Posted on 02/04/2010 8:26:25 AM PST by Publius
James Wilson had been one of the lesser known delegates from Pennsylvania at the Convention, the best known being Benjamin Franklin, the most famous commoner in the world. Wilson had come to the colonies at the age of sixteen from Scotland and still spoke with a pronounced Scottish burr. At the Convention, he had discreetly floated the idea of the direct popular election of the President and of senators, but being apprised by James Madison of strong opposition to such a plan, he instead invented the Electoral College on the spot. Wilson was resourceful.
The day after Bryan’s attack in the press, a public meeting was held at the State House in Philadelphia, where the Convention had met, to nominate delegates to the next Pennsylvania Legislature. This quickly became a debate on the new proposed Constitution. Wilson, as a delegate to the Convention, was asked to explain the document and answer criticisms. This was the first shot fired by the Nationalists in the battle over ratification. His speech is a defense of the Constitution as presented to the Convention, without an attached bill of rights.
1 Mr. Chairman and Fellow Citizens:
2 Having received the honor of an appointment to represent you in the late Convention, it is perhaps my duty to comply with the request of many gentlemen whose characters and judgements I sincerely respect, and who have urged that this would be a proper occasion to lay before you any information which will serve to explain and elucidate the principles and arrangements of the constitution that has been submitted to the consideration of the United States.
3 It will be proper to mark the leading discrimination between the state constitutions and the Constitution of the United States.
4 When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve, and therefore upon every question respecting the jurisdiction of the House of Assembly, if the frame of government is silent, the jurisdiction is efficient and complete.
5 But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the Union.
6 Hence it is evident that in the former case everything which is not reserved is given, but in the latter the reverse of the proposition prevails, and everything which is not given is reserved.
7 This distinction, being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed Constitution, for it would have been superfluous and absurd to have stipulated with a federal body of our own creation that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.
8 For instance, the liberty of the press, which has been a copious source of declamation and opposition – what control can proceed from the federal government to shackle or destroy that sacred palladium of national freedom?
9 If, indeed, a power similar to that which has been granted for the regulation of commerce had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate as that the impost should be general in its operation.
10 With respect likewise to the particular district of ten miles which is to be made the seat of federal government, it will undoubtedly be proper to observe this salutary precaution as there the legislative power will be exclusively lodged in the President, Senate and House of Representatives of the United States.
11 But this could not be an object with the Convention, for it must naturally depend upon a future compact to which the citizens immediately interested will, and ought to be, parties, and there is no reason to suspect that so popular a privilege will in that case be neglected.
12 In truth then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject – nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.
13 Another objection that has been fabricated against the new Constitution is expressed in this disingenuous form – “The trial by jury is abolished in civil cases.”
14 I must be excused, my fellow citizens, if upon this point I take advantage of my professional experience to detect the futility of the assertion.
15 Let it be remembered then, that the business of the federal Convention was not local, but general – not limited to the views and establishments of a single state, but coextensive with the continent and comprehending the views and establishments of thirteen independent sovereignties.
16 When, therefore, this subject was in discussion, we were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course.
17 The cases open to a trial by jury differed in the different states.
18 It was therefore impracticable, on that ground, to have made a general rule.
19 The want of uniformity would have rendered any reference to the practice of the states idle and useless, and it could not with any propriety be said that, “The trial by jury shall be as heretofore,” since there has never existed any federal system of jurisprudence to which the declaration could relate.
20 Besides, it is not in all cases that the trial by jury is adopted in civil questions; for cases depending in courts of admiralty, such as relate to maritime captures and such as are agitated in courts of equity, do not require the intervention of that tribunal.
21 How then was the line of discrimination to be drawn?
22 The Convention found the task too difficult for them, and they left the business as it stands, in the fullest confidence that no danger could possibly ensue, since the proceedings of the Supreme Court are to be regulated by the Congress, which is a faithful representation of the people, and the oppression of government is effectually barred by declaring that in all criminal cases the trial by jury shall be preserved.
23 This Constitution, it has been further urged, is of a pernicious tendency because it tolerates a standing army in the time of peace.
24 This has always been a topic of popular declamation, and yet I do not know a nation in the world which has not found it necessary and useful to maintain the appearance of strength in a season of the most profound tranquility.
25 Nor is it a novelty with us, for under the present Articles of Confederation, Congress certainly possesses this reprobated power, and the exercise of that power is proved at this moment by her cantonments along the banks of the Ohio.
26 But what would be our national situation were it otherwise?
27 Every principle of policy must be subverted, and the government must declare war before they are prepared to carry it on.
28 Whatever may be the provocation, however important the object in view, and however necessary dispatch and secrecy may be, still the declaration must precede the preparation, and the enemy will be informed of your intention, not only before you are equipped for an attack, but even before you are fortified for a defense.
29 The consequence is too obvious to require any further delineation, and no man who regards the dignity and safety of his country can deny the necessity of a military force under the control and with the restrictions which the new Constitution provides.
30 Perhaps there never was a charge made with less reasons than that which predicts the institution of a baneful aristocracy in the federal Senate.
31 This body branches into two characters, the one legislative and the other executive.
32 In its legislative character it can effect no purpose without [the] cooperation of the House of Representatives, and in its executive character it can accomplish no object without the concurrence of the President.
33 Thus fettered I do not know any act which the Senate can of itself perform, and such dependence necessarily precludes every idea of influence and superiority.
34 But I will confess that in the organization of this body a compromise between contending interests is discernible, and when we reflect how various are the laws commerce, habits, population and extent of the confederated states, this evidence of mutual concession and accommodation ought rather to command a generous applause than to excite jealousy and reproach.
35 For my part, my admiration can only be equaled by my astonishment in beholding so perfect a system formed from such heterogeneous materials.
36 The next accusation I shall consider is that which represents the federal Constitution as not only calculated, but designedly framed, to reduce the state governments to mere corporations and eventually to annihilate them.
37 Those who have employed the term corporation upon this occasion are not perhaps aware of its extent.
38 In common parlance, indeed, it is generally applied to petty associations for the ease and convenience of a few individuals, but in its enlarged sense it will comprehend the government of Pennsylvania, the existing Union of the states, and even this projected system is nothing more than a formal act of incorporation.
39 But upon what presence can it be alleged that it was designed to annihilate the state governments?
40 For I will undertake to prove that upon their existence depends the existence of the federal plan.
41 For this purpose, permit me to call your attention to the manner in which the President, Senate and House of Representatives are proposed to be appointed.
42 The President is to be chosen by Electors, nominated in such manner as the legislature of each state may direct, so that if there is no legislature there can be no Electors, and consequently the office of President cannot be supplied.
43 The Senate is to be composed of two senators from each state, chosen by the legislature, and therefore if there is no legislature, there can be no Senate.
44 The House of Representatives is to be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature; unless, therefore, there is a state legislature, that qualification cannot be ascertained, and the popular branch of the federal Constitution must be extinct.
45 From this view, then, it is evidently absurd to suppose that the annihilation of the separate governments will result from their union, or, that having that intention, the authors of the new system would have bound their connection with such indissoluble ties.
46 Let me here advert to an arrangement highly advantageous, for you will perceive, without prejudice to the powers of the legislature in the election of senators, the people at large will acquire an additional privilege in returning members to the House of Representatives; whereas, by the present confederation, it is the legislature alone that appoints the delegates to Congress.
47 The power of direct taxation has likewise been treated as an improper delegation to the federal government, but when we consider it as the duty of that body to provide for the national safety, to support the dignity of the Union, and to discharge the debts contracted upon the collected faith of the states for their common benefit, it must be acknowledged that those upon whom such important obligations are imposed ought in justice and in policy to possess every means requisite for a faithful performance of their trust.
48 But why should we be alarmed with visionary evils?
49 I will venture to predict that the great revenue of the United States must, and always will, be raised by impost, for being at once less obnoxious and more productive, the interest of the government will be best promoted by the accommodation of the people.
50 Still, however, the objects of direct taxation should be within reach in all cases of emergency, and there is no more reason to apprehend oppression in the mode of collecting a revenue from this resource than in the form of an impost, which by universal assent is left to the authority of the federal government.
51 In either case, the force of civil institutions will be adequate to the purpose, and the dread of military violence, which has been assiduously disseminated, must eventually prove the mere effusion of a wild imagination or a factious spirit.
52 But the salutary consequences that must flow from thus enabling the government to receive and support the credit of the Union will afford another answer to the objections upon this ground.
53 The state of Pennsylvania particularly, which has encumbered itself with the assumption of a great proportion of the public debt, will derive considerable relief and advantage, for as it was the imbecility of the present Confederation which gave rise to the funding law, that law must naturally expire when a competent and energetic federal system shall be substituted – the state will then be discharged from an extraordinary [burden], and the national creditor will find it to be his interest to return to his original security.
54 After all, my fellow citizens, it is neither extraordinary or unexpected that the Constitution offered to your consideration should meet with opposition.
55 It is the nature of man to pursue his own interest in preference to the public good, and I do not mean to make any personal reflection when I add that it is the interest of a very numerous, powerful and respectable body to counteract and destroy the excellent work produced by the late Convention.
56 All the officers of government and all the appointments for the administration of justice and the collection of the public revenue which are transferred from the individual to the aggregate sovereignty of the states will necessarily turn the stream of influence and emolument into a new channel.
57 Every person, therefore, who enjoys or expects to enjoy a place of profit under the present establishment, will object to the proposed innovation, not in truth because it is injurious to the liberties of his country, but because it affects his schemes of wealth and consequence.
58 I will confess, indeed, that I am not a blind admirer of this plan of government, and that there are some parts of it which, if my wish had prevailed, would certainly have been altered.
59 But when I reflect how widely men differ in their opinions, and that every man – and the observation applies likewise to every state – has an equal pretension to assert his own, I am satisfied that anything nearer to perfection could not have been accomplished.
60 If there are errors, it should be remembered that the seeds of reformation are sown in the work itself and the concurrence of two-thirds of the Congress may at any time introduce alterations and amendments.
61 Regarding it, then, in every point of view, with a candid and disinterested mind, I am bold to assert that it is the best form of government which has ever been offered to the world.
Wilson’s Critique
It is only through the advantage of hindsight that an observer may come to view Wilson’s asseverations as a strange mix of canny judgment and tragic naivete. Some of his defenses were accurate, some turned out to be inaccurate, and some may yet go either way.
From the modern vantage point he doesn’t begin well. His insistence that a bill of rights is superfluous and even dangerous is well taken and logically sound, based on a perception that the constitutions of the various states differ from the federal Constitution in that the latter describes closely the only powers the federal government is to be granted. A guarantee against an abuse such as interference with the right of free speech becomes unnecessary in Wilson’s view because there is no part of the proposed Constitution that grants such a power to the federal government in the first place (6).
In later decades, this would be labeled “strict construction”. In fact, Wilson cannot conceive of an Executive whose desires might include powers not specifically granted, a Supreme Court that grants those powers by stretching the clear language of the Constitution out of proportion, or a Congress that, although elected by and ostensibly representing the people, might go along with the whole thing in pursuit of expansion of its own power. All these have come to pass, and the people are now presented with the grotesque legitimacy of such clearly unconstitutional travesties as asset forfeiture and state seizure of private property, both personal and real. Wilson would have been horrified and would no doubt have regarded the persons who were a party to this as despotic and traitorous.
This becomes clear at 9 and 12:
9 If, indeed, a power similar to that which has been granted for the regulation of commerce had been granted to regulate literary publications, it would have been as necessary to stipulate that the liberty of the press should be preserved inviolate as that the impost should be general in its operation.
That the two might be conflated with an eye to grasping un-granted power does not occur to Wilson. And yet he is not blind to the temptation of creative interpretation:
12 In truth then, the proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject – nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.
This last point is the crux of the argument against a bill of rights: that mentioning those rights at all might be to imply that the language used in doing so constitutes a boundary on the right in question. One may consider the recent treatment accorded the 2nd Amendment, in which a right clearly and unmistakably referring to “the people” has been creatively interpreted as applying only to the militia based on that qualification in the first clause; and, as well, to the notion that “bear arms” refers to arms but not to ammunition. In both cases there is an attempt to draw an artificial boundary on the basis of the language of the amendment. About this Wilson was absolutely right.
His hope that these rights would be protected because the federal government has no mechanism for contravening them in the Constitution turned out to be, sadly, not the case. He mentions, for example, that the regulation of commerce is enumerated. That, in the eyes of those intent on increasing the scope of government, allows the government to regulate anything remotely connected with commerce, which is, if one squints hard enough, nearly everything. The counter-argument to Wilson is that a bill of rights is necessary to establish boundaries on enumerated functions of government and to protect against such abuses.
Those two positions remain controversial today. In either case, however, there lies an avenue for those grasping for power.
Wilson addresses an objection that had been raised that no jury trial is specifically directed for civil cases, by mentioning circumstances in which that might be inappropriate and essentially throwing the matter out for future development by Congress and the Supreme Court.
He meets the objection that a standing army is authorized by stating boldly that a standing army is necessary. This bit of prescience predated the advent of industrial warfare, and there still were a number of adherents to the ideal of Cincinnatus, a citizen of Rome who dropped his plowshare and took up a sword upon appeal. Romantic, yes; practical, no – not even in ancient Rome – and Wilson was correct in so describing it.
There was widespread fear that the formation of a federal government would lead to the eventual irrelevance and absorption of the state governments, as to a degree it has over some two centuries. Wilson countered by pointing out that without a state government there would be no mechanism for the population of federal offices. The President is chosen by Electors who are nominated by the state legislatures, the Senate is composed of appointees of those legislatures, and the qualifications for membership in the House of Representatives matches the existing requirements for state legislatures. Without the existence of state governments, goes Wilson’s reasoning, there would be no federal government.
It is a neat argument, perhaps overnice in view of what has come to be since then. The Senate is now elected directly, and there are constant demands that the President be as well, and that the Electoral College, Wilson’s own innovation, be abolished. But Wilson’s real point is to reassure the skeptics of the intentions of the writers of the Constitution; that surely if their intention were to abolish the state governments, this language would not be in there. In this he was no doubt correct, but there seems little left of his argument in the face of modern changes.
The modern observer smiles wryly at 49:
49 I will venture to predict that the great revenue of the United States must, and always will, be raised by impost, for being at once less obnoxious and more productive…
Alas, one other modern innovation, the income tax, belies this rosy prediction. It sits there, the 16th Amendment, proper and in full accordance with the requirements of the Constitution. It may be that an impost, a tax on goods, was seen as sufficient to meet the needs of a growing nation. That the Industrial Revolution would turn it into a net exporting nation was something well beyond the horizon of the time. That the federal government would always be greedy for additional money was not.
Wilson closes with the customary acknowledgment of the good intentions of the skeptics and with the reminder that imperfections in the Constitution may at any time be addressed by a two-thirds majority of both Houses of Congress. And he closes with a statement that has not been overthrown by the vagaries of the two intervening centuries.
61 Regarding it, then, in every point of view, with a candid and disinterested mind, I am bold to assert that it is the best form of government which has ever been offered to the world.
It was certainly not the most efficient – its exquisitely crafted checks and balances guaranteed a prudent friction. Nor was it the classic Roman Republic, a thing disappointing to many of the academically inclined romantics among the delegates. Nor was it as weak as other delegates, jealous of the prerogatives of their respective states, might have wished. But Wilson would have been proud to learn that after two centuries the claim to best is still debatable. From the point of view of 1787 that alone would have been regarded as deliriously hopeful.
Discussion Topics
Well said my FRiend! Well said indeed!
Could you ping your group?
Agreed. It was a major mistake.
The argument was not about establishing Rights. It was about how to protect the rights that already existed. Hamilton's view would be preferred in a perfect society but when applied to the realities ( and compromises ) necessary to ratify the Constitution, He underestimated the need of the People to be reassured that an effort was being made to protect those Rights. I find it interesting that the efforts made from both sides of the Bill of Rights argument was so impassioned even though the ultimate goal of protecting those rights were one and the same. They both understood that the powers of government are ultimately derived from the People, yet to many observers the disparity of the arguments that seemed so polarizing were simply different paths leading to the protection of the Rights of Man. Hamilton expected the electorate to understand their rights inherently, in that respect He was mistaken.
•At 22, Wilson points out that the proceedings of the Supreme Court are regulated by Congress, a reference to Article III. Congress has the right to determine what kinds of cases the Supreme Court may or may not hear, but that right has been used sparingly. Was there a defect in the Convention’s thinking about the Judiciary, and why or why not?
The fact that a court decision could and would become the law until legislation was enacted to affirm or reverse a decision, must have been a significant factor in their debates. The power of the people to control the Supreme Court through their elected representatives was relied on to provide a balance.
The political party system that we have today was not existent at the time. There was a very real need for a Judicial power that would have jurisdiction over those specific cases that simply didn't lend themselves to State Judiciaries. A couple of examples would be the use of waterways separating several states and conflicting territorial claims between States.
English Common Law was in use then as it is now.
"That which derives its force and authority from the universal consent and immemorial practice of the people. The system of jurisprudence that originated in England and which was latter adopted in the U.S. that is based on precedent instead of statutory laws."
Again, here we have the power of 'We the People' as the ultimate judicial authority and any statutory laws to be enacted would be by consent of the People. Or so they thought.
What a great analogy. Very well said.
These threads are very interesting. Thanks for taking this on.
One small request... can you post a link to the successive thread when you post the new threads? I expect that I will refer back to these threads in the future and building in that continuity will be a help.
BTW, what’s the latest on the AS book?
The thread is up.
We should all be as "common" as Franklin!
OUTSTANDING post, commentary, questions, thread. WOW! Fantastic project. Thanks to all.
History/education/current events/BUMP!
Judge Wilson was a close ally of John Dckinson, but brokewith him to cast a vote for independence.
^
I didn’t realize that we had to sign up again after I received the first post about the new subject for the FReeper Book Club. Please add me to the list. Glad you are tackling this. They certainly aren’t teaching it at schools anymore — elementary, high, college, or even law schools!
The invention of the Electoral College was brilliant.
If there is one thing that needs to be taught in school these days, it’s the Electoral College.
I like Wilson’s somewhat theoretical view regarding what the Constitution already implied at that point in history. Unfortunately, his theory flies in the face of human nature.
I suggest those pushing for a Bill of Rights had a somewhat cynical and realistic view in regards to human nature and power.
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