federalist. Ed. Herbert J. Storing. Selected by Murray Dry from The Complete Anti-Federalist. Chicago: University of Chicago Press, 1985. cf. Brutus II. 2.9.23, Agrippa, VI. 4.6.23 and The Impartial Examiner, I.5.14.5, 10 on a bill of rights as a reminder of the terms of the social contract. See also “John DeWitt” Essays I and II: October 22 and 27, 1787 in The Anti-Federalist Papers and the Constitutional Convention Debates. Ed. Ralph Ketcham. New York: Mentor, 1986. pp. 189-198.
15 Having been convinced that a bill of rights may actually serve to harm limited constitutional government, Madison and other Federalists nevertheless cautiously agreed to the Anti-Federalist position that a bill of rights may serve this educative function. However, Madison strongly maintained that such a declaration of rights, whatever its educative merits, must be moderately and carefully constructed so as not to imply powers not meant to be included in the enumerated powers of the general government. In his correspondence with Jefferson regarding the Bill of Rights, Madison argues, “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.”33 Interestingly, it might seem that Madison is in agreement with the most vocal among the Anti-Federalists regarding the educative function of a bill of rights. However, Madison makes clear that a bill of rights can only be beneficial insofar as it is constructed so as to weave the “fundamental maxims of free Government” with the “national sentiment” to “counteract the impulses of interest and passion.” In order to counteract the passionate zeal associated with the frequent recurrence to fundamental principles, Madison argues for a bill of rights only if the maxims stated therein can serve to attach the people to the regime. Consider the importance placed upon opinion and the attachment of the people to the laws in Federalist #49. Publius writes, “If it be true that all governments rest on opinion, it is no less true that the strength of opinion in each individual, and its practical influence on his conduct, depend much upon the number which he supposes to have entertained the same opinion…the most rational
James Madison to Thomas Jefferson, 17 October 1788. The Papers of Thomas Jefferson. v.14. Princeton: Princeton University Press, 1958. p. 20.
16 government will not find it a superfluous advantage, to have the prejudices of the community on its side.”34 Central to Madison’s support of a bill of rights is the idea that it might serve to attach the people to the government, rather than to offer an avenue by which the people may, in their passionate attachment to liberty, forget the importance of an energetic government necessary to secure their liberties. The new importance placed upon a bill of rights by Madison is in part the result of the popular demand for such a declaration. However, it becomes clear that the “fundamental maxims of free Government” that Madison himself will present to Congress are rather more moderate with respect to natural rights language and the appeals to fundamental principles characteristic of the state bills of rights and several of the amendments to the Constitution proposed by the Anti-Federalists.35 On June 8, 1787, Madison delivered a speech on the floor of the House of Representatives in the First Congress, wherein he proposed the first amendments to the new Constitution.36 In his speech, Madison makes clear his earlier assertions that he was not necessarily opposed to a bill of rights in theory, yet he has reservations about such declarations of rights in practice. Madison states, “I will own that I never considered this provision [a bill of rights] so essential to the federal constitution, as to make it improper to ratify it...at the same time, I always conceived, that in a certain from and to a certain extent, such a provision was neither improper nor altogether useless.”37 In reading Madison’s speech one cannot help but be struck by the frequent and unwavering appeals to prudence and moderation in proposing
The Federalist. Ed. Jacob E. Cooke. Hanover: Wesleyan University Press, 1961. p. 340. See, for example, the amendments proposed by Virginia (27 June 1788) and Rhode Island (6 March 1790) in The Anti-Federalist Papers and the Constitutional Convention Debates. Ed. Ralph Ketcham. New York: Mentor, 1986. pp. 217-226. 36 James Madison, “Speech to Congress, 8 June 1789” and “Amendments to the Constitution” in The Papers of James Madison. V.12. Ed. Charles F. Hobson and Robert A. Rutland. Charlottesville: University of Virginia Press, 1979. pp. 196-210. 37 Ibid, p. 203.
17 amendments to the new Constitution. Madison argues that in amending the Constitution, the people have something to gain, insofar as they “proceed with caution” and endeavor to make their revision to the Constitution “a moderate one.” Fearing the loss of the new Constitution altogether, Madison argues that a bill of rights must somehow be integrated into the Constitution if they are to gain the blessings of liberty. Again, Madison claims that such amendments must be constructed so as not to undermine limited yet energetic government itself by implying powers not granted to the general government. Continuing the theme he began in his correspondence with Jefferson, Madison argues that there is an overwhelming demand for a bill of rights in the people and that a bill of rights, if properly constructed, may give satisfaction to the doubting part of the people. Thus, Madison proposes several amendments, stating that it is “proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of the government, as a declaration of the rights of the people.”38 Again, we find that Madison relates a declaration of rights with the public tranquility and the attachment of the people to the regime. However, in examining his proposed amendments, we find that they differ from the declarations of natural rights advocated by the Anti-Federalists. Most of the protections associated with our Bill of Rights today can be found in Madison’s proposed amendments to the Constitution. There is nothing in the first ten amendments to the new Constitution that was not first considered in Madison’s proposals. However, apart from Madison’s first proposal, his proposed amendments are largely devoid of the explicit natural rights language associated with the state bills of rights. The first proposal, being a large exception, deserves careful attention. Madison proposes:
18 First. That there be prefixed to the constitution a declaration—That all power is originally vested in, and consequently derived from the people. That Government is instituted, and ought to exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.39 Madison’s first proposal bears a striking resemblance to the Declaration of Independence and to the statements of inalienable rights and the right to revolution in the state bills of rights. However, there are important differences to be found in Madison’s proposal. Firstly, whereas the Declaration of Independence speaks of the right of a people to alter or abolish their government, it also speaks of the rights of individual persons in declaring that all men are created equal, endowed by their Creator with certain unalienable rights. Madison’s proposal speaks only of “the people.” Thus, in Madison’s proposal, only the people are explicitly stated to be the possessors of rights. These are not individuals in the state of nature. This is the act of one people, already existing in civil society, in the act of constituting government so as to best enjoy the blessings of liberty. Secondly, there is a noticeable difference between Madison’s “right of the people to reform or change their Government” and the Declaration’s “right of the people to alter or abolish it.” Even this more moderate formulation of the people’s right to change their government however, was eventually dropped in committee, a committee on which Madison
Ibid., p. 200.
19 sat.40 Indeed it seems curious that Madison proposes this amendment, given that he discusses the ambiguity of such declarations in the very speech he uses to begin his proposals. In presenting the various arguments for bills of rights, Madison states that such declarations of rights can perform various tasks. Madison holds that bills of rights might assert those rights that are exercised by the people in forming and establishing government. Perhaps bills of rights might specify those rights that are retained when particular powers are given up to the legislative in the social contract. Bills of rights might also specify positive rights, which may seem to result from the nature of the social contract, such as trial by jury, being as essential to secure the liberty of the people as any of the pre-existent rights of nature. Bills of rights might lay down dogmatic maxims with respect to the structure of government, such as separation of powers. Bills of rights might also be said, in some instances, “to do no more than state the perfect equality of all mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.”41 Indeed, a statement of the natural equality of mankind is absent from Madison’s first proposal. Interestingly, in his notes for his speech to Congress, Madison lists among the usual contents of bills of rights the assertion of natural equality, the assertion of natural rights retained in civil society (e.g. freedom of speech, conscience), the positive rights resulting from such natural rights (e.g. trial by jury), and the prescriptions for the moral precepts for the administration of government and the national character. However, it is clear that in his proposals to Congress, Madison’s speech is decidedly more moderate than his notes.
We are reminded of Publius’ statement in Federalist #84 that
Here I follow the argument of Robert A. Goldwin in From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution. Washington, D.C.: AEI Press, 1997. pp. 87-88. 41 James Madison, “Speech to Congress, 8 June 1789” and “Amendments to the Constitution” in The Papers of James Madison. V.12. Ed. Charles F. Hobson and Robert A. Rutland. Charlottesville: University of Virginia Press, 1979. pp. 203-204.
20 the aphorisms of the various state bills of rights would sound much better in a treatise of ethics than in a constitution of government.42 One might easily wonder why Madison offered this first proposal at all. We might begin to sketch out an answer to this problem by considering that Madison repeatedly acknowledges that the people desire a declaration of their rights against the general government. This statement of the proper ends of government would have helped to satisfy that desire. At the same time, Madison offers a seemingly more moderate version of the same theories presented in the Declaration of Independence and the Virginia Declaration of Rights. While Madison’s proposals do include many of the traditional protections associated with the state bills of rights, the language of his proposed amendments is nearly absent of the radical language associated with the former declarations of rights based upon an explicit assertion of natural rights and a restatement of the right to revolution. It is interesting to note that Madison’s first proposal was eventually reduced to little more than a brief preface to the Preamble, again in a committee in which Madison sat. The preface read “Government being intended for the benefit of the people, and the rightful establishment thereof being derived from their authority alone, We the People of the United States…” Finally, the first proposal was dropped entirely, as a result of the acceptance of Roger Sherman’s proposal to add the amendments to the end of the Constitution, rather than weaving them into the body (as Madison wished) or placing the amendments at the head of the Constitution (as most of the advocates of a bill of rights wanted).43 We might be lead to
The Federalist. Ed. Jacob E. Cooke. Hanover: Wesleyan University Press, 1961. pp. 579. Debates of the Congress of the United States (Washington, 1934), I, 433-436; cf. I, 707-717. Cited in Herbert J. Storing. “The Constitution and the Bill of Rights” in How Does the Constitution Secure Rights? Ed. Robert A. Goldwin and William A. Schambra. Washington, D.C.: AEI Press, 1985. pp. 33.
21 wonder just how serious Madison was in hoping that his first proposal would make it into the new Constitution. In many respects the debate over the use of explicit natural rights language in the bill of rights is symptomatic of a larger concern recognized by the Founders concerning the nature and scope of the democratic republic. In Federalist #26, Publius argues that it is hardly to be expected that in a time of popular revolution the mind of men should stop at “that happy mean, which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights.”44 In Federalist #37, Publius says that among the difficulties encountered by the Constitutional Convention, “a very important one must have lain , in combining the requisite stability and energy in Government, with the inviolable attention due to liberty, and to the Republican form.” However, on comparing the valuable ingredients of sufficient energy and the vital principles of liberty, Publius states that “we must perceive at once, the difficulty of mingling them together in their due proportion.” 45 Writing to Jefferson in 1788, Madison notes, “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.”46 The Founders are thus faced with the problem of navigating the divide between theory and practice in securing liberty. In attempting to perform the arduous task of mingling energetic and stable government with a due respect for the vital principles of liberty, the Federalists hoped to create a democratic republic capable of securing the inalienable rights to life, liberty, and the pursuit of happiness.
Ibid. p. 164. Ibid. pp. 233-234. 46 James Madison to Thomas Jefferson, 17 October 1788. The Papers of Thomas Jefferson. v.14. Princeton: Princeton University Press, 1958. p. 20.
22 An energetic and vigorous general government was determined to be dangerous to liberty by the Anti-Federalists. Thus, they sought a formal declaration of rights in order to limit the energy of the government created under the new Constitution and to help secure their inalienable rights in civil society through a frequent recurrence to fundamental principles. The Federalists, on the other hand, held that a frequent recurrence to fundamental principles might undermine good government. They held that constant references to natural and inalienable rights, and the right to revolution, do not necessarily foster the attachment to the laws necessary for the democratic republic to function. An extreme focus on pre-political rights might work to obscure both the need for energetic government to secure liberty and the need for civil society itself in order for liberty to be enjoyed. An undue and overzealous jealousy of the liberties of the people may in fact undermine the liberty of the people.47 In other words, the passion for liberty may not be sufficient to secure and enjoy liberty. The debate over the inclusion of natural rights language in the Bill of Rights is just one expression of this larger problem. All governments presuppose a certain reverence for the laws and the regime in public opinion, and this reverence is perhaps most important in popular government. One must recognize that these fundamental principles are indeed the true principles of republican government, and the Federalists regarded them as such. Yet, when these revolutionary principles are frequently recurred to as a perpetual standard by which to judge government, there is a possibility that these principles might undermine the very government that is founded upon them.
Federalist #63 in The Federalist. Ed. Jacob E. Cooke. Hanover: Wesleyan University Press, 1961.