CHAPTER XLIV.

AMENDMENTS TO THE CONSTITUTION.

§ 1857. We have already had occasion to take notice of some of the amendments made to the Constitution subsequent to its adoption in the progress of our review of the provisions of the original instrument. The present chapter will be devoted to a consideration of those which have not fallen within the scope of our former commentaries.

§ 1858. It has been already stated that many objections were taken to the Constitution not only on account of its actual provisions but also on account of its deficiencies and omissions.1 Among the latter none were proclaimed with more zeal and pressed with more effect than the want of a bill of rights. This, it was said, was a fatal defect, and sufficient of itself to bring on the ruin of the republic.2 To this objection several answers were given : first, that the Constitution did, in fact, contain many provisions in the nature of a bill of rights, if the whole Constitution was not, in fact, a bill of rights; secondly, that a bill of rights was in its nature more adapted to a monarchy than to a government professedly founded upon the will of the people and executed by their immediate representatives and agents; and thirdly, that a formal bill of rights, beyond what was contained in it, was wholly unnecessary, and might even be dangerous.3

§ 1859. The first answer was supported by reference to the clauses in the Constitution providing for the judgment in cases of impeachment; the privilege of the writ of habeas corpus; the trial by jury in criminal cases; the definition, trial, and punishment of treason; the prohibition of bills of attainder, ex post facto laws, laws impairing the obligation of contracts, laws granting titles of

1 Vol. i. B. 3, ch. 2.

2 2 Amer. Museum, 423, 424, 425; Id. 435; Id. 534; Id. 540, 543, 546; Id. 553. [See also Jefferson's Works, III. 4, 13, 101, 201; Id. II. 329, 358; Life and Correspondence of Justice Iredell, II. 186.]

3 The Federalist, No. 8; 3 Amer. Museum, 78, 79; Id. 559.

nobility, and laws imposing religious tests. All these were so many declarations of rights for the protection of the citizens, not exceeded in value by any which could possibly find a place in any bill of rights. 1

§ 1860. Upon the second point it was said that bills of rights are in their origin stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, and reservations of rights not surrendered to the prince. Such was Magna Charta obtained by the barons, sword in hand, of King John. Such were the subsequent confirmations of that charter by succeeding princes. Such was the petition of right assented to by Charles the First in the beginning of his reign. Such also was the declaration of rights presented by the lords and commons to the Prince of Orange in 1688, and afterwards put into the form of an act of parliament called the bill of rights.2 It is evident, therefore, that according to its primitive signification a bill of rights has no application to constitutions professedly founded upon the power of the people, and executed by persons who are immediately chosen by them to execute their will. In our country, in strictness, the people surrender nothing; and as they retain every thing, they have, no need of particular reservations. "We, the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America" is a better recognition of popular rights than volumes of those aphorisms which make a principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government.4

§ 1861. Upon the third point it was said that a minute detail of particular rights was certainly far less applicable to a constitution designed to regulate the general political concerns of the nation than to one which had the regulation of every species of personal and private concerns. But, it was added, the argument might justly be carried further. It might be affirmed that a bill of rights, in the sense and extent which is contended for, was not only wholly unnecessary, but might even be dangerous. Such a 1 The Federalist, No. 84.

2 Mr. Chancellor Kent has given an exact though succinct history of the bills of rights, both in the mother country and the colonies, in 2 Kent's Comm. Lect. 24. 3 1 Lloyd's Debates, 430, 431, 432.

4 The Federalist, No. 84. [See also Life and Correspondence of Justice Iredell, II. 187.]

bill would contain various exceptions to powers not granted, and on this very account might afford a colorable pretext to claim more than was granted. For why, it might be asked, declare that things shall not be done which there is no power to do? Why, for instance, that the liberty of the press shall not be restrained when no power is given by which restrictions may be imposed? It is true, that upon sound reasoning a declaration of this sort could not fairly be construed to imply a regulating power, but it might be seized upon by men disposed to usurpation in order to furnish a plausible pretence for claiming the power. They might urge with a semblance of reason that the Constitution ought not to be charged with the absurdity of providing against an abuse of an authority which was not given, and that the provision against restraining the liberty of the press afforded a clear implication that a right to prescribe proper regulations concerning it was intended to be vested in the national government.

§ 1862. It was further added, that in truth the Constitution itself was in every rational sense, and to every useful purpose, a bill of rights for the union. It specifies and declares the political privileges of the citizens in the structure and administration of the government. It defines certain immunities and modes of proceeding which relate to their personal, private, and public rights and concerns. It confers on them the unalienable right of electing their rulers, and prohibits any tyrannical measures and vindictive prosecutions. So that at best much of the force of the objection rests on mere nominal distinctions, or upon a desire to make a frame of government a code to regulate rights and remedies.2

3

§ 1863. Although it must be conceded that there is much intrinsic force in this reasoning, it cannot in candor be admitted to be wholly satisfactory or conclusive on the subject. It is rather the argument of an able advocate than the reasoning of a consti

1 1 Lloyd's Debates, 433, 437.

2 The Federalist, No. 84. See 1 Lloyd's Debates, 428, 429, 430; 3 Amer. Museum, 559.

3 It had, beyond all question, extraordinary influence in the convention; for upon a motion being made to appoint a committee to prepare a bill of rights, the proposition was UNANIMOUSLY rejected. Journal of Convention, p. 369. This fact alone shows that it was at best deemed a subject of doubtful propriety, and that it formed no line of distinction between any of the parties in the convention. There will be found considerable reasoning on the subject in the debates in Congress on the amendments proposed in 1789. See 1 Lloyd's Debates, 414 to 426;' Id. 426 to

tutional statesman. In the first place, a bill of rights, in the very sense of this reasoning, is admitted in some cases to be important; and the Constitution itself adopts and establishes its propriety to the extent of its actual provisions. Every reason which establishes the propriety of any provision of this sort in the Constitution, such as a right of trial by jury in criminal cases, is, pro tanto, proof that it is neither unnecessary nor dangerous. It reduces the question to the consideration, not whether any bill of rights is necessary, but what such a bill of rights should properly contain. That is a point for argument upon which different minds may arrive at different conclusions. That a bill of rights may contain too many enumerations, and especially such as more correctly belong to the ordinary legislation of a government, cannot be doubted. Some of our State bills of rights contain clauses of this description, being either in their character and phraseology quite too loose and general and ambiguous, or covering doctrines quite debatable both in theory and practice, or even leading to mischievous consequences by restricting the legislative power under circumstances which were not foreseen, and if foreseen, the restraint would have been pronounced by all persons inexpedient and perhaps unjust.1 Indeed, the rage of theorists to make constitutions a vehicle for the conveyance of their own crude and visionary aphorisms of government requires to be guarded against with the most unceasing vigilance.2

§ 1864. In the next place a bill of rights is important, and may often be indispensable, whenever it operates as a qualification upon powers actually granted by the people to the government.3 This is the real ground of all the bills of rights in the parent country, in the colonial constitutions and laws, and in the State constitutions. In England, the bills of rights were not demanded merely of the crown, as withdrawing a power from the royal prerogative; they were equally important, as withdrawing power from parliament. A large proportion of the most valuable of the provisions in Magna Charta, and the bill of rights in 1688, consists of a solemn recognition of limitations upon the power of 1 2 Kent's Comm. Lect. 24, p. 6 (2d edition, p. 9) and note, Id.; 1 Lloyd's Debates, 431, 432.

2 This whole subject is treated with great felicity and force by Mr. Chancellor Kent, in his Commentaries; and the whole lecture will reward a most diligent perusal. 2 Kent's Comm. Lect. 24.

3 1 Lloyd's Debates, 429, 430, 431, 432.

parliament; that is, a declaration that parliament ought not to abolish or restrict those rights. Such are the right of trial by jury; the right to personal liberty and private property according to the law of the land; that the subjects ought to have a right to bear arms; that elections of members of parliament ought to be free; that freedom of speech and debate in parliament ought not to be impeached, or questioned elsewhere; and that excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted.1 Whenever, then, a general power exists, or is granted to a government which may in its actual exercise or abuse be dangerous to the people, there seems a peculiar propriety in restricting its operations, and in excepting from it some at least of the most mischievous forms in which it may be likely to be abused. And the very exception in such cases will operate with a silent but irresistible influence to control the actual abuse of it in other analogous cases.2

§ 1865. In the next place, a bill of rights may be important, even when it goes beyond powers supposed to be granted. It is not always possible to foresee the extent of the actual reach of certain powers which are given in general terms. They may be construed to extend (and perhaps fairly) to certain classes of cases, which did not at first appear to be within them. A bill of rights, then, operates as a guard upon any extravagant or undue extension of such powers. Besides (as has been justly remarked), a bill of rights is of real efficiency in controlling the excesses of party spirit. It serves to guide and enlighten public opinion, and to render it more quick to detect, and more resolute to resist, attempts to disturb private rights. It requires more than ordinary hardihood and audacity of character to trample down principles which our ancestors have consecrated with reverence; which we imbibed in our early education; which recommend themselves to the judgment of the world by their truth and simplicity; and which are constantly placed before the eyes of the people, accompanied with the imposing force and solemnity of a constitutional sanction. Bills of rights are a part of the muniments of freemen, showing their title to protection; and they become of increased value when placed under the protection of an independent judiciary

1 See Magna Charta, ch. 29; Bill of Rights, 1688; 5 Cobbett's Parl. Hist. p. 110. 2 1 Lloyd's Debates, 431, 432, 433, 434.