This Thing We Call “Sovereignty”

DECLARATION OF INDEPENDENCE - early draft

by Diane Rufino, February 20, 2019

On September 3, 1783, representatives from the American states, Benjamin Franklin, John Adams, and John Jay, and a representative of King George III signed the Treaty of Paris to officially end the American Revolutionary War against Great Britain. The first Article of that Treaty acknowledged:

“His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free SOVEREIGN and Independent States; that he treats with them as such, and for himself his Heirs & Successors, relinquishes all claims to the Government, Propriety, and Territorial Rights of the same and every Part thereof.”

In the Declaration of Independence, the document that  preceded the Treaty, the document which “proclaimed to a candid world” that the States were separating themselves from the political bonds with Great Britain (seceding from the British Empire) and declaring themselves independent, our Founders articulated the government theory that justified their act of secession and their independence. It was premised on the doctrine of INDIVIDUAL SOVEREIGNTY. This doctrine was articled by these words:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness……… it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security….”

In other words, the individual was born to be free and meant to live free. He has rights so foundational, so fundamental, so integral to his humanity, that they can never ever be taken away from him, or violated or burdened by government. In fact, as the Declaration says, governments are instituted for the primary purpose of securing the rights of the individual (while also establishing a peaceful ordered society for individuals to so enjoy their freedom). The people would always be greater than government.  Governments would always be subordinate to the will of the people. The rights of the individual would always be the priority in the American States. Governments would always be considered “temporary,” to exist at the will of the people and only to the extent that it protects their rights, keeps them safe, and extends their happiness. Government would never have any right or power to pursue or secure its own permanent existence. (Too bad Abraham Lincoln didn’t understand this founding principle; over 650.,000 lives could have been spared)

The first constitution of the “united States,” establishing the first union, was the Articles of Confederation. Article II of that document declared that “Each state retains its SOVEREIGHTY, freedom and independence, and every Power, Jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”  This provision would be the historical precursor to our Tenth Amendment.

The Tenth Amendment essentially states the very same thing; it just doesn’t include the phrase “each state retains its sovereignty.” But that fact is certainly implied.  Government powers reside with a sovereign state or entity.

This union, as we all know, was dissolved when each state convened a state convention to consider the ratification of the US Constitution of 1787 and therefore to form “a more perfect union.”  In other words, each state, as the Declaration described for the course of action with respect to Great Britain, “dissolved the political bonds” holding it together with other states.  Several states had issues with the new Constitution, skeptical of the new government so formed and the powers it was delegated, and so their ratifications were “conditioned” on several things: on amendments, on a Bill of Rights, and even on the fidelity of the government (its ability to remain limited). Four states that stand out in particular are New York, Virginia, Rhode Island, and Massachusetts. The first to ratify conditionally was Massachusetts. The state wanted a Bill of Rights to be included (it reserved the right to consider its ratification null and void should one not have been added). The first three states, however, took their conditioned stance more forcefully; they included “Resumption Clauses” in their ratification documents.  That is, they reserved the right, as SOVEREIGN states, to resume all the powers they had delegated in the Constitution.

Virginia included this provision in its ratification:  “Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

New York included this provision:  ““That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same……”

And Rhode Island included this provision:  “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same……..”

Why did these states reserve the right to resume the (limited) government powers that were delegated by the Constitution to the new common government?  Because they were SOVEREIGNS with inherent rights to rule.

So what does this word “Sovereign” mean?  What is “Sovereignty”?  Many people don’t exactly know what the these terms mean and their significance.

Sovereignty is inextricably linked to the supreme right to govern and the supreme power to govern.

Government in the United States requires the understanding of three terms: Self-government, sovereignty, and social compact.

Sovereignty is the power to rule; to make laws and to govern; a sovereign is a country, government, or entity that has supreme power or authority.  The individual is a sovereign. It is a self-evident truth that individuals are endowed by their Creator with certain unalienable Rights, that among them are Life, Liberty and the pursuit of Happiness.  “Unalienable” or “inalienable” means “incapable of being taken away.” Just as individuals, as sovereigns, have certain inalienable rights, other sovereigns (such as countries, governments, entities) have rights that can never be divested or taken away. That is what New York, Virginia, and Rhode Island articulated and re-asserted in their Resumption Clauses.

Individual Sovereignty is the inherent and independent right to do all that is necessary to govern oneself. In the United States, the People are sovereign. In fact, only the individual is truly sovereign, because only the people, and not government, have inherent rights to life, liberty, and property, along with the right to protect and preserve it.

Governments govern people, and without people, there would be no need for government. In other words, the sovereign individual precedes government. Government has to get its powers (its authority to make law and to enforce laws) from somewhere and it’s the people who assign it those powers. They delegate the rights they themselves originally were vested with to govern themselves and their property to the government; dominion (jurisdiction) and power originate from the individual.

In the United States, we enjoy self-government, or at least, we used to. Increasingly government has taken it upon itself (at the federal, state, and local level) to tell us what we can and can’t do. When our country was founded, the people were trusted with self-government; they were, for the most part, moral and upstanding people who valued family and decency. They worked, provided for themselves, raised their families right, and therefore required minimal laws to constrain their conduct. But we all know what happened to the fabric of society and the character of too many people in our country; and so, more and more laws were required.

But let’s get back to government and the government philosophy on which our country was founded.   Government power originates from the people, for the people – “of the people, by the people, and for the people.” The Declaration of Independence tells us this.  Government arises out of social compact. John Locke tells us this, and being that our Declaration was written with Locke’s philosophy in mind, our Declaration also tells us this.  The federal government was established by the social compact known as the US Constitution. The federal government is its “creation” – an agent to serve the states. State governments are established by the compacts that are the state governments.

John Locke’s philosophy of government is based on nature and natural law (Natural Law is referenced in the first paragraph of the Declaration of Independence).  Each person is an individual, of course. God created each of us with rights in our personhood; he didn’t create us with “collective rights.” Those would be “civil rights.” Long ago, human beings migrated around, to find land to farm, to provide food for themselves, to herd their animals, to provide shelter, to be near a ready food source, etc. They existed, pretty much, as individuals. But then as they populated, more and more individuals came to occupy the same area.  And that was OK because man is a social creature.

Because man is a social creature, he forms together into communities. And in order that communities run smoothly and common services be provided to protect everyone’s rights and property, governments are instituted. And so, individuals delegate some of their sovereign power of self-defense and self-preservation to a government. That is why the bulk of government is always supposed to be closest to the individual, where it is most responsible and most accountable. Our rights and liberties are most protected when people have the frequent opportunity to see their elected officials and look them in the eye, and when those officials see a personal story behind acts of legislation, etc.

This is exactly what our Declaration of Independence tells us about our individual sovereignty. In the first paragraph, we are told that our sovereignty is based on Natural Law and God’s Law – “to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them.” The only rightful power our government has is the power that the People – by the consent of the governed and according to the precise language and intent of our Constitution – have temporarily delegated to it. In that grant of power, in a system based on the Sovereignty of the Individual, there is always a mechanism to take that power back. That is why the Declaration explicitly states that the People have the right to “alter or abolish” their government (when it becomes destructive of its aims). In fact, that right is so important and so fundamental, it is listed with the other inherent rights that individuals possess. In other words, what the Declaration is saying is that the People of the “united States” have the right to reclaim the sovereign power that they temporarily delegated to that government to govern and protect their liberties.

Again, this is because our system was premised on the Sovereignty of the Individual.

When government exceeds its powers, it takes powers away from other sovereigns that hold those powers – which are the States and the People (recognized or re-stated in the Tenth and Ninth Amendments, respectively).  Abuse of power is necessarily a usurpation of the rights of others. When government exceeds its powers, we are told that our only right is at the ballot box. This would indicate that the people are no longer recognized as sovereigns.  When government exceeds its powers, states have been told they must comply or they are coerced into complying. This would indicate that states are no longer viewed as sovereigns. But nothing has changed constitutionally to warrant this change in outlook or in government philosophy. The Declaration tells us, and sovereignty dictates, that individuals always have the right to resume their inherent rights and powers to govern. This, in plain terms, means that individuals always have the inherent right to secede (or abolish their bonds with government, including abolishing government completely) or to refuse to comply with an illegitimate, immoral, or arbitrary law (as Rosa Parks did). Similarly, states have the inherent right to resume their powers to govern within their borders and over their jurisdiction.  That resumption can take several forms, including secession (permanent, perhaps even violent), or nullification (peaceful; exercising the right not to recognize or enforce actions of the federal government that are in abuse of its powers).

Nullification and Secession are two rightful and reserved remedies reserved to the parties under compact theory.

If individuals or states no longer have a mechanism to take it back, then they are no longer sovereigns. If the government tells We the People that we don’t have the right, or the power, to “alter or abolish” our government for abuse or tyranny, then we have already lost our freedom and our system of government is no longer based on the sovereignty of the individual. If the States are told that they no longer have a recognized right of secession, then they are nothing more than geographical boundaries in one consolidated land, under the dominion and subjugation of the federal government.

Without the sovereignty that our country was founded on, the unique character of our government system – the premise that our rights come from God and that government is obligated to secure them, and that because we are such sovereigns, we can “alter and abolish” our government – becomes now merely a myth; it’s folklore…. “There once was a time……”  The fact is that government has taken over; IT has become the supreme sovereign. It has become so powerful that it has extinguished the sovereignty of the People and the States, or at least has whittled the reserved powers of the State down to nothing (token sovereignty).  We, in the United States, now enjoy our rights only to the extent that government allows us to. That’s the reality. House Speaker Nancy Pelosi recently threatened that Democrats will one day soon use the Emergency Powers Act to confiscate guns. And Senator Elizabeth Warren wants a near confiscatory income tax on the very wealthy. What the US Congress can’t, or won’t do, the federal courts will…  and they do.

If sovereignty is stripped and if rights and powers are permitted only to the extent that government allows, how are we any different from any other country where government is supreme over the individual?

In 1868, the Supreme Court ruled that there is no right to secession. (Texas v. White). It concluded that when the Constitution was signed, a permanent, perpetual Union was created. (However, Justice Salmon Chase did acknowledge that secession might be permitted if ALL states decided together to dissolve the Constitution and the Union or if the people revolted… In other words, only if people are willing to lay down their lives might they be permitted to wrestle sovereign power from the government). In a letter he wrote in 2006, Justice Scalia also opined that there is no right of secession. And in 1958, the Supreme Court ruled that States have no right to try to remind the federal government of its constitutional limits and to prevent its encroachments upon the rights of the people through nullification efforts (Cooper v. Aaron).

So, next time you hear people profess the opinion that the Supreme Court has given the final word on efforts to reclaim sovereign power, ask yourself: “Does it have the authority to permanently deny sovereignty?”  It does not.  It doesn’t even have the authority to temporarily deny it.  Sovereignty was not surrendered permanently in the creation of the US Constitution.

Nullification is an essential first step in reclaiming power that the federal government has unilaterally and inappropriately usurped from the states and from We the People. No one wants to exercise the right of secession. I’d like to think we would all prefer to remain in a harmonious relationship with our fellow states, if that can be possible.

 

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A Bill of Rights is What All Free People Are Entitled to Against Every Government

bill of rights - with james madison

by Diane Rufino, January 3, 2019

Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”    –  Thomas Jefferson, in a letter to James Madison, December 20, 1787

December 15 marks a very special day in our founding history – On that date in 1791, the first 14 states (Vermont had just been admitted to the Union as the 14th state), ratified the first 10 amendments to the US Constitution, known collectively as our Bill of Rights. We often take it for granted that these first ten amendments, our Bill of Rights, are included in our Constitution, but if we want to point to one reason the colonies went to war for their independence from Great Britain, it was to permanently secure the rights embodied in our Bill of Rights from all reaches of government. Without the Bill of Rights, the revolution would have been in vein.  Thomas Jefferson, probably the Founder who exerted the most pressure on James Madison for a Bill of Rights, advised: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”  He wrote this to Madison on December 20, 1787, almost three months after the Constitution had been signed by its drafters in Philadelphia.

On Bill of Rights Day, we reflect upon those rights guaranteed in the first nine amendments (the tenth being a restatement of federalism – the strict separation of power between the federal government and the States) but more importantly, we should come to appreciate the efforts of certain particularly liberty-minded Founders who fought against great odds to make sure that our Constitution in fact included a Bill of Rights. After all, James Madison, considered the Constitution’s author, and most of the other Federalists did not see the need for a Bill of Rights and thought the Constitution wholly sufficient without it. That was the status of the Constitution when it went to the states for ratification.

What is a “Bill of Rights”?  A bill of rights, sometimes called a Declaration of Rights or a Charter of Rights, is a list of the most important rights belonging to the citizens of a country – rights that the King or other form of government must respect. The purpose is to protect those rights against infringement either by law or by conduct from public officials. The US Bill of Rights is the Declaration and enumeration is the individual rights memorialized in the Constitution intended to protect the individual against violations and abuses of power by the government. In that respect, our Bill of Rights is like most other bill of rights (including the English Bill of Rights is 1689 and the great Magna Carta of 1215).  This history of England, including the movement of groups of people (like the Puritans and Pilgrims), to the New World, is a history continually seeking for the recognition and security of fundamental human liberties. And early colonial history continued that tradition of setting out the rights and privileges of the individual in their government charters.

The Preamble to the Bill of Rights explains its clear purpose. It reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

In other words, the Bill of Rights is a further limitation on the power of government, above and beyond those limitations already imposed by its very design and delegation of limited powers.

HISTORY:

Again, a Bill of Rights (or Declaration of Rights, or Charter of Rights), is a list of the most important rights belonging to the citizens of a country that the King or other form of government must respect. Bills of rights may be “entrenched” or “unentrenched.”  A bill of rights that is “entrenched” cannot be amended or repealed by the governing legislature through regular procedure, but rather, it would require a supermajority or referendum. Bills of rights that are “entrenched” are often those which are part of a country’s constitution, and therefore subject to special procedures applicable to constitutional amendments. A bill of rights that is not entrenched (“unentrenched”) is merely statutory in form and as such can be modified or repealed by the legislature at will.

The history of the world shows that there have been limited instances where the rights of the people have been enumerated and/or protected by a Bill of Rights. This history includes the following charters, documents, or bills of right:

  • Magna Carta (1215; England) rights for barons
  • Great Charter of Ireland (1216; Ireland) rights for barons – Ireland became independent of Great Britain in 1937
  • Golden Bull of 1222 (1222; Hungary) rights for nobles – which interestingly, included the right of Nullification
  • Charter of Kortenberg (1312; Belgium) rights for all citizens “rich and poor”
  • Twelve Articles (1525; Germany) – considered the first draft of human rights and civil liberties in continental Europe after the Roman Empire.
  • Petition of Right (1628; England)
  • English Bill of Rights 1689
  • Declaration of the Rights of Man and of the Citizen (1789; France) – inspired by Thomas Jefferson
  • The US Bill of Rights (1791)

The roots of our modern-day liberty originated in England, as far back as 1100, culminating there with the English Bill of Rights in 1689 and ultimately providing the blueprint for our very own US Bill of Rights in 1791. The roots of liberty, including the roots of our very own American liberty rights, can be found in the selection of charters and documents listed below:

  • The 1100 Charter of Liberties (also called the Coronation Charter) – The 1100 Charter of Liberties was a written proclamation offered by Henry I of England and issued upon his accession to the throne in 1100. It sought to bind the King to certain laws regarding the treatment of nobles, church officials, and individuals – most notably, certain marriage rights, rights of inheritance, amnesty rights, rights for the criminally-accused, and environmental protection (forests). It is considered to be the precursor to the Magna Carta.

 

  • The Magna Carta of 1215 (“the Great Charter”) – The barons at the time, frustrated by ten years of excessive taxation by King John in order to finance a campaign to regain lands in France only to watch the King return home in defeat, consolidated their power and threatened to renounce him. Over the next eight months, they made repeated demands to the King, requesting that he give them a guarantee that he would observe their rights. But these negotiations amounted to nothing. And so, on May 5, 1215, the barons gathered and agreed to declare war on him. On May 17, the barons captured London, the largest town in England, without a fight, and finally, King John took notice. With London lost and ever more supporters flocking to the side of the barons, he sent word that he would meet with them to discuss terms of peace.. Over the next few days, the barons assembled in great numbers on the fields of Runnymede, a relatively obscure meadow that lies between the town of Staines and Windsor castle, where King John was based. Negotiations took place over the next several days and finally, on June 15, King John affixed his seal to the document that would become known as the Magna Carta (or “The Great Charter”). The Magna Carta enumerated an expansive list (63 “chapters”) of rights for barons, and also provided the remedy of Nullification.  The principles extended beyond the often-recognized origin of the “No Taxation Without Representation” doctrine in chapter 12 (and hence the creation of a “people’s body” which addressed matters of taxation and spending) and the Due Process clause of chapter 39. The concepts of “Trial by Jury” and “No Cruel Punishments” are present in chapter 21; and the forerunner of the “Confrontation Clause” of our 6th Amendment addressed in chapters 38, 40, and 44. But the most important contribution of the Magna Carta is the claim that there is a fundamental set of principles which even the King must respect. Above all else, Magna Carta makes the case that the people have a “right” to expect boundaries from the King in their lives and with respect to their property. They have a right to expect “reasonable” conduct.  [King John would go on to ignore the promises he made in signing the Magna Carta]

 

  • The Petition of Right of 1628 – In 1628, under the leadership of Sir Edward Coke, a legal scholar-turned-practical politician, Parliament petitioned Charles I, son of the recently deceased King James I, to uphold the traditional rights of Englishmen, as set forth in the Magna Carta. It was an appeal to his sense of being a just King. Charles was already on his way to being a notorious tyrant. Parliament was not only fed up with is participation in the Thirty Years War (a highly destructive European war) against its consent, but when it refused to provide Charles the revenue to fight the war, he dissolved the body (several times, actually). That would lead Charles to raise revenue other ways – by gathering “forced loans” and “ship money” without Parliamentary approval (hence, taxation without representation in violation of the Magna Carta) and arbitrarily imprisoning those who refused to pay. Among the customary “diverse rights and liberties of the subjects” listed in the Petition of Right were no taxation without consent (as mentioned), “due process of law,” the right to habeas corpus, no quartering of troops, the respect for private property, and the imposition of no cruel punishment. King Charles did not consider himself bound by the Petition and so, he simply disregarded it. He would later be officially tried for high treason by a rump Parliament and beheaded in 1649. [The Petition of Right would have a profound effect on our US Bill of Rights: The Due Process clause of the 5th Amendment, the “Criminal Trials” clause of the 6th Amendment, and the “Civil Jury Trial” clause of the 7th Amendment all are influenced by the Petition of Right.  Furthermore, during the 1760s, the American colonists articulated their grievances against King George in terms similar to those used by Lord Coke in the Petition of Right to uphold the rights of Englishmen].

 

  • The English Bill of Rights of 1689 – After the Bloodless Revolution or “Glorious Revolution” (in which the English Parliament instigated a bloodless coup, replacing King James II with his daughter, Mary II and her husband, William III), Parliament set to right the abuses of its previous kings – Charles I, Charles II, and James II. It drafted and adopted a bill of rights, known as the English Bill of Rights, as which set out certain basic civil rights and clarified the right of secession for the British Crown. It was presented to William and Mary in February 1689 as a condition to the offer to become joint ruling sovereigns of England.  It was contractual in nature so that the acceptance of the throne was tied to their express promise to recognize the rights set forth in the Bill of Rights. A violation of that agreement would terminate the right of William and Mary to rule. The Bill of Rights lays down limits on the powers of the monarch and sets out the rights of Parliament. It further, and most importantly for this discussion, sets out certain rights of the individual, including:  the right to bear arms for self-defense, the right of Due Process, the right to petition government, such criminal defense rights as the right to be free from excessive bail, the right to a jury trial for the crime of high treason, and the right against any cruel and/or unusual punishment, the guarantee that there would be no taxation without representation, the right to be free of a standing army in times of peace, and the right to be free of any quartering of troops.  [Great Britain is unlike the United States in that it has no formal Constitution; rather, the English Bill of Rights, taken together with the Magna Carta, the Petition of Right, the Habeas Corpus Act 1679 and the Parliament Acts of 1911 and 1949 are considered, in total, as the uncodified British constitution].

 

  • The colonies being organized under grants and agreements from England, it was assumed that English traditions applied. The colonists considered themselves British subjects and as such, they believed they were entitled to all the rights and privileges of Englishmen. That is why they reacted as they did to the taxes imposed by Parliament, why one protest theme was “No Taxation Without Representation,” why the Sons of Liberty formed, why they harassed the colonial stamp collectors and stamp masters until they resigned, why they engaged in acts of civil disobedience (such as preventing the British from unloading their ships at colonial ports) or hanging colonial governors in effigy, why they tossed crates of tea into the Boston Harbor, why men like Patrick Henry called for the raising and training of colonial militias, and why they were willing to confront the Redcoats with their muskets when they sought to destroy the stockpiles of colonial ammunition. It seemed that once again, as English history has shown true, Englishmen would have to exert their rights and demand that the King to respect them. Proper boundaries would once again have to be established.

 

  • King John’s rejection of the Magna Carta (1215) and King Charles’s rejection of the Petition of Right (1628) proved to our Founding Fathers that the system established in Great Britain provided only arbitrary security for individual rights. They would need to come up with a different system of government, grounded on more “enlightened” principles and “enlightened” government philosophy. And that is exactly what they did in the Declaration of Independence – announcing that the American states were united on the concept of Individual Sovereignty, that government power originated from the People, to serve the People, and not from kings (“the Divine Right of Kings”) to serve kings.

With what many believe to be divine guidance and protection, the thirteen original colonies fought and won their independence from Great Britain in 1781. Lord Cornwallis surrendered his British troops to General George Washington, Commander of the Continental Army, on October 19, 1781 and the Treaty of Paris, signed in September 1783, marked the official end of the struggle. Since the colonies worked together in a collaborative effort to communicate grievances and concerns to King George and Parliament and to engage in a concerted effort to prevent war, but then once war came, to fight and manage the war effort, it seemed only natural to continue to collaborate in their independence. The first attempt at a loose union of states, under the Articles of Confederation, was not very successful. The government lacked the enforcement power needed to effectively act on behalf of the states, such as the power to collect revenue to pay the war debt.

Taking note of the limitations of the common government (the Confederation Congress, aka, Congress of the Confederation, or sometimes even referred to still as the Continental Congress), certain members of our founding generation instigated for a Convention to amend that government. Eventually, in February 1787, Congress called for such a Convention to meet in May in Philadelphia “to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government [the Articles of Confederation] adequate to the exigencies of the Union.” And so, the Convention did convene on May 25, 1787 in Philadelphia with delegates from all the states except Rhode Island. The Constitutional Convention, as it came to be known, quickly changed direction – from amending the Articles of Confederation to designing an altogether different form of government. James Madison would be the architect of that plan (the Virginia Plan).  The collective wisdom of the delegates at the Convention identified the weakness of the Virginia Plan, which for the colonies was the creation of a “national” government, with concentrated power in that government, rather than a “federal” government which left most of the sovereign power with the states. A federal government, with the sovereignty of the States keeping the sovereign power of the federal government in check, was the form of government that the delegates preferred. A government that could remain checked against abuses was one that honored the fiercely independent and freedom-loving nature of the colonies and one which would address the reasons for the revolution against Great Britain.

In the summer of 1787, delegates from the 13 states convened in Philadelphia and drafted a remarkable blueprint for self-government — the Constitution of the United States. The first draft set up a system of checks and balances that included a strong executive branch, a representative legislature and a federal judiciary.

The Constitution was remarkable, but deeply flawed. For one thing, it did not include a specific declaration – or bill – of individual rights. As it turned out, and luckily for us as depositories of certain “inalienable rights” as well as civil rights (those belonging to individuals living in a society, subject to the rule of law), the lack of a Bill of Rights turned out to be an obstacle to the Constitution’s ratification by the states that could not be overcome. The Federalists opposed including a bill of rights on the ground that it was unnecessary. According to James Madison, a leading Federalist, a Bill of Rights was not necessary, arguing that because the general government was one of limited powers, having only those powers specifically delegated to it and none touching on individual rights. Besides, he said, a Bill of Rights would only create confusion (inferring that any other right or privilege not listed in the Bill of Rights would be fair game for federal regulation) and also, state governments could ensure these freedoms without the need for a federal mandate. The Anti-Federalists, who were afraid of a strong centralized government and knowing that history has clearly shown that governments tend to concentrate power and tend towards centralization and then tyranny/abuse, refused to support the Constitution without one.

At the close of the Philadelphia Convention, on September 20, 1787, the delegates left with mixed feelings about the document they drafted. Of the 55 delegates to the Convention, only 39 signed it.  Of the 16 that did not sign, some left early (for business, health reasons, family concerns, or out of protest) and some refused to sign out of protest. Some of the more important delegates (ie, position and/or influence in their states) who refused to sign were the following:  George Mason of Virginia (because it did not contain a Bill of Rights), Luther Martin of Maryland (because it violated states’ rights), John Mercer of Maryland (because it did not contain a Bill of Rights), Elbridge Gerry of Massachusetts (because it did not contain a Bill of Rights), John Lansing and Robert Yates, both of New York (because it created too strong of a government, which he characterized as much more “national” than “federal”), and Edmund Randolph of Virginia (because it contained insufficient checks and balances to prevent government abuse). Had some of our most active and influential founding fathers attended the Convention, there would have been far greater opposition to the final product. Those who refused to attend or who were unable to included: Patrick Henry (refused to attend, he “smelled a rat” who he believed would try to vest the common government with too much power), Richard Henry Lee (refused to attend because he too didn’t trust the motives of those who called it), Thomas Jefferson (was acting as Ambassador to France at the time, but offered to advise the delegates by correspondence), John Adams (was acting as Ambassador to Great Britain at the time), Samuel Adams (refused to attend because he rejected the purpose of the Convention) and John Hancock (refused to attend for the same reason as Sam Adams).

Many of those who refused to sign the Constitution vowed to fight its ratification at the state conventions – George Mason, Elbridge Gerry, the delegates from Maryland, Luther Martin and John Mercer, and the delegates from New York, John Lansing and Robert Yates. And some strong anti-Federalists who were not delegates at Philadelphia would oppose it as well –Richard Henry Lee, Sam Adams, John Hancock, James Monroe (Virginia), and New York’s Governor George Clinton (who wrote several anti-Federalist essays under the pen name “Cato”). Add to these “big guns” the biggest ones of all – Thomas Jefferson, who was as strong a proponent of a Bill of Rights as one could be, and Patrick Henry, perhaps our most vocal and passionate orator for liberty. Jefferson would have advised Madison to include one, and certainly would have taken issue with Madison’s position on the matter, even though he would have had to do so by correspondence. Perhaps that is the reason why Madison lapsed during the final days of the Convention in updating Jefferson as to the discussions and decisions made in the Convention. It wasn’t until a month after the Convention wrapped up, on October 24, that he finally wrote to him again and sent him a copy of the draft Constitution. We do know that as the debate intensified over a Bill of Rights, Jefferson wrote Madison with his strong opinion, including his letter of December 20, 1787, in which he wrote: “A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse.”   [The Appendix at the end of this article contains the full commentary in Jefferson’s letter relating to the lack of Bill of Rights in the new Constitution].

On September 28, 1787, the Confederation Congress (aka, Congress of the Confederation) advised the states to begin calling their ratifying conventions, and several did so immediately. Madison left the Philadelphia Convention uncertain what the outcome of the ratification process would be. The dissent by Edmund Randolph and George Mason, both from his home state, and then their refusal to attach their names to the Constitution weighed very heavily on his mind. As Kevin Gutzman pointed out in his book James Madison and the Making of America, the influence that those two men alone had in the overall ratification process potentially could more than counter the entire “unanimity” of the Convention.

As we will see, Madison not only played a leading role in bringing about the Philadelphia Convention (he and Alexander Hamilton orchestrated the report to the Confederation Congress – the Annapolis Report – which made the recommendation that a convention be called in May 1787 in Philadelphia to address the defects of the Articles of Confederation), but he also played a critical supporting role (through his writings) in the debates in the state ratifying conventions, and then a more formal role when ratification seemed to be doomed. The Constitution was “his baby” and he was going to do all he could to see it adopted and a stronger union created. [In September 1786, a conference was called in Annapolis, Maryland to discuss the state of commerce in the fledgling nation. The national government had no authority to regulate trade between and among the states. The conference was called by Virginia, at the urging of Madison, to discuss ways to facilitate commerce and establish standard rules and regulations. Only five of the 13 states sent any delegates at all].

Between November 20, 1787 and January 9, 1788, five states – Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut – ratified the Constitution with relative ease, although the bitter minority report of the Pennsylvania opposition was widely circulated. Despite overwhelming success with these early conventions, the Federalists were well aware of the difficulties that lay ahead. Massachusetts, New Hampshire, Virginia, and New York were still to come and they knew that North Carolina and Rhode Island weren’t going to sign. In other words, the difficult journey still lied ahead because the anti-Federalist (opponents of the proposed Constitution) were aggressively campaigning against ratification, six states were in doubt, and the magic number of 9 states (Article VII – when 9 states ratified the Constitution, it would take effect) might never be achieved.

In the month after the close of the Convention, Madison found himself in New York and with some time to spare. It didn’t look good; too many political heavyweights were lining up against ratification. New York was unlikely to approve the Constitution. When John Lansing and Robert Yates abandoned the Philadelphia Convention, as Gutzman wrote, “they said that they had not been sent to Philadelphia to replace the Confederation with a national government.” New York’s strongest political figure, its Governor, George Clinton, sided with Lansing and Yates. Alexander Hamilton, a delegate to the Convention from NY, advised Madison that the best way to improve the chances of ratification in his state was to appeal directly to the electorate through the newspapers. After all, several anti-Federalists were already writing articles and other publications criticizing the Constitution and condemning the ambitious government it believed it created.

In addition to the anti-Federalist essays written by Governor Clinton (“Cato”), there were other, also powerful, essays published to criticize the Constitution and to highlight its many flaws. There was “Brutus” from New York (likely Robert Yates or Melancton Smith, or maybe even John Williams), “Centinel” from Pennsylvania (Samuel Bryan), “Agrippa” from Massachusetts (James Winthrop), and the “Federal Farmer” from Virginia (most likely Richard Henry Lee, or maybe Mercy Otis Warren). The is no list to identify with certainty which individuals authored the essays. Agrippa published 11 Letters “To the people,” and 5 essays “To the Massachusetts Convention” by February 5. Brutus published 11 of his 16 essays, Cato published all of his 7 essays, Centinel published 14 of his 18 letters, and Federal Farmer published all of his 18 letters between October 1787 and the start of the Massachusetts ratifying convention, which was January 9, 1788. Much to the dismay of the Federalists, the flood of Anti-federalist essays were starting to have their impact on the electorate and on more importantly, on the election of delegates, and key conventions were yet to meet (namely, New York and Virginia).  In fact, in both those states, the majority of delegates selected would be anti-Federalists.

[New York would call for its convention on February 1, select its delegates from April 29 to May 3, and set its date for June 17. Virginia would select its delegates in March, and set a date of June 2 for its convention].

Alexander Hamilton, James Madison, and prominent NY figure, lawyer John Jay agreed to address the anti-Federalist campaign, convinced that rejection of the Constitution would condemn the states to an unworkable union. It is likely that Madison took charge from the beginning, laying out a theme or roadmap for the essays, making sure that the criticisms of the anti-federalists were addressed, making sure the provisions of the Constitution that were most contentious were addressed and effectively explained, and that the arguments in favor of the Constitution were made that he wanted. When Jay became very ill, the bulk of the essays would have to be split between Hamilton and Madison; Jay would only be able to write 3 essays. The three men responded to each and every one of the criticisms of the anti-Federalist, in essay form, under the pen name “Publius.” Beginning in October 1787, these men penned 85 essays for New York newspapers and later collected them into 2 volumes entitled The Federalist (later to be referred to as The Federalist Papers), which addressed each concern of the anti-Federalists, analyzed the Constitution, detailed the thinking of the framers, anticipated scenarios posed by the critics, and explained what each provision meant. The Federalist Papers gave assurances that the fears of the anti-Federalists were unfounded and mere speculation and conjecture. One reading the Federalist Papers would believe the federal government to be one of strict and limited powers and without any threat of overstepping or abusing its powers. Comparing the government explained in the Federalist Papers to the one today would be to compare a pea to a grapefruit.

In contrast to its predecessor states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), the Massachusetts convention was angry and contentious, and at one point, it erupted into a fistfight between Federalist delegate Francis Dana and anti-Federalist Elbridge Gerry when the latter was not allowed to speak. The impasse was resolved only when revolutionary heroes and leading anti-Federalists Samuel Adams and John Hancock agreed to ratification on the condition that the convention also propose amendments. In other words, Massachusetts’ ratification was a “conditional” one. [The convention’s proposed amendments included a requirement for grand jury indictment in capital cases, which would form part of the Fifth Amendment, and an amendment reserving powers to the states not expressly given to the federal government, which would later form the basis for the Tenth Amendment. Massachusetts’ Ratification is provided in the Appendix at the end of this article].

The next contentious convention would be in Virginia – in June.

At this point, I wanted to provide a timeline of the State Ratifying Conventions:

Timeline of State Ratifying Conventions:

Delaware – December 7, 1787 –  Delaware ratified the Constitution, 30-0.  [http://teachingamericanhistory.org/library/document/delaware-ratifies-30-0/ ]

Pennsylvania – December 12, 1787 – Pennsylvania ratified, 46-23.  [http://teachingamericanhistory.org/library/document/pennsylvania-ratifies-46-23/ ]

New Jersey – December 18, 1787 –  New Jersey ratified, 38-0.  [http://teachingamericanhistory.org/library/document/new-jersey-ratifies-38-0/ ]

Georgia – December 31, 1787 – Georgia ratified, 20-0.  [http://teachingamericanhistory.org/library/document/georgia-deed-of-ratification/ ]

Connecticut – January 9, 1787 –  Connecticut ratified 128-40.  [http://teachingamericanhistory.org/library/document/connecticut-ratifies-128-40/]  

Massachusetts – February 6, 1788 – The delegates to the Massachusetts Ratifying Convention were split on whether to ratify the Constitution or reject it, and so they came up with a compromise.  The high road explanation is that responsible leaders from both parties, including Adams and Hancock, convened and said, “Look, we’ve been at this now for nearly a month. We’re not making any progress whatsoever. The country is in crisis and if Massachusetts doesn’t sign, then we’re down the tubes. Is there some way we can come to some common ground on this?” And the common ground was that Massachusetts would ratify now with an expectation that in the First Congress amendments would be proposed to alter the Constitution. This is known as the Massachusetts Compromise. And enough people bought into it because Hancock bought into it, that it swayed enough delegates to ensure ratification. So the high ground is the sense of crisis, the sense of duty, the sense of Hamilton‘s remark in Federalist 85 that states would be better off signing quickly and working within the system, and that sense that Massachusetts had a responsibility to step up and take the lead. Ultimately, the Massachusetts Ratifying Convention ratified 187-168 with 9 proposed amendments – again with the understanding and expectation that a Bill of Rights would be added.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

New Hampshire – February 14, 1788  – A majority of the delegates to the New Hampshire Ratifying Convention were opposed to ratification, and so the delegates to the convention voted to postpone until June 18, at which time they would take up the issue of ratification again.  [http://teachingamericanhistory.org/ratification/stagethree/ ]

Rhode Island – March 24, 1788 – Rhode Island rejected the call for a state ratifying convention; the state had no intention of even considering a new constitution.

Maryland – April 26, 1788 – Maryland ratified 63-11.   [http://teachingamericanhistory.org/ratification/stagefour/#maryland ]

South Carolina – May 23, 1788 – South Carolina ratified, 149-73, with 5 Declarations and Resolves.  [http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

New Hampshire – June 21, 1788 – New Hampshire ratified 57-47, with 12 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

Virginia – June 25, 1788 –  Virginia ratified 89-79, with 20 Bill of Rights and 20 proposed amendments.  [http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

On July 2, 1788, the Confederation Congress (still under the Articles of Confederation at the time), adopted the ratification of the US Constitution. The old union (13 colonies-turned-states) was dissolved at that point and a new union, comprising the states that had ratified up until this point (DE, PA, NJ, GA, CT, MA, NH, MD, SC, and VA) was formed.

New York – July 25-26, 1788 – New York ratified on July 26, after debating the day before whether to ratify with amendments or not. It ratified by a slim margin, 30-27, with 25 Bill of Rights and 31 proposed amendments.  [http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].  The first three Bill of Rights read:

(1)  That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

(2)  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

(3)  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [= “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

(4)  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

(5)  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

North Carolina – August 2, 1788 – North Carolina voted 184-84 against ratification.  [http://teachingamericanhistory.org/ratification/elliot/vol4/northcarolina0802/ ]

On September 13, 1788, the Confederation Congress prepared for the new government to take its place. On January 7, 1789, presidential electors were selected, and on February 4, the first election was held to select representatives to the new government under the US Constitution. The candidates receiving the top votes for president were George Washington and John Adams, and so they became the country’s first president and vice-president, respectively. James Madison was elected to the first US Congress from the state of Virginia. The first US Congress was inaugurated on March 4, and finally, on March 30, Washington was inaugurated. He delivered what would become one of the most memorable and often-cited Inaugural addresses.

The first government created by the US Constitution was installed.

North Carolina – November 21, 1789 –  North Carolina ratified 194-77, with 20 Bill of Rights and 21 proposed amendments

Rhode Island – May 29, 1790 –  Rhode Island ratified 34-32, with 18 Bill of Rights and 21 proposed amendments.  [Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

***  Timeline of Ratification of the US Constitution, Reference:  http://teachingamericanhistory.org/bor/timeline/.  By clicking on the State Ratifying Convention, you can pull up the debates, the votes, and the proposed amendments associated with each state’s vote.  Also, I have included, in the Appendix at the end of this article, the proposed Bill of Rights and/or proposed amendments proposed by the certain states in their ratifications].

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Having co-written The Federalist Papers to help secure ratification in New York, James Madison left the state for Virginia, to take up the battle there. [The Virginia Convention would be held before the New York Convention, two weeks before, but as it turned out, they would continue simultaneously].  Back in Virginia, Madison would have to face Patrick Henry, George Mason, Edmund Randolph, James Monroe, Richard Henry Lee (one-time president of the Continental Congress) and William Grayson (VA representative in the Continental Congress). George Mason had authored the 1776 Virginia Declaration of Rights and the state constitution (chief author, at least) so he would clearly be a forceful authority on the necessity of a Bill of Rights. Mason and Lee would mount the most strenuous opposition to the proposed Constitution, in favor of amending it to include a Bill of Rights. Patrick Henry would oppose it on states’ rights grounds as well. He urged that Virginia hold out for amendments.

Virginia elected its delegates to the Convention in March 1788, and many men – many prominent men – ran for a seat. Interestingly, some of the more prominent men who chose not to run, or who did not win, included George Washington, Thomas Jefferson, Beverley Randolph, Richard Henry Lee, and a few others. The most prominent men who were elected included James Madison, Patrick Henry, George Mason, Governor Edmund Randolph, James Monroe, William Grayson, Edmund Pendleton, George Wythe, George Nicholas, former VA Governor Benjamin Harrison V, and John Marshall (who would go on to become our most influential Supreme Court Chief Justice). Of the 168 delegates, the majority were anti-Federalists.

In his book James Madison and the Making of America, Gutzman goes into detail with respect to Mason’s objections to the proposed Constitution. He wrote:

On October 7, Mason sent a letter to [George] Washington including his objections to the Constitution. An amended version of notes he had made during the Philadelphia Convention, this document essentially repeated complaints Mason had raised then: There was no Declaration of Rights, and the Supremacy Clause meant state declarations would be unavailing; the House was too small; the Senate had money powers, although it did not represent the people; the combination of legislative and executive powers in the Senate endangered liberty’ the federal judiciary would swallow up the state judiciaries and thus allow the rich to oppress the poor; the president lacked an executive council, which meant he would be led by the Senate; and the vice-president, in limbo between the Senate and the executive branch, was a dangerous personage – besides which he would give one state three Senate votes, which was unfair.

In addition to these objections, Mason also went public with his Philadelphia Convention prediction that the Commerce Clause would empower the eight northern states to abuse the five southern ones. There would be a tendency for Congress to read almost anything into the Necessary & Proper Clause, which threatened both states’ rights and individuals’ rights.  [James Madison and the Making of America, pg. 189]

Virginia’s Convention met from June 2 – June 27. The Convention would end up pitting Patrick Henry against James Madison, with the former spending much more time on the floor speaking.  Henry was Madison’s most formidable antagonist in the ratification fight.  Henry was perhaps our most passionate founding father, being known for his fiery speeches and his imagery. He was the voice of the revolution. As Gutzman wrote: “He was the great guardian of Virginians’ self-government and inherited rights. He was also an orator without parallel, one who could cause hair to stand up on the necks even of his most devout opponents.”  He did not disappoint at the Convention.

On June 8, he took to the floor to accuse the proposed government created by the Constitution of being a consolidated one. His position was that a confederated government (under the Articles) was being replaced by a consolidated government. He objected to the introductory phrase “We the People…,” claiming that it conjured up the notion that the government would be a consolidated national one. He wanted the language changed to “We the States…”  In his speech that day, he said:

“It is said eight States have adopted this plan. I declare that if twelve States and a half had adopted it, I would, with manly firmness, and in spite of an erring world, reject it. You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your Government. Having premised these things, I shall, with the aid of my judgment and information, which, I confess, are not extensive, go into the discussion of this system more minutely. Is it necessary for your liberty that you should abandon those great rights by the adoption of this system? Is the relinquishment of the trial by jury and the liberty of the press necessary for your liberty? Will the abandonment of your most sacred rights tend to the security of your liberty? Liberty, the greatest of all earthly blessings-give us that precious jewel, and you may take every thing else: But I am fearful I have lived long enough to become an fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined, enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American: But suspicions have gone forth-suspicions of my integrity-publicly reported that my professions are not real. 23 years ago was I supposed a traitor to my country; I was then said to be the bane of sedition, because I supported the rights of my country: I may be thought suspicious when I say our privileges and rights are in danger.”

One of the more contentious days came on June 24; the Convention was winding down. George Wythe opened the day’s proceedings with a speech in favor of ratifying the Constitution before amending it. Madison followed, emphasizing many of the same themes he and Hamilton and Jay had addressed in The Federalist essays. Just as the elderly Benjamin Franklin had urged his fellow delegates in Philadelphia to quit their bickering and work together for the greater good at, Madison essentially tried to make the same point in Richmond. As to the position that amendments should be added before Virginia ratified, Madison argued that it was unreasonable. He didn’t think it was reasonable to expect the other states (eight of them) to retract their unconditional ratifications in order to accommodate Virginia’s demand that the Constitution be first amended, and particularly to include a Bill of Rights. Up until that point, Madison had remained relatively quiet at the Convention. And even when he spoke, he came across as meek. But he was never one to project very well. When he spoke on the 24th, it was in a strained, quiet tone. But he spoke articulately and rationally, and he addressed the many concerns of the anti-Federalists.

When he concluded, he yielded the floor to Henry. From Gutzman’s book:

An account given by Federalist Archibald Stuart proves the point. Henry concluded his speech by calling attention to ‘the awful dangers” attendant upon their vote. “I see beings of a higher order, Henry thundered, “anxious concerning our decision.”  “Our own happiness alone is not affected by the event – All nations are interested in the determination. We have it in our power to secure the happiness of one half of the human race….”    [James Madison and the Making of America, pg. 233]

The Convention was getting ready to take a vote when an obscure delegate endorsed Patrick Henry’s call for a list of amendments. “The delegate said that he could not vote for ratification until he was assured that amendments protecting Virginians’ historic rights would be recommended. Madison answered that he would not oppose any ‘safe’ amendments (but continued to assert that he believed it unnecessary, and perhaps even dangerous.’” [Ibid, pg. 235]

Ultimately, on June 25, the delegates voted against first proposing amendments to the other states prior to Virginia’s ratification (ie, having the other states recall their unconditional ratification and re-consider ratification after amendments were added) and voted 89-79 in favor of ratification, with proposed amendments.  On June 27, the Convention adopted a set of 40 proposed amendments. A committee, headed by law professor George Wythe, drafted the amendments – 20 enumerated individual rights (Bill of Rights) and the other 20 enumerated states’ rights. The amendments were forwarded to the Confederation Congress. [Virginia’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

While there were delegates at several conventions who supported an “amendments before” approach to ratification, it soon shifted to an “amendments after” for the sake of trying to hold the Union together. Ultimately, only North Carolina and Rhode Island waited for amendments from Congress before ratifying.

Four days prior to the conclusion of the Virginia Convention, on June 21, 1788, New Hampshire ratified the Constitution. What makes that date special is that when New Hampshire ratified, with its 12 proposed amendments, the required number of state ratifications, according to Article VII of the Constitution, had been met to establish the Constitution. [Article VII – “The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”} The Constitution would become operational. A new union (comprised of those states that had ratified) was created and the new frame of government would be established.

The New York ratification convention met on June 17, 1788, while the Virginia Convention was still debating ratification. As with Virginia, a majority of its 67 delegates were anti-Federalists. (The New York Convention would last over month – from June 17 until July 26). On the opening day, the anti-Federalists, led by Governor Clinton, clamored for a Bill of Rights and fought to preserve the autonomy of the state against what it believed were actual and potential federal encroachments. Hamilton (the only NY delegate to the Philadelphia Convention to sign the Constitution) and the Federalists, on the other hand, contended that a stronger central government would provide a solid base from which New York could grow and prosper. While the debates were contentious, the Federalists were ultimately successful and on July 26, the Constitution was ratified by a very slim margin, 30-27, but with 25 Bill of Rights and 31 proposed amendments. The Convention also voted to call for a second federal convention.  [New York’s Ratification is provided in the Appendix at the end of this article. Take note of its Bill of Rights – it includes a “Resumption Clause”].

On September 13, 1788, the Articles of Confederation Congress certified that the new Constitution had been ratified by more than enough states for the new system to be implemented and directed the new government to meet in New York City on the first Wednesday in March the following year. On March 4, 1789, the new frame of government came into force with eleven of the thirteen states participating – and without a Bill of Rights.

Opposition to the new Constitution among leading Virginians lingered. It would continue to be a thorn in James Madison’s ass…  the man who deceived the states into sending delegates to Philadelphia believing they were tasked with proposing amendments to the Articles of Confederation (when all along, he wanted them to take up the issue of an all-new scheme of government – his scheme, the “Virginia Plan”), the man who thought his scheme had finally been realized, and the man who supposedly held that “not a letter of the Constitution” should be altered.

After Virginia’s ratification and New York’s ratification, the future of the Constitution, as ratified, was not certain.  New York wanted to call another federal convention (to amend the new Constitution?  To get rid of the new Constitution?) and several powerful Virginians, with Patrick Henry taking the lead, seemed likely to move for the same.

As fate would have it, Madison set his sights on the US Senate. But there was one problem for him – the Constitution (pre-17th Amendment) empowered the state legislatures to elect senators, but the VA state legislature (VA General Assembly) was comprised of many enemies he had made in his efforts to deceive the states at the Philadelphia Convention, to write the Constitution, and to secure its ratification, including the great Patrick Henry. And Henry and his fellow anti-Federalists got the chance to get even: in its selection of Senators,  the legislature chose Richard Henry Lee and William Grayson.

Both Richard Henry Lee and William Grayson agreed with Patrick Henry that the Constitution should have been amended to include a Bill of Rights (at the least) before it was ratified. Both, it seems, would favor a second convention.

Madison, at this point, was warming somewhat to the notion of amendments, but it’s not sure if he was warming because he agreed that a Bill of Rights is essential to limit powers of government or if he was just nervous that the issue might be the one to sink his Constitution. One thing is for certain though, he would have rather the Constitution be amended by the first option in Article V (amendments proposed by Congress and then sent to the states for adoption) than by a second convention (the second option in Article V; a convention of states). Kevin Gutzman addressed this in his book:

For one thing, some states would oppose a convention so strongly that they would reflexively oppose any amendment it might propose. For another, it would be easier to have Congress propose amendments than to follow the process in Article V of the Constitution for convening another meeting like the one at Philadelphia. Finally, another convention would include members with extreme views on both ends of the political spectrum, enflame the public mind, and produce nothing conductive to the general good. He had seen how the first convention had worked, and he did not want to hazard a second – which, too, would undermine the impression of the American republic’s stability left in European capitals by the success of the recent ratification campaign.  [James Madison and the Making of America, pg. 241]

Defeated in his bid for the US Senate, Madison decided to stand for the House of Representatives. But again, he would be at the mercy of his nemesis, Patrick Henry. Henry wielded power in the General Assembly, and that power included the ability to draw congressional districts. To spite Madison, he helped draw a map that put Montpelier (Madison’s home) in the same district as James Monroe’s house. In the Richmond Convention, Monroe had aligned himself with Henry, Mason, and Grayson and had voted “nay” on the vote for ratification. “Because Monroe had been an authentic hero in the revolution – suffering a significant wound in Washington’s great victory at Trenton – and had established a respectable legislative record in both Virginia and in the Congress of the Confederation, his opposition would be formidable.” [Ibid, pg. 241]

Madison campaigned against Monroe, and due to the contentious issue of the Constitution lacking a Bill of Rights, Madison softened on the issue of adding amendments. Perhaps all the letters that Jefferson sent him at this time emphasizing the need for a Bill of Rights had something to do with it.  “If pursued with a proper moderation and in a proper mode [meaning that the First Congress would propose amendments for the states’ approval, per Article V], they would serve the double purpose of satisfying the minds of well-meaning opponents and of providing additional guards in favor of liberty.”  [Ibid, pg. 242].  Taking Madison at his word and believing him to be a man of his word, voters selected him over Monroe for the US House of Representatives.

On March 4, 1789, the first US Congress was seated, in New York City’s Federal Hall. The first thing to do was to organize itself. On April 1, the House of Representatives elected its officers, and the Senate did the same on April 6. Also on the 6th, the House and Senate met in joint session and counted the Electoral College ballots for the selection of president. George Washington was certified as president (having been unanimously selected) and John Adams as vice president.

On April 30, 1789, George Washington was inaugurated as the nation’s first president, also at Federal Hall, delivering the Inaugural Address that James Madison had written for him. In that message, Washington addressed the subject of amending the Constitution. He urged the legislators:

“Whilst you carefully avoid every alteration which might endanger the benefits of an united and effective government, or which ought to await the future lessons of experience; a reverence for the characteristic rights of freemen, and a regard for public harmony, will sufficiently influence your deliberations on the question, how far the former can be impregnably fortified or the latter be safely and advantageously promoted…..”

Madison knew that as long as the concerns of the anti-Federalists regarding the Constitution remained unaddressed, the threat of a new convention would remain, and so he would take the initiative to propose amendments (comprising a Bill of Rights) himself.  By taking the initiative to propose amendments himself through the Congress, he hoped to preempt a second constitutional convention that might, it was feared, undo  the difficult compromises of 1787, and open the entire Constitution to reconsideration, thus risking the dissolution of the new federal government. Writing to Jefferson, he stated, “The friends of the Constitution, some from an approbation of particular amendments, others from a spirit of conciliation, are generally agreed that the System should be revised. But they wish the revisal to be carried no farther than to supply additional guards for liberty.” He also felt that amendments guaranteeing personal liberties would “give to the Government its due popularity and stability.” Finally, he hoped that the amendments “would acquire by degrees the character of fundamental maxims of free government, and as they become incorporated with the national sentiment, counteract the impulses of interest and passion.” [Historians continue to debate the degree to which Madison considered the amendments of the Bill of Rights necessary, and to what degree he considered them politically expedient; in the outline of his address, he wrote, “Bill of Rights—useful—not essential—”].  (see Wikipedia)

On June 8, Madison introduced a series of Constitutional amendments in the House of Representatives for consideration. Among his proposals was one that would have added introductory language stressing natural rights to the Preamble. Another would apply parts of the Bill of Rights to the states as well as the federal government. Several sought to protect individual personal rights by limiting various Constitutional powers of Congress. He urged Congress to keep the revision to the Constitution “a moderate one,” limited to protecting individual rights.

Madison was deeply read in the history of government and used a range of sources in composing the amendments. The English Magna Carta inspired the right to petition and to trial by jury, for example, while the English Bill of Rights of 1689 provided an early draft for the right to keep and bear arms and also for the right against cruel and unusual punishment.

The greatest influence on Madison’s text, however, was existing state constitutions, and especially Virginia’s. Many of his amendments, including his proposed new preamble, were based on the Virginia Declaration of Rights, which were drafted in 1776 by another great nemesis, anti-Federalist George Mason. To reduce future opposition to ratification, Madison also looked for recommendations shared by many states. He did provide one, however, that no state had specifically requested: “No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” He did not include an amendment that every state had asked for, one that would have made tax assessments voluntary instead of contributions. Madison’s proposed the following constitutional amendments:

First. That there be prefixed to the Constitution a declaration, that all power is originally vested in, and consequently derived from, the people.

That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.

That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 1st, section 2, clause 3, these words be struck out, to wit: “The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative, and until such enumeration shall be made;” and in place thereof be inserted these words, to wit: “After the first actual enumeration, there shall be one Representative for every thirty thousand, until the number amounts to—, after which the proportion shall be so regulated by Congress, that the number shall never be less than—, nor more than—, but each State shall, after the first enumeration, have at least two Representatives; and prior thereto.”

Thirdly. That in article 1st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit: “But no law varying the compensation last ascertained shall operate before the next ensuing election of Representatives.”

Fourthly. That in article 1st, section 9, between clauses 3 and 4, be inserted these clauses, to wit: The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the Constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 1st, section 10, between clauses 1 and 2, be inserted this clause, to wit: No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That, in article 3d, section 2, be annexed to the end of clause 2d, these words, to wit: But no appeal to such court shall be allowed where the value in controversy shall not amount to — dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the clauses following, to wit: The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service, in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same State, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit: The powers delegated by this Constitution are appropriated to the departments to which they are respectively distributed: so that the Legislative Department shall never exercise the powers vested in the Executive or Judicial, nor the Executive exercise the powers vested in the Legislative or Judicial, nor the Judicial exercise the powers vested in the Legislative or Executive Departments.

The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.

[References:  See the Appendix, at the end of this article, for James Madison’s Speech in the House of Representatives, June 8, 1789, proposing a Bill of Rights, and also see Wikipedia: “United States Bill of Rights”].

The House passed a joint resolution containing 17 amendments based on Madison’s proposal. The Senate changed the joint resolution to consist of 12 amendments and rejected Madison’s suggestions for the Preamble. A joint House and Senate Conference Committee settled remaining disagreements in September. On October 2, 1789, President Washington sent copies of the 12 amendments adopted by Congress to the states. Again, the states would have to call up conventions – this time to debate and ratify the proposed amendments.

In the meantime, North Carolina finally ratified the Constitution, 194-77, with 20 Bill of Rights and 21 proposed amendments. She remained true to her principles – that she would not ratify a constitution without a Bill of Rights included.  Note that while North Carolina was second to last to ratify the Constitution, she was third to ratify the Bill of Rights, on December 22, 1789).

On December 15, Virginia was the eleventh state to adopt the amendments. Having been adopted by the requisite three-fourths of the several states (there being 14 States in the Union at the time, as Vermont had been admitted into the Union on March 4, 1791), the ratification of Articles Three through Twelve was completed and they became Amendments 1 through 10 of the Constitution – also known as our US Bill of Rights. President Washington informed Congress of this on January 18, 1792.

The original First and Second amendments fell short of the required 3/4 majority to make it into the Constitution, but interestingly, the original proposed second amendment (which addressed when Congress can change its pay) finally was adopted in 1992 to become our last amendment, the 27th amendment.

Note that the US Bill of Rights applies only to action by the federal government. It places limits only on its power. As most of you may know from your state constitutions, states have included similar guarantees of liberty of their own. Article I of the North Carolina State Constitution, for example, lists the NC Bill of Rights. The 14th Amendment has been mis-applied to incorporate all guarantees of rights and privileges on the states, and in fact, the 14th amendment, even though it was never constitutionally ratified, is the number one basis for all constitutional challenges.

It is a shame that the cartoon depiction of the Bill of Rights attached leaves off the 9th and 10th Amendments. The 9th Amendment states that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. And the 10th Amendment states that all powers not expressly delegated to the federal government by the Constitution nor prohibited by it to the states are reserved to the states or to the people. These amendments underscore the unique foundation of American liberty – that government is not the ultimate sovereign and individuals enjoy only those rights and privileges the government is generous enough to grant them. In America, rights are endowed on each individual by the Creator, inseparable from our very humanity, and government power derives from the natural and inherent right of each person to govern himself and to protect himself, his family, and his property. This is the concept of Individual Sovereignty referred to in the Declaration of Independence, the document that provides the foundational principles, the rights, and expectations for each State in this Union (despite what the federal government might say). It is the document that recognized each state as an independent sovereign for the world to take note; it is the document for which the Treaty of Paris of 1783 addressed to end the war for American Independence. The treaty included this provision: “Britain acknowledges the United States (New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia[15]) to be free, sovereign, and independent states…..

James Madison wrote: “In Europe, charters of liberty have been granted by power. America has set the example … of charters of power granted by liberty. This revolution in the practice of the world, may, with an honest praise, be pronounced the most triumphant epoch of its history, and the most consoling presage of its happiness.”

I urge everyone to take time today and read the Bill of Rights and understand what each guarantees and why. After all, they protect your most essential liberty rights.

 

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References:

Kevin R.C. Gutzman, James Madison and the Making of America; St. Martin’s Press (NY), 2012.

Gordon Lloyd, “The Bill of Rights,” Teaching American History. Referenced at:  http://teachingamericanhistory.org/bor/roots-chart/

The Six Stages of Ratification – Stage III: Winter in New England: Postpone and Compromise (Massachusetts – February 6, 1788 and New Hampshire (postpones) – February 24, 1788) –http://teachingamericanhistory.org/ratification/stagethree/

Report of the House Select Committee, July 28, 1789 –  http://teachingamericanhistory.org/library/document/report-of-the-house-select-committee/

House Debates Select Committee Report, August 13-24, 1789 –  http://teachingamericanhistory.org/library/document/house-debates-select-committee-report/

Ratification of the Constitution, State-by-State –  http://teachingamericanhistory.org/ratification/overview/

US Constitution, Virginia’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) –   https://www.usconstitution.net/rat_va.html

Day-to-Day Summary of the Virginia Ratifying Convention  –   http://teachingamericanhistory.org/ratification/virginiatimeline/   OR  http://teachingamericanhistory.org/ratification/virginia/

US Constitution, New York’s Ratification, from the Library of Congress (from its copy of Elliot’s Debates) – https://www.usconstitution.net/rat_ny.html

Day-to-Day Summary of the New York Ratifying Convention  –  http://teachingamericanhistory.org/ratification/newyorktimeline/     OR:  http://teachingamericanhistory.org/ratification/newyork/

The Debates in the Several State Ratifying Conventions (Elliott’s Debates) – http://teachingamericanhistory.org/ratification/elliot/   [On this site, you can click on links for the following state conventions and it will bring you to calendars so you can see what they did on a day-by-day basis: Massachusetts, Connecticut, New Hampshire, New York, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina]

James Madison Proposes a Bill of Rights to Congress, June 8, 1789) – http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php

United States Bill of Rights,” Wikipedia.  https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

Patrick Henry’s Speech at the Virginia Ratifying Convention, June 8, 1788 – http://www.let.rug.nl/usa/documents/1786-1800/the-anti-federalist-papers/speech-of-patrick-henry-(june-5-1788).php

Letter from Thomas Jefferson to James Madison, dated December 20, 1787, Founders Online –  https://founders.archives.gov/documents/Jefferson/01-12-02-0454

Chart: Approval of the Bill of Rights in Congress and the States — https://en.wikipedia.org/wiki/United_States_Bill_of_Rights

 

APPENDIX #1  (Letter from Thomas Jefferson to James Madison, dated December 20, 1787, on the topic of the new Constitution and the lack of a Bill of Rights)

“…….I have little to fill a letter. I will therefore make up the deficiency by adding a few words on the Constitution proposed by our Convention. I like much the general idea of framing a government which should go on of itself peaceably, without needing continual recurrence to the state legislatures. I like the organization of the government into Legislative, Judiciary and Executive. I like the power given the Legislature to levy taxes; and for that reason solely approve of the greater house being chosen by the people directly. For though I think a house chosen by them will be very ill-qualified to legislate for the Union, for foreign nations etc. yet this evil does not weigh against the good of preserving inviolate the fundamental principle that the people are not to be taxed but by representatives chosen immediately by themselves. I am captivated by the compromise of the opposite claims of the great and little states, of the latter to equal, and the former to proportional influence. I am much pleased too with the substitution of the method of voting by persons, instead of that of voting by states….  There are other good things of less moment. I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies, the eternal and unremitting force of the habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land and not by the law of Nations. To say, as Mr. Wilson does that a bill of rights was not necessary because all is reserved in the case of the general government which is not given, while in the particular ones all is given which is not reserved might do for the Audience to whom it was addressed, but is surely gratis dictum, opposed by strong inferences from the body of the instrument, as well as from the omission of the clause of our present confederation which had declared that in express terms. It was a hard conclusion to say because there has been no uniformity among the states as to the cases triable by jury, because some have been so incautious as to abandon this mode of trial, therefore the more prudent states shall be reduced to the same level of calamity. It would have been much more just and wise to have concluded the other way that as most of the states had judiciously preserved this palladium, those who had wandered should be brought back to it, and to have established general right instead of general wrong. Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference……”

[Reference:  https://founders.archives.gov/documents/Jefferson/01-12-02-0454 ]

 

APPENDIX #2  (James Madison’s Speech in Congress, June 8, 1789, proposing a Bill of Rights)

I am sorry to be accessary to the loss of a single moment of time by the house. If I had been indulged in my motion, and we had gone into a committee of the whole, I think we might have rose, and resumed the consideration of other business before this time; that is, so far as it depended on what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee be appointed to consider and report such amendments as are proper for Congress to propose to the legislatures of the several States, conformably to the 5th article of the constitution.

I will state my reasons why I think it proper to propose amendments; and state the amendments themselves, so far as I think they ought to be proposed. If I thought I could fulfil the duty which I owe to myself and my constituents, to let the subject pass over in silence, I most certainly should not trespass upon the indulgence of this house. But I cannot do this; and am therefore compelled to beg a patient hearing to what I have to lay before you. And I do most sincerely believe that if congress will devote but one day to this subjects, so far as to satisfy the public that we do not disregard their wishes, it will have a salutary influence on the public councils, and prepare the way for a favorable reception of our future measures.

It appears to me that this house is bound by every motive of prudence, not to let the first session pass over without proposing to the state legislatures some things to be incorporated into the constitution, as will render it as acceptable to the whole people of the United States, as it has been found acceptable to a majority of them. I wish, among other reasons why something should be done, that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism. It will be a desirable thing to extinguish from the bosom of every member of the community any apprehensions, that there are those among his countrymen who wish to deprive them of the liberty for which they valiantly fought and honorably bled. And if there are amendments desired, of such a nature as will not injure the constitution, and they can be ingrafted so as to give satisfaction to the doubting part of our fellow citizens; the friends of the federal government will evince that spirit of deference and concession for which they have hitherto been distinguished.

It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it; among whom are many respectable for their talents, their patriotism, and respectable for the jealousy they have for their liberty, which, though mistaken in its object, is laudable in its motive. There is a great body of the people falling under this description, who as present feel much inclined to join their support to the cause of federalism, if they were satisfied in this one point: We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution. The acquiescence which our fellow citizens shew under the government, calls upon us for a like return of moderation. But perhaps there is a stronger motive than this for our going into a consideration of the subject; it is to provide those securities for liberty which are required by a part of the community. I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible. I have no doubt, if we proceed to take those steps which would be prudent and requisite at this juncture, that in a short time we should see that disposition prevailing in those states that are not come in, that we have seen prevailing [in] those states which are.

But I will candidly acknowledge, that, over and above all these considerations, I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution; for while we feel all these inducements to go into a revisal of the constitution, we must feel for the constitution itself, and make that revisal a moderate one. I should be unwilling to see a door opened for a re-consideration of the whole structure of the government, for a re-consideration of the principles and the substance of the powers given; because I doubt, if such a door was opened, if we should be very likely to stop at that point which would be safe to the government itself: But I do wish to see a door opened to consider, so far as to incorporate those provisions for the security of rights, against which I believe no serious objection has been made by any class of our constituents, such as would be likely to meet with the concurrence of two-thirds of both houses, and the approbation of three-fourths of the state legislatures. I will not propose a single alteration which I do not wish to see take place, as intrinsically proper in itself, or proper because it is wished for by a respectable number of my fellow citizens; and therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.

There have been objections of various kinds made against the constitution: Some were levelled against its structure, because the president was without a council; because the senate, which is a legislative body, had judicial powers in trials on impeachments; and because the powers of that body were compounded in other respects, in a manner that did not correspond with a particular theory; because it grants more power than is supposed to be necessary for every good purpose; and controls the ordinary powers of the state governments. I know some respectable characters who opposed this government on these grounds; but I believe that the great mass of the people who opposed it, disliked it because it did not contain effectual provision against encroachments on particular rights, and those safeguards which they have been long accustomed to have interposed between them and the magistrate who exercised the sovereign power: nor ought we to consider them safe, while a great number of our fellow citizens think these securities necessary.

It has been a fortunate thing that the objection to the government has been made on the ground I stated; because it will be practicable on that ground to obviate the objection, so far as to satisfy the public mind that their liberties will be perpetual, and this without endangering any part of the constitution, which is considered as essential to the existence of the government by those who promoted its adoption.

The amendments which have occurred to me, proper to be recommended by congress to the state legislatures are these:

First. That there be prefixed to the constitution a declaration–That all power is originally vested in, and consequently derived from the people. That government is instituted, and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. That the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

Secondly. That in article 2st. section 2, clause 3, these words be struck out, to wit, “The number of representatives shall not exceed one for every thirty thousand, but each state shall have at least one representative, and until such enumeration shall be made.” And that in place thereof be inserted these words, to wit, “After the first actual enumeration, there shall be one representative for every thirty thousand, until the number amount to after which the proportion shall be so regulated by congress, that the number shall never be less than nor more than but each state shall after the first enumeration, have at least two representatives; and prior thereto.”

Thirdly. That in article 2st, section 6, clause 1, there be added to the end of the first sentence, these words, to wit, “But no law varying the compensation last ascertained shall operate before the next ensuing election of representatives.”

Fourthly. That in article 2st, section 9, between clauses 3 and 4, be inserted these clauses, to wit, The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.

The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.

The people shall not be restrained from peaceably assembling and consulting for their common good, nor from applying to the legislature by petitions, or remonstrances for redress of their grievances.

The right of the people to keep and bear arms shall not be infringed; a well-armed, and well-regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

No soldier shall in time of peace be quartered in any house without the consent of the owner; nor at any time, but in a manner warranted by law.

No person shall be subject, except in cases of impeachment, to more than one punishment, or one trial for the same office; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without a just compensation.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, to be informed of the cause and nature of the accusation, to be confronted with his accusers, and the witnesses against him; to have a compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Fifthly. That in article 2st, section 10, between clauses 1 and 2, be inserted this clause, to wit:

No state shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.

Sixthly. That article 3d, section 2, be annexed to the end of clause 2d, these words to wit: but no appeal to such court shall be allowed where the value in controversy shall not amount to___dollars: nor shall any fact triable by jury, according to the course of common law, be otherwise re-examinable than may consist with the principles of common law.

Seventhly. That in article 3d, section 2, the third clause be struck out, and in its place be inserted the classes following, to wit:

The trial of all crimes (except in cases of impeachments, and cases arising in the land or naval forces, or the militia when on actual service in time of war or public danger) shall be by an impartial jury of freeholders of the vicinage, with the requisite of unanimity for conviction, of the right of challenge, and other accustomed requisites; and in all crimes punishable with loss of life or member, presentment or indictment by a grand jury, shall be an essential preliminary, provided that in cases of crimes committed within any county which may be in possession of an enemy, or in which a general insurrection may prevail, the trial may by law be authorized in some other county of the same state, as near as may be to the seat of the offence.

In cases of crimes committed not within any county, the trial may by law be in such county as the laws shall have prescribed. In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate.

Eighthly. That immediately after article 6th, be inserted, as article 7th, the clauses following, to wit:

The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial; nor the executive exercise the powers vested in the legislative or judicial; nor the judicial exercise the powers vested in the legislative or executive departments.

The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively.

Ninthly. That article 7th, be numbered as article 8th.  The first of these amendments, relates to what may be called a Bill of Rights; I will own that I never considered this provision so essential to the federal constitution, as to make it improper to ratify it, until such an amendment was added; at the same time, I always conceived, that in a certain form and to a certain extent, such a provision was neither improper nor altogether useless. I am aware, that a great number of the most respectable friends to the government and champions for republican liberty, have thought such a provision, not only unnecessary, but even improper, nay, I believe some have gone so far as to think it even dangerous. Some policy has been made use of perhaps by gentlemen on both sides of the question: I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite. Although I know whenever the great rights, the trial by jury, freedom of the press, or liberty of conscience, came in question in that body, the invasion of them is resisted by able advocates, yet their Magna Charta does not contain any one provision for the security of those rights, respecting which, the people of America are most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the people, are unguarded in the British constitution.

But although the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find the although some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

It may be said, in some instances they do no more than state the perfect equality of mankind; this to be sure is an absolute truth, yet it is not absolutely necessary to be inserted at the head of a constitution.

In some instances they assert those rights which are exercised by the people in forming and establishing a plan of government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from the social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature. In other instances they lay down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other.

But whatever may be [the] form which the several states have adopted in making declarations in favor of particular rights, the great object in view is to limit and qualify the powers of government, by excepting out of the grant of power those cases in which the government ought not to act, or to act only in a particular mode. They point these exceptions sometimes against the abuse of the executive power, sometimes against the legislative, and, in some cases, against the community itself; or, in other words, against the majority in favor of the minority.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least control; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

It may be thought all paper barriers against the power of the community are too weak to be worthy of attention. I am sensible they are not so strong as to satisfy gentlemen of every description who have seen and examined thoroughly the texture of such a defense; yet, as they have a tendency to impress some degree of respect for them, to establish the public opinion in their favor, and rouse the attention of the whole community, it may be one mean to control the majority from those acts to which they might be otherwise inclined.

It has been said by way of objection to a bill of rights, by many respectable gentlemen out of doors, and I find opposition on the same principles likely to be made by gentlemen on this floor, that they are unnecessary articles of a republican government, upon the presumption that the people have those rights in their own hands, and that is the proper place for them to rest. It would be a sufficient answer to say that this objection lies against such provisions under the state governments as well as under the general government; and there are, I believe, but few gentlemen who are inclined to push their theory so far as to say that a declaration of rights in those cases is either ineffectual or improper.

It has been said that in the federal government they are unnecessary, because the powers are enumerated, and it follows that all that are not granted by the constitution are retained: that the constitution is a bill of powers, the great residuum being the rights of the people; and therefore a bill of rights cannot be so necessary as if the residuum was thrown into the hands of the government. I admit that these arguments are not entirely without foundation; but they are not conclusive to the extent which has been supposed. It is true the powers of the general government are circumscribed; they are directed to particular objects; but even if government keeps within those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent, in the same manner as the powers of the state governments under their constitutions may to an indefinite extent; because in the constitution of the United States there is a clause granting to Congress the power to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof; this enables them to fulfil every purpose for which the government was established. Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government.

It may be said, because it has been said, that a Bill of Rights is not necessary, because the establishment of this government has not repealed those declarations of rights which are added to the several state constitutions: that those rights of the people, which had been established by the most solemn act, could not be annihilated by a subsequent act of the people, who meant, and declared at the head of the instrument, that they ordained and established a new system, for the express purpose of securing to themselves and posterity the liberties they had gained by an arduous conflict.

I admit the force of this observation, but I do not look upon it to be conclusive. In the first place, it is too uncertain ground to leave this provision upon, if a provision is at all necessary to secure rights so important as many of those I have mentioned are conceived to be, by the public in general, as well as those in particular who opposed the adoption of this constitution. Beside some states have no bills of rights, there are others provided with very defective ones, and there are others whose bills of rights are not only defective, but absolutely improper; instead of securing some in the full extent which republican principles would require, they limit them too much to agree with the common ideas of liberty.

It has been objected also against a Bill of Rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution.

It has been said, that it is necessary to load the constitution with this provision, because it was not found effectual in the constitution of the particular states. It is true, there are a few particular states in which some of the most valuable articles have not, at one time or other, been violated; but does it not follow but they may have, to a certain degree, a salutary effect against the abuse of power. If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Beside this security, there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. I conclude from this view of the subject, that it will be proper in itself, and highly politic, for the tranquility of the public mind, and the stability of the government, that we should offer something, in the form I have proposed, to be incorporated in the system of government, as a Declaration of the Rights of the people.

In the next place I wish to see that part of the constitution revised which declares, that the number of representatives shall not exceed the proportion of one for every thirty thousand persons, and allows one representative to every state which rates below that proportion. If we attend to the discussion of this subject, which has taken place in the state conventions, and even in the opinion of the friends to the constitution, an alteration here is proper. It is the sense of the people of America, that the number of representatives ought to be increased, but particularly that it should not be left in the discretion of the government to diminish them, below that proportion which certainly is in the power of the legislature as the constitution now stands; and they may, as the population of the country increases, increase the house of representatives to a very unwieldy degree. I confess I always thought this part of the constitution defective, though not dangerous; and that it ought to be particularly attended to whenever congress should go into the consideration of amendments.

There are several lesser cases enumerated in my proposition, in which I wish also to see some alteration take place. That article which leaves it in the power of the legislature to ascertain its own emolument is one to which I allude. I do not believe this is a power which, in the ordinary course of government, is likely to be abused, perhaps of all the powers granted, it is least likely to abuse; but there is a seeming impropriety in leaving any set of men without control to put their hand into the public coffers, to take out money to put in their pockets; there is a seeming indecorum in such power, which leads me to propose a change. We have a guide to this alteration in several of the amendments which the different conventions have proposed. I have gone therefore so far as to fix it, that no law, varying the compensation, shall operate until there is a change in the legislature; in which case it cannot be for the particular benefit of those who are concerned in determining the value of the service.

I wish also, in revising the constitution, we may throw into that section, which interdicts the abuse of certain powers in the state legislatures, some other provisions of equal if not greater importance than those already made. The words, “No state shall pass any bill of attainder, ex post facto law, etc.” were wise and proper restrictions in the constitution. I think there is more danger of those powers being abused by the state governments than by the government of the United States. The same may be said of other powers which they possess, if not controlled by the general principle, that laws are unconstitutional which infringe the rights of the community. I should therefore wish to extend this interdiction, and add, as I have stated in the 5th resolution, that no state shall violate the equal right of conscience, freedom of the press, or trial by jury in criminal cases; because it is proper that every government should be disarmed of powers which trench upon those particular rights. I know in some of the state constitutions the power of the government is controlled by such a declaration, but others are not. I cannot see any reason against obtaining even a double security on those points; and nothing can give a more sincere proof of the attachment of those who opposed this constitution to these great and important rights, than to see them join in obtaining the security I have now proposed; because it must be admitted, on all hands, that the state governments are as liable to attack these invaluable privileges as the general government is, and therefore ought to be as cautiously guarded against.

I think it will be proper, with respect to the judiciary powers, to satisfy the public mind on those points which I have mentioned. Great inconvenience has been apprehended to suitors from the distance they would be dragged to obtain justice in the supreme court of the United States, upon an appeal on an action for a small debt. To remedy this, declare, that no appeal shall be made unless the matter in controvers amounts to a particular sum:

This, with the regulations respecting jury trials in criminal cases, and suits at common law, it is to be hoped will quiet and reconcile the minds of the people to that part of the constitution.

I find, from looking into the amendments proposed by the state conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated, should be reserved to the several states. Perhaps words which may define this more precisely, than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary; but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

These are the points on which I wish to see a revision of the Constitution take place. How far they will accord with the sense of this body, I cannot take upon me absolutely to determine; but I believe every gentlemen will readily admit that nothing is in contemplation, so far as I have mentioned, that can endanger the beauty of the government in any one important feature, even in the eyes of its most sanguine admirers. I have proposed nothing that does not appear to me as proper in itself, or eligible as patronized by a respectable number of our fellow citizens; and if we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men to make such alterations as shall produce that effect.

Having done what I conceived was my duty, in bringing before this house the subject of amendments, and also stated such as wish for and approve, and offered the reasons which occurred to me in their support; I shall content myself for the present with moving, that a committee be appointed to consider of and report such amendments as ought to be proposed by congress to the legislatures of the states, to become, if ratified by three-fourths thereof, part of the Constitution of the United States. By agreeing to this motion, the subject may be going on in the committee, while other important business is proceeding to a conclusion in the house. I should advocate greater dispatch in the business of amendments, if I was not convinced of the absolute necessity there is of pursuing the organization of the government; because I think we should obtain the confidence of our fellow citizens, in proportion as we fortify the rights of the people against the encroachments of the government.

[Reference:  http://www.let.rug.nl/usa/documents/1786-1800/madison-speech-proposing-the-bill-of-rights-june-8-1789.php ]

 

APPENDIX #3  (STATE RATIFICATIONS):

I.  NEW YORK RATIFICATION (on July 26, 1788), with 25 Bill of Rights:

WE the Delegates of the People of the State of New York, duly elected and Met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year One thousand Seven hundred and Eighty seven, by the Convention then assembled at Philadelphia in the Common—wealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of the United States, Do declare and make known.

— That all Power is originally vested in and consequently derived from the People, and that Government is instituted by them for their common Interest Protection and Security.

—  That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

—  That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of Virginia and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

—  That the People have an equal, natural and unalienable right, freely and peaceably to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favored or established by Law in preference of others.

—  That the People have a right to keep and bear Arms; that a well-regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defense of a free State;

—  That the Militia should not be subject to Martial Law except in time of War, Rebellion or Insurrection.

—  That standing Armies in time of Peace are dangerous to Liberty, and ought not to be kept up, except in Cases of necessity; and that at all times, the Military should be under strict Subordination to the civil Power.

—  That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of War only by the Civil Magistrate in such manner as the Laws may direct.

—  That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property but by due process of Law.

—  That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in case of impeachment, be punished more than once for the same Offence.

—  That every Person restrained of his Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.

—  That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.

—  That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment or Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of such Jury. But in cases of Crimes not committed within any County of any of the United States, and in Cases of Crimes committed within any County in which a general Insurrection may prevail, or which may be in the possession of a foreign Enemy, the enquiry and trial may be in such County as the Congress shall by Law direct; which County in the two Cases last mentioned should be as near as conveniently may be to that County in which the Crime may have been committed. And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witnesses against him, to have the means of producing his Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evidence against himself.

—  That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.

—  That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

—  That the People have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances.

—  That the Freedom of the Press ought not to be violated or restrained.

—  That there should be once in four years an Election of the President and Vice President, so that no Officer who may be appointed by the Congress to act as President in case of the removal, death, resignation or inability of the President and Vice President can in any case continue to act beyond the termination of the period for which the last President and Vice President were elected.

—  That nothing contained in the said Constitution is to be construed to prevent the Legislature of any State from passing Laws at its discretion from time to time to divide such State into convenient Districts, and to apportion its Representatives to and amongst such Districts.

—  That the Prohibition contained in the said Constitution against ex post facto Laws, extends only to Laws concerning Crimes.

—  That all Appeals in Causes determineable according to the course of the common Law, ought to be by Writ of Error and not otherwise.

—  That the Judicial Power of the United States in cases in which a State may be a party, does not extend to criminal Prosecutions, or to authorize any Suit by any Person against a State.

—  That the Judicial Power of the United States as to Controversies between Citizens of the same State claiming Lands under Grants of different States is not to be construed to extend to any other Controversies between them except those which relate to such Lands, so claimed under Grants of different States.

—  That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by the Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;

—  And That no Treaty is to be construed so to operate as to alter the Constitution of any State.

Under these impressions and declaring that the rights aforesaid cannot be abridged or violated, and that the Explanations aforesaid are consistent with the said Constitution, And in confidence that the Amendments which shall have been proposed to the said Constitution will receive an early and mature Consideration: We the said Delegates, in the Name and in the behalf of the People of the State of New York Do by these presents Assent to and Ratify the said Constitution. In full Confidence nevertheless that until a Convention shall be called and convened for proposing Amendments to the said Constitution, the Militia of this State will not be continued in Service out of this State for a longer term than six weeks without the Consent of the Legislature thereof; — that the Congress will not make or alter any Regulation in this State respecting the times places and manner of holding Elections for Senators or Representatives unless the Legislature of this State shall neglect or refuse to make Laws or regulations for the purpose, or from any circumstance be incapable of making the same, and that in those cases such power will only be exercised until the Legislature of this State shall make provision in the Premises; — that no Excise will be imposed on any Article of the Growth production or Manufacture of the United States, or any of them within this State, Ardent Spirits excepted; And that the Congress will not lay direct Taxes within this State, but when the Monies arising from the Impost and Excise shall be insufficient for the public Exigencies, nor then, until Congress shall first have made a Requisition upon this State to assess levy and pay the Amount of such Requisition made agreeably to the Census fixed in the said Constitution in such way and manner as the Legislature of this State shall judge best, but that in such case, if the State shall neglect or refuse to pay its proportion pursuant to such Requisition, then the Congress may assess and levy this States proportion together with Interest at the Rate of six per Centum per Annum from the time at which the same was required to be paid.

[Reference:  http://teachingamericanhistory.org/library/document/new-york-ratifies-30-27-with-31-proposed-amendments/ ].

 

II.  VIRGINIA RATIFICATION (June 25, 1788), with 20 Bill of Rights and 20 proposed amendments:

Ratification of the Constitution by the State of Virginia, June 26, 1788. Virginia ratified the Constitution in two steps. The first was the declaration of ratification. The second was a recommendation that a bill of rights be added to the Constitution, and that a list of amendments also be added in accordance with Article 5.  [Reference: https://www.usconstitution.net/rat_va.html ]

Step 1:

WE the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination, can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes: and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.  [Note:  This provision, or condition is known as a “RESUMPTION CLAUSE.”  This condition to ratification, as the states of New York and Rhode Island also exercised this condition, is critical to understanding the reserved right of a state to secede from the Union].

With these impressions, with a solemn appeal to the searcher of hearts for the purity of our intentions, and under the conviction, that, whatsoever imperfections may exist in the Constitution, ought rather to be examined in the mode prescribed therein, than to bring the Union into danger by a delay, with a hope of obtaining amendments previous to the ratification.

Step 2:  Virginia, do by these presents assent to, and ratify the Constitution recommended on the seventeenth day of September, one thousand seven hundred and eighty seven (September 17, 1787), by the Federal Convention for the Government of the United States; hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said People, according to an authentic copy hereto annexed, in the words following:

Wythe reported, from the Committee appointed, such amendments to the proposed Constitution of Government for the United States, as were by them deemed necessary to be recommended to the consideration of the Congress which shall first assemble under the said Constitution, to be acted upon according to the mode prescribed in the fifth article thereof; and he read the same in his place, and afterwards delivered them in at the clerk’s table, where the same were again read, and are as follows:

That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people in some such manner as the following:

1st. That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That the Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression, is absurd, slavish, and destructive to the good and happiness of mankind.

4th. That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections, in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th. That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property; all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the exercise of religion according to the dictates of conscience, and that no particular sect or society ought to be favored or established by law in preference to others.

[References:  https://www.usconstitution.net/rat_va.html  and http://teachingamericanhistory.org/library/document/virginia-ratifies-89-79-with-20-proposed-amendments/ ]

 

III.  MASSACUSETTS RATIFICATION (“Conditional Ratification,” February 6, 1788), with 9 proposed amendments:

The Convention have impartially discussed, and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the twenty fifth day of October last past, and acknowledging with grateful hearts, the goodness of the Supreme Ruler of the Universe in affording the People of the United States in the course of his providence an opportunity deliberately and peaceably without fraud or surprise of entering into an explicit and solemn Compact with each other by assenting to and ratifying a New Constitution in order to form a more perfect Union, establish Justice, insure Domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of Liberty to themselves and their posterity; Do in the name and in behalf of the People of the Commonwealth of Massachusetts assent to and ratify the said Constitution for the United States of America.

And as it is the opinion of this Convention that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth and more effectually guard against an undue administration of the Federal Government, The Convention do therefore recommend that the following alterations and provisions be introduced into the said Constitution.

First, That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised.

Secondly, That there shall be one representative to every thirty thousand persons according to the Census mentioned in the Constitution until the whole number of the Representatives amounts to Two hundred.

Thirdly, That Congress do not exercise the powers vested in them by the fourth Section of the first article, but in cases when a State shall neglect or refuse to make the regulations therein mentioned or shall make regulations subversive of the rights of the People to a free and equal representation in Congress agreeably to the Constitution.

Fourthly, That Congress do not lay direct Taxes but when the Monies arising from the Impost and Excise are insufficient for the public exigencies nor then until Congress shall have first made a requisition upon the States to assess levy and pay their respective proportions of such Requisition agreeably to the Census fixed in the said Constitution; in such way and manner as the Legislature of the States shall think best, and in such case if any State shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such State’s proportion together with interest thereon at the rate of Six per cent per annum from the time of payment prescribed in such requisition.

Fifthly, That Congress erect no Company of Merchants with exclusive advantages of commerce.

Sixthly, That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government and regulation of the Land and Naval forces.

Seventhly, The Supreme Judicial Federal Court shall have no jurisdiction of Causes between Citizens of different States unless the matter in dispute whether it concerns the realty or personally be of the value of three thousand dollars at the least. nor shall the Federal Judicial Powers extend to any actions between Citizens of different States where the matter in dispute whether it concerns the Realty or personally is not of the value of Fifteen hundred dollars at the least.

Eighthly, In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it.

Ninthly, Congress shall at no time consent that any person holding an office of trust or profit under the United States shall accept of a title of Nobility or any other title or office from any King, prince or Foreign State.

And the Convention do in the name and in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress at all times until the alterations and provisions aforesaid have been considered agreeably to the Fifth article of the said Constitution to exert all their influence and use all reasonable and legal methods to obtain a ratification of the said alterations and provisions in such manner as is provided in the said Article.

[Reference:  http://teachingamericanhistory.org/library/document/massachusetts-ratifies-187-168-with-9-proposed-amendments/ ]

 

 IV.  SOUTH CAROLINA RATIFICATION (May 23, 1788), with 5 Declarations and Resolves

And Whereas it is essential to the preservation of the rights reserved to the several states, and the freedom of the people under the operations of a General government that the right of prescribing the manner time and places of holding the Elections to the Federal Legislature, should be forever inseparably annexed to the sovereignty of the several states. This convention doth declare that the same ought to remain to all posterity a perpetual and fundamental right in the local, exclusive of the interference of the General Government except in cases where the Legislatures of the States, shall refuse or neglect to perform and fulfil the same according to the tenor of the said Constitution.

This Convention doth also declare that no Section or paragraph of the said Constitution warrants a Construction that the states do not retain every power not expressly relinquished by them and vested in the General Government of the Union.

Resolved that the general Government of the United States ought never to impose direct taxes, but where the monies arising from the duties, imposts and excise are insufficient for the public exigencies nor then until Congress shall have made a requisition upon the states to Assess levy and pay their respective proportions of such requisitions And in case any state shall neglect or refuse to pay its proportion pursuant to such requisition then Congress may assess and levy such state’s proportion together with Interest thereon at the rate of six per centum per annum from the time of payment prescribed by such requisition

Resolved that the third section of the Sixth Article ought to be amended by inserting the word “other” between the words “no” and “religious,”

Resolved that it be a standing instruction to all such delegates as may hereafter be elected to represent this State in the general Government to exert their utmost abilities and influence to effect an Alteration of the Constitution conformably to the foregoing Resolutions.

Done in Convention the twenty third day of May in the year of our Lord One thousand Seven hundred and eighty eight and of the Independence of the United States of America the twelfth

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-southcarolina/ ]

 

V.  NEW HAMPSHIRE RATIFICATION (June 21, 1788), with 12 proposed amendments:

In Convention of the Delegates of the People of the State of New—Hampshire June the Twenty first 1788.

The Convention having Impartially discussed and fully considered the Constitution for the United States of America, reported to Congress by the Convention of Delegates from the United States of America & submitted to us by a Resolution of the General Court of said State passed the fourteenth Day of December last past and acknowleging with grateful Hearts the goodness of the Supreme ruler of the Universe in affording the People of the United States in the Course of his Providence an Opportunity, deliberately & peaceably without fraud or surprise of entering into an Explicit and solemn compact with each other by assenting to & ratifying a new Constitution in Order to form a more perfect Union, establish Justice, Insure domestic Tranquility, provide for the common defence, promote the general welfare and secure the Blessings of Liberty to themselves & their Posterity—Do In the Name & behalf of the People of the State of New—Hampshire assent to & ratify the said Constitution for the United States of America. And as it is the Opinion of this Convention that certain amendments & alterations in the said Constitution would remove the fears & quiet the apprehensions of many of the good People of this State & more Effectually guard against an undue Administration of the Federal Government— The Convention do therefore recommend that the following alterations & provisions be introduced into the said Constitution.—

First, That it be Explicitly declared that all Powers not expressly & particularly Delegated by the aforesaid Constitution are reserved to the several States to be, by them Exercised.—

Secondly, That there shall be one Representative to every Thirty thousand Persons according to the Census mentioned in the Constitution, until the whole number of Representatives amount to Two hundred.—

Thirdly, That Congress do not Exercise the Powers vested in them, by the fourth Section of the first Article, but in Cases when a State shall neglect or refuse to make the Regulations therein mentioned, or shall make regulations Subversive of the rights of the People to a free and equal Representation in Congress. Nor shall Congress in any Case make regulations contrary to a free and equal Representation.—

Fourthly, That Congress do not lay direct Taxes but when the money arising from Impost, Excise and their other resources are insufficient for the Public Exigencies; nor then, untill Congress shall have first made a Requisition upon the States, to Assess, Levy, & pay their respective proportions, of such requisitions agreeably to the Census fixed in the said Constitution in such way & manner as the Legislature of the State shall think best and in such Case if any State shall neglect, then Congress may Assess & Levy such States proportion together with the Interest thereon at the rate of six per Cent per Annum from the Time of payment prescribed in such requisition—

Fifthly. That Congress shall erect no Company of Merchants with exclusive advantages of Commerce.—

Sixthly, That no Person shall be Tried for any Crime by which he may incur an Infamous Punishment, or loss of Life, until he first be indicted by a Grand Jury except in such Cases as may arise in the Government and regulation of the Land & Naval Forces.—

Seventhly, All Common Law Cases between Citizens of different States shall be commenced in the Common Law—Courts of the respective States & no appeal shall be allowed to the Federal Court in such Cases unless the sum or value of the thing in Controversy amount to three Thousand Dollars.—

Eighthly, In Civil Actions between Citizens of different States every Issue of Fact arising in Actions at Common Law shall be Tried by Jury, if the Parties, or either of them request it—

Ninthly, Congress shall at no Time consent that any Person holding an Office of Trust or profit under the United States shall accept any Title of Nobility or any other Title or Office from any King, Prince, or Foreign State.—

Tenth, That no standing Army shall be Kept up in time of Peace unless with the consent of three fourths of the Members of each branch of Congress, nor shall Soldiers in Time of Peace be quartered upon private Houses without the consent—of the Owners.—

Eleventh, Congress shall make no Laws touching Religion, or to infringe the rights of Conscience—

Twelfth, Congress shall never disarm any Citizen unless such as are or have been in Actual Rebellion.—

And the Convention Do. In the Name & behalf of the People of this State enjoin it upon their Representatives in Congress, at all Times untill the alterations and provisions aforesaid have been Considered agreeably to the fifth Article of the said Constitution to exert all their Influence & use all reasonable & Legal methods to obtain a ratification of the said alterations & Provisions, in such manner as is provided in the said article—And That the United States in Congress Assembled may have due notice of the assent & Ratification of the said Constitution by this Convention.—It is resolved that the Assent & Ratification aforesaid be engrossed on Parchment, together with the Recommendation & injunction aforesaid & with this Resolution—And that John Sullivan Esquire President of Convention, & John Langdon Esquire President of the State Transmit the same Countersigned by the Secretary of Convention & the Secretary of the State under their hands & Seals to the United States in Congress Assembled.

[Reference:  http://teachingamericanhistory.org/library/document/new-hampshire-ratifies-57-47-with-12-proposed-amendments/ ]

 

VI.  NORTH CAROLINA RATIFICATION (November 21, 1789), with 20 Bill of Rights:

Resolved, That a Declaration of Rights, asserting and securing from encroachment the great Principles of civil and religious Liberty, and the unalienable Rights of the People, together with Amendments to the most ambiguous and exceptional Parts of the said Constitution of Government, ought to be laid before Congress, and the Convention of the States that shall or may be called for the Purpose of Amending the said Constitution, for their consideration, previous to the Ratification of the Constitution aforesaid, on the part of the State of North Carolina.

Declaration of Rights:

1st. That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

2d. That all power is naturally vested in, and consequently derived from the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them.

3d. That Government ought to be instituted for the common benefit, protection and security of the people; and that the doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive to the good and happiness of mankind.

4th That no man or set of men are entitled to exclusive or separate public emoluments or privileges from the community, but in consideration of public services; which not being descendible, neither ought the offices of magistrate, legislator or judge, or any other public office to be hereditary.

5th. That the legislative, executive and judiciary powers of government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

6th. That elections of Representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community, ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives, so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th. That all power of suspending laws, or the execution of laws by any authority without the consent of the representatives, of the people in the Legislature, is injurious to their rights, and ought not to be exercised.

8th. That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty, or property but by the law of the land.

10th. That every freeman restrained of his liberty is entitled to a remedy to inquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

11th. That in controversies respecting property, and in suits between man and man, the ancient trial by jury is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable.

12th. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments, or regulations contravening these rights, are oppressive and unjust.

13th. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted

14th. That every freeman has a right to be secure from all unreasonable searches, and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not to be granted.

15th. That the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

16th. That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of Liberty, and ought not to be violated.

17th. That the people have a right to keep and bear arms; that a well-regulated militia composed of the body of the people, trained to arms, is the proper, natural and safe defense of a free state. That standing armies in time of peace are dangerous to Liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit; and that in all cases, the military should be under strict subordination to, and governed by the civil power.

18th. That no soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the Laws direct

19th. That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

20th. That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others.

Amendments to the Constitution:  (21 amendments were proposed, but I only included the first here):

  1. THAT each state in the union shall, respectively, retain every power, jurisdiction and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-northcarolina/ ]

 

VII.  RHODE ISLAND RATIFICATION (November 21, 1789), with 18 Bill of Rights:

We the Delegates of the People of the State of Rhode-Island, and Providence Plantations, duly elected and met in Convention, having maturely considered the Constitution for the United States of America, agreed to on the seventeenth day of September, in the year one thousand seven hundred and eighty seven, by the Convention then assembled at Philadelphia, in the Commonwealth of Pennsylvania (a Copy whereof precedes these presents) and having also seriously and deliberately considered the present situation of this State, do declare and make known

1st That there are certain natural rights, of which men when they form a social compact, cannot deprive or divest their posterity, among which are the enjoyment of Life and Liberty, with the means of acquiring, possessing and protecting Property, and pursuing and obtaining happiness and safety.

2d That all power is naturally vested in, and consequently derived from the People; that magistrates therefore are their trustees and agents, and at all times amenable to them.

3d That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness [Note: This is a “RESUMPTION CLAUSE.”  New York and Virginia also included such a clause/condition in their ratifications], :-That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.

4th That religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, and not by force or violence, and therefore all men, have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience, and that no particular religious sect or society ought to be favored, or established by law in preference to others.

5th That the legislative, executive and judiciary powers of government, should be separate and distinct, and that the members of the two first may be restrained from oppression, by feeling and participating the public burthens, they should at fixed periods be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections, in which all, or any part of the former members, to be eligible or ineligible, as the rules of the constitution of government and the laws shall direct.

6th That elections of representatives in legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with, and attachment to the community ought to have the right of suffrage, and no aid, charge tax or fee can be set, rated or levied upon the people, without their own consent or that of their representatives so elected, nor can they be bound by any law, to which they have not in like manner assented for the public good.

7th That all power of suspending laws or the execution of laws, by any authority without the consent of the representatives of the people in the legislature, is injurious to their rights, and ought not to be exercised.

8th That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

9th That no freeman ought to be taken, imprisoned or disseised of his freehold, liberties, privileges, or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the trial by jury, or by the law of the land.

10th That every freeman restrained of his liberty, is intitled to a remedy, to enquire into the lawfulness thereof, and to remove the same if unlawful, and that such remedy ought not to be denied or delayed.

11th That in controversies respecting property, and in suits between man and man the antient trial by jury, as hath been exercised by us and our ancestors, from the time whereof the memory of man is not to the contrary, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolate.

12th That every freeman ought to obtain right and justice, freely and without sale, completely and without denial, promptly and without delay, and that a establishments or regulations contravening these rights, are oppressive and unjust.

13th That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.

14th That every person has a right to be secure from all unreasonable searches and seizures of his person, his papers or his property, and therefore that all warrants to search suspected places or seize any person, his papers or his property, without information upon oath, or affirmation, of sufficient cause, are grievous and oppressive, and that all general warrants (or such in which the place or person suspected, are not particularly designated,) are dangerous, and ought not to be granted.

15th That the people have a right peaceably to assemble together, to consult for their common good, or to instruct their representatives; and that every person has a right to petition or apply to the legislature for redress of grievances.

16th That the people have a right to freedom of speech and of writing, and publishing their sentiments, that freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

17th That the people have a right to keep and bear arms, that a well-regulated militia, including the body of the people capable of bearing arms, is the proper, natural and safe defense of a free state; that the militia shall not be subject to martial law except in time of war, rebellion or insurrection; that standing armies in time of peace, axe dangerous to liberty, and ought not to be kept up, except in cases of necessity; and that at all times the military should be under strict subordination to the civil power; that in time of peace no soldier ought to be quartered in any house, without the consent of the owner, and in time of war, only by the civil magistrate, in such manner as the law directs.

18th That any person religiously scrupulous of bearing arms, ought to be exempted, upon payment of an equivalent, to employ another to bear arms in his stead.

Under these impressions, and declaring, that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid, are consistent with the said constitution, and in confidence that the amendments hereafter mentioned, will receive early and mature consideration, and conformably to the fifth article of said constitution, speedily become a part thereof; We the said delegates, in the name, and in the behalf of the People, of the State of Rhode-Island and Providence-Plantations, do by these Presents, assent to, and ratify the said Constitution. In full confidence nevertheless, that until the amendments hereafter proposed and undermentioned shall be agreed to and ratified pursuant to the aforesaid fifth article, the militia of this State will not be continued in service out of this State for a longer term than six weeks, without the consent of the legislature thereof; That the Congress will not make or alter any regulation in this State, respecting the times, places and manner of holding elections for senators or representatives, unless the legislature of this state shall neglect, or refuse to make laws or regulations for the purpose, or from any circumstance be incapable of making the same; and that n those cases, such power will only be exercised, until the legislature of this State shall make provision in the Premises, that the Congress will not lay direct taxes within this State, but when the monies arising from the Impost, Tonnage and Excise shall be insufficient for the public exigencies, nor until the Congress shall be have first made a requisition upon this State to assess, levy and pay the amount of such requisition, made agreeable to the census fixed in the said constitution, in such way and manner, as the legislature of this State shall judge best, and that the Congress will not lay any capitation or poll tax.

[Reference:  http://teachingamericanhistory.org/ratification/tansill/ratification-rhodeisland/ ]

SECESSION: Both a RIGHT and a REMEDY

SECESSION - constitution ripped in half

by Diane Rufino, September 23, 2018

Gene Kizer Jr. is a brilliant historian. He has written an excellent account of the causes of the War of Northern Aggression (aka, the War to Prevent Southern Independence; aka, the War Between the States; aka, the Civil War), in his book, Slavery Was Not the Cause of the War Between the States, and he has written some excellent articles as well, including on the right of secession. In his book and in his articles, he makes the case (most effectively) that secession was a reserved right of the states and that it was, in fact, exercised legitimately.

At the heart of the “Civil War” (which is, by the way, a most incorrect term for the conflict) was the right of the southern states to secede from the Union. That is, the lens through which we should look at, and assess, the war is whether Abraham Lincoln and his administration pursued a legal war by asserting that the eleven southern states that seceded from the Union had no constitutional right to do so.

The answer is that the southern states absolutely had the right to dissolve their union with the northern and more western states and their political bond to the federal government. Every state had and continues to have that fundamental right. Acknowledging this and therefore acknowledging that Lincoln incorrectly assessed the situation, he unconstitutionally assumed powers that were not granted to him, nor to the federal government in general.

Secession is a viable option to each state under three essential theories, and perhaps even others:

(1)  Each state has an essential right to determine its own form of government, under the natural right of self-determination. This natural right is articulated clearly in the second paragraph of the Declaration of Independence (“whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”), and in fact, forms the basis for the decision of the thirteen American states to secede from Great Britain. The first paragraph of the Declaration makes this point quite clear:

       When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The Constitution does not prohibit nor limit the natural right of secession, even in Article I, Section 9 which is the provision that puts limits on the sovereign power of the states, but rather includes the very powerful and declaratory Tenth Amendment which states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, because the Constitution did not expressly prohibit the right of secession, that right is reserved (continues to be reserved) to the states. And to make it absolutely clear that the right of secession is a state right, the states demanded that the Tenth Amendment be added to the Constitution as a restatement of that fact.

So, the states have the RIGHT to secede.

(2)  Secession is also a REMEDY, reserved to the states by the very nature of the Constitution. The Constitution is a social compact, which essentially is a contract, or an agreement, among the members of a society to cooperate for social benefits, such as mutual protection and to regulate relations among members. For example, a typical social compact calls for the sacrificing of some individual freedom for state protection and other public services. Social Compact was a theory articulated in the 16th, 17th, and 18th centuries by philosophers such as John Locke, Thomas Hobbes, and Jean-Jacques Rousseau, as a means of explaining the origin of government and how an organized society is thus brought into being.

As we all know, every contract and every agreement can be broken. There may be consequences, usually monetary, but no contract is absolutely unbreakable. A contract or agreement can be broken by a breach of obligations (for example, a person doesn’t make his obligatory mortgage payments; the lending bank can then foreclose under a breach of contract) which is an affirmative breach, it can be broken because the purpose for the contract has been eliminated (for example, an entertainer is contracted to perform once monthly at a Las Vegas casino but the casino is destroyed in a fire), or it can be broken simply because a party wants out. Contract remedies are essentially designed to put the non-breaching party in a position had the breach not occurred  (for example, a contractor quits a job in the middle of building an extension on a house; the contractor must pay to have the job finished, by another contractor) and they usually involve monetary damages. Sometimes, however, money cannot make the non-breaching party “whole” (put them back into a position had the breach not occurred) and a court will order “specific performance,” which means that the breaching party will be compelled to perform some service by the court.

When the states were debating the Constitution in their Ratifying Conventions, three states (Virginia, New York, and Rhode Island) included “Resumption Clauses” as specific conditions upon their ratification – clauses asserting the right to secede from the Union at a future time.

Virginia’s Ratification document (June 26, 1788) included this Resumption Clause: “The People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.”

New York’s Ratification document (July 26, 1788) included this Resumption Clause: “That the Powers of Government may be resumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same.”

Rhode Island’s Ratification document (May 29, 1790) included this Resumption Clause: “That the powers of government may be resumed by the people, whensoever it shall become necessary to their happiness: That the rights of the States respectively to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same.”

Essentially, these clauses reserved the right of the state to leave the Union and resume all their sovereign powers and rights. With these clauses, the states simply put into writing a right they thought naturally belonged to their respective states. In fact, the right of secession was understood and agreed to by the other states, including George Washington who presided over the Constitutional Convention and served as a delegate from Virginia.

These clauses, because they were included in the ratification, and because they were accepted when the states formed into the Union, became applicable to every state that joined the Union. The fact that the states expressly reserved the right to secede (for no specific reason other than it may be “necessary to their happiness…”) shatters the notion and the argument by Abraham Lincoln in 1860 that the Union was intended to be perpetual and no state could secede.

Reserving the right to secede is an express reservation of the part of each state to un-make its agreement to join the Union. It is an express right to terminate its association with the compact (the Constitution), and thereby no longer be a party to the Union. Put simply, it is an express right of termination.

In contract law, the express right of termination is referred to as a Right of Rescission. Since it is a right to un-do the contract (to get out of the contract), it is a contract remedy.

Thus, the states have reserved secession as a REMEDY. (As a remedy to leave the Union, or secede from the Union) at some point when they deem it necessary for their happiness.

Rescission is defined as the unmaking of a contract between parties or the unwinding of a transaction. As mentioned above, it applies where a party to a contract exercises a Right of Termination that he or she had expressly included, or reserved, in that contract. In contract law, it is sometimes said that the party has included (or exercised) a right to rescind the contract. It is exercised in order to bring the party, as far as possible, back to the position in which it was before entering into the particular contract (the status quo ante). If the contract is between two parties, then both parties go back to the position they enjoyed before entering into the contract. If the contract – or compact – is between many parties, then technically only the party exercising the right of rescission is relieved from the compact; the others are free to retain the force of contract/compact.

If there is any doubt as to the intent of Virginia, for example, to take its Resumption Clause seriously, look at the language it used in its Ordinance of Secession, which it adopted in Convention on April 17, 1861 to secede from the Union:

AN ORDINANCE to Repeal the ratification of the Constitution of the United States of America, by the State of Virginia, and to resume all the rights and powers granted under said Constitution:

The people of Virginia, in their ratification of the Constitution of the United States of America, adopted by them in Convention, on the 25th day of June, in the year of our Lord one thousand seven hundred and eight-eight, having declared that the powers granted them under the said Constitution were derived from the people of the United States, and might be resumed whensoever the same should be perverted to their injury and oppression, and the Federal Government having perverted said powers, not only to the injury of the people of Virginia, but to the oppression of the Southern slaveholding States.

Now, therefore, we, the people of Virginia, do declare and ordain that the Ordinance adopted by the people of this State in Convention, on the twenty-fifth day of June, in the year of our Lord one thousand seven hundred and seventy-eight, whereby the Constitution of the United States of America was ratified, and all acts of the General Assembly of this State, ratifying or adopting amendments to said Constitution, are hereby repealed and abrogated; that the union between the State of Virginia and the other States under the Constitution aforesaid, is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong to a free and independent State. And they do further declare that the said Constitution of the United State of America is no longer binding on any of the citizens of this State.

This Ordinance shall take effect and be an act of this day when ratified by a majority of the votes of the people of this State, cast at a poll to be taken thereon on the fourth Thursday in May next, in pursuance of a schedule hereafter to be enacted.

Done in Convention, in the city of Richmond, on the seventeenth day of April, in the year of our Lord one thousand eight hundred and sixty-one, and in the eighty-fifth year of the Commonwealth of Virginia

(3)  Secession, or the termination of the agreement to remain in the Union, is a viable contract/compact remedy under breach theory.  When one signing member to the agreement violates or breaches its obligations, then the other signing member (or any of a number of other signing members) are relieved of their obligations under the agreement. In other words, the breach by one party, especially if material in nature (that is, if it is enough to fundamentally alter the relationship of the states in relation to one another or to affect the ability of the federal/common government to serve all states in a fair, equal, and impartial manner) is enough to invalidate the entire agreement altogether, thus allowing the other party, or other parties, to walk away and also allowing remaining members to continue to enforce the agreement if they so desire.

In the case of the Southern states, they seceded over several material breaches of the compact – several violations by the Northern states of their obligations under the Constitution:

(a)  They believed the Protective Tariff was an unfair and confiscatory tax on the South, almost completely discriminatory in nature and punitive as well. It was no secret that the North had a great disdain for the South and its values and its “simple” agricultural lifestyle (and even its use of slavery). According to the Southern states (John C. Calhoun of South Carolina articulated it probably better than most), the federal government was a common government that was created and intended to serve each state equally. The North knew full well that the protective tariffs (1828 and 1832) were born almost exclusively and to their detriment, by the southern states. But the Northern states, and particularly northern businesses, benefitted far too greatly from the confiscation of those tariff revenues (more than half of the revenue was funneled almost directly from the South to the North) to ever consider giving them up. In 1860, Abraham Lincoln ran on a platform of increasing and the protective tariff to its highest level ever. That platform issue, together with his promise to prohibit the spread of slavery into new territories and future states, were enough for all of the Southern states to refuse to even put his name on the ballot.  In fact, the Morrill Tariff was passed by the US Congress and signed into law by President James Buchanan in 1861, just two days before he left office and Lincoln was inaugurated. Lincoln kept his promise to enforce that tariff.

If the federal government was not serving the states equally, and if it had merely become a vehicle hijacked by one region of the country to serve its own interests (at the great expense of the other region), then the states of the North had breached their obligations and the very purpose of establishing the Union had become frustrated. The South believed the tariff issue constituted a material breach and thus gave them ample reason (under the Declaration of Independence – “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”) to leave the Union.

(b)  Lincoln’s inauguration as a purely sectarian president was of great concern to the South. His interests and agenda were solely to further those of the North.  His promise to prohibit the spread of slavery to any new territory and any new state was a violation of the US Constitution.  Article IV guarantees every new state to the Union the right to be admitted on the same footing as every other state. Slavery, unfortunately, was protected under the Constitution, and therefore, every new state added to the Union would be subject to its same terms and conditions. The Southern states believed that Lincoln’s government was acting in abuse of the Constitution and because the North supported his agenda, those states, again, breached the terms of the compact and thus gave the states of the South reason to dissolve their bonds with the Union.

(c)  The Northern states routinely refused to enforce the Fugitive Slave Laws, which were laws enacted pursuant to the Fugitive Slave Clause of the US Constitution (Article IV, Section 2, clause 3). To the South, the Fugitive Slave Clause was a valued provision in the Constitution.  The laws were widely ignored or frustrated (were “nullified”) by states, localities, and even by individuals (such as those who organized into mobs in order to free runaway slaves from local prisons).  The states of the South took notice and in fact, in some of the ordinances of secession, they cited the refusal of the North to comply with the Fugitive Slave Laws, as well as its support of violence to stir slaves to revolt (such as the John Brown massacre; Brown was vaulted to martyr status by Northern members of Congress).

The Fugitive Slave Clause of the US Constitution (aka, the Slave Clause or the Fugitives From Labor Clause) required that a “person held to service or labour” (usually a slave, apprentice, or indentured servant) who flees to another state to be returned to the owner in the state from which that person escaped. The provision was rendered moot with the Thirteenth Amendment, which abolished slavery. The exact text of the Fugitive Slave Clause read: “No person held to service or labour in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labour, but shall be delivered up on claim of the party to whom such service or labour may be due.”  The North refused to help enforce the Fugitive Slave Laws, claiming that it has no obligation as a state, to do so. The Laws were federal laws and if the federal government intended for them to be enforced, it was going to have to do so itself – with its own agents, its own courts, and its own prisons. The states and localities refused to assist – they would not use their officers, their prisons, any state personnel, or even any state court to uphold the laws and return runaway slaves back to their owners.

The states of the South believed the states of the North had a compact (constitutional) obligation to honor its provisions, including those it didn’t approve of.  Because the North refused to enforce the Fugitive Slave Laws and frustrated the Fugitive Slave Clause of Article IV, which was included for the benefit of the South, the Southern states concluded that the Northern states committed a material breach of the terms of the compact and hence, they were justified in leaving the Union.

One should read Gene Kizer Jr’s article “The Right of Secession” (link provided below). It provides an excellent overview of the legality of secession, in particular, as a right endowed and reserved to each state. Then one should read his most excellent book, Slavery Was Not the Cause of the War Between the States.

 

References:

Stephen C. Neff, “Secession and Breach of Compact: The Law of Nature Meets the United States Constitution,” Akron Law Review: Vol. 45: Issue 2, Article 4 (June 2015).  Referenced at:  https://ideaexchange.uakron.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1067&context=akronlawreview

Virginia’s Ordinance of Virginia (April 17, 1861) – http://www.nellaware.com/blog/virginia-ordinance-of-secession.html\

Gene Kizer Jr, “The Right of Secession,” Bonnie Blue Publishing.  Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession-FULL%20PAGE%20FORMAT-USE.htm

Gene Kizer Jr., Slavery Was Not the Cause of the War Between the States;  Charleston Athenaeum Press (November 1, 2014).

Gene Kizer Jr., “Barbarians At the Gate,” Abbeville Institute, March 8, 2018.  Referenced at:  https://www.abbevilleinstitute.org/blog/the-barbarians-at-the-gates/

The Right of Secession, as Reserved by the States in Their Ratification of the US Constitution

SECESSION - We Did it Once Let's Do it Twice

by Diane Rufino, June 1, 2018

Louisiana voted to secede from the Union on January 26, 1861. Shortly thereafter, her senators, Judah P. Benjamin and John Slidell, resigned their positions in the US Senate. In his FAREWELL ADDRESS to the Senate, on February 5, 1861, Senator Benjamin expressed perhaps the strongest argument for the Right of Secession. He said:

“The rights of Louisiana as a sovereign state are those of Virginia – no more, no less. Let those who deny her [Louisiana’s] right to resume delegated powers try to successfully refuse the claim of Virginia to the same right, in spite of her [Virginia’s] expressed reservation made and notified to her sister states when she consented to enter the Union. And sir, permit me to say that, of all the causes which justify the action of the Southern States, I know none of greater gravity and more alarming magnitude than that now developed of the denial of the right of secession. A pretension so monstrous as that which perverts a restricted agency [federal government], constituted by sovereign states for common purposes, into the unlimited despotism of the majority, and denies all legitimate escape from such despotism, when powers not delegated are usurped, converts the whole constitutional fabric into the secure abode of lawless tyranny, and degrades sovereign states into provincial dependencies.”

To deny the Right of Secession, as President Abraham Lincoln did (although only AFTER he became president), as powerful orator Senator Daniel Webster did (although only AFTER he realized the financial ruin that secession would reap on northern states), and as too many liberal elites and too many Americans (because of indoctrination in our public school system and at our liberal universities) believe today is to condemn Americans ultimately to tyranny, to subjugation, to an existence far different from the one that the Declaration of Independence and the Bill of Rights had once promised, to the loss of liberty, to the control by political parties (not political movements, which are good and are true expressions of democracy), and to the rule by political elites. In other words, we would have to acknowledge that we are not a free nation anymore, that we are not a free people. We as a country and as a people wear the veneer of freedom and liberty.  The experiment started by those far wiser than any alive today, which established for us in America, and indeed for the rest of the world, the right of self-determination and the right of self-government, and which was predicated on the grand notion – the very revolutionary notion – that those rights were far more important than the right of any government to seek to cement its existence, would be dead. If we give up on our right to secede, then we have lost that precious system and that noble ideal. That noble ideal is what guarantees our freedom and our liberty. If we abandon that right to secede, we are no different from the system we initially separated from, Great Britain, where government was – and still is – superior to the people.

To be clear, the fundamental principle guiding our independence was the right of a people to secede from a political body, exercising the right of self-determination and the right of a people to establish their own government – one that serves their interests and concerns best. We cannot allow the proclamations of one leader, Abraham Lincoln, who did so for purely political purposes (explained historically, accurately, and in great detail in Gene Kizer Jr’s book, SLAVERY WAS NOT THE CAUSE OF THE WAR BETWEEN THE STATES, as well as in Albert Taylor Bledsoe’s book, IS JEFFERSON DAVIS A TRAITOR?; references to both provided below) to destroy this great principle of independence and freedom.

It is important to understand that secession was a right implicit with every sovereign body politic and a right expressly and explicitly reserved to the States under the terms of the ratification of the Constitution:

First of all, let’s look at these two very powerful arguments:  [Taken from Mr. Kizer’s article “The Right of Secession,” Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession.htm ]

(1).  There had to be a specific constitutional prohibition on secession for it to be illegal. Conversely, there did not have to be a specific constitutional affirmation of the right of secession for it to be legal. Why? Because of the 10th Amendment to the United States Constitution, which states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  This amendment states nothing new, but is merely a restatement, as the Preamble to the Bill of Rights explains. It is a restatement of the fact that the federal government can govern ONLY as to the express (and that is made clear also in the Preamble) powers granted/delegated to it by the Constitution, Articles I-III, and States are prohibited from doing certain things ONLY if it states so expressly therein. The power to prevent secession is NOT granted to the federal government and the right to secede is NOT prohibited to the States under our Constitution.

Aside from the fact that there was (and is) no constitution prohibition on secession, there was (and is) also NO constitutional sanctioning of any kind of federal coercion to force a State to obey a federal law when to do so would act to perpetrate an act of war on the offending state by the other states. After all, the federal government was established as a common agent for all States, tasked with serving the interests of each equally.

While we are talking out what the federal government can and cannot do, there is also NO constitutional provision, nor any moral foundation, for the federal government to coerce one or more States to invade or otherwise inflict armed conflict against any other State or States. Again, each State is an equal beneficiary of the agency provided by the federal government.

(2).  The arguments for the right of secession are indeed unequivocal. There is the constitutional right based on the Compact Theory, and the revolutionary right based on the idea that a free people have the right to change their government anytime they see fit. Compact Theory is based on Natural Law – that people, in deciding to live together in communities, decide for themselves the form of government to establish laws for their mutual safety, security, and peace. They decide for themselves the government that will best establish laws for their ordered existence. Compacts are the vehicle by which the people form that government and delegate powers to it. It is a form of Contract. The Compact Theory views the Constitution as a legal agreement between the states – a compact – and if any one state violates the compact, then the entire agreement becomes null and void. Northern states unquestionably violated the Constitution on a number of grounds including unconstitutional Personal Liberty Laws on their books, as well as by deliberately harboring fugitives from justice by protecting the sons of John Brown who were wanted by Virginia for murder at Harpers Ferry. Northern states also made a mockery of the Constitution’s Preamble, which states clearly that the Constitution was established to “insure domestic Tranquility” and “promote the general Welfare.” Certain prominent Northern leaders with the acquiescence of states like Massachusetts were utterly at war with the South and doing everything they could to destroy the domestic tranquility of Southern states by encouraging slaves to murder white people, poison wells, destroy property and commit other acts of rapine. John Brown himself had been encouraged and financed in the North.

The revolutionary right of secession is based on the Declaration of Independence and the philosophy of Thomas Jefferson and John Locke, “that whenever any form of government becomes destructive of the ends for which it was established, it is the right of the people to alter or abolish it, and to institute new government, ….. ”

These words come directly from the Declaration of Independence. This passage was also used, verbatim, in South Carolina’s Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union. A similar sentiment was expressed by Abraham Lincoln in 1847 on the floor of the United States House of Representatives:

“Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuable, a most sacred right, a right which we hope and believe is to liberate the world.”

And now let’s look at the strongest piece of evidence, of which Senator Judah P. Benjamin referenced in his farewell speech above (“Virginia’s express reservation”):

Three of the original thirteen states were particularly skeptical of the government that the newly-drafted Constitution created and so they ratified it only conditionally. These three states were Virginia and New York, the great powerhouses of the New World, and Rhode Island (tiny, but very liberty-minded). In their ratification documents, adopted at their Ratification Conventions, they specifically and carefully reserved the right of secession. These are referred to as the “Resumption Clauses” or “Resumptive Clauses,” and they are exceedingly important to understand this topic. I attached Virginia’s ratification document at the end of this article. You will see that Virginia conditioned her ratification on several things, including the Right to Secede and on the addition of a Bill of Rights (for which she made a number of suggestions).

Since the other states, which had unconditionally ratified the Constitution, consented to Virginia’s conditional ratification, they “ostensibly assented to the principle that Virginia permissibly retained the right to secede.”  This is an essential element of contract law, of which compact theory follows. All negotiations, all conditions, all limitations, all reservations, etc become part of the compact agreement which affects all parties, as long as those negotiations, conditions, limitations, reservations, etc are not rejected by any of the other signing parties. With the additional acceptance of New York’s and Rhode Island’s conditions (their Resumption Clauses; their right to secede), the existing states of the Union clearly, albeit tacitly, accepted the doctrine of secession. Again, this is a matter of contract law, the most firmly-entrenched area of law. Furthermore, according to the Constitution, all States that joined the Union after the first thirteen also had the right of secession since new states entered on an equal footing with the exact same rights as the existing states.

Virginia was the first state to state explicitly that she would only ratify the Constitution as long as she reserved the right to leave the Union so created by it.  If Virginia didn’t ratify the Constitution, it was very likely that New York, Rhode Island, and certainly North Carolina also would not. The plan for “a more perfect Union” would be defeated. In her “Ratification of the Constitution by the State of Virginia; June 26, 1788,” the state of Virginia included this express provision:  “Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will.

To reinforce how strongly Virginia valued that Clause one simply has to look at her Ordinance of Secession from the Union (April 17, 1861). She used the exact wording of her conditional ratification of the US to sever her political bonds with the federal government and to resume all her sovereign powers and rights to determine a new and more favorable government for her people.

A month later, on July 26, 1788, New York conditionally ratified the Constitution. In the ratification declaration adopted at her Convention, New York wrote:

“That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness; that every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.”

And then finally, almost two years later, on May 29, 1790, Rhode Island asserted her own conditional ratification:

“That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness:- That the rights of the States respectively, to nominate and appoint all State Officers, and every other power, jurisdiction and right, which is not by the said constitution clearly delegated to the Congress of the United States or to the departments of government thereof, remain to the people of the several states, or their respective State Governments to whom they may have granted the same; and that those clauses in the said constitution which declare that Congress shall not have or exercise certain powers, do not imply, that Congress is entitled to any powers not given by the said constitution, but such clauses are to be construed as exceptions to certain specified powers, or as inserted merely for greater caution.”

Historian Dave Benner explains in his article “Can States Secede from the United States?” (IntellectualTakeOut.org, March 7, 2017):

       During the ratification debates, many figures firmly challenged the suggestion that coercive force could be used to obligate a state’s membership in the union. Melancton Smith of New York suggested that such coercion would be an anathema to the cause of liberty: “Can it, I say, be imagined, that in such a case, they would make war on a sister state?”

       He ridiculed the notion, declaring that “the idea is preposterous and chimerical.” George Mason, known today as the “Father of the Bill of Rights,” also rejected the assumption that war would befall a seceding state. Answering an inquiry regarding whether the government could “use military force to compel the observance of a social compact,” Mason scoffed at such a prospect, declaring that it would be “destructive to the rights of the people.”

Respected professor, author, and speaker (and founder of the Abbeville Institute), Donald W. Livingston noted, in his article “The Secession Tradition in America,” the conclusion offered by famed historian and political scientist Alexis de Tocqueville, who spent several years in America studying its political system and societies and who studied the US Constitution on the right of secession. De Tocqueville wrote: “The Union was formed by the voluntary agreement of the States; and, in uniting together, they have not forfeited their nationality, nor have they been reduced to the condition of one and the same people. If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so; and the Federal Government would have no means of maintaining its claims directly, either by force or by right.”

Abraham Lincoln intentionally re-characterized the Constitution in order to force the Southern States back into the Union, where its money could continue to fund the federal government and could continue to enrich the Northern states. He also sought to force the Southern States back into the Union because under the Confederate Constitution, protective tariffs (the lifeblood of northern industry) were prohibited and it would interact with other countries on a policy of Free Trade. Free trade would have signed the death of the Union because then only people in the North would have purchased its products and its industry and indeed its economy would have crashed. To that end, Lincoln denied the right of secession and characterized the Constitution as creating a “perpetual union,” which was just plain hogwash. Every compact, just like every contract, can be broken. He said the Southern States were “in rebellion against the United States” even though they made it exceedingly clear that they merely wanted a peaceful separation, and to remain on good terms with their former government. In order to prevent other States (the so-called “border States” and others that were clearly more pro-South than pro-North) from leaving the Union and joining the Confederacy, he sent in the Army of the United States to put them under martial law. Politicians sympathetic to the Confederate States were forcibly removed from office (and many jailed) and their state governments fundamentally changed to force them to be loyal to Lincoln. This was in violation of Section 4 of Article IV of the Constitution (The Guarantee Clause), which states:

The United States shall guarantee to every State in this Union a Republican Form of Government, and [the United States] shall protect each of them [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

By removing duly-elected members of State legislatures and altering the governing bodies by force, Lincoln violated the Constitution (just another of the many times he violated the Constitution) and denied the border States the guarantee that the federal government who assure them a republican (the will of the people) form of government. Furthermore, as to all the States, including the border States, the western States (like Kentucky and Missouri), and the Southern States, the Constitution guaranteed them protection AGAINST invasion and was not a license for Lincoln to be the invader.

 

References:

Gene Kizer Jr, “The Right of Secession,” Referenced at:  http://www.bonniebluepublishing.com/The%20Right%20of%20Secession.htm

Gene Kizer Jr, Slavery Was Not the Cause of the War Between the States, Charleston Athenaeum Press, 2014.  [Chapter: “An Annotated Chronology of the Secession Debate in the South”; pp. 171-72)]  Available as a book, which was the resource I used) and also online at:  http://www.bonniebluepublishing.com/index.htm

Albert Taylor Bledsoe, Is Jefferson Davis a Traitor? (1865).  Reprinted by Forgotten Books (2012).  https://www.amazon.com/Davis-Traitor-Secession-Constitutional-Previous/dp/B008TYU1E4

Dave Benner, “Can States Secede from the United States?”, IntellectualTakeOut.org, March 7, 2017. Referenced at: http://www.intellectualtakeout.org/blog/can-states-secede-united-states),

Donald W. Livingston, “The Secession Tradition in America,” 1998.  Referenced at: http://www.ditext.com/livingston/tradition.html

“Ratification of the Constitution by the State of Virginia; June 26, 1788,” The Avalon Project (Yale Law School) – http://avalon.law.yale.edu/18th_century/ratva.asp

 

- 2018 (BEST, gray sweatshirt, Wake Up Call trip)

 

ADDENDUM: 

Ratification of the Constitution by the State of Virginia; June 26, 1788.

Virginia to wit

We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will: that therefore no right of any denomination can be cancelled abridged restrained or modified by the Congress by the Senate or House of Representatives acting in any Capacity by the President or any Department or Officer of the United States except in those instances in which power is given by the Constitution for those purposes: & that among other essential rights the liberty of Conscience and of the Press cannot be cancelled abridged restrained or modified by any authority of the United States. With these impressions with a solemn appeal to the Searcher of hearts for the purity of our intentions and under the conviction that whatsoever imperfections may exist in the Constitution ought rather to be examined in the mode prescribed therein than to bring the Union into danger by a delay with a hope of obtaining Amendments previous to the Ratification, We the said Delegates in the name and in behalf of the People of Virginia do by these presents assent to and ratify the Constitution recommended on the seventeenth day of September one thousand seven hundred and eighty seven by the Federal Convention for the Government of the United States hereby announcing to all those whom it may concern that the said Constitution is binding upon the said People according to an authentic Copy hereto annexed in the Words following; .

Done in Convention this twenty Sixth day of June one thousand seven hundred and eighty eight

By Order of the Convention

EDMUND PENDLETON, President  [SEAL.]

Virginia towit:

Subsequent Amendments agreed to in Convention as necessary to the proposed Constitution of Government for the United States, recommended to the consideration of the Congress which shall first assemble under the said Constitution to be acted upon according to the mode prescribed in the fifth article thereof:

That there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable Rights of the People in some such manner as the following;

First, That there are certain natural rights of which men, when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

Second. That all power is naturally vested in and consequently derived from the people; that Magistrates, therefore, are their trustees and agents and at all times amenable to them.

Third, That Government ought to be instituted for the common benefit, protection and security of the People; and that the doctrine of non-resistance against arbitrary power and oppression is absurd slavish, and destructive of the good and happiness of mankind.

Fourth, That no man or set of Men are entitled to exclusive or separate public emoluments or privileges from the community, but in Consideration of public services; which not being descendible, neither ought the offices of Magistrate, Legislator or Judge, or any other public office to be hereditary.

Fifth, That the legislative, executive, and judiciary powers of Government should be separate and distinct, and that the members of the two first may be restrained from oppression by feeling and participating the public burthens, they should, at fixed periods be reduced to a private station, return into the mass of the people; and the vacancies be supplied by certain and regular elections; in which all or any part of the former members to be eligible or ineligible, as the rules of the Constitution of Government, and the laws shall direct.

Sixth, That elections of representatives in the legislature ought to be free and frequent, and all men having sufficient evidence of permanent common interest with and attachment to the Community ought to have the right of suffrage: and no aid, charge, tax or fee can be set, rated, or levied upon the people without their own consent, or that of their representatives so elected, nor can they be bound by any law to which they have not in like manner assented for the public good.

Seventh, That all power of suspending laws or the execution of laws by any authority, without the consent of the representatives of the people in the legislature is injurious to their rights, and ought not to be exercised.

Eighth, That in all capital and criminal prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial Jury of his vicinage, without whose unanimous consent he cannot be found guilty, (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

Ninth. That no freeman ought to be taken, imprisoned, or disseised of his freehold, liberties, privileges or franchises, or outlawed or exiled, or in any manner destroyed or deprived of his life, liberty or property but by the law of the land.

Tenth. That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

Eleventh. That in controversies respecting property, and in suits between man and man, the ancient trial by Jury is one of the greatest Securities to the rights of the people, and ought to remain sacred and inviolable.

Twelfth. That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property or character. He ought to obtain right and justice freely without sale, completely and without denial, promptly and without delay, and that all establishments or regulations contravening these rights, are oppressive and unjust.

Thirteenth, That excessive Bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Fourteenth, That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers and his property; all warrants, therefore, to search suspected places, or seize any freeman, his papers or property, without information upon Oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general Warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous and ought not to be granted.

Fifteenth, That the people have a right peaceably to assemble together to consult for the common good, or to instruct their Representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.

Sixteenth, That the people have a right to freedom of speech, and of writing and publishing their Sentiments; but the freedom of the press is one of the greatest bulwarks of liberty and ought not to be violated.

Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defense of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.

Eighteenth, That no Soldier in time of peace ought to be quartered in any house without the consent of the owner, and in time of war in such manner only as the laws direct.

Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.

Twentieth, That religion or the duty which we owe to our Creator, and the manner of discharging it can be directed only by reason and conviction, not by force or violence, and therefore all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by Law in preference to others.

 

AMENDMENTS TO THE BODY OF THE CONSTITUTION

First, That each State in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Federal Government.

Second, That there shall be one representative for every thirty thousand, according to the Enumeration or Census mentioned in the Constitution, until the whole number of representatives amounts to two hundred; after which that number shall be continued or increased as the Congress shall direct, upon the principles fixed by the Constitution by apportioning the Representatives of each State to some greater number of people from time to time as population increases.

Third, When Congress shall lay direct taxes or excises, they shall immediately inform the Executive power of each State of the quota of such state according to the Census herein directed, which is proposed to be thereby raised; And if the Legislature of any State shall pass a law which shall be effectual for raising such quota at the time required by Congress, the taxes and excises laid by Congress shall not be collected, in such State.

Fourth, That the members of the Senate and House of Representatives shall be ineligible to, and incapable of holding, any civil office under the authority of the United States, during the time for which they shall respectively be elected.

Fifth, That the Journals of the proceedings of the Senate and House of Representatives shall be published at least once in every year, except such parts thereof relating to treaties, alliances or military operations, as in their judgment require secrecy.

Sixth, That a regular statement and account of the receipts and expenditures of all public money shall be published at least once in every year.

Seventh, That no commercial treaty shall be ratified without the concurrence of two thirds of the whole number of the members of the Senate; and no Treaty ceding, contracting, restraining or suspending the territorial rights or claims of the United States, or any of them or their, or any of their rights or claims to fishing in the American seas, or navigating the American rivers shall be but in cases of the most urgent and extreme necessity, nor shall any such treaty be ratified without the concurrence of three fourths of the whole number of the members of both houses respectively.

Eighth, That no navigation law, or law regulating Commerce shall be passed without the consent of two thirds of the Members present in both houses.

Ninth, That no standing army or regular troops shall be raised or kept up in time of peace, without the consent of two thirds of the members present in both houses.

Tenth, That no soldier shall be enlisted for any longer term than four years, except in time of war, and then for no longer term than the continuance of the war.

Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it’s own Militia, whensoever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State.

Twelfth That the exclusive power of legislation given to Congress over the Federal Town and its adjacent District and other places purchased or to be purchased by Congress of any of the States shall extend only to such regulations as respect the police and good government thereof.

Thirteenth, That no person shall be capable of being President of the United States for more than eight years in any term of sixteen years.

Fourteenth That the judicial power of the United States shall be vested in one supreme Court, and in such courts of Admiralty as Congress may from time to time ordain and establish in any of the different States: The Judicial power shall extend to all cases in Law and Equity arising under treaties made, or which shall be made under the authority of the United States; to all cases affecting ambassadors other foreign ministers and consuls; to all cases of Admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or States, and between parties claiming lands under the grants of different States. In all cases affecting ambassadors, other foreign ministers and Consuls, and those in which a State shall be a party, the supreme court shall have original jurisdiction; in all other cases before mentioned the supreme Court shall have appellate jurisdiction as to matters of law only: except in cases of equity, and of admiralty and maritime jurisdiction, in which the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make. But the judicial power of the United States shall extend to no case where the cause of action shall have originated before the ratification of this Constitution; except in disputes between States about their Territory, disputes between persons claiming lands under the grants of different States, and suits for debts due to the United States.

Fifteenth, That in criminal prosecutions no man shall be restrained in the exercise of the usual and accustomed right of challenging or excepting to the Jury.

Sixteenth, That Congress shall not alter, modify or interfere in the times, places, or manner of holding elections for Senators and Representatives or either of them, except when the legislature of any State shall neglect, refuse or be disabled by invasion or rebellion to prescribe the same.

Seventeenth, That those clauses which declare that Congress shall not exercise certain powers be not interpreted in any manner whatsoever to extend the powers of Congress. But that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise as inserted merely for greater caution.

Eighteenth, That the laws ascertaining the compensation to Senators and Representatives for their services be postponed in their operation, until after the election of Representatives immediately succeeding the passing thereof; that excepted, which shall first be passed on the Subject.

Nineteenth, That some Tribunal other than the Senate be provided for trying impeachments of Senators.

Twentieth, That the Salary of a Judge shall not be increased or diminished during his continuance in Office, otherwise than by general regulations of Salary which may take place on a revision of the subject at stated periods of not less than seven years to commence from the time such Salaries shall be first ascertained by Congress. And the Convention do, in the name and behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress to exert all their influence and use all reasonable and legal methods to obtain a Ratification of the foregoing alterations and provisions in the manner provided by the fifth article of the said Constitution; and in all Congressional laws to be passed in the mean time, to conform to the spirit of those Amendments as far as the said Constitution will admit.

Done in Convention this twenty seventh day of June in the year of our Lord one thousand seven hundred and eighty eight.

By order of the Convention.

EDMD PENDLETON President  [SEAL.]

Reprinted from Documentary History of the Constitution, Vol. II (1894), pp. 145, 146, 160, 377-385

Compact Theory: Security for American Liberty

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by Diane Rufino, July 18, 2016

A contract is a promise, or set of promises, between willing parties. The law of contracts is a body of law as old as the Anglo-American division of law and equity. When a contract is breached, law and equity provide remedies. In fact, the definition of contract includes the phrase “for the breach of which the law gives a remedy.”  Court of law provide monetary remedies for breach while courts of equity provide unique remedies designed to relieve the aggrieved party when monetary awards are inadequate, such as forcing performance by the defaulting party.  [This is where we get the words in Article III. Section 2, of the US Constitution: “The judicial power of the United States shall extend to all cases, in Law and Equity.”]  Synonymous with the term “contract” are “agreement” and “compact.”  Throughout Anglo-American history, people have organized their government through compacts or “social compacts.” The philosopher, John Locke, who our Founders leaned most heavily in founding our country and drafting our foundational documents, explained that individuals, when organized in societies, form their government by way of social compact.

Historical Anglo-American jurisprudence provided a party aggrieved by a breach of contract certain choices by law:  First, he could choose to proceed to a court of law and seek damages for the loss of money in reliance upon the contract being fulfilled. In such a court, the aggrieved party would seek from the party in breach such sums as would place him in as good a position as he would have been had the contract been fully performed.  Alternatively, a court of equity could enforce the contract for the aggrieved party by ordering “specific performance” by the defaulting party – that is, the court would force the party to fulfil his obligations under the contract. Finally, Anglo-American equity jurisprudence provided for another remedy for breach of contract – “rescission,” or the annulment of the contract. Since the end of the eighteenth century in England, rescission has often been used as a remedy in conjunction with “restitution.” The aggrieved party would ask the court to annul the contract and, at the same time, ask that he be made whole for his own performance, thereby placing him in the same position he occupied before he entered into the contract.

For a States to claim the right of secession from the Union, the Constitution must be construed to be an agreement created by the States as parties.

Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”  If, then, the Constitution is a compact, what is the remedy for a State or a group of States harmed by a breach of the Constitution by the federal government or other States? [Under Agency law, the “agent” (government) would be fired].  The only remedy, short of persuading the party or parties in breach to conform, is the equitable remedy of rescission.

As most people already know, several states posed obstacles to the adoption of the US Constitution and the formation of the new Union. The states of Virginia, New York, North Carolina, and Rhode Island proved to be battleground states.  Ratification by the State of Virginia was made possible only so long as the people of Virginia expressly and specifically retained the right of rescission. The Virginia resolution of ratification of June 26, 1788 read, in part: “We, the delegates of the people of Virginia do, in the name and on behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”  The vote in favor of adoption was narrow, 89-79.  Virginia was only able to obtain this vote by linking ratification to amendments to be added for a Bill of Rights, which they recommended.

In New York, the battle was just as fierce. Like Virginia, the resolution of ratification was made expressly subject to its peoples’ right of rescission. It read, in part: “We, the delegates of the people of the State of New York do declare and make known that the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”  The vote in favor of adoption was 30-27. Also following Virginia’s lead, the delegates to the NY Ratifying Convention then presented a veritable catalogue of rights that they believed should be added to the Constitution by way of amendment (a Bill of Rights).

North Carolina and Rhode Island were particularly skeptical. They didn’t ratify the Constitution until after George Washington was already sworn in as the first president of the United States in 1789. They waited until the first US Congress presented a Bill of Rights, as the States has demanded. North Carolina finally ratified the Constitution on November 21, 1789 and Rhode Island ratified on May 29, 1790 (after refusing to consider ratification and joining the Union seven times!!).  Like Virginia and New York, Rhode Island adopted the Constitution subject to an express right to resume their delegated powers. It’s Resumption Clause read, in pertinent part:

      We the delegates of the people of the state of Rhode Island and Province Plantations, duly elected and met in Convention, do declare and make known

     I.  That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity – among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety…..

   III.  That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.

Because the adoption of the Constitution by Virginia, New York, and Rhode Island was accepted including their Resumption Clauses, those stipulations became part of the agreement or compact, thereby providing the same benefit to all the States of the Union.

The framers and ratifiers of the Constitution unquestionably understood the Constitution to be a “compact.” The voluminous records documenting the debates of the Constitutional Convention in Philadelphia of 1787 and the State Ratifying Conventions are replete with references to the Constitution as a “compact.” The Federalist Papers and the Anti-Federalist Essays use the same language, arguing for and against the ratification of the Constitution, respectively.  Thomas Jefferson and James Madison, the authors of our most important foundational documents, referred to the Constitution as such in their Kentucky Resolutions of 1798 and 1799 and Virginia Resolutions of 1798, respectively and the Southern States, in their Ordinances of Secession did likewise. When Massachusetts attempted to secede from the Union in 1814-1815, it also referred to the Constitution as a compact from which it retained the right to rescind. James Madison declared long after the ratification of the Constitution that “Our governmental system is established by a compact, not between the Government of the United States and the State governments, but between the States as sovereign communities, stipulating each with the other a surrender of certain portions of their respective authorities to be exercised by a common government, and a reservation, for their own exercise, of all their other authorities.”

If the Constitution is a compact, and it could be rescinded or annulled upon a breach, what would be sufficient to constitute a breach?  Whatever would constitute a breach is left wholly to the States seeking the extraordinary remedy of rescission. Obviously, in the words of James Madison’s 1800 Report on the Virginia Resolutions of 1798, the offensive act would have to be “a deliberate, palpable, and dangerous exercise of power not granted by the compact.”

While the governments of monarchs and dictators that ravaged Europe for centuries were based on the “universal law” that governments are not created by instruments that provide a mechanism for their own dissolution, the American government system flips that system on its head. The Declaration of Independence, embracing Natural Law and rejecting the Divine Right of Kings, proclaims that governments are only temporary in nature and are instituted among the People, by the People, and for the People for the primary purposes of securing their inalienable rights and for effecting their happiness. “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”  The Constitution, drafted to embrace the principles proclaimed in the Declaration, is therefore a revolutionary document. It is a revolutionary instrument created by a revolutionary people at the end of a successful revolution fought to end the rule of a monarch on the American States and the American people and to guarantee fundamental liberties to all citizens. The government created by the Constitution is worth keeping only so long as it serves this end. Sadly, this fundamental understanding of the formation of the Union was completely lost on Lincoln (or he was willfully and ambitiously blind to this understanding). The War of 1861 and the lies perpetrated on the country by the “victors” (because the victors have the luxury of telling the story and vilifying the conquered) have obscured the truth of our Constitution and our history. The transformation of our country from a republic to one oppressed by an over-zealous central government in the consequence of these lies.

The Constitution’s text and history before the Civil War did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.

If the government created by the Constitution ceases to guarantee liberty, there must be a remedy available to those oppressed by it. It is not the courts; the citizens may not even have standing to challenge the actions of the federal government, and moreover, the courts are creatures of the very government that would be the oppressor. To be sure, courts are not competent to even address constitutional challenges to acts of Congress that allege that those acts undermine the liberties of citizens and invade the powers reserved to the States. Resorting to the ballot may be ineffectual; the votes of a few metropolitan areas may negate the votes of all other regions. More than that, fundamental liberties should never be subject vote. What remains to protect individual liberties are the States as parties to the Constitution. As parties, they must exercise their “duty” to protect their citizens from a federal government that has grown too powerful, too intrusive, too dictatorial. They do that by exercising the right that parties to agreements have exercised for literally hundreds of years: to stand up to actions that invade the liberties of citizens and the reserved powers of the States by, first, nullifying the unconstitutional acts and then, if the federal government persists, seceding. The framers and ratifiers would not have thought any differently. After all, although they were revolutionaries who created a revolutionary form of government, they were also the inheritors of an Anglo-American legal tradition that had been developed over hundreds of years, which defined contracts and remedies available to those injured by the breach thereof.

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The conflicts that divide Americans today are certainly as profound as those in other periods of our history, including those that compelled the Colonies to separate from Great Britain, those that troubled Massachusetts in 1815, and those that troubled the Southern States from 1828 to 1860.  The numerous laws, voluminous regulations, and many illegitimate rulings by the Supreme Court have abused and usurped our rights and liberties and have, in effect, evidenced the design by the federal government to consolidate us into a one-size-fits all nation untethered to the States which used to be obligated to protect us. The reasons for the Constitution have been frustrated and now forgotten. Clearly, the grounds to rescind the compact are legitimate and numerous.

In the history of the world, principles have always been more important than geographical boundaries.  We have to ask ourselves what our alternatives are in order to preserve our traditional American principles. If we continue to believe they are being subverted and eroded, and if we continue to believe that our rights, our freedoms, and our liberty are being threatened and violated, then we have to ask ourselves what our rightful remedies are.

 

References:

Donald Livingston, ed. “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.

Kent Masterson Brown, “Secession: A Constitutional Remedy,” in “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.

Thomas DiLorenzo, “The Founding Fathers of Constitutional Subversion,” in “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.