James Madison Papers

Notes for Speech in Congress, [ca. 8 June] 1789

Notes for Speech in Congress

[ca. 8 June 1789]

Reasons urging amendts.

1. to prove fedts. friends to liberty

2. remove remaining inquietudes

3. bring in N. C. & R. Island.

4. to improve the Constitution

Reasons for moderating the plan

1. No stop if door opend to theoretic amendts.

2. as likely to make worse as better till trial

3. insure passage by ⅔ of Congs. & ¾ of Sts.

Objectns. of 3 kinds vs the Constn:

1. vs. the theory of its structure

2. vs. substance of its powers—elections & direct taxes

3. vs omission of guards in favr. of rights & libertys

The last most urged & easiest obviated.

Read the amendments—

They relate 1st. to private rights—

Bill of Rights—useful—not essential—

fallacy on both sides—especy as to English Decln. of Rts—

1. mere act of parlt.

2. no freedom of press—Conscience

Gl. Warrants—Habs. corpus

jury in Civil Causes—criml.

attainders—arms to Protestts.

frequent parlts. cheif trust—

freedom of press & of Conscience unknown to Magna Cha. & Pet: Rts

Contents of Bills of Rhts—

1. assertion of primitive equality &c.

2. do. of rights exerted in formg. Govts.

3. natural rights, retained—as Speech, Con:

4. positive rights resultg—as trial by jury

5. Doctrinl. artics. as Depts. distinct—Electns free

6. moral precepts for the administrn. & natil. character—as justice—Œconomy—&c—

Object of Bill of Rhts

To limit & qualify powr. by exceptg. from grant cases in wch. it shall not be exercised or exd. in a particular manner.

to guard 1. vs. Executive & in Engd. &c—
2. Legislative as in Sts—
3. the majority of people

ought to point vs greatest danger which in Rep: is Prerogative of majority—

Here proper, tho’ less nessary., than in small Repubs—

Objectns. vs. Bill of Rhts.

1. in Elective Govt. all power in people
hence unnec[e]ssary & improper—this vs Sts—

2. In fedl. Govt. all not given retained—
Bill of powers—needs no bill of Rhts—

Sweeping clause—Genl Warrants &c

3. St: Bills not repeald.—

too uncertain

Some Sts have not bills—others defect:—others—injurious—as Protestts.

4. dispar[a]ge other rights—or constructively enlarge—

the first goes vs St: Bills—

both guarded vs. by amendt.

5. Not effectl. vs Sts also—but some check

Courts will aid—also Ex: also.

Sts Legisls: watch

Time sanctify—incorporate public Sentiment

Bill of Rts ergo. proper

II increase of Reps. 2 for each H.

III pay of Congs.

IV Interdict to States as to Conscience—press—& Jury—

this more necsy. to Sts. than Congs.

V Check on appeals—& Common law—

VI. partn. as to 3 Depts. & do. as to Genl. & St: Govts.

Ms (DLC [filed at end of 1789]). At a later time JM added at the top of the first page: “JM’s Notes for speaking for amendts in Congress 1789.” JM used these notes for his second speech of 8 June 1789.

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