Posted on 02/25/2010 7:53:30 AM PST by Publius
If there were any doubt that the writer masked by the name John DeWitt was a practicing attorney, this essay dispels it. Having laid down a foundation for criticism of the new Constitution in question-and-answer format, he now lists a bill of particulars for its supporters to answer, and haste is the least of his criticisms. A fine legal mind now dissects the document and locates the traps that future generations would discover too late.
1 To the Free Citizens of the Commonwealth of Massachusetts.
2 In my last address upon the proceedings of the federal Convention, I endeavored to convince you of the importance of the subject that it required a cool, dispassionate examination, and a thorough investigation previous to its adoption – that it was not a mere revision and amendment of our first Confederation but a complete system for the future government of the United States, and I may now add in preference to, and in exclusion of, all others heretofore adopted.
3 It is not temporary, but in its nature perpetual.
4 It is not designed that you shall be annually called, either to revise, correct, or renew it, but that your posterity shall grow up under and be governed by it, as well as ourselves.
5 It is not so capable of alterations as you would at the first reading suppose, and I venture to assert it never can be unless by force of arms.
6 The fifth article in the proceedings, it is true, expressly provides for an alteration under certain conditions, whenever “it shall be ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by Congress.”
7 Notwithstanding which, such are the “heterogeneous materials from which this system was formed,” such is the difference of interest, different manners and different local prejudices in the different parts of the United States that to obtain that majority of three- fourths to any one single alteration, essentially affecting this or any other state, amounts to an absolute impossibility.
8 The conduct of the delegates in dissolving the Convention plainly speaks this language and no other.
9 Their sentiments in their letter to His Excellency, the President of Congress, are:
13 Their dissolution enforces the same sentiment by confining you to the alternative of taking or refusing their doings in the gross.
14 In this view, who is there to be found among us who can seriously assert that this Constitution, after ratification and being practiced upon, will be so easy of alteration?
15 Where is the probability that a future convention, in any future day, will be found possessed of a greater spirit of amity and mutual concession than the present?
16 Where is the probability that three-fourths of the states in that convention, or three- fourths of the legislatures of the different states, whose interests differ scarcely in nothing short of every thing, will be so very ready or willing materially to change any part of this system which shall be to the emolument of an individual state only?
17 No, my fellow-citizens, as you are now obliged to take it in the whole, so you must hereafter administer it in whole without the prospect of change, unless by again reverting to a State of Nature which will be ever opposed with success by those who approve of the government in being.
18 That the want of a bill of rights to accompany this proposed system is a solid objection to it, provided there is nothing exceptionable in the system itself, I do not assert.
19 If, however, there is at any time a propriety in having one, it would not have been amiss here.
20 A people entering into society surrender such a part of their natural rights as shall be necessary for the existence of that society.
21 They are so precious in themselves that they would never be parted with, did not the preservation of the remainder require it.
22 They are entrusted in the hands of those who are very willing to receive them, who are naturally fond of exercising of them, and whose passions are always striving to make a bad use of them.
23 They are conveyed by a written compact expressing those which are given up and the mode in which those reserved shall be secured.
24 Language is so easy of explanation, and so difficult is it by words to convey exact ideas that the party to be governed cannot be too explicit.
25 The line cannot be drawn with too much precision and accuracy.
26 The necessity of this accuracy, and this precision, increases in proportion to the greatness of the sacrifice and the numbers who make it.
27 That a Constitution for the United States does not require a bill of rights, when it is considered that a constitution for an individual state would, I cannot conceive.
28 The difference between them is only in the numbers of the parties concerned they are both a compact between the governors and governed, the letter of which must be adhered to in discussing their powers.
29 That which is not expressly granted is of course retained.
30 The compact itself is a recital upon paper of that proportion of the subject’s natural rights intended to be parted with for the benefit of adverting to it in case of dispute.
31 Miserable indeed would be the situation of those individual states who have not prefixed to their constitutions a bill of rights if, as a very respectable, learned gentleman at the Southward [James Wilson] observes, “The people, when they established the powers of legislation under their separate governments, 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.”
32 In other words, those powers which the people by their constitutions expressly give them, they enjoy by positive grant, and those remaining ones which they never meant to give them and which the constitutions say nothing about, they enjoy by tacit implication, so that by one means and by the other they became possessed of the whole.
33 This doctrine is but poorly calculated for the meridian of America where the nature of compact, the mode of construing them, and the principles upon which society is founded are so accurately known and universally diffused.
34 That insatiable thirst for unconditional control over our fellow creatures, and the facility of sounds to convey essentially different ideas, produced the first bill of rights ever prefixed to a frame of government.
35 The people, although fully sensible that they reserved every tittle of power they did not expressly grant away, yet afraid that the words made use of to express those rights so granted might convey more than they originally intended, they chose at the same moment to express in different language those rights which the agreement did not include and which they never designed to part with, endeavoring thereby to prevent any cause for future altercation and the intrusion into society of that doctrine of tacit implication which has been the favorite theme of every tyrant from the origin of all governments to the present day.
36 The proceedings of the Convention are now handed to you by your legislature, and the second Wednesday in January is appointed for your final answer.
37 To enable you to give that with propriety, that your future reflections may produce peace, however opposed the present issue of your present conduct may be to your present expectations, you must determine that in order to support with dignity the federal Union, it is proper and fit:
44 You must also determine that they shall have the exclusive power of imposts and the duties on imports and exports, the power of laying excises and other duties, and the additional power of laying internal taxes upon your lands, your goods, your chattels, as well as your persons at their sovereign pleasure:
51 In short, my fellow citizens, previous to a capacity of giving a complete answer to these proceedings, you must determine that the constitution of your commonwealth, which is instructive, beautiful and consistent in practice, which has been justly admired in Europe as a model of perfection, and which the present Convention have affected to imitate, a constitution which is especially calculated for your territory and is made conformable to your genius, your habits, the mode of holding your estates, and your particular interests, shall be reduced in its powers to those of a city corporation: the skeleton of it may remain, but its vital principle shall be transferred to the new government; nay, you must go still further and agree to invest the new Congress with powers which you have yet thought proper to withhold from your own present government.
52 All these and more which are contained in the proceedings of the federal Convention may be highly proper and necessary.
53 In this overturn of all individual governments, in this new fashioned set of ideas, and in this total dereliction of those sentiments which animated us in 1775, the political salvation of the United States may be very deeply interested, but be cautious.
John DeWitt’s Critique
One is tempted to conclude that DeWitt has overstated his case, perhaps in the manner of a trained and seasoned trial lawyer. Clearly there are predictions that have not come to pass. Unfortunately, the overall case does not fail through inadequacy, and one is left with a sober assessment that, overstated or not, DeWitt had a point. His principal objection to this Constitution is that it is, in his opinion, essentially written in stone, standing for all time.
3 It is not temporary, but in its nature perpetual.
4 It is not designed that you shall be annually called, either to revise, correct, or renew it, but that your posterity shall grow up under and be governed by it, as well as ourselves.
That much any observer of late 18th Century history will concede, as will a similar observer of the 19th, 20th and 21st centuries, at least insofar as the latter has been written. This was not a stopgap such as the Articles of Confederation, this was the real thing: the plan, the foundation, the basis for the growth of a nation that DeWitt himself could foresee would be enormous, perhaps, as he feared, unmanageably so. And yet between the two poles of despotism and chaos there was ground to be filled. Was this Constitution to manage to find that middle ground? As written, perhaps not, or at least the matter was – and is – subject to fierce debate. Could it then be altered to fit the exigencies of survival of this nation? Perhaps not:
5 It is not so capable of alterations as you would at the first reading suppose, and I venture to assert it never can be unless by force of arms.
Here one senses a lawyer’s statement of case rather than the cold observation of a disinterested observer, because not only was the Constitution to be altered according to the provisions of Article V, it was well within DeWitt’s lifetime and in a direction that apparently followed his wishes.
There have been some twenty-seven amendments to the Constitution to date, the latest of which, ratified in 1992, was first proposed merely two years after DeWitt penned this essay. There is a delicious irony here. Not counting the first ten amendments that constitute the Bill of Rights, there have been some sixteen other amendments proposed for reasons that seemed adequate to their proponents at the time. Yet this document that DeWitt considered unalterable was, in fact, altered in a fashion he would have read himself, no fewer than 203 years later. Before one smiles at his assertion that the document is unalterable, consider that he may be smiling at us.
But it has been altered with some frequency, and not by force of arms. What did await the force of arms in the American Civil War was a shift in emphasis from state power to federal that was never specified within the Constitution. It was, as critics other than DeWitt feared, a fairly radical change accomplished within the existing structure. At 7, he states “...to obtain that majority of three- fourths to any one single alteration, essentially affecting this or any other state, amounts to an absolute impossibility.” No, it did not, nor does it today. In this at least, one would say DeWitt’s fears were unfounded. It is, to be sure, a profound and difficult matter to muster this sort of agreement, as it was designed to be.
8 The conduct of the delegates in dissolving the Convention plainly speaks this language and no other.
9 Their sentiments in their letter to His Excellency, the President of Congress, are:
Here one must pause to check DeWitt’s source. “His Excellency” did not refer to George Washington, but to Arthur St. Clair, the 15th President of the Continental Congress, to whom Washington reported his success as president of the Convention and presented, as its fruit, the Constitution under consideration by DeWitt. The letter referred to is Washington’s, and it reads in part:
...”In all our deliberations on this subject we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected; and thus the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensible.
“That it will meet the full and entire approbation of every state is not perhaps to be expected; but each will doubtless consider, that had her interest been alone consulted, the consequences might have been particularly disagreeable or injurious to others; that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish.”
This is less grandiose than Franklin’s claim of near perfection, and yet it seems to accord with DeWitt’s train of thought on the matter. Thus, one is led back to the original consideration of whether this Constitution ought to be accepted as is or altered immediately while it still seems possible. The alteration under question was nothing less than a bill of rights, which, inasmuch as it was not part of the document under consideration, would have to be added in the form of amendments to a document that had not even been approved at that moment.
This is a turning point in constitutional history, and one must now examine the surrounding issues as presented by DeWitt. These are, briefly:
18 That the want of a bill of rights to accompany this proposed system is a solid objection to it, provided there is nothing exceptionable in the system itself, I do not assert.
19 If, however, there is at any time a propriety in having one, it would not have been amiss here.
20 A people entering into society surrender such a part of their natural rights as shall be necessary for the existence of that society.
At 20 there is an echo of Rousseau’s social contract, true for those contemplating the entry into a new society, less so for their descendants. In fact, the Constitution was to be, and remains, such a social contract. One understands here that DeWitt will only concede the surrender of such rights as are necessary to the survival of the parent society. Darkly, and correctly, he concludes that government will desire rather more than this. Nevertheless, DeWitt does lay out the case for the irrelevance of a bill of rights based on an argument already heard from James Wilson.
29 That which is not expressly granted is of course retained.
In theory this was the difference between this Constitution – where the powers of government were expressly written out and, again in theory, forbidden from entering into undelineated territory – and those of the constituent states. But in fact, there was no definitive difference despite fervently held ideals to the contrary. DeWitt points out that in the states this matter had already led to abuse.
32 In other words, those powers which the people by their constitutions expressly give them, they enjoy by positive grant, and those remaining ones which they never meant to give them and which the constitutions say nothing about, they enjoy by tacit implication, so that by one means and by the other they became possessed of the whole.
It is impossible for any modern observer to deny this point with regard to the federal Constitution either. Power accretes: it will fill a vacuum, and where it is not offered a vacuum it will create one. And so perhaps a bill of rights will be necessary after all.
27 That a Constitution for the United States does not require a bill of rights, when it is considered that a constitution for an individual state would, I cannot conceive.
Yet even this is fraught with potential complication.
35 The people, although fully sensible that they reserved every tittle of power they did not expressly grant away, yet afraid that the words made use of to express those rights so granted might convey more than they originally intended, they chose at the same moment to express in different language those rights which the agreement did not include and which they never designed to part with, endeavoring thereby to prevent any cause for future altercation and the intrusion into society of that doctrine of tacit implication which has been the favorite theme of every tyrant from the origin of all governments to the present day.
It is a rather convoluted sentence, but its meaning is clear: the danger of a bill of rights is that its existence may be taken to limit the rights of the people only to those specified; the danger of not having one is that the federal government will tend to encroach, subvert and eventually submerge those rights anyway. It is difficult to see DeWitt as other than a pessimist in the matter; it is equally difficult not to see him as categorically correct. Lest we see him as infallible, however, we have in his summation one claim that is quite simply fallacious.
39 That the future Congress of the United States shall be armed with the powers of legislation, judgment and execution...
This is not the case, as anyone who had read the proposed Constitution with the attention of a trial attorney would know. These are, of course, the respective functions of the three branches of the proposed government, set that way to prevent the sort of concentration of power against which DeWitt is cautioning. However, his summation seems rather accurate in other respects: that (40) the Senate, least representative of the people, would be the longest in office, that (41) government officials would not be forced to return to private life but be allowed to run for reelection indefinitely – yes, term limits were an issue before there was even a federal government – and that (43) there will be no complications and no disassociation from the seat of government being four thousand miles away from the citizens it ostensibly represents. In 1787 that distance must have seemed an unimaginable exaggeration. By September 1959 it was an understatement.
What follows is a barrage of dire predictions: that such a federal government may abuse its power to arm and control a militia, create a standing army and quarter it in the houses of the citizens after the British practice, a concern urgent enough to inspire the Third Amendment; that it will likely levy arbitrary and unreasonable taxation; that it may abuse an emergency to enhance its powers and establish a government of rule rather than one of law. With the exception of quartering troops in private dwellings, both to save the cost of their keep and to establish an overbearing, oppressive presence, DeWitt’s objections may nearly all be validated at one point or another during the ensuing 200 years.
One now understands the urgency of some sort of explicit control against such incremental abuses. Imperfect as it must be, a bill of rights might serve as such a safeguard. The alternative was no Constitution at all.
The Living Constitution
At 7, John DeWitt argues that the bar for adding amendments to the Constitution was too high. The argument as to whether an amendment was needed in a specific situation came about via the argument for loose construction versus strict construction and the related argument over enumerated powers versus implied powers. It started as early as the first presidential administration.
As George Washington settled in to conduct business, the argument appeared in the debate over the National Bank, a tale told well by Forrest McDonald in Alexander Hamilton: A Biography. Already there were arguments about enumerated powers versus implied powers, and most people working in the federal government favored an expansive role for that government via implied powers and loose construction. But backroom maneuvers overtook the debate when Pennsylvania congressmen attempted to use the Bank as a lever to keep the capital in Philadelphia, rather than move it to a site on the Potomac just down the road from Mount Vernon. Suddenly, Virginians in the Cabinet and Congress – Randolph, Madison and Jefferson – discovered strict construction, enumerated powers and the Tenth Amendment, opposing the establishment of the Bank. Hamilton, in his legal commentary to President Washington, demolished their arguments, and Washington signed the Bank into law.
Thus began a whole argument which, to a certain extent, was bogus. Few took the side of loose construction versus strict construction on the basis of high principle. It was always based on a specific issue, and politicians would cross from the one side to the other in a manner than was perfectly hypocritical – and with straight faces and protestations of innocence. What developed over time was the belief that is was easier to read something into the Constitution than to amend it. Thus was born, even at this early date, the concept of the Living Constitution.
At the Point of a Gun
At 5, Dewitt fears that the Constitution could not be altered unless by force of arms. This turned out not to be true – until drastic changes were made to the document in the aftermath of the Civil War.
In States’ Rights and the Union, Forrest McDonald explains what was required to get the 14th Amendment ratified. When ten states of the former Confederacy refused to ratify, Congress declared that the states no longer existed and combined them into five “military districts” under martial law. The states were required to call elections for state constitutional conventions that would enfranchise black voters and disenfranchise white voters who had fought for the Confederacy. After these conventions created new state constitutions, after these constitutions were approved by Congress, after new state governments were set up, and after they ratified the amendment, only then would Congress end military rule and readmit the states to the Union.
There were two huge constitutional issues in Congress’ action. First, Lincoln had fought and won a war dedicated to the principle that the Union was permanent and indivisible. No state could secede, and no state could be expelled. Yet here Congress had made a mockery of the ostensible reason for which the war had been fought. Second, only a state could ratify an amendment, not a territory or a military district, something that was not even defined in the Constitution. Yet states were now required to ratify an amendment at the point of a gun even though the law that required them to do so said they were not legally states in the first place.
In 1939, the Supreme Court heard Coleman v. Miller, a case involving a constitutional irregularity in the Kansas Legislature, and it had the opportunity to address the events of 1867. The Court decided to keep that can of worms welded firmly shut.
Discussion Topics
Earlier threads:
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilson’s Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, Federalist #1
1) take civics and american history out of school curriculum.. and/or make it elective..
2) hijack teaching and journalism school administration..
** after that is done.. the weight of those changes will squash any dissent..
That is a constant since I was a kid in the 50s....lots of dunderheads out there voting and the civics and american history went in one ear and out the other.
I do believe people are more aware now then when I was a kid.....many people are no longer accepting of the MSM, and are utilizing the internet and talk radio....this did not exist when I was a kid....
Really.. I no of few people even republicans that even know what socialism IS.. or that communism IS socialism..
I remember as a kid back in the 1950s people, knowing OF the major political forms...but not really understanding them any more than people today.
we did not have the Internet back then..so I would have to say that people today have a better opportunity to know the differences.
That should CHANGE with a new HOPE in the new media..
The internet broke the back of leftist propaganda..
And leftist propagandists.. but they are still crawling around as cripples..
When you find one, step on their hands.. and spit on them..
Absolutely. And one thing this series of essays is trying to accomplish is a presentation of the material outside the pressure cooker of academia, long captured in most places by and aggressive and exclusionary left. And along those lines, a little BTT for the morning crew.
Thank you very much.
Any time. Where are all the debaters and discussers? Did an orca swallow another trainer today?
and many are coming around and many HAVE come around, now that there is new media options...the Internet and Talk Radio...
but the middle of the road oscillators will always swing the nation back and forth. Hope and Change was 2008s mantra...the Tea Parties are 2010 and hopefully 2012s mantra....they will draw the middle back to the right.
BFL
BFL
One bump for the afternoon crowd.
Yes, many on this forum know where I live, and would probably say, quit your belly aching. Especially, if they couldn't dig out the drive way.
That a Constitution for the United States does not require a bill of rights, when it is considered that a constitution for an individual state would, I cannot conceive.
Many of the Founders debated this point. Actually, it's still being debated today...even with the incorporation of the BOR, and state constitutions.
To tell the truth, I'm surprised we have had only one Revolution and one "Civil" war to date.
5.56mm
•At 23 through 27,... DeWitt insists on nailing down the specific language now before those favoring more flexible language deploy the weasel words. This is a New England attorney pointing out that the reputation of the great men at the Convention does not necessarily justify a quick decision without thorough consideration. How correct was he? Was his suspicion justified, and why?
I wonder if he had ever been involved in taking a deposition that was sidetracked by trying to parse the word 'is'. He was correct in his understanding that, although the authors were men of honor, it would be incorrect to assume that future office holders would be of the same caliber.
•At 37 through 50, there is the bill of particulars that reads like an indictment or a plaintiff’s list for causes of action. One can imagine proponents of the Constitution reading this text and squirming. Taking these points as particulars, to what degree was DeWitt right or wrong?
I would like to make an observation at this point. The discussion is about the origin of our Constitution and also the implementation of it. Form and function if I may borrow from an earlier chapter. I find it somewhat difficult to separate the two in order to analyze the pertinent points being made. We have the advantage of over two hundred years of hindsight, the effect is sure to skew our perspective. These men, if they somehow appeared today, might not be as quick to condemn our current form of government, instead looking to the failure of 'We the People' to pursue the 'perfection of government'. Their assumption seems to be that it is human nature to want to control your own life. Observation of todays society seems to show that people are more interested in controlling others than themselves.
And a BTT for the evening crowd as well.
Regrettably, the rising hair on the back of my neck tells me we may not be all that far away from another one.
Our concept of honor has fallen mightily in that we as a people are willing to live with more corruption than earlier generations would have. A British PM caught parsing the meaning of "is" would have been turned out by his party whip in the House of Commons and the party's largest donors and fundraisers.
The only Framer who would have laughed at Clinton's exploits in the bedroom and legal arena would have been Aaron Burr, who was the Bill Clinton of his era. Even Burr would have cautioned him to put on a diffferent public face than the one he showed.
These men, if they somehow appeared today, might not be as quick to condemn our current form of government, instead looking to the failure of 'We the People' to pursue the 'perfection of government'.
Alexander Hamilton and John Jay would be quite comfortable under today's system, especially Hamilton, who thought that whatever was good for Wall Street was good for America. We will see some of that on Monday.
He was entirely correct and we should have listened to him! Why? For the very reasons you pointed out with this:
Thus began a whole argument which, to a certain extent, was bogus. Few took the side of loose construction versus strict construction on the basis of high principle. It was always based on a specific issue, and politicians would cross from the one side to the other in a manner than was perfectly hypocritical – and with straight faces and protestations of innocence. What developed over time was the belief that is was easier to read something into the Constitution than to amend it. Thus was born, even at this early date, the concept of the Living Constitution.
WE the unwashed need to insist upon one more amendment to the Constitution which says something to the effect that there are no "implied" powers and strict construction based on the plain language of the document itself is required in ALL cases.
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