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General Defense of the Constitution, [6 June] 1788

General Defense of the Constitution

[6 June 1788]

On 5 June, Patrick Henry leveled a lengthy attack on the Constitution. This evoked a Federalist rebuttal in general terms by Governor Randolph and JM’s point-by-point refutation.

Mr. Madison then arose—(but he spoke so low that his exordium could not be heard distinctly). I shall not attempt to make impressions by any ardent professions of zeal for the public welfare: we know the principles of every man will, and ought to be judged, not by his professions and declarations, but by his conduct; by that criterion I mean in common with every other member to be judged; and should it prove unfavourable to my reputation, yet it is a criterion, from which I will by no means depart. Comparisons have been made between the friends of this constitution, and those who oppose it: although I disapprove of such comparisons, I trust, that in points of truth, honor, candor, and rectitude of motives, the friends of this system, here, and in other states, are not inferior to its opponents. But professions of attachment to the public good, and comparisons of parties, ought not to govern or influence us now. We ought, sir, to examine the constitution on its own merits solely: we are to enquire whether it will promote the public happiness: its aptitude to produce this desirable object, ought to be the exclusive subject of our present researches. In this pursuit, we ought not to address our arguments to the feelings and passions, but to those understandings and judgments which were selected by the people of this country, to decide this great question, by a calm and rational investigation. I hope that gentlemen, in displaying their abilities, on this occasion, instead of giving opinions, and making assertions, will condescend to prove and demonstrate, by a fair and regular discussion. It gives me pain to hear gentlemen continually distorting the natural construction of language; for, it is sufficient if any human production can stand a fair discussion. Before I proceed to make some additions to the reasons which have been adduced by my honorable friend over the way, I must take the liberty to make some observations on what was said by another gentleman, (Mr. Henry). He told us, that this constitution ought to be rejected, because it endangered the public liberty, in his opinion, in many instances. Give me leave to make one answer to that observation—let the dangers which this system is supposed to be replete with, be clearly pointed out. If any dangerous and unnecessary powers be given to the general legislature, let them be plainly demonstrated, and let us not rest satisfied with general assertions of dangers, without examination. If powers be necessary, apparent danger is not a sufficient reason against conceding them. He has suggested, that licentiousness has seldom produced the loss of liberty; but that the tyranny of rulers has almost always effected it. Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people, by gradual and silent encroachments of those in power, than by violent and sudden usurpations: but on a candid examination of history, we shall find that turbulence, violence and abuse of power, by the majority trampling on the rights of the minority, have produced factions and commotions, which, in republics, have more frequently than any other cause, produced despotism. If we go over the whole history of ancient and modern republics, we shall find their destruction to have generally resulted from those causes. If we consider the peculiar situation of the United States, and what are the sources of that diversity of sentiments which pervades its inhabitants, we shall find great danger to fear, that the same causes may terminate here, in the same fatal effects, which they produced in those republics. This danger ought to be wisely guarded against. Perhaps in the progress of this discussion it will appear, that the only possible remedy for those evils, and means of preserving and protecting the principles of republicanism, will be found in that very system which is now exclaimed against as the parent of oppression. I must confess, I have not been able to find his usual consistency, in the gentleman’s arguments on this occasion: he informs us that the people of this country are at perfect repose; that every man enjoys the fruits of his labor, peaceably and securely, and that every thing is in perfect tranquility and safety. I wish sincerely, sir, this were true. If this be their happy situation, why has every state acknowledged the contrary? Why were deputies from all the states sent to the general convention? Why have complaints of national and individual distresses been echoed and re-echoed throughout the continent? Why has our general government been so shamefully disgraced, and our constitution violated? Wherefore have laws been made to authorise a change, and wherefore are we now assembled here? A federal government is formed for the protection of its individual members. Ours was attacked itself with impunity. Its authority has been disobeyed and despised. I think I perceive a glaring inconsistency in another of his arguments. He complains of this constitution, because it requires the consent of at least three-fourths of the states to introduce amendments which shall be necessary for the happiness of the people. The assent of so many, he urges as too great an obstacle, to the admission of salutary amendments; which he strongly insists, ought to be at the will of a bare majority—we hear this argument, at the very moment we are called upon to assign reasons for proposing a constitution, which puts it in the power of nine states to abolish the present inadequate, unsafe, and pernicious confederation! In the first case he asserts, that a majority ought to have the power of altering the government, when found to be inadequate to the security of public happiness. In the last case, he affirms, that even three-fourths of the community have not a right to alter a government, which experience has proved to be subversive of national felicity! Nay, that the most necessary and urgent alterations, cannot be made without the absolute unanimity of all the states. Does not the thirteenth article of the confederation expressly require, that no alteration shall be made without the unanimous consent of all the states? Could any thing in theory, be more perniciously improvident and injudicious, than this submission of the will of the majority to the most trifling minority? Have not experience and practice actually manifested this theoretical inconvenience to be extremely impolitic? Let me mention one fact, which I conceive must carry conviction to the mind of any one—the smallest state in the union has obstructed every attempt to reform the government—that little member has repeatedly disobeyed and counteracted the general authority; nay, has even supplied the enemies of its country with provisions. Twelve states had agreed to certain improvements which were proposed, being thought absolutely necessary to preserve the existence of the general government; but as these improvements, though really indispensible, could not by the confederation be introduced into it without the consent of every state; the refractory dissent of that little state prevented their adoption. The inconveniences resulting from this requisition, of unanimous concurrence in alterations in the confederation, must be known to every member in this convention; ‘tis therefore needless to remind them of them. Is it not self-evident, that a trifling minority ought not to bind the majority? Would not foreign influence be exerted with facility over a small minority? Would the honorable gentleman agree to continue the most radical defects in the old system, because the petty state of Rhode Island would not agree to remove them?

He next objects to the exclusive legislation over the district where the seat of the government may be fixed. Would he submit that the representatives of this state should carry on their deliberations under the control of any one member of the union? If any state had the power of legislation over the place where congress should fix the general government; this would impair the dignity, and hazard the safety of congress. If the safety of the union were under the control of any particular state, would not foreign corruption probably prevail in such a state, to induce it to exert its controling influence over the members of the general government? Gentlemen cannot have forgotten the disgraceful insult which congress received some years ago.1 When we also reflect, that the previous cession of particular states is necessary, before congress can legislate exclusively any where, we must, instead of being alarmed at this part, heartily approve of it.

But the honorable member sees great danger in the provision concerning the militia: this I conceive to be an additional security to our liberty, without diminishing the power of the states, in any considerable degree—it appears to me so highly expedient, that I should imagine it would have found advocates even in the warmest friends of the present system: the authority of training the militia, and appointing the officers, is reserved to the states. Congress ought to have the power of establishing an uniform discipline throughout the states; and to provide for the execution of the laws, suppress insurrections and repel invasions: these are the only cases wherein they can interfere with the militia; and the obvious necessity of their having power over them in these cases, must convince any reflecting mind. Without uniformity of discipline, military bodies would be incapable of action: without a general controlling power to call forth the strength of the union, to repel invasions, the country might be over-run, and conquered by foreign enemies. Without such a power to suppress insurrections, our liberties might be destroyed by domestic faction, and domestic tyranny be established.

The honorable member then told us, that there was no instance of power once transferred, being voluntarily renounced. Not to produce European examples, which may probably be done before the rising of this convention; have we not seen already in seven states (and probably in an eighth state) legislatures surrendering some of the most important powers they possessed? But, sir, by this government, powers are not given to any particular set of men—they are in the hands of the people—delegated to their representatives chosen for short terms—to representatives responsible to the people, and whose situation is perfectly similar to their own: as long as this is the case we have no danger to apprehend. When the gentleman called our recollection to the usual effects of the concession of powers, and imputed the loss of liberty generally to open tyranny, I wish he had gone on further. Upon a review of history he would have found, that the loss of liberty very often resulted from factions and divisions; from local considerations, which eternally lead to quarrels—he would have found internal dissentions to have more frequently demolished civil liberty, than a tenacious disposition in rulers to retain any stipulated powers.

(Here Mr. Madison enumerated the various means whereby nations had lost their liberties.)

The power of raising and supporting armies is exclaimed against, as dangerous and unnecessary. I wish there were no necessity of vesting this power in the general government. But suppose a foreign nation to declare war against the United States, must not the general legislature have the power of defending the United States? Ought it to be known to foreign nations, that the general government of the United States of America has no power to raise or support an army, even in the utmost danger, when attacked by external enemies? Would not their knowledge of such a circumstance stimulate them to fall upon us. If, sir, congress be not invested with this power, any powerful nation, prompted by ambition or avarice, will be invited, by our weakness, to attack us; and such an attack, by disciplined veterans, would certainly be attended with success, when only opposed by irregular, undisciplined militia. Whoever considers the peculiar situation of this country; the multiplicity of its excellent inlets and harbours, and the uncommon facility of attacking it, however much he may regret the necessity of such a power, cannot hesitate a moment in granting it. One fact may elucidate this argument. In the course of the late war, when the weak parts of the union were exposed, and many states were in the most deplorable situation, by the enemy’s ravages; the assistance of foreign nations was thought so urgently necessary for our protection, that the relinquishment of territorial advantages was not deemed too great a sacrifice for the acquisition of one ally. This expedient was admitted with great reluctance even by those states who expected most advantages from it. The crisis however at length arrived when it was judged necessary for the salvation of this country, to make certain cessions to Spain; whether wisely, or otherwise, is not for me to say; but the fact was, that instructions were sent to our representative at the court of Spain, to empower him to enter into negociations for that purpose. How it terminated is well known.2 This fact shews the extremities to which nations will recur in cases of imminent danger, and demonstrates the necessity of making ourselves more respectable. The necessity of making dangerous cessions, and of applying to foreign aid, ought to be excluded.

The honorable member then told us, that there are heart-burnings in the adopting states, and that Virginia may, if she does not come into the measure, continue in amicable confederacy with the adopting states. I wish as seldom as possible to contradict the assertions of gentlemen, but I can venture to affirm, without danger of being in an error, that there is the most satisfactory evidence, that the satisfaction of those states is increasing every day, and that in that state where it was adopted only by a majority of nineteen, there is not one-fifth of the people dissatisfied. There are some reasons which induce us to conclude, that the grounds of proselytism extend every where—its principles begin to be better understood—and the inflammatory violence, wherewith it was opposed by designing, illiberal, and unthinking minds, begins to subside. I will not enumerate the causes from which, in my conception, the heart-burnings of a majority of its opposers have originated. Suffice it to say, that in all they were founded on a misconception of its nature and tendency. Had it been candidly examined and fairly discussed, I believe, sir, that but a very inconsiderable minority of the people of the United States would have opposed it. With respect to the Swiss, which the honorable gentleman has proposed for our example, as far as historical authority may be relied upon, we shall find their government quite unworthy of our imitation. I am sure if the honorable member had adverted to their history and government, he never would have quoted their example here: he would have found that instead of respecting the rights of mankind, their government (at least of several of their cantons) is one of the vilest aristocracies that ever was instituted: the peasants of some of their cantons are more oppressed and degraded, than the subjects of any monarch in Europe: nay, almost as much so, as those of any eastern despot. It is a novelty in politics, that from the worst of systems the happiest consequences should ensue. Their aristocratical rigor, and the peculiarity of their situation, have so long supported their union: without the closest alliance and amity, dismemberment might follow: their powerful and ambitious neighbours would immediately avail themselves of their least jarrings. As we are not circumstanced like them, no conclusive precedent can be drawn from their situation. I trust, the gentleman does not carry his idea so far as to recommend a separation from the adopting states. This government may secure our happiness; this is at least as probable, as that it shall be oppressive. If eight states have, from a persuasion of its policy and utility, adopted it, shall Virginia shrink from it, without a full conviction of its danger and inutility? I hope she will never shrink from any duty: I trust she will not determine without the most serious reflection and deliberation.

I confess to you, sir, were uniformity of religion to be introduced by this system, it would, in my opinion, be ineligible; but I have no reason to conclude, that uniformity of government will produce that of religion. This subject is, for the honor of America, perfectly free and unshackled. The government has no jurisdiction over it—the least reflection will convince us, there is no danger to be feared on this ground.

But we are flattered with the probability of obtaining previous amendments. This calls for the most serious attention of this house. If amendments are to be proposed by one state, other states have the same right, and will also propose alterations. These cannot but be dissimilar, and opposite in their nature. I beg leave to remark, that the governments of the different states are in many respects dissimilar in their structure—their legislative bodies are not similar—their executives are more different. In several of the states the first magistrate is elected by the people at large—in others, by joint ballot of the members of both branches of the legislature—and in others, in other different manners. This dissimilarity has occasioned a diversity of opinion on the theory of government, which will, without many reciprocal concessions, render a concurrence impossible. Although the appointment of an executive magistrate, has not been thought destructive to the principles of democracy in any of the states, yet, in the course of the debate, we find objections made to the federal executive: it is urged that the president will degenerate into a tyrant. I intended, in compliance with the call of the honorable member, to explain the reasons of proposing this constitution, and develop its principles; but I shall postpone my remarks, till we hear the supplement which he has informed us, he intends to add to what he has already said.

Give me leave to say something of the nature of the government, and to shew that it is safe and just to vest it with the power of taxation. There are a number of opinions; but the principal question is, whether it be a federal or consolidated government: in order to judge properly of the question before us, we must consider it minutely in its principal parts. I conceive myself, that it is of a mixed nature: it is in a manner unprecedented: we cannot find one express example in the experience of the world: it stands by itself. In some respects, it is a government of a federal nature; in others it is of a consolidated nature. Even if we attend to the manner in which the constitution is investigated, ratified, and made the act of the people of America, I can say, notwithstanding what the honorable gentleman has alledged, that this government is not completely consolidated, nor is it entirely federal. Who are parties to it? The people —but not the people as composing one great body—but the people as composing thirteen sovereignties: were it as the gentleman asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority have adopted it already, the remaining states would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as it is suggested, it would be now binding on the people of this state, without having had the priviledge of deliberating upon it: but, sir, no state is bound by it, as it is, without its own consent. Should all the states adopt it, it will be then a government established by the thirteen states of America, not through the intervention of the legislatures, but by the people at large. In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent derivative authority of the legislatures of the states; whereas this is derived from the superior power of the people. If we look at the manner in which alterations are to be made in it, the same idea is in some degree attended to. By the new system a majority of the states cannot introduce amendments; nor are all the states required for that purpose; three-fourths of them must concur in alterations; in this there is a departure from the federal idea. The members to the national house of representatives are to be chosen by the people at large, in proportion to the numbers in the respective districts. When we come to the senate, its members are elected by the states in their equal and political capacity; but had the government been completely consolidated, the senate would have been chosen by the people in their individual capacity, in the same manner as the members of the other house. Thus it is of a complicated nature, and this complication, I trust, will be found to exclude the evils of absolute consolidation, as well as of a mere confederacy. If Virginia were separated from all the states, her power and authority would extend to all cases: in like manner were all powers vested in the general government, it would be a consolidated government: but the powers of the federal government are enumerated; it can only operate in certain cases: it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.

But the honorable member has satirized with peculiar acrimony, the powers given to the general government by this constitution. I conceive that the first question on this subject is, whether these powers be necessary; if they be, we are reduced to the dilemma of either submitting to the inconvenience, or, losing the union. Let us consider the most important of these reprobated powers; that of direct taxation is most generally objected to. With respect to the exigencies of government, there is no question but the most easy mode of providing for them will be adopted. When therefore direct taxes are not necessary, they will not be recurred to. It can be of little advantage to those in power, to raise money in a manner oppressive to the people. To consult the conveniences of the people, will cost them nothing, and in many respects will be advantageous to them. Direct taxes will only be recurred to for great purposes. What has brought on other nations those immense debts, under the pressure of which many of them labour? Not the expenses of the governments, but war. If this country should be engaged in war (and I conceive we ought to provide for the possibility of such a case) how would it be carried on? By the usual means provided from year to year? As our imports will be necessary for the expences of government, and other common exigencies, how are we to carry on the means of defence? How is it possible a war could be supported without money or credit? And would it be possible for a government to have credit, without having the power of raising money? No, it would be impossible for any government in such a case to defend itself. Then, I say, sir, that it is necessary to establish funds for extraordinary exigencies, and give this power to the general government—for the utter inutility of previous requisitions on the states is too well known. Would it be possible for those countries whose finances and revenues are carried to the highest perfection, to carry on the operations of government on great emergencies, such as the maintenance of a war, without an uncontrolled power of raising money? Has it not been necessary for Great-Britain, notwithstanding the facility of the collection of her taxes, to have recourse very often to this and other extraordinary methods of procuring money? Would not her public credit have been ruined, if it was known that her power to raise money was limitted? Has not France been obliged on great occasions to use unusual means to raise funds? It has been the case in many countries, and no government can exist, unless its powers extend to make provisions for every contingency. If we were actually attacked by a powerful nation, and our general government had not the power of raising money, but depended solely on requisitions, our condition would be truly deplorable: if the revenue of this commonwealth were to depend on twenty distinct authorities, it would be impossible for it to carry on its operations. This must be obvious to every member here: I think therefore, that it is necessary for the preservation of the union, that this power should be given to the general government.

But it is urged, that its consolidated nature, joined to the power of direct taxation, will give it a tendency to destroy all subordinate authority; that its increasing influence will speedily enable it to absorb the state governments. I cannot think this will be the case. If the general government were wholly independent of the governments of the particular states, then indeed usurpation might be expected to the fullest extent: but, sir, on whom does this general government depend? It derives its authority from these governments, and from the same sources from which their authority is derived. The members of the federal government are taken from the same men from whom those of the state legislatures are taken. If we consider the mode in which the federal representatives will be chosen, we shall be convinced, that the general will never destroy the individual governments; and this conviction must be strengthened by an attention to the construction of the senate. The representatives will be chosen, probably under the influence of the members of the state legislatures: but there is not the least probability that the election of the latter will be influenced by the former. One hundred and sixty members represent this commonwealth in one branch of the legislature, are drawn from the people at large, and must ever possess more influence than the few men who will be elected to the general legislature. The reasons offered on this subject, by a gentleman on the same side (Mr. Nicholas) were unanswerable, and have been so full, that I shall add but little more on the subject. Those who wish to become federal representatives, must depend on their credit with that class of men who will be the most popular in their counties, who generally represent the people in the state governments: they can, therefore, never succeed in any measure contrary to the wishes of those on whom they depend. It is almost certain, therefore, that the deliberations of the members of the federal house of representatives, will be directed to the interests of the people of America. As to the other branch, the senators will be appointed by the legislatures, and though elected for six years, I do not conceive they will so soon forget the source from whence they derive their political existence. This election of one branch of the federal, by the state legislatures, secures an absolute dependence of the former on the latter. The biennial exclusion of one-third, will lessen the facility of a combination, and may put a stop to intrigues. I appeal to our past experience, whether they will attend to the interests of their constituent states. Have not those gentlemen who have been honored with seats in congress, often signalized themselves by their attachment to their states? I wish this government may answer the expectation of its friends, and foil the apprehensions of its enemies. I hope the patriotism of the people will continue, and be a sufficient guard to their liberties. I believe its tendency will be, that the state governments will counteract the general interest, and ultimately prevail. The number of the representatives is yet sufficient for our safety, and will gradually increase—and if we consider their different sources of information, the number will not appear too small.

Robertson, Virginia Debates description begins David Robertson, Debates and Other Proceedings of the Convention of Virginia (2d ed.; Richmond, 1805). description ends , pp. 70–78.

1JM alluded to the events of June 1783, when mutinous troops of the Pennsylvania regiment of the Continental line, seeking their back pay, surrounded the State House. An affronted Congress moved from Philadelphia to Princeton (PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , VII, 141 and n. 1, 176–80, 189–90, 191, 205–6, 211–12).

2Congress on 29 Sept. 1779 instructed John Jay to negotiate a treaty with Spain that would accept Spain’s claim to the Floridas, provided that Spain guarantee to the U.S. the free navigation of the Mississippi “into and from the sea.” Congress reaffirmed this instruction on 4 Oct. 1780, but on 15 Feb. 1781 modified it, against JM’s wishes, by no longer insisting on the navigation below the thirty-first parallel (Wharton, Revolutionary Diplomatic Correspondence, III, 352–53; IV, 78–79, 257; PJM description begins William T. Hutchinson et al., eds., The Papers of James Madison (vols. 1–10, Chicago, 1962–77; vols. 11—, Charlottesville, Va., 1977—). description ends , II, 127–35, 195–96, 196–97 n. 4, 202–4, 273, 302–3). On the failure of Jay’s mission, see Bemis, Diplomacy of the American Revolution, pp. 101–12.

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