FReeper Book Club: The Debate over the Constitution, Pennsylvania Minority Address

On 21 November 1787, some of the state’s great luminaries gathered in Philadelphia to discuss the proposed Constitution. Among the best known attendees were James Wilson, who had attended the Constitutional Convention, Benjamin Rush and Anthony Wayne. For the first several weeks of the convention, James Wilson and Thomas McKean spoke at great length defending the Constitution. In fact, when examining the official minutes of the ratifying convention, one gets the impression that the two men were the only ones who spoke. This was because a complete set of minutes of the ratifying convention was suppressed by Federalist interests, and the people of Pennsylvania were kept in the dark, except for those speeches made by Wilson and McKean. It took a century before complete, uncensored notes made by others present at the ratifying convention came to light.

Those who opposed the Constitution had a long list of issues, and they demanded a complete debate on every subject. But these points were lost in the acrimony of personal invective from the Federalist side, which wanted an expeditious conclusion to the matter. By 8 December, McKean was attempting to shut off debate, which led to an “altercation” between two delegates. Whether that altercation was merely verbal, or involved something physical, is not expounded upon in the uncensored notes.

On 11 December, Wilson called for a vote and got his ratification. But there was a tremendous amount of ill will from the delegates opposed to the Constitution who came to believe that the whole event had been rigged from the outset. Samuel Bryan was not a member of the ratifying convention, but the anti-Federalists approached him to summarize their thoughts in a minority report to be circulated among the other states. It was a good choice, for Bryan was extremely thorough.

¹ It was not until after the termination of the late glorious contest which made the people of the United States an independent nation that any defect was discovered in the present Confederation.

³ It carried us successfully through the war, and the virtue and patriotism of the people, with their disposition to promote the common cause, supplied the want of power in Congress.

⁴ It was [after the Peace Treaty of 1783] that the want of an efficient federal government was first complained of and, that the powers vested in Congress were found to be inadequate to the procuring of the benefits that should result from the Union.

⁵ The impost was granted by most of the states, but many refused the supplementary funds; the annual requisitions were set at nought by some of the states, while others complied with them by legislative acts but were tardy in their payments, and Congress found themselves incapable of complying with their engagements and supporting the federal government.

⁶ It was found that our national character was sinking in the opinion of foreign nations.

⁷ The Congress could make treaties of commerce but could not enforce the observance of them.

⁸ We were suffering from the restrictions of foreign nations who had shackled our commerce while we were unable to retaliate, and all now agreed that it would be advantageous to the Union to enlarge the powers of Congress that they should be enabled in the amplest manner to regulate commerce and to lay and collect duties on the imports throughout the United States.

⁹ With this view a convention was first proposed by Virginia, and finally recommended by Congress, for the different states to appoint deputies to meet in convention, “for the purposes of revising and amending the present articles of confederation, so as to make them adequate to the exigencies of the union.”

¹⁰ This recommendation the legislatures of twelve states complied with so hastily as not to consult their constituents on the subject, and though the different legislatures had no authority from their constituents for the purpose, they probably apprehended the necessity would justify the measure, and none of them extended their ideas at that time further than “revising and amending the present articles of confederation.”

¹¹ Pennsylvania by the act appointing deputies expressly confined their powers to this object, and though it is probable that some of the members of the Assembly of this state had at that time in contemplation to annihilate the present Confederation, as well as the Constitution of Pennsylvania, yet the plan was not sufficiently matured to communicate it to the public.

¹² The Continental Convention met in the city of Philadelphia at the time appointed.

¹³ It was composed of some men of excellent characters, of others who were more remarkable for their ambition and cunning than their patriotism, and of some who had been opponents to the independence of the United States.

¹⁴ The delegates from Pennsylvania were, six of them, uniform and decided opponents to the Constitution of this Commonwealth.

¹⁶ The doors were kept shut and the members brought under the most solemn engagements of secrecy.

¹⁷ Some of those who opposed their going so far beyond their powers retired hopeless from the Convention, others had the firmness to refuse signing the plan altogether, and many who did sign it did it, not as a system they wholly approved, but as the best that could be then obtained, and notwithstanding the time spent on this subject, it is agreed on all hands to be a work of haste and accommodation.

¹⁸ Whilst the gilded chains were forging in the secret conclave, the meaner instruments of despotism without were busily employed in alarming the fears of the people with dangers which did not exist and exciting their hopes of greater advantages from the expected plan than even the best government on earth could produce.

¹⁹ We entered on the examination of the proposed system of government and found it to be such as we could not adopt without, as we conceived, surrendering up your dearest rights.

²⁰ We offered our objections to the convention and opposed those parts of the plan, which in our opinion would be injurious to you, in the best manner we were able and closed our arguments by offering the following propositions to the convention.

³⁶ After reading these propositions, we declared our willingness to agree to the plan, provided it was so amended as to meet these propositions or something similar to them, and finally moved the convention to adjourn to give the people of Pennsylvania time to consider the subject and determine for themselves, but these were all rejected, and the final vote was taken, when our duty to you induced us to vote against the proposed plan and to decline signing the ratification of the same.

³⁷ During the discussion we met with many insults and some personal abuse; we were not even treated with decency during the sitting of the convention by the persons in the gallery of the house; however, we flatter ourselves that in contending for the preservation of those invaluable rights you have thought proper to commit to our charge, we acted with a spirit becoming freemen, and being desirous that you might know the principles which actuated our conduct, and being prohibited from inserting our reasons of dissent on the minutes of the convention, we have subjoined them for your consideration, as to you alone we are accountable.

³⁸ It remains with you whether you will think those inestimable privileges which you have so ably contended for should be sacrificed at the shrine of despotism, or whether you mean to contend for them with the same spirit that has so often baffled the attempts of an aristocratic faction to rivet the shackles of slavery on you and your unborn posterity.

³⁹ Our objections are comprised under three general heads of dissent, namely:

⁴⁰ We dissent, first, because it is the opinion of the most celebrated writers on government, and confirmed experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government, but united in the management of their general and foreign concerns.

⁴¹ If any doubt could have been entertained of the truth of the foregoing principle, it has been fully removed by the concession of Mr. Wilson, one of the majority on this question, and who was one of the deputies in the late general Convention.

⁴² In justice to him, we will give his own words; they are as follows: “The extent of country for which the new Constitution was required produced another difficulty in the business of the federal Convention. It is the opinion of some celebrated writers that to a small territory, the [democratic]; to a middling territory (as Montesquieu has termed it) the [monarchic]; and to an extensive territory, the despotic form of government is best adapted. Regarding then the wide and almost unbounded jurisdiction of the United States, at first view, the hand of despotism seemed necessary to control, connect and protect it, and hence the chief embarrassment rose. For we know that, although our constituents would cheerfully submit to the legislative restraints of a free government, they would spurn at every attempt to shackle them with despotic power.”

⁴³ And again in another part of his speech he continues: “Is it probable that the dissolution of the state governments and the establishment of one consolidated empire would be eligible in its nature and satisfactory to the people in its administration? I think not, as I have given reasons to show that so extensive a territory could not be governed, connected and preserved, but by the supremacy of despotic power. All the exertions of the most potent emperors of Rome were not capable of keeping that empire together, which in extent was far inferior to the dominion of America.”

⁴⁴ We dissent, secondly, because the powers vested in Congress by this Constitution must necessarily annihilate and absorb the legislative, executive and judicial powers of the several states, and produce from their ruins one consolidated government, which from the nature of things will be an iron handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government.

⁴⁵ As the truth of this position is of such decisive importance, it ought to be fully investigated, and if it is founded to be clearly ascertained – for should it be demonstrated that the powers vested by this Constitution in Congress will have such an effect as necessarily to produce one consolidated government – the question then will be reduced to this short issue, namely: whether satiated with the blessings of liberty, whether repenting of the folly of so recently asserting their unalienable rights against foreign despots at the expense of so much blood and treasure and such painful and arduous struggles, the people of America are not willing to resign every privilege of freemen and submit to the dominion of an absolute government that will embrace all America in one chain of despotism, or whether they will, with virtuous indignation, spurn at the shackles prepared for them and confirm their liberties by a conduct becoming freemen.

⁴⁶ That the new government will not be a confederacy of states, as it ought, but one consolidated government founded upon the destruction of the several governments of the states, we shall now show.

⁴⁷ The powers of Congress under the new Constitution are complete and unlimited over the purse and the sword, and are perfectly independent of, and supreme over, the state governments, whose intervention in these great points is entirely destroyed.

⁴⁸ By virtue of their power of taxation, Congress may command the whole or any part of the property of the people.

⁴⁹ They may impose what imposts upon commerce; they may impose what land taxes, poll taxes, excises, duties on all written instruments, and duties on every other article that they may judge proper; in short, every species of taxation, whether of an external or internal nature is comprised in Section 8, Article 1, namely: “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States.”

⁵⁰ As there is no one article of taxation reserved to the state governments, the Congress may monopolize every source of revenue and thus indirectly demolish the state governments, for without funds they could not exist; the taxes, duties and excises imposed by Congress may be so high as to render it impracticable to levy further sums on the same articles; but whether this should be the case or not, if the state governments should presume to impose taxes, duties or excises on the same articles with Congress, the latter may abrogate and repeal the laws whereby they are imposed upon the allegation that they interfere with the due collection of their taxes, duties or excises by virtue of the following clause, part of Section 8, Article 1, namely: “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”

⁵¹ The Congress might gloss over this conduct by construing every purpose for which the state legislatures now lay taxes to be for the "general welfare," and therefore as of their jurisdiction.

⁵² And the supremacy of the laws of the United States is established by Article 6, namely: “That this constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding.”

⁵³ It has been alleged that the words “pursuant to the constitution” are a restriction upon the authority of Congress, but when it is considered that by other sections they are invested with every efficient power of government and which may be exercised to the absolute destruction of the state governments without any violation of even the forms of the Constitution, this seeming restriction, as well as every other restriction in it, appears to us to be nugatory and delusive, and only introduced as a blind upon the real nature of the government.

⁵⁴ In our opinion, “pursuant to the constitution” will be co-extensive with the will and pleasure of Congress, which indeed will be the only limitation of their powers.

⁵⁵ We apprehend that two coordinate sovereignties would be a solecism in politics.

⁵⁶ That, therefore, as there is no line of distinction drawn between the general and state governments, as the sphere of their jurisdiction is undefined, it would be contrary to the nature of things that both should exist together; one or the other would necessarily triumph in the fullness of dominion.

⁵⁷ However the contest could not be of long continuance, as the state governments are divested of every means of defense and will be obliged by “the supreme law of the land” to yield at discretion.

⁵⁸ It has been objected to this total destruction of the state governments that the existence of their legislatures is made essential to the organization of Congress, that they must assemble for the appointment of the senators and president-general of the United States.

⁵⁹ True, the state legislatures may be continued for some years as boards of appointment merely, after they are divested of every other function, but the framers of the Constitution foreseeing that the people will soon be disgusted with this solemn mockery of a government without power and usefulness have made a provision for relieving them from the imposition in Section 4, Article 1, namely: “The times, places, and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law make or alter such regulations; except as to the place of chusing senators.”

⁶⁰ As Congress have the control over the time of the appointment of the president-general, of the senators and of the representatives of the United States, they may prolong their existence in office for life by postponing the time of their election and appointment from period to period under various [pretenses] such as an apprehension of invasion, the factious disposition of the people, or any other plausible presence that the occasion may suggest; and having thus obtained life estates in the government, they may fill up the vacancies themselves by their control over the mode of appointment; with this exception in regard to the senators that as the place of appointment for them must, by the Constitution, be in the particular state, they may depute some body in the respective states to fill up the vacancies in the Senate occasioned by death until they can venture to assume it themselves.

⁶² By virtue of the foregoing section, when the spirit of the people shall be gradually broken, when the general government shall be firmly established, and when a numerous standing army shall render opposition vain, the Congress may complete the system of despotism in renouncing all dependence on the people by continuing themselves and children in the government.

⁶³ The celebrated Montesquieu, in his Spirit of Laws, Volume 1, page 12, says: “That in a democracy there can be no exercise of sovereignty, but by the suffrages of the people, which are their will, now the sovereign's will is the sovereign himself; the laws therefore, which establish the right of suffrage, are fundamental to this government. In fact, it is as important to regulate in a republic in what manner, by whom, and concerning what suffrages are to be given, as it is in a monarchy to know who is the prince, and after what manner he ought to govern.”

⁶⁴ The time, mode and place of the election of representatives, senators and president-general of the United States ought not to be under the control of Congress but fundamentally ascertained and established.

⁶⁵ The new Constitution, [consistent] with the plan of consolidation, contains no reservation of the rights and privileges of the state governments which was made in the Confederation of the year 1778 by Article 2, namely: “That each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States in Congress assembled.”

⁶⁶ The legislative power vested in Congress by the foregoing recited sections is so unlimited in its nature, may be so comprehensive and boundless in its exercise, that this alone would be amply sufficient to annihilate the state governments and swallow them up in the grand vortex of general empire.

⁶⁷ The judicial powers vested in Congress are also so various and extensive that by legal ingenuity they may be extended to every case and thus absorb the state judiciaries, and when we consider the decisive influence that a general judiciary would have over the civil polity of the several states, we do not hesitate to pronounce that this power, unaided by the legislative, would effect a consolidation of the states under one government.

⁶⁸ The powers of a court of equity vested by this Constitution in the tribunals of Congress – powers which do not exist in Pennsylvania unless so far as they can be incorporated with jury trial – would in this state greatly contribute to this event.

⁶⁹ The rich and wealthy suitors would eagerly lay hold of the infinite mazes, perplexities and delays which a court of chancery, with the appellate powers of the Supreme Court in fact as well as law, would furnish him with, and thus the poor man, being plunged in the bottomless pit of legal discussion, would drop his demand in despair.

⁷² The main pillars of the fabric correspond with it, and the concluding paragraph is a confirmation of it.

⁷³ The preamble begins with the words, “We the people of the United States,” which is the style of a compact between individuals entering into a state of society and not that of a confederation of states.

⁷⁵ Thus we have fully established the position that the powers vested by this Constitution in Congress will effect a consolidation of the states under one government, which even the advocates of this Constitution admit could not be done without the sacrifice of all liberty.

⁷⁶ We dissent, thirdly, because if it were practicable to govern so extensive a territory as these United States, [included] on the plan of a consolidated government, consistent with the principles of liberty and the happiness of the people, yet the construction of this Constitution is not calculated to attain the object, for independent of the nature of the case, it would of itself necessarily produce a despotism, and that not by the usual gradations but with the celerity that has hitherto only attended revolutions effected by the sword.

⁷⁷ To establish the truth of this position, a cursory investigation of the principles and form of this Constitution will suffice.

⁷⁸ The first consideration that this review suggests is the omission of a bill of rights, ascertaining and fundamentally establishing those unalienable and personal rights of men without the full, free and secure enjoyment of which there can be no liberty, and over which it is not necessary for a good government to have the control.

⁷⁹ The principal of which are: the rights of conscience, personal liberty by the clear and unequivocal establishment of the writ of habeas corpus, jury trial in criminal and civil cases by an impartial jury of the vicinage or county with the common law proceedings for the safety of the accused in criminal prosecutions, and the liberty of the press, that scourge of tyrants and the grand bulwark of every other liberty and privilege – the stipulations heretofore made in favor of them in the state constitutions are entirely superceded by this Constitution.

⁸⁰ The legislature of a free country should be so formed as to have a competent knowledge of its constituents and enjoy their confidence.

⁸¹ To produce these essential requisites, the representation ought to be fair, equal and sufficiently numerous to possess the same interests, feelings, opinions and views which the people themselves would possess were they all assembled, and so numerous as to prevent bribery and undue influence, and so responsible to the people by frequent and fair elections as to prevent their neglecting or sacrificing the views and interests of their constituents to their own pursuits.

⁸² We will now bring the legislature under this Constitution to the test of the foregoing principles which will demonstrate that it is deficient in every essential quality of a just and safe representation.

⁸³ The House of Representatives is to consist of 65 members; that is one for about every 50,000 inhabitants, to be chosen every two years.

⁸⁴ Thirty-three members will form a quorum for doing business, and 17 of these, being the majority, determine the sense of the House.

⁸⁵ The Senate, the other constituent branch of the legislature, consists of 26 members, being two from each state appointed by their legislatures every six years – fourteen senators make a quorum, the majority of whom, eight, determines the sense of that body, except in judging on impeachments, or in making treaties, or in expelling a member when two thirds of the senators present must concur.

⁸⁶ The president is to have the control over the enacting of laws so far as to make the concurrence of two-thirds of the representatives and senators present necessary if he should object to the laws.

⁸⁷ Thus it appears that the liberties, happiness, interests and great concerns of the whole United States may be dependent upon the integrity, virtue, wisdom and knowledge of 25 or 26 men.

⁸⁹ Inadequate because the sense and views of 3 or 4 millions of people diffused over so extensive a territory comprising such various climates products, habits, interests and opinions cannot be collected in so small a body, and besides, it is not a fair and equal representation of the people even in proportion to its number, for the smallest state has as much weight in the Senate as the largest, and from the smallness of the number to be chosen for both branches of the legislature, and from the mode of election and appointment which is under the control of Congress, and from the nature of the thing, men of the most elevated rank in life will alone be chosen.

⁹⁰ The other orders in the society, such as farmers, traders and mechanics, who all ought to have a competent number of their best informed men in the legislature, will be totally unrepresented.

⁹¹ The representation is unsafe because in the exercise of such great powers and trusts, it is so exposed to corruption and undue influence by the gift of the numerous places of honor and emoluments at the disposal of the executive, by the arts and address of the great and designing, and by direct bribery.

⁹² The representation is, moreover, inadequate and unsafe because of the long terms for which it is appointed and the mode of its appointment by which Congress may not only control the choice of the people, but may so manage as to divest the people of this fundamental right and become self-elected.

⁹³ The number of members in the House of Representatives may be increased to one for every 30,000 inhabitants.

⁹⁴ But when we consider that this cannot be done without the consent of the Senate, who from their share in the legislative, in the executive and judicial departments, and permanency of appointment, will be the great efficient body in this government and whose weight and predominancy would be abridged by an increase of the representatives, we are persuaded that this is a circumstance that cannot be expected.

⁹⁵ On the contrary, the number of representatives will probably be continued at 65, although the population of the country may swell to treble what it now is, unless a revolution should effect a change.

⁹⁶ We have before noticed the judicial power as it would effect a consolidation of the states into one government; we will now examine it as it would affect the liberties and welfare of the people, supposing such a government were practicable and proper.

⁹⁷ The judicial power under the proposed Constitution is founded on the well known principles of the civil law by which the judge determines both on law and fact, and appeals are allowed from the inferior tribunals to the superior upon the whole question, so that facts as well as law would be reexamined and even new facts brought forward in the court of appeals, and to use the words of a very eminent civilian, “The cause is many times another thing before the court of appeals than what it was at the time of the first sentence.”

⁹⁸ That this mode of proceeding is the one which must be adopted under this Constitution is evident from the following circumstances:

¹⁰³ Not to enlarge upon the loss of the invaluable right of trial by an unbiased jury, so dear to every friend of liberty, the monstrous expense and inconveniences of the mode of proceedings to be adopted are such as will prove intolerable to the people of this country.

¹⁰⁴ The lengthy proceedings of the civil law courts in the chancery of England, and in the courts of Scotland and France, are such that few men of moderate fortune can endure the expense of, the poor man must therefore submit to the wealthy.

¹⁰⁶ For instance, we are told by Judge Blackstone>/i< that a question only on the property of an ox of the value of three guineas originating under the civil law proceedings in Scotland, after many interlocutory orders and sentences below, was carried at length from the court of sessions, the highest court in that part of Great Britain, by way of appeal to the House of Lords, where the question of law and fact was finally determined.

¹⁰⁷ He adds, that no pique or spirit could in the court of King’s Bench or Common Pleas at Westminster have given continuance to such a cause for a tenth part of the time, nor have cost a twentieth part of the expense.

¹⁰⁸ Yet the costs in the courts of King’s Bench and Common Pleas in England are infinitely greater than those which the people of this country have ever experienced.

¹⁰⁹ We abhor the idea of losing the transcendent privilege of trial by jury with the loss of which, it is remarked by the same learned author, that in Sweden, the liberties of the commons were extinguished by an aristocratic senate, and that trial by jury and the liberty of the people went out together.

¹¹⁰ At the same time, we regret the intolerable delay, the enormous expenses and infinite vexation to which the people of this country will be exposed from the voluminous proceedings of the courts of civil law, and especially from the appellate jurisdiction by means of which a man may be drawn from the utmost boundaries of this extensive country to the seat of the Supreme Court of the nation to contend, perhaps with a wealthy and powerful adversary.

¹¹¹ The consequence of this establishment will be an absolute confirmation of the power of aristocratical influence in the courts of justice, for the common people will not be able to contend or struggle against it.

¹¹² Trial by jury in criminal cases may also be excluded by declaring that the libeler, for instance, shall be liable to an action of debt for a specified sum, thus evading the common law prosecution by indictment and trial by jury.

¹¹³ And the common course of proceeding against a ship for breach of revenue laws by information, which will be classed among civil causes, will at the civil law be within the resort of a court where no jury intervenes.

¹¹⁴ Besides, the benefit of jury trial in cases of a criminal nature, which cannot be evaded, will be rendered of little value by calling the accused to answer far from home, there being no provision that the trial be by a jury of the neighborhood or country.

¹¹⁵ Thus an inhabitant of Pittsburgh, on a charge of crime committed on the banks of the Ohio, may be obliged to defend himself at the side of the Delaware, and so vice versa.

¹¹⁶ To conclude this head. we observe that the judges of the courts of Congress would not be independent as they are not debarred from holding other offices during the pleasure of the president and Senate, and as they may derive their support in part from fees, alterable by the legislature.

¹¹⁷ The next consideration that the Constitution presents is the undue and dangerous mixture of the powers of government, the same body possessing legislative, executive and judicial powers.

¹¹⁸ The Senate is a constituent branch of the legislature, it has judicial power in judging on impeachments, and in this case unites in some measure the characters of judge and party, as all the principal officers are appointed by the president-general with the concurrence of the Senate, and therefore they derive their offices in part from the Senate.

¹¹⁹ This may bias the judgments of the senators and tend to screen great delinquents from punishment.

¹²⁰ And the Senate has, moreover, various and great executive powers, namely: in concurrence with the president-general, they form treaties with foreign nations that may control and abrogate the constitutions and laws of the several states.

¹²¹ Indeed, there is no power, privilege, or liberty of the state governments, or of the people, but what may be affected by virtue of this power.

¹²² For all treaties made by them are to be the “supreme law of the land, any thing in the constitution or laws of any state, to the contrary notwithstanding.”

¹²³ And this great power may be exercised by the president and 10 senators, being two-thirds of 14, which is a quorum of that body.

¹²⁴ What an inducement would this offer to the ministers of foreign powers to compass by bribery such concessions as could not otherwise be obtained.

¹²⁵ It is the unvaried usage of all free states, whenever treaties interfere with the positive laws of the land, to make the intervention of the legislature necessary to give them operation.

¹²⁶ This became necessary and was afforded by the Parliament of Great Britain in consequence of the late commercial treaty between that kingdom and France.

¹²⁷ As the Senate judges on impeachments, who is to try the members of the Senate for the abuse of this power!

¹²⁸ And none of the great appointments to office can be made without the consent of the Senate.

¹²⁹ Such various, extensive and important powers combined in one body of men are inconsistent with all freedom; the celebrated Montesquieu tells us that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty, because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.”

¹³⁰ “Again, there is no liberty, if the power of judging be not separated from the legislative and executive powers. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control: for the judge would then be legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor. There would be an end of every thing, were the same man, or the same body of the nobles, or of the people, to exercise those three powers that of enacting laws; that of executing the public resolutions and that of judging the crimes or differences of individuals.”

¹³¹ The president-general is dangerously connected with the Senate; his coincidence with the views of the ruling junto in that body is made essential to his weight and importance in the government, which will destroy all independency and purity in the executive department, and having the power of pardoning without the concurrence of a council, he may screen from punishment the most treasonable attempts that may be made on the liberties of the people when instigated by his coadjutors in the Senate.

¹³² Instead of this dangerous and improper mixture of the executive with the legislative and judicial, the supreme executive powers ought to have been placed in the president with a small independent council, made personally responsible for every appointment to office or other act by having their opinions recorded, and that without the concurrence of the majority of the quorum of this council, the president should not be capable of taking any step.

¹³³ We have before considered internal taxation as it would effect the destruction of the state governments and produce one consolidated government.

¹³⁴ We will now consider that subject as it affects the personal concerns of the people.

¹³⁵ The power of direct taxation applies to every individual as Congress under this government is expressly vested with the authority of laying a capitation or poll tax upon every person to any amount.

¹³⁶ This is a tax that, however oppressive in its nature and unequal in its operation, is certain as to its produce and simple in its collection; it cannot be evaded like the objects of imposts or excise and will be paid because all that a man [has] will he give for his head.

¹³⁷ This tax is so congenial to the nature of despotism that it has ever been a favorite under such governments.

¹³⁸ Some of those who were in the late general Convention from this state have long labored to introduce a poll tax among us.

¹³⁹ The power of direct taxation will further apply to every individual, as Congress may tax land, cattle, trades, occupations, etc., in any amount, and every object of internal taxation is of that nature, that however oppressive, the people will have but this alternative, except to pay the tax or let their property be taken, for all resistance will be in vain.

¹⁴¹ For the moderate exercise of this power, there is no control left in the state governments, whose intervention is destroyed.

¹⁴² No relief or redress of grievances can be extended as heretofore by them.

¹⁴³ There is not even a declaration of rights to which the people may appeal for the vindication of their wrongs in the court of justice.

¹⁴⁴ They must, therefore, implicitly obey the most arbitrary laws, as the worst of them will be pursuant to the principles and form of the Constitution, and that strongest of all checks upon the conduct of administration, responsibility to the people, will not exist in this government.

¹⁴⁵ The permanency of the appointments of senators and representatives, and the control the Congress have over their election, will place them independent of the sentiments and resentment of the people, and the administration having a greater interest in the government than in the community, there will be no consideration to restrain them from oppression and tyranny.

¹⁴⁶ In the government of this state under the old Confederation, the members of the legislature are taken from among the people, and their interests and welfare are so inseparably connected with those of their constituents that they can derive no advantage from oppressive laws and taxes, for they would suffer in common with their fellow citizens, would participate in the burdens they impose on the community, as they must return to the common level after a short period, and notwithstanding every exertion of influence, every means of corruption, a necessary rotation excludes them from permanency in the legislature.

¹⁴⁷ This large state is to have but ten members in that Congress, which is to have the liberty, property and dearest concerns of every individual in this vast country at absolute command, and even these ten persons, who are to be our only guardians, who are to supersede the legislature of Pennsylvania, will not be of the choice of the people, nor amenable to them.

¹⁴⁸ From the mode of their election and appointment, they will consist of the lordly and high-minded, of men who will have no congenial feelings with the people, but a perfect indifference for, and contempt of, them; they will consist of those harpies of power that prey upon the very vitals, that riot on the miseries of the community.

¹⁴⁹ But we will suppose, although in all probability it may never be realized in fact, that our deputies in Congress have the welfare of their constituents at heart and will exert themselves in their behalf; what security could even this afford, what relief could they extend to their oppressed constituents?

¹⁵⁰ To attain this, the majority of the deputies of the twelve other states in Congress must be alike well disposed, must alike forego the sweets of power and relinquish the pursuits of ambition, which from the nature of things is not to be expected.

¹⁵¹ If the people part with a responsible representation in the legislature founded upon fair certain and frequent elections, they have nothing left they can call their own.

¹⁵² Miserable is the lot of that people whose every concern depends on the will and pleasure of their rulers.

¹⁵³ Our soldiers will become janissaries, and our officers of government bashars; in short, the system of despotism will soon be completed.

¹⁵⁴ From the foregoing investigation, it appears that the Congress under this Constitution will not possess the confidence of the people, which is an essential requisite in a good government; for unless the laws command the confidence and respect of the great body of the people so as to induce them to support them when called on by the civil magistrate, they must be executed by the aid of a numerous standing army which would be inconsistent with every idea of liberty; for the same force that may be employed to compel obedience to good laws, might, and probably would, be used to wrest from the people their constitutional liberties.

¹⁵⁵ The Framers of this Constitution appear to have been aware of this great deficiency to have been sensible that no dependence could be placed on the people for their support, but on the contrary, that the government must be executed by force.

¹⁵⁶ They have therefore made a provision for this purpose in a permanent standing army and a militia that may be subjected to as strict discipline and government.

¹⁵⁷ A standing army in the hands of a government placed so independent of the people may be made a fatal instrument to overturn the public liberties; it may be employed to enforce the collection of the most oppressive taxes and to carry into execution the most arbitrary measures.

¹⁵⁸ An ambitious man who may have the army at his devotion may step up into the throne and seize upon absolute power.

¹⁵⁹ The absolute unqualified command that Congress have over the militia may be made instrumental to the destruction of all liberty, both public and private, whether of a personal, civil, or religious nature.

¹⁶⁰ First, the personal liberty of every man, probably from sixteen to sixty years of age, may be destroyed by the power Congress have in organizing and governing of the militia.

¹⁶¹ As militia, they may be subjected to fines to any amount, levied in a military manner; they may be subjected to corporal punishments of the most disgraceful and humiliating kind, and to death itself by the sentence of a court martial; to this our young men will be more immediately subjected, as a select militia composed of them will best answer the purposes of government.

¹⁶² Secondly, the rights of conscience may be violated, as there is no exemption of those persons who are conscientiously scrupulous of bearing arms.

¹⁶⁴ This is the more remarkable, because even when the distresses of the late war and the evident disaffection of many citizens of that description inflamed our passions, and when every person who was obliged to risk his own life must have been exasperated against such as on any account kept back from the common danger, yet even then, when outrage and violence might have been expected, the rights of conscience were held sacred.

¹⁶⁵ At this momentous crisis, the framers of our state constitution made the most express and decided declaration and stipulations in favor of the rights of conscience, but now when no necessity exists, those dearest rights of men are left insecure.

¹⁶⁶ Thirdly, the absolute command of Congress over the militia may be destructive of public liberty, for under the guidance of an arbitrary government, they may be made the unwilling instruments of tyranny.

¹⁶⁷ The militia of Pennsylvania may be marched to New England or Virginia to quell an insurrection occasioned by the most galling oppression, and aided by the standing army, they will no doubt be successful in subduing the liberty and independency, but in so doing, although the magnanimity of the minds will be extinguished, yet the meaner passions of resentment and revenge will be increased, and these in turn will be the ready and obedient instruments of despotism to enslave the others, and that with an irritated vengeance.

¹⁶⁸ Thus may the militia be made the instruments of crushing the last efforts of expiring liberty, of riveting the chains of despotism on their fellow citizens, and on one another.

¹⁶⁹ This power can be exercised not only without violating the Constitution, but in strict conformity with it, it is calculated for this express purpose and will doubtless be executed accordingly.

¹⁷⁰ As this government will not enjoy the confidence of the people, but be executed by force, it will be a very expensive and burdensome government.

¹⁷¹ The standing army must be numerous, and as a further support it will be the policy of this government to multiply officers in every department: judges, collectors, tax gatherers, excisemen, and the whole host of revenue officers will swarm over the land, devouring the hard earnings of the industrious, like the locusts of old, impoverishing and desolating all before them.

¹⁷² We have not noticed the smaller, nor many of the considerable, blemishes but have confined our objections to the great and essential defects: the main pillars of the Constitution which we have [shown] to be inconsistent with the liberty and happiness of the people, as its establishment will annihilate the state governments and produce one consolidated government that will eventually and speedily issue in the supremacy of despotism.

¹⁷³ In this investigation, we have not confined our views to the interests or welfare of this state in preference to the others.

¹⁷⁴ We have overlooked all local circumstances; we have considered this subject on the broad scale of the general good; we have asserted the cause of the present and future ages, the cause of liberty and mankind.

It is 18 December 1787. Alexander Hamilton has just published Federalist #23, in which he makes a curious aside.

³⁹ And the adversaries of the plan promulgated by the Convention ought to have confined themselves to showing that the internal structure of the proposed government was such as to render it unworthy of the confidence of the people.

⁴⁰ They ought not to have wandered into inflammatory declamations and unmeaning cavils about the extent of the powers.

Some criticisms have apparently hit home. Here is the man who, in that same essay, called for unlimited powers for the federal government in all those areas under its assigned purview, and he is also calling for no discussion about that extent? Something has struck a nerve.

It is also one week after the state of Pennsylvania ratified the Constitution, a vote taken after a three week free-for-all in Philadelphia that left its delegates emotionally drained and resulted in Pennsylvania becoming the second state, after Delaware, to ratify the new Constitution. It also resulted in a news blackout, as those opposing the Constitution were locked out of the official minutes. However, no one at that convention could possibly have been unaware of the nature and passion of that dissent, and at the same time Hamilton was admonishing his fellow New Yorkers to cease their anti-Federalism and come onboard the new ship of state, Samuel Bryan, who had already published two anti-Federalist essays under the pen name “Centinel,” was quietly finishing his summation of what had become the minority opinion in Pennsylvania.

It is a long piece, some 10,000 words, and although some of the points appear as repetitive as Hamilton’s do by now, it is invaluable as a record of what it was that made the Pennsylvania ratifying convention so akin to open warfare. The reader is once again cautioned that criticism of either side based on two centuries of hindsight will prove only that these men were not clairvoyant.

Bryan begins by conceding that there were difficulties with the current system in the area of commercial relationships with foreign countries, a point Hamilton chose to make with tedious regularity, and it was these that motivated the state of Virginia to suggest a convention with an eye to addressing those inadequacies. He continues that the Convention was, to the outward eye, restricted to enlarging the present powers of Congress (9), and that what actually took place there was secretive (16), hasty (17) and despotic (18), taking a dig at an unnamed Hamilton as a “meaner instrument of despotism” who was engaged in “alarming the fears of the people with dangers that did not exist...” One hears an echo of Hamilton's own swipe about “inflammatory declamations and unmeaning cavils” above. This was no airy exercise in academic political theory; these men took it personally and were out for blood.

The Pennsylvania Minority Address was not the first time that the true scope of the Constitutional Convention was claimed to be a surprise, but how much of a surprise is highly debatable. This Convention was, after all, not the first one held to address structural problems with the present system, but the second. The proposal by Virginia to hold it was issued after the failure of the states to attend the earlier Annapolis convention, which was specifically restricted to the matter of expanding the existing powers of Congress to address commercial treaties with foreign entities. Only five states attended, which was not a quorum of the thirteen. Bryan's expressed surprise seems just a little disingenuous.

Nevertheless, what follows will resound in the ears of any student of the Constitution as a presage of the Bill of Rights that was not originally part of the plan. It is clear from this that the Bill of Rights was not a clever hedge by a few disgruntled states’ rights activists, but an integral limitation to the powers of a federal government that many, including the otherwise pro-Federalist George Mason, felt so necessary to the document that they refused to sign without it. Here are some examples.

²⁰ We offered our objections to the convention and...closed our arguments by offering the following propositions to the convention.

²² That in controversies respecting property and in suits between man and man, trial by jury shall remain...

²³ That in all capital and criminal prosecutions, a man has a right: to demand the cause and nature of his accusation...

²⁴ That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.

²⁵ That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive and shall not be granted...

²⁷ That the people have a right to bear arms for the defense of themselves and their own state or the United States, or for the purpose of killing game...

³⁰ That the House of Representatives be properly increased in number³² That the sovereignty, freedom and independency of the several states shall be retained, and every power, jurisdiction and right which is not by this Constitution expressly delegated to the United States in Congress assembled.

For any historian of political theory, this is nothing short of breathtaking. Herein lie not only the basic concepts behind the first ten amendments to the Constitution, termed the Bill of Rights, but a fair proportion of their very wording. The reader sees the First Amendment at 21 and 26, the Second at 27, the Fourth at 25, the Sixth at 23, the Eighth at 24 and the Tenth at 32. If the reader takes away nothing else from this examination of the Pennsylvania Minority Address, it is that the Bill of Rights encompassed so many of the specific objections of the anti-Federalists and that their dissent did in fact become incorporated into the final document. That was not, of course, apparent to Bryan, who felt that these issues had been brusquely swept aside (36). The reader gets a hint of just how acrimonious the affair was.

In short, they gave as good as they got. The reader is amused – if a bit dismayed – by the calumny, vituperation, personal slurs and purple rhetoric that surrounded the demesne of young American politics, and comforted somewhat by the reflection that in the ensuing two centuries it has gotten – older. Not that Bryan himself would be guilty of such rhetorical excess.

Thus the tenor of the debate. Frankly, given the issues under very vigorous discussion, it is easier to forgive a bit of shouting than it is to accept a cowardly and polite silence.

⁴⁰ We dissent, first, because it is the opinion of the most celebrated writers on government, and confirmed experience, that a very extensive territory cannot be governed on the principles of freedom...

This is a restatement of the theory, generally accepted in that day, that representation requires communication and that communication is hindered by distance, an objection already broached by the anti-Federalists in Federal Farmer #1 (98). Bryan offers an appeal to authority in reference to Montesquieu, perhaps the most quoted political scientist in the debate over the Constitution. It is at best a theoretical consideration, valid at the time, but confounded by the railroad and the telegraph in the mid-19th Century, and shattered utterly by the advent of radio in the early 20th Century. One can hardly fault Bryan for not anticipating these, but the verdict of history is that – yes – a representative government can be conducted over distance.

⁴⁴ We dissent, secondly, because the powers vested in Congress by this Constitution must necessarily annihilate and absorb the legislative, executive and judicial powers of the several states...

Consideration of this, the central topic of the debate, was not helped much by Hamilton, who was retorting happily in the background, “Yes, and they should!” But in fact, they did not, leaving the polity with not one government triumphant and one defeated and absorbed, but two governments, both of which have their call on an occasionally overtaxed and resentful citizenry. This is by some accounts an improvement, albeit more often so characterized by the government than by the citizen.

On the issue of taxation, Bryan makes the point (50) that there are, in the proposed Constitution, no lines of demarcation drawn between federal government and state with respect to the methods of revenue gathering through taxation, and that Congress might well increase taxes such that the states would be unable to enact their own on the same articles, thereby diminishing the state governments’ source of funding. That both state and federal governments might be perfectly happy to tax the citizen simultaneously was not only the practice of the day but of the future, as can be attested by any contemporary American who, having finished his federal income taxes, now turns to contemplate his state counterpart.

It was not the “total destruction” of the state governments (58) that became the issue, but their subordination. But the conflict is inevitable, as Bryan foresees.

He notes as well that there are several avenues of potential chicanery by a Congress that controls the time and methods of election of senators and representatives (60-64) that it might, by abusing that power, manipulate the accession to power of a ruling class (62).

This is a rather broad claim, appropriate because what follows is a somewhat mixed bag of objections. Foremost among these is what would shortly become the key point of Bryan’s dissent.

⁷⁸ The first consideration that this review suggests is the omission of a bill of rights, ascertaining and fundamentally establishing those unalienable and personal rights of men without the full, free and secure enjoyment of which there can be no liberty, and over which it is not necessary for a good government to have the control.

These rights were addressed in the constitutions of the various states, but Bryan is concerned that the “stipulations heretofore made in favor of them in the state constitutions are entirely superceded by this Constitution” (79). That was a major matter, because a federal government unhindered by Hamilton’s hope that it might only act along specified lines could very quickly abrogate any or all of these.

From this basic objection Bryan now turns to one of mechanics, that the House of Representatives will consist of 65 members, which by his enumeration is one per 50,000 citizens (83), that major decisions might be effected by an alarmingly small number of men (87), and that further, the smallness of that number would ease the process of corruption (91, 123, 124). He is pessimistic that it will be adjusted to the mandated number of one per 30,000 (94).

Ironically, this objection and the rationale behind it are more pertinent today than in Bryan’s time. That number, 65, was specified only as a starting point pending an adjustment by a constitutionally mandated census. It was only a potential avenue of abuse so long as Congress acted against the Constitution and declined to adjust it. As a dark suggestion of despotism it might be valid, but it is not a legitimate objection to the proposed Constitution that Congress might act contrariwise. It was through no act of despotism that the current representation is one per every 600,000 citizens, but simply the impossibility of anticipating the true growth of the country. Nevertheless, one cannot help but feel Bryan vindicated by that number; by the theory of his day such a proportion would be woefully inadequate to provide a sufficient familiarity with the true sentiments of the citizens represented, and it is unclear that the advent of modern communications has invalidated that point.

The composition of the Senate comes under Bryan’s criticism as well, for a reason that would place him in full agreement with his opponent Hamilton.

⁸⁹ …it is not a fair and equal representation of the people even in proportion to its number, for the smallest state has as much weight in the Senate as the largest...

True, this was not an expression of any direct democracy. It was, in fact, a safeguard against the very sort of abuses against which Bryan warned earlier in this essay. It was a formal incorporation of the state governments within the federal system rather than their annihilation. The Senate was proportioned by state, its members named by state legislatures. This was actually a structural design feature so that the people would be represented both directly in the House and through the collective entities of their respective states in the Senate. Roger Sherman’s compromise was, in fact, a far more profound matter than either Bryan or Hamilton seemed to appreciate.

Bryan moves now to a consideration of the distribution of powers within the proposed government, calling on John Locke’s Two Treatises On Government for theoretical justification of the value of the separation of powers. It is difficult for the modern reader, accustomed to a sharp separation of powers within the three branches of American government that has occasionally devolved into furious contention, to appreciate Bryan’s misapprehension that they were inappropriately mixed (117). True, the Senate does act in a judicial manner with respect to impeachment (118, 127), but this is a notably rare circumstance, judicial functions being jealously guarded through judicial review by the Supreme Court. The Senate has, as well, executive powers with respect to foreign policy through its approval of treaties and ambassadors (120), but these compose a very small minority of the overall executive powers of government, those powers being guarded even more jealously by the Executive branch.

It is evident that Locke’s system proved more robust than Bryan’s suspicions, relying as it did on the tendency of political bodies to contend for power as a protection against their allying with one another against that of the citizen. It is, in effect, a method of turning potential despots against one another. It is subtle, cynical and extremely effective, and its true effectiveness is shown in that after more than two centuries those potential despots still find themselves accountable to the citizen. One cannot help but feel that Bryan would have been delighted to be proven wrong. How right he proved to be is equally amusing.

One should be careful what one wishes for. Washington’s Cabinet consisted of four members, the current presidential Cabinet of some fifteen members with an additional seven Cabinet-level officers. It is an effective, if somewhat bloated, expedient that, far from combating the admixture of powers within the Senate, coexists with it perfectly well.

There is a hint that any government as small as that proposed must necessarily become a class unto itself.

It is difficult for the dispassionate observer of contemporary American politics not to cede Bryan his point in this matter. Whether a larger House of Representatives would have helped ameliorate this tendency is purely a matter of speculation. That such a tendency became concrete is more a matter of observable fact.

Lastly there is Bryan’s exposition on certain implications of a standing army, a concern that was foremost in the issues of empowering a federal government, for it was assumed by both sides that such an army would be an instrument of the federal executive in enforcing taxation and other domestic policies.

¹⁵⁴ …unless the laws command the confidence and respect of the great body of the people so as to induce them to support them when called on by the civil magistrate, they must be executed by the aid of a numerous standing army which would be inconsistent with every idea of liberty…

It is no fault of Bryan’s that he could not have anticipated winning this argument as soundly as he did. One of the early concerns of the new government would be to see that its members could not so employ the standing army, both through the Insurrection Act of 1807 and later through the Posse Comitatus Act of 1878. Modern Americans, especially those within the military, tend to take this restriction for granted. The potential of the military so employed to be an instrument of oppression is so obvious that its members’ very oath contains, before anything else, the promise to protect and defend not its generals, not the President, but the Constitution itself. There is no safeguard against the betrayal of this oath and the consequent militarization of government but the honor of the men and women who take it. Yet this, within the auspices of a citizen military, is no different from the fundamental trust in the citizen as the fundamental repository of all legitimate political power that informed the Constitution from the very beginning.

Bryan notes, however, that certain aspects of this standing army could be perilous to the personal liberty of its members as well as the overall public. He anticipates the draft (160) which might force the citizen into a harsh and undemocratic discipline, the potential failure to acknowledge or respect conscientious objection (162), and the fact that the militia of one state, under the control of Congress, might be used to suppress a justifiable insurrection in another, more distant one (167). In the most extreme case, that standing army could be used against the government itself.

¹⁵⁸ An ambitious man who may have the army at his devotion may step up into the throne and seize upon absolute power.

That such a thing has not yet happened in the United States does not invalidate Bryan’s point. This was late 1787. Barely twelve years later, Napoleon Bonaparte would cut through the chaos of revolutionary France and do precisely that.

The Pennsylvania Minority Address is a truly remarkable document. Within it is the clearest summation to date of the case of those who objected to the ratification of the proposed Constitution in its current form. It holds the dire predictions of a federal government out of control, crushing everything in its path to power, and the seeds of a Bill of Rights that might serve as a bulwark against such a hazard. Bryan saw it as a minority report because his side lost the ratification vote in Pennsylvania, but with regard to how the Constitution actually turned out, it is difficult to credit that name.

One wonders what Bryan is talking about. Even during the Civil War, federal elections were held on the schedule established by Congress in 1845. No one seriously considered postponing a federal election until 1968, and then the postponement never became necessary.

In that year, there were two major assassinations and many violent demonstrations. A near-riot on the floor of the Democratic National Convention mirrored an out-of-control demonstration in Chicago’s Grant Park that provoked a disproportionate police response. In the aftermath of the unpleasantness in Chicago, President Lyndon Johnson believed he had to face the possibility that the fall elections might not be held in an atmosphere of domestic tranquility, but in an atmosphere of violence and perhaps even terrorism.

Johnson approached the National Security Council and asked it to war-game different scenarios where elections might be postponed until order could be restored. The NSC decided that a presidential declaration of martial law would be necessary to annul the Constitution and give the president the freedom to act. The postponement would be authorized by the issuance of an executive order carried out by the military.

Johnson, a skilled political veteran, understood that his popularity was at an all-time low, and his credibility with the American people was shot. Thus, such a unilateral act might exacerbate the situation and lead to something that even the military would be hard pressed to handle. Johnson asked if Chief Justice Earl Warren’s signature on the declaration of martial law would make it more palatable. The NSC responded that Warren’s signature was legally irrelevant but might be politically useful. Johnson signed off on the possible scenario and hoped it wouldn’t be necessary.

The elections of 1968 went off without a hitch, except for the usual irregularities in Chicago. The whole exchange of memos between Johnson and the NSC was buried until the story came out in the press under the heading of “White House Horrors” following Richard Nixon’s resignation in 1974.

Justice in young America tended to be swift, and on the frontier swiftness often led to sloppiness. Even in urban centers like Philadelphia and New York, it was unusual for a civil case to drag on for an extended period of time. So what was bothering Bryan, and whence does he derive “the infinite mazes”?

In the early 1850's, Charles Dickens wrote Bleak House, which after a century and a half still contains some of the best writing about the law in the English language. The story is about Jarndyce v. Jarndyce, a lawsuit over an estate with multiple wills that takes many years to go through the British Court of Chancery. At the end of the book, the estate is finally awarded to one of the beneficiaries, but by then the estate has been exhausted and the beneficiary is ruined. Dickens based the story on his own experiences with the Court of Chancery over enforcing the copyrights on his books.

The problems with the English court system were legendary even in Bryan’s time, and he envisions that the new Constitution, with its British-style government, will effect in America the same problems that bedeviled litigants in England. He sees all too well that the wealthy will be able to manipulate the system to their advantage, while those who cannot afford the fight will suffer. While this was not to be the case in the early years of the American Republic, the things that Bryan feared did eventually catch up with the country in the years after the Civil War.

That the people have a right to bear arms for the defense of themselves and their own state or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them unless for crimes committed or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to, and be governed by, the civil powers.

The language regarding the right to bear arms is infinitely superior to the 2nd amendment. Notice how it clearly avoids the ambiguities we have faced with the 2nd amendment.

A BTT for the afternoon crowd.

(56)- That, therefore, as there is no line of distinction drawn between the general and state governments, as the sphere of their jurisdiction is undefined, it would be contrary to the nature of things that both should exist together...

"Contrary to the nature of things" is an interesting usage. Hamilton employs it as well. To the analytical reader accustomed to historical or philosophical citation in these men's arguments it appears impossibly vague - "contrary to what nature of what things?" is the obvious rejoinder.

It is, as near as I can tell with admittedly faulty early 21st-century sensibilities, a concession on the part of the debaters that the real world is, in fact, quite a bit more complex than theory, an acknowledgment of an observation of a fact that may or may not fit the theoretical model but cannot be denied. One wishes more contemporary political philosophers would be this humble.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.