Debates over the Bill of Rights in the First Congress
August 21, 1789
AMENDMENTS TO THE CONSTITUTION
The House proceeded in the consideration of the amendments to the constitution reported by the Committee of the whole, and took up the second clause of the fourth proposition.
Mr. GERRY then proposed to amend it by striking out these words, “public danger,” and to insert “foreign invasion;” this being negatived, it was then moved to strike out the last clause, “and if it be committed,” &c. to the end. This motion was carried, and the amendment was adopted.
The House then took into consideration the third clause of the seventh proposition, which was adopted without debate.
The eighth proposition was agreed to in the same manner.
The ninth proposition Mr. GERRY proposed to amend by inserting the word “expressly,” so as to read “the powers not expressly delegated by the constitution, nor prohibited to the States, are reserved to the States respectively, or to the people.” As he thought this an amendment of great importance, he requested the yeas and nays might be taken. He was supported in this by one-fifth of the members present; whereupon they were taken, and were as follows:
YEAS.–Messrs. BURKE, COLES, FLOYD, GERRY, GROUT, HATHORN, JACKSON, LIVERMORE, PAGE, PARKER, PARTRIDGE, VAN RENSSELAER, SMITH, (of South Caroline,) STONE, SUMTER, THATCHER, and TUCKER.–17.
NAYS.–Messrs. AMES, BENSON, BOUDINOT, BROWN, CADWALADER, CARROLL, CLYMER, FITZSIMONS, FOSTER, GALE, GILMAN, GOODHUE, HARTLEY, HEISTER, LAWRENCE, LEE, MADISON, MOORE, MUHLENBURG, SCHUREMAN, SCOTT, SEDGWICK, SENEY, SHERMAN, SYLVESTER, SINNICKSON, SMITH, (of Maryland,) STURGES, TRUMBULL, VINING, WADSWORTH, and WYNKOOP.–32.
Mr. SHERMAN moved to alter the last clause, so as to make it read, “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 motion was adopted without debate.
Mr. BURKE.–The majority of this House may be inclined to think all our propositions unimportant, as they seemed to consider that upon which the ayes and noes were just now called. However, to the minority they are important; and it will be happy for the Government, if the majority of our citizens are not of their opinion; but be this as it may, I move you, sir, to add to the articles of amendment the following: “Congress shall not alter, modify, or interfere in the times, places or manner of holding elections of Senators, or Representatives, except when any State shall refuse or neglect, or be unable, by invasion or rebellion, to make such election.”
Mr. AMES thought this one of the most justifiable of all the powers of Congress; it was essential to a body representing the whole community, that they should have power to regulate their own elections, in order to secure a representation from every part, and prevent any improper regulations, calculated to answer party purposes only. It is a solecism in politics to let others judge for them, and is a departure from the principles upon which the constitution was founded.
Mr. LIVERMORE said, this was an important amendment, and one that had caused more debate in the Convention of New Hampshire than any other whatever. The gentleman just up said it was a solecism in politics, but he could cite an instance in which it had taken place. He only called upon gentlemen to recollect the circumstance of Mr. SMITH‘s (of South Carolina) election, and to ask if that was not decided by the State laws? Was not his qualification as a member of the Federal Legislature determined upon the laws of South Carolina? It was not supposed by the people of South Carolina, that the House would question a right derived by their representative from their authority.
Mr. MADISON.–If this amendment had been proposed at any time either in the Committee of the whole or separately in the House, I should not have objected to the discussion of it. But I cannot agree to delay the amendments now agreed upon, by entering into the consideration of proposition not likely to obtain the consent of either two-thirds of this House of three-fourths of the State Legislatures. I have considered this subject with some degree of attention, and, upon the whole, am inclined to think the constitution stands very well as it is.
Mr. GERRY was sorry that gentlemen objected to the time and manner for introducing this amendment, because it was too important in its nature to be defeated by want of form. He hoped, and he understood it to be the sense of the House, that each amendment should stand upon its own ground; if this was, therefore, examined on its own merits, it might stand or fall as it deserved, and there would be no cause for complaint on the score of inattention.
His colleague (Mr. AMES) objected to the amendment, because he thought no Legislature was without the power of determining the mode of its own appointment; but he would find, if he turned to the constitution of the State he was a representative of, that the times, places, and manner of choosing members of their Senate and Council were prescribed therein.
Why, said he, are gentlemen desirous of retaining this power? Is it because it gives energy to the Government? It certainly has no such tendency; then why retain a clause so obnoxious to almost every State? But this provision may be necessary in order to establish a Government of an arbitrary kind, to which the present system is pointed in no very indirect manner; in this way, indeed, it may be useful. If the United States are desirous of controlling the elections of the people, they will in the first place, by virtue of the powers given them by the 4th sect. of the 1st art. abolish the mode of balloting; then every person must publicly announce his vote, and it would then frequently happen that he would be obliged to vote for a man, or “the friend of a man” to whom he was under obligation. If the Government grows desirous of being arbitrary, elections will be ordered at remote places, where their friends alone will attend. Gentlemen will tell me that these things are not to be apprehended; but if they say that the Government has the power of doing them, they have no right to say the Government will never exercise such powers, because it is presumable that they will administer the constitution at one time or another with all its powers; and whenever that time arrives, farewell to the rights of the people, even to elect their own representatives.
Mr. STONE called upon gentlemen to show what confederated Government had the power of determining on the mode of their own election. He apprehended there were none; for the representatives of States were chosen by the States in the manner they pleased. He was not afraid that the General Government would abuse this power, and as little afraid that the States would; but he thought it was in the order of things that the power should best in the States respectively, because they can vary their regulations to accommodate the people in a more convenient manner than can be done in any general law whatever. He thought the amendment was generally expected, and therefore, on the principles of the majority, ought to be adopted.
Mr. SMITH (of South Carolina) said, he hoped it would be agreed to; that eight States has expressed their desires on his head, and all of them wished the General Government to relinquish their control over the elections. The eight States he alluded to were New Hampshire, Massachusetts, New York, Pennsylvania, Maryland, Virginia, North Carolina, and South Carolina.
Mr. CARROLL denied that Maryland had expressed the desire attributed to her.
Mr. FITZSIMONS.–The remark was not just as it respected Pennsylvania.
Mr. SMITH (of South Carolina) said, the Convention of Maryland appointed a committee to recommend amendments, and among them was the one now under consideration.
Mr. STONE replied there was nothing of the kind noticed on the journals of that body.
Mr. SMITH (of South Carolina) did not know how they came into the world, but he had certainly seen them. As to Pennsylvania, there was a very considerable minority, he understood one-third, who had recommended the amendment. Now, taking all circumstances into consideration, it might be fairly inferred that a majority of the United States were in favor of this amendment. He had studied to make himself acquainted with this particular subject, and all that he had ever heard in defence of the power being exercised by the General Government was, that it was necessary, in case any State neglected or refused to make provision for the election. Now these cases were particularly excepted by the clause proposed by his honorable colleague; and therefore he presumed there was no good argument against it.
Mr. SEDGWICK moved to amend the motion, by giving the power to Congress to alter the times, many and places of holding elections, provided the States made improper ones; for as much injury might result to the Union from improper regulations, as from a neglect or refuse to make any. It is as much to be apprehended that the State may abuse their powers, as that the United States may make an improper use of theirs.
Mr. AMES said, that inadequate regulations were equally injurious as having none, and that such an amendment as was now proposed would alter the constitution; it would vest the supreme authority in places where it was never contemplated.
Mr. SHERMAN observed, that the Convention were very unanimous in passing this clause; that it was an important provision, and if it was resigned it would tend to subvert the Government.
Mr. MADISON was willing to make every amendment that was required by the States, which did not tend to destroy the principles and the efficacy of the constitution; he conceived that the proposed amendment would have that tendency, he was therefore opposed to it.
Mr. SMITH (of South Carolina) observed, that the States had the sole regulation of elections, so far as it respected the President. Now he saw no good reason why they should be indulged in this, and prohibited from the other. But the amendment did not go so far; it admitted that the General Government might interfere whenever the State Legislature refused or neglected; and it might happen that the business would be neglected without any design to injure the administration of the General Government; it might be that the two branches of the Legislature could not agree, as happened he believed in the Legislature of New York, with respect to their choice Senators at their late session.
Mr. TUCKER objected to Mr. SEDGWICK‘S motion of amendment, because it had a tendency to defeat the object of the proposition brought forward by his colleague, (Mr. BURKE.) The General Government would be the judge of inadequate or improper regulations; of consequence they might interfere in any or every law which the States might pass on that subject.
He wished that the State Legislatures might be left to themselves to perform every thing they were competent to, without the guidance of Congress. He believed there was no great danger, but they knew how to pursue their own good, as well when left to their discretion, as they would under the direction of a superior. It seemed to him as if there was a strong propensity in this Government to take upon themselves the guidance of the State Governments, which to his mind implied a doubt of their capacity to govern themselves; now his judgment was convinced that the particular State Governments could take care of themselves, and deserved more to be trusted than this did, because the right of the citizen was more secure under it.
It had been supposed by some States, that electing by districts was the most convenient mode of choosing members to this House; others have thought that the whole State ought to vote for the whole number of members to be elected for that State. Congress might, under like impressions, set their regulations aside. He had heard that many citizens of Virginia (which State was divided into eleven districts) supposed themselves abridged of nine-tenths of their privilege by being restrained to the choice of one man instead of ten, the number that State sends to this House.
With respect to the election of Senators, the mode is fixed; every State but New York has established a precedent; there is, therefore but little danger of any difficulty on this account. As to New York, she suffers by her want of decision; it is her own loss; but probably they may soon decide the point, and then no difficulty can possibly arise hereafter. From all these consulerations, he was induced to hope Mr. SEDGWICK‘s motion would be negative, and his colleague’s agreed to.
Mr. GOODHUE hoped the amendment never would obtain. Gentlemen should recollect there appeared a large majority against amendments, when the subject was first introduced, and he had no doubt but that majority still existed. Now, rather than this amendment should take effect, he would vote against all that had been agreed to. His greatest apprehensions were, that the State Governments would oppose and thwart the general one to such a degree as finally to overturn it. Now, to guard against this evil, he wished the Federal Government to possess every power necessary to its existence.
Mr. BURKE was convinced there was a majority against him; but, nevertheless, he would do his duty, and propose such amendments as he conceived essential to secure the rights and liberties of his constituents. He begged permission to make an observation or two, not strictly in order: the first was on an assertion that had been repeated more than once in this House, “That this revolution or adoption of the new constitution was agreeable to the public mind, and those who opposed it at first are now satisfied with it.” I believe, sir, said he, that many of those gentlemen who agreed to the ratification without amendments, did it from principles of patriotism, but they knew at the same time that they parted with their liberties; yet they had such reliance on the virtue of a future Congress, that they did not hesitate, expecting that they would be restored to them unimpaired, as soon as the Government commenced its operations, conformably to what was mutually understood at the sealing and delivering up of those instruments.
It has been supposed that there is no danger to be apprehended from the General Government of an invasion of the rights of election. I will remind gentlemen of an instance in the Government of Holland. The patriots in that country fought no less strenuously for that prize than the people of America; yet, by giving to the States General powers not unlike those in this constitution, their right of representation was abolished. That they once possessed it is certain, and that they made as much talk about its importance as we do; but now the right has ceased, all vacancies are filled by the men in power. It is our duty, therefore, to prevent our liberties from being fooled away in a similar manner; consequently we ought to adopt the clause which secures to the General Government every thing that ought to be required.
Mr. MADISON observed, that it was the State Government in the Seven united provinces which had assumed to themselves the power of filling vacancies, and not the General Government; therefore the gentleman’s application did not hold.
The question on Mr. SEDGWICK‘s motion for amending Mr. BURKE’s proposition was put and lost.
The question was then put on Mr. BURKE‘s motion, and the yeas and nays being demanded by the constitutional number, they were taken as follows:
YEAS.–Messrs. BURKE, COLES, FLOYD, GERRY, GRIFFIN, GROUT, HATHORN, HEISTER, JACKSON, LIVERNMORE, MATTHEWS, MOORE, PAGE, PARKER, PARTRIDGE, VAN RENSSELAER, SENEY, SYLVESTER, SMITH (of South Carolina,) STONE, SUMTER, THATCHER, and TUCKER.–23.
NAYS.–Messrs. AMES, BENSON, BOUDINOT, BROWN, CADWALADER, CARROLL, CLYMER, FITZSIMONS, FOSTER, GALE, GILMAN, GOODHUE, HARTLEY, LAWRENCE, LEE, MADISON, MUHLENBERG, SCHUREMAN, SCOTT, SEDGWICK, SHERMAN, SINNICKSON, SMITH, (of Maryland,) STURGES, TRUNBULL, VINING, WADSWORTH, and WYNKOOP.–28.
So it was determined in the negative.
The House then resumed the consideration of the proposition respecting the apportioning of the representation to a certain ratio, proposed by Mr. AMES.
When, after some desultory conversation, it was agreed to, as follows: “After the first enumeration, required by the first article of the constitution, there shall be one representative for every thirty thousand, until the number shall amount to one hundred. After which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred representatives, nor less than one representative for every forty thousand persons, until the number of representatives shall amount to two hundred, after which, the proportion shall be so regulated by Congress, that there shall not be less than two hundred representatives, nor less than one representative for fifty-thousand persons.”
After which the House adjourned.