Skip to comments.The Fundamental and Political Framework of the Constitution. (Links and References)
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The Founders Constitution
This is an anthology of reasons and of the political arguments that thoughtful men and women drew from, and used to support, those reasons. We believe that those reasons and political arguments have enduring interest and significance for anyone who purports to think about constitutional government in general and the Constitution of the United States in particular. For those who know in advance that thought is at bottom reducible to interest, or who regard political argument as synonymous with ideology, such a belief is at best naive. Yet we venture to assert that that belief is not merely personal or idiosyncratic, however quaint it might appear. For our belief in the continuing relevance of the Founders' Constitution and of the arguments that centered on it is itself based on reasons.
It would, however, be foolish and obstinate to deny that many teachers, students, and practitioners who might examine these assembled writings would be disposed--indeed powerfully disposed--against the premise of this work. They too would have their reasons. Common usage and custom now casually equate thought and ideology, neither caring nor wishing to strike out the sense of tendentious, partisan argumentation implicit in the latter term. Political argument, it is asserted, is apologetics for something deeper, something material, something concealed. "What's he really after?" people ask, certain that the visible argument is only discreet drapery. One would have to have lived very little in the world not to know that political life is suffused with pleasant-sounding nonsense parading as grave argumentation. The sound rule, then, would seem to be: in case of doubt, doubt.
Beyond this fundamental skepticism lies another set of misgivings that work against taking these arguments of yesteryear seriously. By immersing ourselves in seventeenth- and eighteenth-century documents and arguments, we are in effect seeking to recover an "original understanding" of those who agitated for, proposed, argued over, and ultimately voted for or against the Constitution of 1787. Such an effort at recovery might be faulted on at least three grounds. The first and most obvious misgiving concerns the historical effort itself: we have no way of recovering the intentions of a widely scattered and long-since-dead generation of political actors. Being utterly dependent on the chance survival of arguments committed to paper, we are left in the dark concerning whatever else was thought but not said, said but not written, written but not saved, saved but not found. Needless to say, we are almost utterly in the dark about the manner in which arguments were made or received: the wink, the look of disgust, the detection of sophisms, are rarely matters of record and most often are matters of fanciful speculation by the reader. Very seldom indeed, then, can we speak with simple confidence of what this or that provision meant for eighteenth-century Americans.
Even speaking of such an aggregation as a whole may be suspect. Notwithstanding the glowing account of "one connected, fertile, wide spreading country" as the providentially designated inheritance of "a band of brethren" (John Jay, Federalist, no. 2), America might better be seen as a collection of highly diverse, discrete settlements, more intimately acquainted with England than with one another, more closely tied to their ancestral home (three months' sea voyage away) than to their neighbors. Under these circumstances the search for a single state of mind is unhistorical, however gratifying to the historical investigator. That diversity, moreover, characterized the individual states perhaps as much as the aggregation. And, as is usually the case, the least favored, least educated, least prominent portions of the population were the least heard and the least likely to be heard two hundred years after the fact. As a record of reasons and arguments, then, a collection of surviving paper is necessarily slanted. Finally, the effort to recover past ways of thinking may be, in this instance, simply irrelevant, excusable perhaps in historians of a certain persuasion, but of little or no practical import. For does not the effort presuppose something like a coherent, guiding intention, and is not that given the lie by the fact that the Philadelphia Convention had to truck and barter, compromise and fudge, down to the bitter end in order to have any constitution at all to propose to the people? Were not the leading advocates of the Constitution disappointed and even disgusted by various features they were obliged to accept? Given the many concessions to expediency that marked the proceedings, is it not preposterous to look for and expect coherence, clarity, and consistency? Furthermore, even were a coherent political argument to be discovered, what great weight would it have? The fears and hopes of a generation some of whose members could still recall agitation over the Stuart Pretender can have little bearing on the fears and hopes of a generation preoccupied with ICBMs and entitlement programs. If the Constitution is to be a viable instrument of governance, then, it must (as it has to a great degree) cut itself free from its eighteenth-century moorings. The thought of the Founders, even to the extent it is discoverable, may be curious, even at times amusing or maddening, but it cannot be binding.
These are some of the reasons--by no means trivial, and certainly current and persistent--that might incline the holder of this volume to wish to conserve time and energy and read no further. Yet we think that to act on that inclination would be a mistake, if our own experience is any guide. Prompted neither by antiquarianism nor by simple piety, we have come to discover pleasures, second thoughts, and better understanding in matters that we once believed we understood tolerably well. We are loath to dangle before the reader yet another promise that the crooked will be made straight and the rough places plain; we promise, rather, complexity and complication. The simplistic truisms (clipped coinage if ever there was such) that pass for good currency today may be detected more readily for what they are by a timely recourse to the source, the reasonings of the political actors themselves. Any fair-minded reader can discover that those actors--politicians, land speculators, philosophers, village-pump orators, historians, ordinary and not-so-ordinary lawyers, common folk with little or no schooling, statesmen with analytical powers developed through long study and closely observed experience--that all those are people whose thoughts are worth knowing better. Far from being struck by their simplemindedness or paranoia, we are impressed rather by their political literacy, the vigor and the articulateness of their arguments, and the absence of condescension from their complex, even sophisticated, reasoning. The level of their public political discourse is simply remarkable.
All this, however, speaks to pleasure and the surprise of being pleased. It does not reach the core of the objections or misgivings outlined above. Can one discover what was intended? Can one trust what one does discover? Does it matter?
Some things can be discovered. There is an original understanding about a number of constitutional provisions. There is the possibility of discovering how a particular concept or institutional arrangement developed, growing clear and simple or (alternatively) unclear and complex. None of such discoveries admits of unequivocal demonstrative proof, but students of history and of the law usually have settled for probable causes, and the record assembled here affords the possibility of making quite a few such cases.
What weight to give to such nondemonstrative arguments is a harder question. It is impossible to presume that one has at hand a fair sample of all the arguments, all the considerations, that entered into a position or into the decision to adopt a position. Yet we do have more than the precipitate of unknowable private reasons and private decisions. Because the largest decisions were necessarily public--to propose, to support or oppose, to vote--and because those public occasions were repeated--in the Philadelphia Convention, in the press, in the courthouses and taverns where the politically relevant part of the people met and argued, and in the state ratifying conventions--there was a good opportunity for a broad range of arguments to be put forth and to leave some traces. Then, too, the larger issues stirred by the events leading up to the proposal and adoption of the Constitution were hardly novelties of 1787--88 and in many cases not even novelties of 1774--76.
Self-government in America dates from the earliest charters of the seventeenth century. The practical and theoretical issues that vexed contemporary British political life and thought were not alien to American readers of Sidney and Locke, Cato and Montesquieu, Blackstone and Burgh. The issues, accordingly, were familiar, the occasion pressing, the participants attentive and broadly informed, and the resulting public debate vigorous, full, and open. Twenty-two months elapsed between the Annapolis commissioners' call for a full convention and New York State's ratification of the Constitution. Just about every-thing that had to be aired was aired and, more often than not, aired forcefully and well.
Granting the possibility of all this leaves still unanswered the most difficult question: what difference does it make? In one sense, none. Clio's career in the courts has left her and the courts rather the worse for wear. Courts have had a hard enough time taking yesterday's legislative history seriously; it would be fatuous to expect very much direct effect from researches into a more remote and ambiguous record.
In another sense, very much might be hoped for. The duration of the eighteenth-century debates, the quality of the participants, the wide-ranging considerations that were raised, the high degree of self-consciousness that attended the proceedings: all made for a singular moment, an occasion of rare interest and value for discovering anew the foundations of a complex political and economic order. To the extent that the Constitution still matters--as a framework, as a statement of broad purposes, as a point of recurring reference, as a legitimation of further developments, as a restraint on the overbearing and the righteous--to that extent it is worthwhile to try to enter into that world of discourse.
The Founders prided themselves almost never on their lineage and rarely on their wealth, but rather on their reasonableness. It is worth taking note of the candor and quiet confidence that could state matter-of-factly: "My motives must remain in the depository of my own breast: My arguments will be open to all, and may be judged of by all" (Alexander Hamilton, Federalist, no. 1). That self-presentation might be deemed naive, perhaps hypocritical, possibly irrelevant.
But after all is said, there remain the arguments, the reasons, remaining to be examined, weighed, and judged. Only those for whom reasons have no standing or value will casually cast these aside. But such perhaps are not to be counted among the readers of books. Those who read only to be confirmed in their views will find some, but not much, recompense in these pages; a judicious sampling here and there will do. But those who would run the risk of being vexed into further reflection will find their patience tried--and sometimes rewarded. It was a world of the leisurely essay, the hour-long sermon, a great hunger for the printed word, and a discerning appreciation for good argument. People are apt to savor slowly what they most enjoy, and the generation of the Founders had a great taste for political discourse.
Recurring, then, to these sources of the Founders' Constitution is a precondition for being able to see that Constitution whole: the reach--and limits--of their aspirations, the preoccupations of the day and of the morrow, the principles which they chose and shaped and thought worth preserving and bequeathing. By these they wished to be judged; and as if to guarantee that they would be so judged (to the extent that mortals may guarantee any-thing), they were assiduous record-keepers, preservers of documents, copiers of correspondence. The archivist-founder is a founder who invites his successors to scrutinize his principles and acts. It was and remains a standing invitation.
Confronted, however, with the sheer bulk of surviving materials, the successor might well regard the invitation less as an offer one cannot refuse than as an offer one dare not accept. At times it seems there is altogether too much irrelevant chaff to winnow. At other times the recurrence of nearly identical arguments tends to drain even the best of their force. One risks in turn being overcome by tedium or being cloyed. Our editorial selection has been guided by an awareness of those risks and by a clear sense of the use and limits of this collection.
We mean to present arguments of yesteryear that are worthy of reexamination and reconsideration today either because they were weighty then or because they are still telling or might yet lead to further reflection on the problems under discussion. In the finest cases, of course, all three considerations hold and the gulf of the intervening centuries disappears altogether. But whether the reader's immediate interests are historical or theoretical or practical, he is likely to find at hand a broad array of nontrivial reasons.
Here then is a sample of intelligence focused on the problems of establishing and maintaining free popular government, drawn from the two centuries between the beginnings under the early Stuarts and the end of the Marshall era. The earlier bound might not seem to require any justification: the earliest beginnings of American self-government were undertaken by Elizabethans, Jacobeans, Cavaliers, and Roundheads. The later bound is more problematic: why should the documentation of the Founders' Constitution go as far as 1835, or for that matter stop there? The short answer is that the debate did in fact continue beyond ratification, beyond the debates in the First Congress, beyond the turmoil over the Neutrality Proclamation and the Alien and Sedition Acts. The preoccupation with intentions and meanings was intense in the second generation as well--John Quincy Adams, Joseph Story, John C. Calhoun, Abraham Lincoln, come immediately to mind. But perhaps it is enough to say that some of the most extraordinary Founders were marked by extraordinary longevity. They lived long enough to observe and judge the fruits of their labors well beyond the events of '87: in the cases of John Adams and Jefferson thirty-nine years, of Jay forty-two, of Marshall forty-eight, of Madison forty-nine. Whether the same voices always spoke with the same accents is not our immediate concern. But it is a material fact that founders of this stature were in a position to supply a gloss to their earlier words and deeds. Their accounts of what they meant to do, however qualified and judged by their successors, clearly enjoy a special standing in the study of American constitutionalism.
Having said all that, however, we must own that this anthology, bulky as it is, omits much of importance and very much of interest. The complex politics of ratification can be perceived only dimly in these selections. The complex dynamics of the Philadelphia Convention--the barely averted collapse, the near-misses, the bluster and bluffing, the hard listening, the give-and-take--can barely be perceived in a nonsequential selection; for that the Records of the Federal Convention remain indispensable. Finally, it would take another kind of study to recover the social and economic setting in which thirteen dissimilar and distant states managed to mitigate their fears and jealousies and particular dreams, coping with diversity and distrust within their several borders even while overcoming to some measure diversity and distrust in the Union as a whole.
If these are questions and issues that are not central to this collection, it is not because we judge them trivial. Indeed, relative to the questions and issues that are central to this collection, these are hardly neglected by current scholarship and current curricula. What does strike us as sadly neglected is the Constitution itself, seen as the precipitate of hard thinking (and, yes, hard bargaining) by men of remarkable intelligence and seriousness. This collection is intended to make it easier for their intelligent and serious successors of today to come to see that for themselves. In the process, we hope, the Founders' reasons will be reexamined and their questions reconsidered, and their hope that among a self-governing people liberty and learning would support each other will come closer to fulfillment.
Table of Contents
© 1987 by The University of Chicago
CHAPTER 12 Document 27
Joseph Story, Commentaries on the Constitution 2:§§ 547--58 1833
§ 547. The utility of a subdivision of the legislative power into different branches, having a negative upon each other, is, perhaps, at the present time admitted by most persons of sound reflection. But it has not always found general approbation; and is, even now, sometimes disputed by men of speculative ingenuity, and recluse habits. It has been justly observed, that there is scarcely in the whole science of politics a more important maxim, and one, which bears with greater influence upon the practical operations of government. It has been already stated, that Pennsylvania, in her first constitution, adopted the scheme of a single body, as the depositary of the legislative power, under the influence, as is understood, of a mind of a very high philosophical character. Georgia, also, is said in her first constituion, (since changed,) to have confided the whole legislative power to a single body. Vermont adopted the same course, giving, however, to the executive council a power of revision, and of proposing amendments, to which she yet adheres. We are also told by a distinguished statesman of great accuracy and learning, that at the first formation of our state constitutions, it was made a question of transcendant importance, and divided the opinions of our most eminent men. Legislation, being merely the expression of the will of the community, was thought to be an operation so simple in its nature, that inexperienced reason could not readily perceive the necessity of committing it to two bodies of men, each having a decisive check upon the action of the other. All the arguments derived from the analogy between the movements of political bodies, and the operations of physical nature; all the impulses of political parsimony; all the prejudices against a second co-ordinate legislative assembly stimulated by the exemplification of it in the British parliament, were against a division of the legislative power.
§ 548. It is also certain, that the notion, that the legislative power ought to be confided to a single body, has been, at various times, adopted by men eminent for their talents and virtues. Milton, Turgot, Franklin, are but a few among those, who have professedly entertained, and discussed the question. Sir James Mackintosh, in a work of a controversial character, written with the zeal and eloquence of youth, advocated the doctrine of a single legislative body. Perhaps his maturer life may have changed this early opinion. At all events, he can, in our day, count few followers. Against his opinion, thus uttered, there is the sad example of France itself, whose first constitution, in 1791, was formed on this basis, and whose proceedings the genius of this great man was employed to vindicate. She stands a monument of the folly and mischiefs of the scheme; and by her subsequent adoption of a division of the legislative power, she has secured to herself (as it is hoped) the permanent blessings of liberty. Against all visionary reasoning of this sort, Mr. Chancellor Kent has, in a few pages of pregnant sense and brevity, condensed a decisive argument. There is danger, however, that it may hereafter be revived; and indeed it is occasionally hinted by gifted minds, as a problem yet worthy of a fuller trial.
§ 549. It may not, therefore, be uninstructive to review some of the principal arguments, by which this division is vindicated. The first and most important ground is, that it forms a great check upon undue, hasty, and oppressive legislation. Public bodies, like private persons, are occasionally under the dominion of strong passions and excitements; impatient, irritable, and impetuous. The habit of acting together produces a strong tendency to what, for want of a better word, may be called the corporation spirit, or what is so happily expressed in a foreign phrase, l'esprit du corps. Certain popular leaders often acquire an extraordinary ascendency over the body, by their talents, their eloquence, their intrigues, or their cunning. Measures are often introduced in a hurry, and debated with little care, and examined with less caution. The very restlessness of many minds produces an utter impossibility of debating with much deliberation, when a measure has a plausible aspect, and enjoys a momentary favour. Nor is it infrequent, especially in cases of this sort, to overlook well-founded objections to a measure, not only because the advocates of it have little desire to bring them in review, but because the opponents are often seduced into a credulous silence. A legislative body is not ordinarily apt to mistrust its own powers, and far less the temperate exercise of those powers. As it prescribes its own rules for its own deliberations, it easily relaxes them, whenever any pressure is made for an immediate decision. If it feels no check but its own will, it rarely has the firmness to insist upon holding a question long enough under its own view, to see and mark it in all its bearings and relations on society.
§ 550. But it is not merely inconsiderate and rash legislation, which is to be guarded against, in the ordinary course of things. There is a strong propensity in public bodies to accumulate power in their own hands, to widen the extent of their own influence, and to absorb within their own circle the means, and the motives of patronage. If the whole legislative power is vested in a single body, there can be, practically, no restraint upon the fullest exercise of that power; and of any usurpation, which it may seek to excuse or justify, either from necessity or a superior regard to the public good. It has been often said, that necessity is the plea of tyrants; but it is equally true, that it is the plea of all public bodies invested with power, where no check exists upon its exercise. Mr. Hume has remarked with great sagacity, that men are generally more honest in their private, than in their public capacity; and will go greater lengths to serve a party, than when their own private interest is alone concerned. Honour is a great check upon mankind. But where a considerable body of men act together, this check is in a great measure removed, since a man is sure to be approved of by his own party, for what promotes the common interest; and he soon learns to despise the clamours of adversaries. This is by no means an opinion peculiar to Mr. Hume. It will be found lying at the foundation of the political reasonings of many of the greatest men in all ages, as the result of a close survey of the passions, and infirmities, of the history, and experience of mankind. With a view, therefore, to preserve the rights and liberties of the people against unjust encroachments, and to secure the equal benefits of a free constitution, it is of vital importance to interpose some check against the undue exercise of the legislative power, which in every government is the predominating, and almost irresistible power.
§ 551. This subject is put in a very strong light by an eminent writer [John Adams], whose mode of reasoning can be best conveyed in his own words. "If," says he, "we should extend our candour so far, as to own, that the majority of mankind are generally under the dominion of benevolence and good intentions; yet it must be confessed, that a vast majority frequently transgress; and what is more decidedly in point, not only a majority, but almost all, confine their benevolence to their families, relations, personal friends, parish, village, city, county, province; and that very few indeed extend it impartially to the whole community. Now, grant but this truth, and the question is decided. If a majority are capable of preferring their own private interests, or that of their families, counties, and party, to that of the nation collectively, some provision must be made in the constitution in favour of justice, to compel all to respect the common right, the public good, the universal law in preference to all private and partial considerations." Again: "Of all possible forms of government, a sovereignty in one assembly, successively chosen by the people, is, perhaps, the best calculated to facilitate the gratification of self-love, and the pursuit of the private interests of a few individuals. A few eminent, conspicuous characters will be continued in their seats in the sovereign assembly from one election to another, whatever changes are made in the seats around them. By superior art, address, and opulence, by more splendid birth, reputations, and connexions, they will be able to intrigue with the people, and their leaders out of doors, until they worm out most of their opposers, and introduce their friends. To this end they will bestow all offices, contracts, privileges in commerce, and other emoluments on the latter, and their connexions, and throw every vexation and disappointment in the way of the former, until they establish such a system of hopes and fears throughout the whole state, as shall enable them to carry a majority in every fresh election of the house. The judges will be appointed by them and their party, and of consequence will be obsequious enough to their inclinations. The whole judicial authority, as well as the executive, will be employed, perverted, and prostituted, to the purposes of electioneering. No justice will be attainable; nor will innocence or virtue be safe in the judicial courts, but for the friends of the prevailing leaders. Legal prosecutions will be instituted, and carried on against opposers to their vexation and ruin. And as they have the public purse at command, as well as the executive and judicial power, the public money will be expended in the same way. No favours will be attainable, but by those, who will court the ruling demagogues of the house, by voting for their friends, and instruments; and pensions, and pecuniary rewards and gratifications, as well as honours, and offices of every kind, voted to friends and partisans, &c. &c. The press, that great barrier and bulwark of the rights of mankind, when it is protected by law, can no longer be free. If the authors, writers, and printers, will not accept of the hire, that will be offered them, they must submit to the ruin, that will be denounced against them. The presses, with much secrecy and concealment, will be made the vehicles of calumny against the minority, and of panegyric, and empirical applauses of the leaders of the majority, and no remedy can possibly be obtained. In one word, the whole system of affairs, and every conceivable motive of hope or fear, will be employed to promote the private interests of a few, and their obsequious majority; and there is no remedy but in arms. Accordingly we find in all the Italian republics, the minority always were driven to arms in despair."
§ 552. Another learned writer [James Wilson] has ventured on the bold declaration, that "a single legislature is calculated to unite in it all the pernicious qualities of the different extremes of bad government. It produces general weakness, inactivity, and confusion; and these are intermixed with sudden and violent fits of despotism, injustice and cruelty."
§ 553. Without conceding, that this language exhibits an unexaggerated picture of the results of the legislative power being vested in a single assembly, there is enough in it to satisfy the minds of considerate men, that there is great danger in such an exclusive deposit of it. Some check ought to be provided, to maintain the real balance intended by the constitution; and this check will be most effectually obtained by a co-ordinate branch of equal authority, and different organization, which shall have the same legislative power, and possess an independent negative upon the doings of the other branch. The value of the check will, indeed, in a great measure depend upon this difference of organization. If the term of office, the qualifications, the mode of election, the persons and interests represented by each branch, are exactly the same, the check will be less powerful, and the guard less perfect, than if some, or all of these ingredients differ, so as to bring into play all the various interests and influences, which belong to a free, honest, and enlightened society.
§ 554. The value, then, of a distribution of the legislative power, between two branches, each possessing a negative upon the other, may be summed up under the following heads. First: It operates directly as a security against hasty, rash, and dangerous legislation; and allows errors and mistakes to be corrected, before they have produced any public mischiefs. It interposes delay between the introduction, and final adoption of a measure; and thus furnishes time for reflection; and for the successive deliberations of different bodies, actuated by different motives, and organized upon different principles.
§ 555. In the next place, it operates indirectly as a preventive to attempts to carry private, personal, or party objects, not connected with the common good. The very circumstance, that there exists another body clothed with equal power, and jealous of its own rights, and independent of the influence of the leaders, who favour a particular measure, by whom it must be scanned, and to whom it must be recommended upon its own merits, will have a silent tendency to discourage the efforts to carry it by surprise, or by intrigue, or by corrupt party combinations. It is far less easy to deceive, or corrupt, or persuade two bodies into a course, subversive of the general good, than it is one; especially if the elements, of which they are composed, are essentially different.
§ 556. In the next place, as legislation necessarily acts, or may act, upon the whole community, and involves interests of vast difficulty and complexity, and requires nice adjustments, and comprehensive enactments, it is of the greatest consequence to secure an independent review of it by different minds, acting under different, and sometimes opposite opinions and feelings; so, that it may be as perfect, as human wisdom can devise. An appellate jurisdiction, therefore, that acts, and is acted upon alternatively, in the exercise of an independent revisory authority, must have the means, and can scarely fail to possess the will, to give it a full and satisfactory review. Every one knows, notwithstanding all the guards interposed to secure due deliberation, how imperfect all human legislation is; how much it embraces of doubtful principle, and of still more doubtful utility; how various, and yet how defective, are its provisions to protect rights, and to redress wrongs. Whatever, therefore, naturally and necessarily awakens doubt, solicits caution, attracts inquiry, or stimulates vigilance and industry, is of value to aid us against precipitancy in framing, or altering laws, as well as against yielding to the suggestions of indolence, the selfish projects of ambition, or the cunning devices of corrupt and hollow demagogues. For this purpose, no better expedient has, as yet, been found, than the creation of an independent branch of censors to revise the legislative enactments of others, and to alter, amend, or reject them at its pleasure, which, in return, its own are to pass through a like ordeal.
§ 557. In the next place, there can scarcely be any other adequate security against encroachments upon the constitutional rights and liberties of the people. Algernon Sidney has said with great force, that the legislative power is always arbitrary, and not to be trusted in the hands of any, who are not bound to obey the laws they make. But it is not less true, that it has a constant tendency to overleap its proper boundaries, from passion, from ambition, from inadvertence, from the prevalence of faction, or from the overwhelming influence of private interests. Under such circumstances, the only effectual barrier against oppression, accidental or intentional, is to separate its operations, to balance interest against interest, ambition against ambition, the combinations and spirit of dominion of one body against the like combinations and spirit of another. And it is obvious, that the more various the elements, which enter into the actual composition of each body, the greater the security will be. Mr. Justice Wilson has truly remarked, that, "when a single legislature is determined to depart from the principles of the constitution, and its uncontrollable power may prompt the determination, there is no constitutional authority to check its progress. It may proceed by long and hasty strides in violating the constitution, till nothing but a revolution can check its career. Far different will the case be, when the legislature consists of two branches. If one of them should depart, or attempt to depart, from the principles of the constitution, it will be drawn back by the other. The very apprehension of the event will prevent the departure, or the attempt."
§ 558. Such is an outline of the general reasoning, by which the system of a separation of the legislative power into two branches has been maintained. Experience has shown, that if in all cases it has not been found a complete check to inconsiderate or unconstitutional legislation; yet, that it has, upon many occasions, been found sufficient for the purpose. There is not probably at this moment a single state in the Union, which would consent to unite the two branches into one assembly; though there have not been wanting at all times minds of a high order, which have been led by enthusiasm, or a love of simplicity, or a devotion to theory, to vindicate such a union with arguments, striking and plausible, if not convincing.
|"...§ 550. But it is not merely inconsiderate and rash legislation, which is to be guarded against, in the ordinary course of things.
There is a strong propensity in public bodies to accumulate power in their own hands, to widen the extent of their own influence, and to absorb within their own circle the means, and the motives of patronage.
If the whole legislative power is vested in a single body, there can be, practically, no restraint upon the fullest exercise of that power; and of any usurpation, which it may seek to excuse or justify, either from necessity or a superior regard to the public good.
It has been often said, that necessity is the plea of tyrants; but it is equally true, that it is the plea of all public bodies invested with power, where no check exists upon its exercise.
Mr. Hume has remarked with great sagacity, that men are generally more honest in their private, than in their public capacity; and will go greater lengths to serve a party, than when their own private interest is alone concerned. Honour is a great check upon mankind.
But where a considerable body of men act together, this check is in a great measure removed, since a man is sure to be approved of by his own party, for what promotes the common interest; and he soon learns to despise the clamours of adversaries.
This is by no means an opinion peculiar to Mr. Hume. It will be found lying at the foundation of the political reasonings of many of the greatest men in all ages, as the result of a close survey of the passions, and infirmities, of the history, and experience of mankind.
With a view, therefore, to preserve the rights and liberties of the people against unjust encroachments, and to secure the equal benefits of a free constitution, it is of vital importance to interpose some check against the undue exercise of the legislative power, which in every government is the predominating, and almost irresistible power...."
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