James Madison Papers

James Robertson, Jr. to James Madison, 3 April 1831

Amelia Apl. 3 1831

Dr Sir

I have been duly favored with your esteemed letter of the 27. ultimo, and for the information which it contains, be pleased to accept my thanks. It will remain with me, and be for my eye alone—For the last 12 months, my time has been chiefly devoted to examining and writing, the history of the Constitution and Articles of Confederation—The work, to that point, has been completed; but after having gotten through it, I found that it was necessary to add something, in order to make a vol. of about 300 pages; and accordingly I design to offer some general reflections upon the following points to wit. Who are the parties to the constitution? And to enquire into the Constitutional power of Congress to impose duties for protection, and to appropriate publick money for the purpose of making internal improvements; The vol. will be concluded by a comparison of President Jackson scheme for a national bank, with the present bank of the United States—After having spent more than twenty years of my life in the character of representative of the people, during which time, I witnessed, and participated in much discussion upon various views of the Constitution; I did not think, that my opinions would be liable to any change, by a mere critical examination of its principles; yet I candidly confess that a thorough investigation of the subject, with a view to ascertain the correctness of the present fashionable doctrines, has changed some opinions, which I had formed—The confidence which I have always reposed in your Constitutional opinions, and an unwillingness to propagate false doctrines, have induced me to communicate to you, the results, to which I have brought my mind, upon some litigated points; and the doubts which I have upon others; with a request that you will favor me with a friendly criticism upon them, in a concise form; for I know the value of your time, and am sensible of the trouble which will be occasioned by your Compliance—Your good sense, and generous feelings, will be my apology—

1st. There seems to be little doubt, but that the prevailing sentiment of the South is, that the States, in their corporate characters, are parties, (perhaps the only ones,) to the Constitution—This opinion, I believe, to be erroneous, and your late favor, has confirmed me in that opinion—

The States in their Corporate characters, performed no single independent, substantive act, which will support such an opinion—The general convention in Phila., you will remember, was convened under a recommendation of the Anapolis meeting; and they assembled for the express purpose of revising and amending the Articles of Confederation—The design of an entire new form of government, was conceived by that body, and when they had finished the work, they recommended, that the State Legislatures should cause it to be laid before the people in the several States, assembled in conventions, for their consideration and approval; This was done throughout the States, and, ultimately, all ratified it; not without entertaining different views however; and Maryland you recollect, ratified it with a protest—

2nd. I entertain great doubt about the following proposition; whether the people of the thirteen old States, in their primary sovereign Characters, are to be considered as thirteen independent parties to the instrument; or whether it is the work of the whole people of the 13 States, acting at the same time by dividing lines of States—At one time I had brought my mind to a conclusion that it was the work of the people of 13 States, and that, in that form they must be considered as 13 parties; but further reflection brought me again to doubt.

The legal definition of Contracts, would seem to exclude the new States, notwithstanding the provision for their admission, contained in the constitution—They were not in being at the time, and therefore cannot I presume, be made parties by any language which could have been used in the instrument; though they might be admitted to a participation of its benefits, as they have been. Added to this, the Constitution does not pass through the form of a Convention in these new States as it did in the old—Many other views present themselves, which a letter will not embrace—I am almost brought to the conclusion that the whole people of the United States, in their consolidated character, formed the instrument, and that there is no other party to it. This idea derives great force, when we view the Virginia ratification. You remember that Mr Wythe proposed that in the ratification, it should be considered as a gift of the people, and his proposition prevailed by a Majority of ten votes—May not the whole people, moving at this same time, in considering the Constitution, be likened to an army moving by Sections? It is still an entire army though moving by Sections; and the whole people were in motion at the same time, though divided into Sections of States—Numerous other reasons may be adduced in addition to the language contained in the preamble; but I cannot give them here—

3rd. What are we to do with the words "general Welfare" in the grant of powers to Congress? I know that the 10th. Amendment is relied upon, for the purpose of reducing this latitudinous language, within limited lines; but when the language of that amendment is examined; the doubt does not seem to be removed. "All powers, not delegated, (says the amendment) shall remain with the States or the people; but then the question recurs; is the power, to promote the general welfare, delegated? If it is, then it falls not within the language of the 10. amendment; if it is not delegated; then it does—This is a knotty point—It seems to be a delegated power, and if so, not provided for, or touched by the 10th. Amendment—Besides, what becomes of the Louisiana and Florida purchases? Strike out the words "general Welfare," and these purchases seem to be entirely unauthorized—No words in the Constitution seem to have been introduced with more deliberation than these—So early as 1775 Doct. Franklin proposed a plan of union which contained them, the Articles of Confederation contains them, Edmd. Randolphs first draft of the Con. contains them; the first & last reports of the Committee of the general Convention contains them, and the constitution contains them—In addition to this authority; these words were attacked in the Va. convention by Mr Henry; yet no proposition seems ever to have been made, any where, to strike them out—Mr Henry also contended that the new plan of Union, was a consolidated form of government by the whole people, and he was not contradicted—I do not see how this string of authorities is to be gotten over—They have produced much difficulty in my mind, & I make free to state this difficulty to you, before I finish the work—I am not writing a party book; I wish it to contain truth alone; and this I will endeavor to give, without regard to any consequences to myself—I wish to be of service to others if I can—

The opinions held by many talented men in relation to the constitution; are, in my judgment alarming; and have already put in peril the government and the republick—What is to be the end, probably neither of us will live to see; but the prayer of every good Citizen should be, that a wise providence may avert the evils which now seem to threaten us. The last scenes of the Grecian States, seem to be at hand, and though Charleston and Boston are further apart than Sparta and Athens; the Spirit of the times, seems to have made them equally hostile to each other—

I shall leave here for the West about the 1st. May, before which time, I shall be much gratified to hear from you; and shall perhaps forbear to trespass further up on your valuab[le] time—May you continue to enjoy health and happiness in the earnest prayer of Dr Sir yr. mo oblig

J Robertson Jr.


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