Anti-Federalist No. 74 – 85

Antifederalist No. 74

THE PRESIDENT AS MILITARY KING

“PHILADELPHIENSIS,” who was influenced by Thomas Paine (in “Common Sense), wrote the
following selection. It is taken from 3 essays which appearing February 6 & 20, and April 9 of
1788 in either The Freeman’s Journal or, The North-American Intelligencer.
Before martial law is declared to be the supreme law of the land, and your character of free
citizens be changed to that of the subjects of a military king-which are necessary consequences
of the adoption of the proposed constitution – let me admonish you in the name of sacred liberty,
to make a solemn pause. Permit a freeman to address you, and to solicit your attention to a cause
wherein yourselves and your posterity are concerned. The sun never shone upon a more
important one. It is the cause of freedom of a whole continent of yourselves and of your fellow
men. . . .
A conspiracy against the freedom of America, both deep and dangerous, has been formed by an
infernal junto of demagogues. Our thirteen free commonwealths are to be consolidated into one
despotic monarchy. Is not this position obvious? Its evidence is intuitive . . . . Who can deny but
the president general will be a king to all intents and purposes, and one of the most dangerous
kind too-a king elected to command a standing army. Thus our laws are to be administered by
this tyrant; for the whole, or at least the most important part of the executive department is put in
his hands.
A quorum of 65 representatives, and of 26 senators, with a king at their head, are to possess
powers that extend to the lives, the liberties, and property of every citizen of America. This novel
system of government, were it possible to establish it, would be a compound of monarchy and
aristocracy, the most accursed that ever the world witnessed. About 50 (these being a quorum) of
the well born, and a military king, with a standing army devoted to his will, are to have an
uncontrolled power. . . .
There is not a tincture of democracy in the proposed constitution, except the nominal elections of
the president general and the illustrious Congress be supposed to have some color of that nature.
But this is a mere deception, invented to gull the people into its adoption. Its framers were well
aware that some appearance of election ought to be observed, especially in regard to the first
Congress; for without such an appearance there was not the smallest probability of their having it
organized and set in operation. But let the wheels of this government be once cleverly set in
motion, and I’ll answer for it, that the people shall not be much troubled with future elections,
especially in choosing their king-the standing army will do that business for them.
The thoughts of a military officer possessing such powers, as the proposed constitution vests in
the president general, are sufficient to excite in the mind of a freeman the most alarming
apprehensions; and ought to rouse him to oppose it at all events. Every freeman of America
ought to hold up this idea to himself: that he has no superior but God and the laws. But this
tyrant will be so much his superior, that he can at any time he thinks proper, order him out in the
militia to exercise, and to march when and where he pleases. His officers can wantonly inflict the
most disgraceful punishment on a peaceable citizen, under pretense of disobedience, or the
smallest neglect of militia duty. . . .
The President-general, who is to be our king after this government is established, is vested with
powers exceeding those of the most despotic monarch we know of in modern times. What a
handsome return have these men [the authors of the Constitution made to the people of America
for their confidence! Through the misconduct of these bold conspirators we have lost the most
glorious opportunity that any country ever had to establish a free system of government. America
under one purely democratical, would be rendered the happiest and most powerful nation in the
universe. But under the proposed one composed of an elective king and a standing army,
officered by his sycophants, the starvelings of the Cincinnati, and an aristocratical Congress of
the well-born-an iota of happiness, freedom, or national strength cannot exist. What a pitiful
figure will these ungrateful men make in history; who, for the hopes of obtaining some lucrative
employment, or of receiving a little more homage from the rest of their fellow creatures, framed
a system of oppression that must involve in its consequences the misery of their own offspring….
Some feeble attempts have been made by the advocates of this system of tyranny, to answer the
objections made to the smallness of the number of representatives and senators, and the improper
powers delegated to them. But, as far as I recollect, no one has been found bold enough to stand
forth in defense of that dangerous and uncontrolled officer, the President-General, or more
properly, our new King.
A few pieces under the signature of An American Citizen’ were published immediately after the
Constitution broke the shell, and the hydra made its way from the dark conclave into the open
light. In the first number the writer, in touching on the President, endeavored to conceal his
immense powers, by representing the King of Great Britain as possessed of many hereditary
prerogatives, rights and powers that he was not possessed of; that is, he shows what he is not, but
neglects to show what he really is. But so flimsy a palliative could scarce escape the censure of
the most ignorant advocate for such an officer; and since [then] we hear of no further attempts to
prove the necessity of a King being set over the freemen of America.
The writer of these essays has clearly proven, that the President is a King to all intents and
purposes, and at the same time one of the most dangerous kind too – an elective King, the
commander in chief of a standing army, etc. And to those add, that he has a negative power over
the proceedings of both branches of the legislature. And to complete his uncontrolled sway, he is
neither restrained nor assisted by a privy council, which is a novelty in government. I challenge
the politicians of the whole continent to find in any period of history a monarch more absolute. . .
.
PHILADELPHIENSIS
Antifederalist No. 75 A NOTE PROTESTING THE TREATYMAKING
PROVISIONS OF THE CONSTITUTION
The following essay was penned anonymously by “HAMPDEN,” and it appeared in The
Pittsburgh Gazette on February 16, 1788.
…. It may be freely granted, that from a mistaken zeal in favor of that political liberty which was
so recently purchased at so costly a rate, even good men may give it [the constitution]
unreasonable opposition; but such men cannot be reasonably charged with sordid personal
interest as their motive-because it is great and sudden changes which produces opportunities of
preferment. But that class of men-who either prompted by their own ambition or desperate
fortunes, are expecting employments under the proposed plan; or those weak and ardent men
who always expect to be gainers by revolutions, and who are never contented, but always
hastening from one difficulty to another- may be expected to ascribe every excellence to the
proposed system, and to urge a thousand reasons for our real or supposed distresses, to induce
our adopting thereof. Such characters may also be expected to promise us such extravagantly
flattering advantages to arise from it, as if it was accompanied with such miraculous divine
energy as divided the Red Sea, and spoke with thunder on Mount Sinai. . . .
The first clause of the constitution assures us, that the legislative powers shall be vested in a
Congress, which shall consist of a senate and house of representatives; and in the second clause
of the second article, it is declared that the president, by and with the consent of the senate, is to
make treaties. Here the supreme executive magistrate is officially connected with the highest
branch of the legislature. And in article sixth, clause second, we find that all treaties made, or
which shall be made, under the authority of the United States, shall be the supreme law of the
land, and the judges in every state shall be bound thereby, anything in the constitution or laws of
any state to the contrary notwithstanding. When we consider the extent of treaties-that in filing
the tariff of trade, the imposts and port duties generally are or may be fixed by a large
construction which interested rulers are never at a less to give to any constitutional powertreaties
may be extended to almost every legislative object of the general government. Who is it
that does not know, that by treaties in Europe the succession and constitution of many sovereign
states, has been regulated. The partition treaty, and the war of the grand alliance, respecting the
government of Spain, are well remembered; nor is it long since three neighboring powers
established a nobleman of that nation upon the throne and regulated and altered the fundamental
laws of that country, as well as divided the territory thereof, and all this was done by treaty. And
from this power of making treaties, the house of representatives, which has the best chance of
possessing virtue, and public confidence, is entirely excluded. Indeed, I see nothing to hinder the
president and senate, at a convenient crisis, to declare themselves hereditary and supreme, and
the lower house altogether useless, and to abolish what shadow of the state constitutions remain
by this power alone; and as the president and senate have all that influence which arises from the
creating and appointing of all offices and officers, who can doubt but at a proper occasion they
will succeed in such an attempt? And who can doubt but that men will arise who will attempt it?
Will the doing so be a more flagrant breach of trust, or a greater degree of violence and perfidy,
than has already been practised in order to introduce the proposed plan? . . . Of the same kind,
and full as inconsistent and dangerous, is the first clause of the second article, compared with the
second clause of the second section. We first find the president fully and absolutely vested with
the executive power, and presently we find the most important and most influential portion of the
executive power-e.g., the appointment of all officers-vested in the senate, with whom the
president only acts as a nominating member. It is on this account that I have said above, that the
greatest degree of virtue may be expected in the house of representatives; for if any considerable
part of the executive power be joined with the legislature, it will as surely corrupt that branch
with which it is combined, as poison will the human body. Therefore, though the small house of
representatives will consist of the natural aristocracy of the country, as well as the senate, yet not
being dangerously combined with the executive branch, it has not such certain influential
inducements to corruption. . .
It will be asked, no doubt, who is this that dares so boldly to arraign the conduct and censure the
production of a convention composed of so chosen a band of patriots? To this I answer, that I am
a freeman, and it is the character of freemen to examine and judge for themselves. They know
that implicit faith respecting politics is the handmaid to slavery; and that the greatness of those
names who frame a government, cannot sanctify its faults, nor prevent the evils that result from
its imperfections. . . .
With respect to the majority, I do not doubt the testimony of a dignified supporter of the system,
that they were all, or nearly all, eminent lawyers; but I do doubt the patriotism and political
virtue of several of the most eminently active of them. But it is not with the men, but with the
plan to which they gave birth, we have to contend, and to contend with such a degree of
moderation and firmness, as will best promote political security, shall be the endeavor of
HAMPDEN

Anti-Federalist No. 76-77

AN ANTIFEDERALIST VIEW OF THE APPOINTING POWER UNDER THE CONSTITUTION
by Richard Henry Lee

. . . . In contemplating the necessary officers of the union, there appear to be six different modes
in which, in whole or in part, the appointments may be made. 1. by the legislature; 2. by the
president and the senate; 3. by the president and an executive council; 4. by the president alone;
5. by the heads of the departments; 6. by the state governments. Among all these, in my opinion,
there may be an advantageous distribution of the power of appointments.
In considering the legislators, in relation to the subject before us, two interesting questions
particularly arise: 1. whether they ought to be eligible to hold any offices whatever during the
period for which they shall be elected to serve, and even for some time afterwards. 2. how far
they ought to participate in the power of appointments. As to the first, it is true that legislators in
foreign countries, or in our state governments, are not generally made ineligible to office. There
are good reasons for it. In many countries the people have gone on without ever examining the
principles of government. There have been but few countries in which the legislators have been a
particular set of men periodically chosen. But the principal reason is, that which operates in the
several states, viz., the legislators are so frequently chosen, and so numerous, compared with the
number of offices for which they can reasonably consider themselves as candidates, that the
chance of any individual member’s being chosen, is too small to raise his hopes or expectations,
or to have any considerable influence upon his conduct. Among the state legislators, one man in
twenty may be appointed in some committee business, etc., for a month or two; but on a fair
computation, not one man in a hundred sent to the state legislatures is appointed to any
permanent office of profit. Directly the reverse of this will evidently be found true in the federal
administration. Throughout the United States, about four federal senators, and thirty-three
representatives, averaging the elections, will be chosen in a year. These few men may rationally
consider themselves as the fairest candidates for a very great number of lucrative offices, which
must become vacant in the year; and pretty clearly a majority of the federal legislators, if not
excluded, will be mere expectants for public offices. I need not adduce further arguments to
establish a position so clear. I need only call to your recollection my observations in a former
letter, wherein I endeavored to show the fallacy of the argument, that the members must return
home and mix with the people. It is said, that men are governed by interested motives, and will
not attend as legislators, unless they can, in common with others, be eligible to offices of honor
and profit. This will undoubtedly be the case with some men, but I presume only with such men
as never ought to be chosen legislators in a free country. An opposite principle will influence
good men. Virtuous patriots, and generous minds, will esteem it a higher honor to be selected as
the guardians of a free people. They will be satisfied with a reasonable compensation for their
time and service; nor will they wish to be within the vortex of influence. The valuable effects of
this principle of making legislators ineligible to offices for a given time, has never yet been
sufficiently attended to or considered. I am assured that it was established by the convention after
long debate, and afterwards, on an unfortunate change of a few members, altered. Could the
federal legislators be excluded in the manner proposed, I think it would be an important point
gained; as to themselves, they would be left to act much more from motives consistent with the
public good. In considering the principle of rotation I had occasion to distinguish the condition of
a legislator from that of a mere official man. We acquire certain habits, feelings, and opinions, as
men and citizens-others, and very different ones, from a long continuance in office. It is,
therefore, a valuable observation in many bills of rights, that rulers ought frequently to return and
mix with the people. A legislature, in a free country, must be numerous; it is in some degree a
periodical assemblage of the people, frequently formed. The principal officers in the executive
and judicial departments must have more permanency in office. Hence it may be inferred, that
the legislature will remain longer uncorrupted and virtuous; longer congenial to the people, than
the officers of those departments. If it is not, therefore in our power to preserve republican
principles for a series of ages, in all the departments of government, we may a long while
preserve them in a well formed legislature. To this end we ought to take every precaution to
prevent legislators becoming mere office-men; choose them frequently, make them recallable,
establish rotation among them, make them ineligible to offices, and give them as small a share as
possible in the disposal of them. Add to this, a legislature in the nature of things is not formed for
the detail business of appointing officers, there is also generally an impropriety in the same men
making offices and filling them, and a still greater impropriety in their impeaching and trying the
officers they appoint. For these and other reasons, I conclude the legislature is not a proper body
for the appointment of officers in general. But having gone through with the different modes of
appointment, I shall endeavor to show what share in the distribution of the power of
appointments the legislature must, from necessity, rather than from propriety, take.
2. Officers may be appointed by the president and senate. This mode, for general purposes, is
clearly not defensible. All the reasoning touching the legislature will apply to the senate. The
senate is a branch of the legislature, which ought to be kept pure and unbiased. It has a part in
trying officers for misconduct, and in creating offices it is too numerous for a council of
appointment, or to feel any degree of responsibility. If it has an advantage of the legislature, in
being the least numerous, it has a disadvantage in being more unsafe; add to this, the senate is to
have a share in the important branch of power respecting treaties. Further, this sexennial senate
of 26 members, representing 13 sovereign states, will not in practice be found to be a body to
advise, but to order and dictate in fact; and the president will be a mere primus inter pares. The
consequence will be that the senate, with these efficient means of influence, will not only dictate,
probably, to the president, but manage the house, as the constitution now stands; and under
appearances of a balanced system, in reality govern alone. There may also, by this undue
connection, be particular periods when a very popular president may have a very improper
influence upon the senate and upon the legislature. A council of appointment must very probably
sit all, or near all, the year. The senate will be too important and too expensive a body for this.
By giving the senate, directly or indirectly, an undue influence over the representatives, and the
improper means of fettering, embarrassing, or controlling the president or executive, we give the
government in the very outset a fatal and pernicious tendency to . . . aristocracy. When we, as a
circumstance not well to be avoided, admit the senate to a share of power in making treaties, and
in managing foreign concerns, we certainly progress full far enough towards this most
undesirable point in government. For with this power, also, I believe, we must join that of
appointing ambassadors, other foreign ministers, and consuls, being powers necessarily
connected. In every point of view, in which I can contemplate this subject, it appears extremely
clear to me, that the senate ought not generally to be a council of appointment. The legislature,
after the people, is the great fountain of power, and ought to be kept as pure and uncorrupt as
possible, from the hankerings, biases, and contagion of offices. Then the streams issuing from it
will be less tainted with those evils. It is not merely the number of impeachments, that are to be
expected to make public officers honest and attentive in their business. A general opinion must
pervade the community, that the house, the body to impeach them for misconduct, is
disinterested, and ever watchful for the public good; and that the judges who shall try
impeachments, will not feel a shadow of bias. Under such circumstances men will not dare
transgress, who, not deterred by such accusers and judges, would repeatedly misbehave. We
have already suffered many and extensive evils, owing to the defects of the confederation, in not
providing against the misconduct of public officers. When we expect the law to be punctually
executed, not one man in ten thousand will disobey it. It is the probable chance of escaping
punishment that induces men to transgress. It is one important means to make the government
just and honest, rigidly and constantly to hold before the eyes of those who execute it,
punishment and dismissal from office for misconduct. These are principles no candid man who
has just ideas of the essential features of a free government will controvert. They are, to be sure,
at this period, called visionary, speculative and anti-governmental-but in the true style of
courtiers, selfish politicians, and flatterers of despotism. Discerning republican men of both
parties see their value. They are said to be of no value by empty boasting advocates for the
constitution, who, by their weakness and conduct, in fact, injure its cause much more than most
of its opponents. From their high sounding promises, men are led to expect a defense of it, and to
have their doubts removed. When a number of long pieces appear, they, instead of the defense,
etc., they expected, see nothing but a parade of names; volumes written without ever coming to
the point; cases quoted between which and ours there is not the least similitude; and partial
extracts made from histories and governments, merely to serve a purpose. Some of them, like the
true admirers of royal and senatorial robes, would fain prove, that nations who have thought like
free-men and philosophers about government, and endeavored to be free, have often been the
most miserable. If a single riot in the course of five hundred years happened in a free country; if
a salary or the interest of a public or private debt was not paid at the moment-they seem to lay
more stress upon these trifles (for trifles they are in a free and happy country), than upon the
oppressions of despotic government for ages together. As to the lengthy writer in New York, I
have attentively examined his pieces. He appears to be a candid good hearted man, to have a
good style and some plausible ideas. But when we carefully examine his pieces, to see where the
strength of them lies-when the mind endeavors to fix on those material parts, which ought to be
the essence of all voluminous productions-we do not find them. The writer appears constantly to
move on a smooth surface, the part of his work like the parts of a cob-house, are all equally
strong and all equally weak, and all like those works of the boys, without an object. His pieces
appear to have but little relation to the great question, whether the constitution is fitted to the
condition and character of this people or not.
But to return. 3. Officers may be appointed by the president and an executive council. When we
have assigned to the legislature the appointment of a few important officers; to the president and
senate the appointment of those concerned in managing foreign affairs; to the state governments
the appointment of militia officers; and authorise the legislature, by legislative acts, to assign to
the president alone, to the heads of the departments, and courts of law respectively, the
appointment of many inferior officers-we shall then want to lodge some where a residuum of
power, a power to appoint all other necessary officers, as established by law. The fittest
receptacle for this residuary power is clearly, in my opinion, the first executive magistrate,
advised and directed by an executive council of seven or nine members, periodically chosen
from such proportional districts as the union may for the purpose be divided into. The people
may give their votes for twice the number of counsellors wanted, and the federal legislature take
twice the number also from the highest candidates, and from among them choose the seven or
nine, or number wanted. Such a council may be rationally formed for the business of
appointments; whereas the senate, created for other purposes, never can be. Such councils form a
feature in some of the best executives in the union. They appear to be essential to every first
magistrate, who may frequently want advice.
To authorise the president to appoint his own council would be unsafe. To give the sole
appointment of it to the legislature would confer an undue and unnecessary influence upon that
branch. Such a council for a year would be less expensive than the senate for four months. The
president may nominate, and the counsellors always be made responsible for their advice and
opinions, by recording and signing whatever they advise to be done. They and the president, to
many purposes, will properly form an independent executive branch; have an influence unmixed
with the legislative, which the executive never can have while connected with a powerful branch
of the legislature. And yet the influence arising from the power of appointments be less
dangerous, because in less dangerous hands-hands properly adequate to possess it. Whereas the
senate, from its character and situation, will add a dangerous weight to the power itself, and be
far less capable of responsibility, than the council proposed. There is another advantage: the
residuum of power as to appointments, which the president and council need possess, is less than
that the president and senate must have. And as such a council would render the sessions of the
senate unnecessary many months in the year, the expenses of the government would not be
increased, if they would not be lessened by the institution of such a council. I think I need not
dwell upon this article, as the fitness of this mode of appointment will perhaps amply appear by
the evident unfitness of the others.
4. Officers may be appointed by the president alone. It has been almost universally found, when
a man has been authorized to exercise power alone, he has never done it alone; but, generally,
[was] aided [in] his determinations by, and rested on the advice and opinions of others. And it
often happens when advice is wanted, the worst men, the most interested creatures obtrude
themselves, the worst advice is at hand, and misdirects the mind of him who would be informed
and advised. It is very seldom we see a single executive depend on accidental advice and
assistance; but each single executive has, almost always, formed to itself a regular council, to be
assembled and consulted on important occasions. This proves that a select council, of some kind
is, by experience, generally found necessary and useful. But in a free country, the exercise of any
considerable branch of power ought to be under some checks and controls. As to this point, I
think the constitution stands well. The legislature may, when it shall deem it expedient, from
time to time, authorise the president alone to appoint particular inferior officers; and when
necessary, to take back the power. His power, therefore, in this respect, may always be increased
or decreased by the legislature, as experience, the best instructor, shall direct-always keeping
him, by the constitution, within certain bounds. Officers, in the fifth place, may be appointed by
the heads of departments or courts of law. Art. 2., Sect. 2., respecting appointments, goes on-
“But congress may by law vest the appointment of such inferior officers as they think proper in
the president alone, in the courts of law, or in the heads of departments.” The probability is, as
the constitution now stands, that the Senate, a branch of the legislature, will be tenacious of the
power of appointment, and much too sparingly part with a share of it to the courts of law, and
heads of departments. Here again the impropriety appears of the senate’s having, generally, a
share in the appointment of officers. We may fairly assume, that the judges and principal officers
in the departments will be able well informed men in their respective branches of business; that
they will, from experience, be best informed as to proper persons to fill inferior offices in them;
that they will feel themselves responsible for the execution of their several branches of business,
and for the conduct of the officers they may appoint therein. From these, and other
considerations, I think we may infer, that impartial and judicious appointments of subordinate
officers will, generally, be made by the courts of law, and the heads of departments. This power
of distributing appointments, as circumstances may require, into several hands, in a well formed
disinterested legislature, might be of essential service not only in promoting beneficial
appointments, but also in preserving the balance in government. A feeble executive may be
strengthened and supported by placing in its hands more numerous appointments; an executive
too influential may be reduced within proper bounds, by placing many of the inferior
appointments in the courts of law, and heads of departments; nor is there much danger that the
executive will be wantonly weakened or strengthened by the legislature by thus shifting the
appointments of inferior officers. Since all must be done by legislative acts which cannot be
passed without the consent of the executive, or the consent of two- thirds of both branches, a
good legislature will use this power to preserve the balance and perpetuate the government. Here
again we are brought to our ultimatum-is the legislature so constructed as to deserve our
confidence?
6. Officers may be appointed by the state governments. By Art. 1., Sect. S., the respective states
are authorised exclusively to appoint the militia officers. This not only lodges the appointments
in proper places, but it also tends to distribute and lodge in different executive hands the powers
of appointing to offices, so dangerous when collected into the hands of one or a few men.
It is a good general rule, that the legislative, executive, and judicial powers, ought to be kept
distinct. But this, like other general rules, has its exceptions; and without these exceptions we
cannot form a good government, and properly balance its parts. And we can determine only from
reason, experience and a critical inspection of the parts of the government, how far it is proper to
intermix those powers. Appointments, I believe, in all mixed governments, have been assigned to
different hands-some are made by the executive, some by the legislature, some by the judges,
and some by the people. It has been thought advisable by the wisest nations-that the legislature
should so far exercise executive and judicial powers as to appoint some officers judge of the
elections of its members, and impeach and try officers for misconduct; that the executive should
have a partial share in legislation; and that judges should appoint some subordinate officers, and
regulate so far as to establish rules for their own proceedings. Where the members of the
government, as the house, the senate, the executive, and judiciary, are strong and complete, each
in itself, the balance is naturally produced; each party may take the powers congenial to it, and
we have less need to be anxious about checks, and the subdivision of powers.
If after making the deductions already alluded to, from the general power to appoint federal
officers, the residuum shall be thought to be too large and unsafe, and to place an undue
influence in the hands of the president and council, a further deduction may be made, with many
advantages and perhaps with but a few inconveniencies-and that is, by giving the appointment of
a few great officers to the legislature-as of the commissioners of the treasury, of the comptroller,
treasurer, master coiner, and some of the principal officers in the money department; of the
sheriffs or marshalls of the United States; of states attorneys, secretary of the home department,
and secretary of war; perhaps of the judges of the supreme court; of major generals and admirals.
The appointments of these officers, who may be at the heads of the great departments of
business, in carrying into execution the national system, involve in them a variety of
considerations. They will not often occur and the power to make them ought to remain in safe
hands. Officers of the above description are appointed by the legislatures in some of the states,
and in some not. We may, I believe, presume that the federal legislature will possess sufficient
knowledge and discernment to make judicious appointments. However, as these appointments by
the legislature tend to increase a mixture of power, to lessen the advantages of impeachments and
responsibility, I would by no means contend for them any further than it may be necessary for
reducing the power of the executive within the bounds of safety.
THE FEDERAL FARMER
Antifederalist No. 78-79 THE POWER OF THE JUDICIARY
(PART I)
Part I is taken from the first part of the “Brutus’s” 15th essay of The New-York Journal on March
20, 1788;
Part II is part one of his 16th of the New York Journal of April 10, 1788.
The supreme court under this constitution would be exalted above all other power in the
government, and subject to no control. The business of this paper will be to illustrate this, and to
show the danger that will result from it. I question whether the world ever saw, in any period of
it, a court of justice invested with such immense powers, and yet placed in a situation so little
responsible. Certain it is, that in England, and in the several states, where we have been taught to
believe the courts of law are put upon the most prudent establishment, they are on a very
different footing.
The judges in England, it is true, hold their offices during their good behavior, but then their
determinations are subject to correction by the house of lords; and their power is by no means so
extensive as that of the proposed supreme court of the union. I believe they in no instance
assume the authority to set aside an act of parliament under the idea that it is inconsistent with
their constitution. They consider themselves bound to decide according to the existing laws of
the land, and never undertake to control them by adjudging that they are inconsistent with the
constitution-much less are they vested with the power of giv[ing an] equitable construction to the
constitution.
The judges in England are under the control of the legislature, for they are bound to determine
according to the laws passed under them. But the judges under this constitution will control the
legislature, for the supreme court are authorised in the last resort, to determine what is the extent
of the powers of the Congress. They are to give the constitution an explanation, and there is no
power above them to set aside their judgment. The framers of this constitution appear to have
followed that of the British, in rendering the judges independent, by granting them their offices
during good behavior, without following the constitution of England, in instituting a tribunal in
which their errors may be corrected; and without adverting to this, that the judicial under this
system have a power which is above the legislative, and which indeed transcends any power
before given to a judicial by any free government under heaven.
I do not object to the judges holding their commissions during good behavior. I suppose it a
proper provision provided they were made properly responsible. But I say, this system has
followed the English government in this, while it has departed from almost every other principle
of their jurisprudence, under the idea, of rendering the judges independent; which, in the British
constitution, means no more than that they hold their places during good behavior, and have
fixed salaries . . . [the authors of the constitution] have made the judges independent, in the
fullest sense of the word. There is no power above them, to control any of their decisions. There
is no authority that can remove them, and they cannot be controlled by the laws of the
legislature. In short, they are independent of the people, of the legislature, and of every power
under heaven. Men placed in this situation will generally soon feel themselves independent of
heaven itself. Before I proceed to illustrate the truth of these reflections, I beg liberty to make
one remark. Though in my opinion the judges ought to hold their offices during good behavior,
yet I think it is clear, that the reasons in favor of this establishment of the judges in England, do
by no means apply to this country.
The great reason assigned, why the judges in Britain ought to be commissioned during good
behavior, is this, that they may be placed in a situation, not to be influenced by the crown, to give
such decisions as would tend to increase its powers and prerogatives. While the judges held their
places at the will and pleasure of the king, on whom they depended not only for their offices, but
also for their salaries, they were subject to every undue influence. If the crown wished to carry a
favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the
king would be signified to the judges. And it required the spirit of a martyr for the judges to
determine contrary to the king’s will. They were absolutely dependent upon him both for their
offices and livings. The king, holding his office during life, and transmitting it to his posterity as
an inheritance, has much stronger inducements to increase the prerogatives of his office than
those who hold their offices for stated periods or even for life. Hence the English nation gained a
great point, in favor of liberty, when they obtained the appointment of the judge, during good
behavior. They got from the crown a concession which deprived it of one of the most powerful
engines with which it might enlarge the boundaries of the royal prerogative and encroach on the
liberties of the people. But these reasons do not apply to this country. We have no hereditary
monarch; those who appoint the judges do not hold their offices for life, nor do they descend to
their children. The same arguments, therefore, which will conclude in favor of the tenure of the
judge’s offices for good behavior, lose a considerable part of their weight when applied to the
state and condition of America. But much less can it be shown, that the nature of our government
requires that the courts should be placed beyond all account more independent, so much so as to
be above control.
I have said that the judges under this system will be independent in the strict sense of the word.
To prove this I will show that there is no power above them that can control their decisions, or
correct their errors. There is no authority that can remove them from office for any errors or want
of capacity, or lower their salaries, and in many cases their power is superior to that of the
legislature.
1st. There is no power above them that can correct their errors or control their decisions. The
adjudications of this court are final and irreversible, for there is no court above them to which
appeals can lie, either in error or on the merits. In this respect it differs from the courts in
England, for there the house of lords is the highest court, to whom appeals, in error, are carried
from the highest of the courts of law.
2nd. They cannot be removed from office or suffer a diminution of their salaries, for any error in
judgment [due] to want of capacity. It is expressly declared by the constitution, “That they shall
at stated times receive a compensation for their services which shall not be diminished during
their continuance in office.”
The only clause in the constitution which provides for the removal of the judges from offices, is
that which declares, that “the president, vice- president, and all civil officers of the United States,
shall be removed from office, on impeachment for, and conviction of treason, bribery, or other
high crimes and misdemeanors.” By this paragraph, civil officers, in which the judges are
included, are removable only for crimes. Treason and bribery are named, and the rest are
included under the general terms of high crimes and misdemeanors. Errors in judgment, or want
of capacity to discharge the duties of the office, can never be supposed to be included in these
words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or
manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence
of corruption or want of integrity. To support the charge, it will be necessary to give in evidence
some facts that will show, that the judges committed the error from wicked and corrupt motives.
3d. The power of this court is in many cases superior to that of the legislature. I have showed, in
a former paper, that this court will be authorised to decide upon the meaning of the constitution;
and that, not only according to the natural and obvious meaning of the words, but also according
to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but
above the legislature. For all the departments of this government will receive their powers, so far
as they are expressed in the constitution, from the people immediately, who are the source of
power. The legislature can only exercise such powers as are given them by the constitution; they
cannot assume any of the rights annexed to the judicial; for this plain reason, that the same
authority which vested the legislature with their powers, vested the judicial with theirs. Both are
derived from the same source; both therefore are equally valid, and the judicial hold their powers
independently of the legislature, as the legislature do of the judicial. The supreme court then
have a right, independent of the legislature, to give a construction to the constitution and every
part of it, and there is no power provided in this system to correct their construction or do it
away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon
the constitution, they will declare it void; and therefore in this respect their power is superior to
that of the legislature. In England the judges are not only subject to have their decisions set aside
by the house of lords, for error, but in cases where they give an explanation to the laws or
constitution of the country contrary to the sense of the parliament -though the parliament will not
set aside the judgment of the court-yet, they have authority, by a new law, to explain the former
one, and by this means to prevent a reception of such decisions. But no such power is in the
legislature. The judges are supreme and no law, explanatory of the constitution, will be binding
on them.
When great and extraordinary powers are vested in any man, or body of men, which in their
exercise, may operate to the oppression of the people, it is of high importance that powerful
checks should be formed to prevent the abuse of it.
Perhaps no restraints are more forcible, than such as arise from responsibility to some superior
power. Hence it is that the true policy of a republican government is, to frame it in such manner,
that all persons who are concerned in the government, are made accountable to some superior for
their conduct in office. This responsibility should ultimately rest with the people. To have a
government well administered in all its parts, it is requisite the different departments of it should
be separated and lodged as much as may be in different hands. The legislative power should be
in one body, the executive in another, and the judicial in one different from either. But still each
of these bodies should be accountable for their conduct. Hence it is impracticable, perhaps, to
maintain a perfect distinction between these several departments. For it is difficult, if not
impossible, to call to account the several officers in government, without in some degree mixing
the legislative and judicial. The legislature in a free republic are chosen by the people at stated
periods, and their responsibility consists, in their being amenable to the people. When the term
for which they are chosen shall expire, who [the people) will then have opportunity to displace
them if they disapprove of their conduct. But it would be improper that the judicial should be
elective, because their business requires that they should possess a degree of law knowledge,
which is acquired only by a regular education; and besides it is fit that they should be placed, in a
certain degree in an independent situation, that they may maintain firmness and steadiness in
their decisions. As the people therefore ought not to elect the judges, they cannot be amenable to
them immediately, some other mode of amenability must therefore be devised for these, as well
as for all other officers which do not spring from the immediate choice of the people. This is to
be effected by making one court subordinate to another, and by giving them cognizance of the
behavior of all officers. But on this plan we at last arrive at some supreme, over whom there is
no power to control but the people themselves. This supreme controlling power should be in the
choice of the people, or else you establish an authority independent, and not amenable at all,
which is repugnant to the principles of a free government. Agreeable to these principles I
suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by
some body of men, who depend upon the people for their places; and so also should all other
great officers in the State, who are not made amenable to some superior officers….
BRUTUS
Antifederalist No. 80 THE POWER OF THE JUDICIARY
(PART II)
From the 11th essay of “Brutus” taken from The New-York Journal, January 31, 1788.
The nature and extent of the judicial power of the United States, proposed to be granted by the
constitution, claims our particular attention.
Much has been said and written upon the subject of this new system on both sides, but I have not
met with any writer who has discussed the judicial powers with any degree of accuracy. And yet
it is obvious, that we can gain but very imperfect ideas of the manner in which this government
will work, or the effect it will have in changing the internal police and mode of distributing
justice at present subsisting in the respective states, without a thorough investigation of the
powers of the judiciary and of the manner in which they will operate. This government is a
complete system, not only for making, but for executing laws. And the courts of law, which will
be constituted by it, are not only to decide upon the constitution and the laws made in pursuance
of it, but by officers subordinate to them to execute all their decisions. The real effect of this
system of government, will therefore be brought home to the feelings of the people, through the
medium of the judicial power. It is, moreover, of great importance, to examine with care the
nature and extent of the judicial power, because those who are to be vested with it, are to be
placed in a situation altogether unprecedented in a free country. They are to be rendered totally
independent, both of the people and the legislature, both with respect to their offices and salaries.
No errors they may commit can be corrected by any power above them, if any such power there
be, nor can they be removed from office for making ever so many erroneous adjudications.
The only causes for which they can be displaced, is, conviction of treason, bribery, and high
crimes and misdemeanors.
This part of the plan is so modelled, as to authorize the courts, not only to carry into execution
the powers expressly given, but where these are wanting or ambiguously expressed, to supply
what is wanting by their own decisions.
That we may be enabled to form a just opinion on this subject, I shall, in considering it, lst.
Examine the nature and extent of the judicial powers, and 2nd. Inquire, whether the courts who
are to exercise them, are so constituted as to afford reasonable ground of confidence, that they
will exercise them for the general good.
With a regard to the nature and extent of the judicial powers, I have to regret my want of
capacity to give that full and minute explanation of them that the subject merits. To be able to do
this, a man should be possessed of a degree of law knowledge far beyond what I pretend to. A
number of hard words and technical phrases are used in this part of the system, about the
meaning of which gentlemen learned in the law differ. Its advocates know how to avail
themselves of these phrases. In a number of instances, where objections are made to the powers
given to the judicial, they give such an explanation to the technical terms as to avoid them.
Though I am not competent to give a perfect explanation of the powers granted to this
department of the government, I shall yet attempt to trace some of the leading features of it, from
which I presume it will appear, that they will operate to a total subversion of the state judiciaries,
if not to the legislative authority of the states.
In article 3d, sect. 2d, it is said, “The judicial power shall extend to all cases in law and equity
arising under this constitution, the laws of the United States, and treaties made, or which shall be
made, under their authority, etc.” The first article to which this power extends is, all cases in law
and equity arising under this constitution.
What latitude of construction this clause should receive, it is not easy to say. At first view, one
would suppose, that it meant no more than this, that the courts under the general government
should exercise, not only the powers of courts of law, but also that of courts of equity, in the
manner in which those powers are usually exercised in the different states. But this cannot be the
meaning, because the next clause authorises the courts to take cognizance of all cases in law and
equity arising under the laws of the United States; this last article, I conceive, conveys as much
power to the general judicial as any of the state courts possess.
The cases arising under the constitution must be different from those arising under the laws, or
else the two clauses mean exactly the same thing. The cases arising under the constitution must
include such, as bring into question its meaning, and will require an explanation of the nature and
extent of the powers of the different departments under it. This article, therefore, vests the
judicial with a power to resolve all questions that may arise on any case on the construction of
the constitution, either in law or in equity.
lst. They are authorised to determine all questions that may arise upon the meaning of the
constitution in law. This article vests the courts with authority to give the constitution a legal
construction, or to explain it according to the rules laid down for construing a law. These rules
give a certain degree of latitude of explanation. According to this mode of construction, the
courts are to give such meaning to the constitution as comports best with the common, and
generally received acceptation of the words in which it is expressed, regarding their ordinary and
popular use, rather than their grammatical propriety. Where words are dubious, they will be
explained by the context. The end of the clause will be attended to, and the words will be
understood, as having a view to it; and the words will not be so understood as to bear no meaning
or a very absurd one.
2nd. The judicial are not only to decide questions arising upon the meaning of the constitution in
law, but also in equity. By this they are empowered, to explain the constitution according to the
reasoning spirit of it, without being confined to the words or letter. “From this method of
interpreting laws (says Blackstone) by the reason of them, arises what we call equity”; which is
thus defined by Grotius, “the correction of that, wherein the law, by reason of its universality, is
deficient; for since in laws all cases cannot be foreseen, or expressed, it is necessary, that when
the decrees of the law cannot be applied to particular cases, there should somewhere be a power
vested of defining those circumstances, which had they been foreseen the legislator would have
expressed. . . .” The same learned author observes, “That equity, thus depending essentially upon
each individual case, there can be no established rules and fixed principles of equity laid down,
without destroying its very essence, and reducing it to a positive law.”
From these remarks, the authority and business of the courts of law, under this clause, may be
understood.
They [the courts] will give the sense of every article of the constitution, that may from time to
time come before them. And in their decisions they will not confine themselves to any fixed or
established rules, but will determine, according to what appears to them, the reason and spirit of
the constitution. The opinions of the supreme court, whatever they may be, will have the force of
law; because there is no power provided in the constitution that can correct their errors, or
control their adjudications. From this court there is no appeal. And I conceive the legislature
themselves, cannot set aside a judgment of this court, because they are authorised by the
constitution to decide in the last resort. The legislature must be controlled by the constitution,
and not the constitution by them. They have therefore no more right to set aside any judgment
pronounced upon the construction of the constitution, than they have to take from the president,
the chief command of the army and navy, and commit it to some other person. The reason is
plain; the judicial and executive derive their authority from the same source, that the legislature
do theirs; and therefore in all cases, where the constitution does not make the one responsible to,
or controllable by the other, they are altogether independent of each other.
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible
manner, what is evidently the tendency of the constitution: I mean, an entire subversion of the
legislative, executive and judicial powers of the individual states. Every adjudication of the
supreme court, on any question that may arise upon the nature and extent of the general
government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the
exercise of their powers, will that of the latter be restricted.
That the judicial power of the United States, will lean strongly in favor of the general
government, and will give such an explanation to the constitution, as will favor an extension of
its jurisdiction, is very evident from a variety of considerations.
lst. The constitution itself strongly countenances such a mode of construction. Most of the
articles in this system, which convey powers of any considerable importance, are conceived in
general and indefinite terms, which are either equivocal, ambiguous, or which require long
definitions to unfold the extent of their meaning. The two most important powers committed to
any government, those of raising money, and of raising and keeping up troops, have already been
considered, and shown to be unlimited by any thing but the discretion of the legislature. The
clause which vests the power to pass all laws which are proper and necessary, to carry the
powers given into execution, it has been shown, leaves the legislature at liberty, to do everything,
which in their judgment is best. It is said, I know, that this clause confers no power on the
legislature, which they would not have had without it-though I believe this is not the fact, Yet,
admitting it to be, it implies that the constitution is not to receive an explanation strictly
according to its letter; but more power is implied than is expressed. And this clause, if it is to be
considered as explanatory of the extent of the powers given, rather than giving a new power, is to
be understood as declaring that in construing any of the articles conveying power, the spirit,
intent and design of the clause should be attended to, as welt as the words in their common
acceptation.
This constitution gives sufficient color for adopting an equitable construction, if we consider the
great end and design it professedly has in view. These appear from its preamble to be, “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 ourselves and
posterity.” The design of this system is here expressed, and it is proper to give such a meaning to
the various parts, as will best promote the accomplishment of the end; this idea suggests itself
naturally upon reading the preamble, and will countenance the court in giving the several articles
such a sense, as will the most effectually promote the ends the constitution had in view. How this
manner of explaining the constitution will operate in practice, shall be the subject of future
inquiry.
2nd. Not only will the constitution justify the courts in inclining to this mode of explaining it, but
they will be interested in using this latitude of interpretation. Every body of men invested with
office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to
hand down their offices, with all its rights and privileges, unimpaired to their successors. The
same principle will influence them to extend their power, and increase their rights; this of itself
will operate strongly upon the courts to give such a meaning to the constitution in all cases where
it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the
power of the general legislature, as well as of the judicial powers, will increase the powers of the
courts; and the dignity and importance of the judges, will be in proportion to the extent and
magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges
will be increased, with the increase of the business they will have to transact and its importance.
From these considerations the judges will be interested to extend the powers of the courts, and to
construe the constitution as much as possible, in such a way as to favor it; and that they will do
it, appears probable.
3rd. Because they [the courts] will have precedent to plead, to justify them in it [extending their
powers]. It is well known, that the courts in England, have by their authority, extended their
jurisdiction far beyond the limits set them in their original institution, and by the laws of the
land.
The court of exchequer is a remarkable instance of this. It was originally intended principally to
recover the king’s debts, and to order the revenues of the crown. It had a common law
jurisdiction, which was established merely for the benefit of the king’s accountants. We learn
from Blackstone, that the proceedings in this court are grounded on a writ called quo minus, in
which the plaintiff suggests, that he is the king’s farmer or debtor, and that the defendant hath
done him the damage complained of, by which he is less able to pay the king. These suits, by the
statute of Rutland, are expressly directed to be confined to such matters as specially concern the
king, or his ministers in the exchequer. And by the articuli super cartas, it is enacted, that no
common pleas be thenceforth held in the exchequer contrary to the form of the great charter. But
now any person may sue in the exchequer. The surmise of being debtor to the king being matter
of form, and mere words of course, the court is open to all the nation.
When the courts will have a precedent before them of a court which extended its jurisdiction in
opposition to an act of the legislature, is it not to be expected that they will extend theirs,
especially when there is nothing in the constitution expressly against it? And they are authorised
to construe its meaning, and are not under any control.
This power in the judicial, will enable them to mould the government, into any shape they
please. The manner in which this may be effected we will hereafter examine.
BRUTUS
Antifederalist No. 81 THE POWER OF THE JUDICIARY
(PART III)
Part I: from the 12th essay by “Brutus” from the February 7th & 14th (1788) issues of The New-
York Journal
Part II: Taken from the first half of the 14th essay February 28, 1788.
In my last, I showed, that the judicial power of the United States under the first clause of the
second section of article eight, would be authorised to explain the constitution, not only
according to its letter, but according to its spirit and intention; and having this power, they would
strongly incline to give it such a construction as to extend the powers of the general government,
as much as possible, to the diminution, and finally to the destruction, of that of the respective
states.
I shall now proceed to show how this power will operate in its exercise to effect these purposes. .
. . First, let us inquire how the judicial power will effect an extension of the legislative authority.
Perhaps the judicial power will not be able, by direct and positive decrees, ever to direct the
legislature, because it is not easy to conceive how a question can be brought before them in a
course of legal discussion, in which they can give a decision, declaring, that the legislature have
certain powers which they have not exercised, and which, in consequence of the determination of
the judges, they will be bound to exercise. But it is easy to see, that in their adjudication they
may establish certain principles, which being received by the legislature will enlarge the sphere
of their power beyond all bounds.
It is to be observed, that the supreme court has the power, in the last resort, to determine all
questions that may arise in the course of legal discussion, on the meaning and construction of the
constitution. This power they will hold under the constitution, and independent of the legislature.
The latter can no more deprive the former of this right, than either of them, or both of them
together, can take from the president, with the advice of the senate, the power of making treaties,
or appointing ambassadors.
In determining these questions, the court must and will assume certain principles, from which
they will reason, in forming their decisions. These principles, whatever they may be, when they
become fixed by a course of decisions, will be adopted by the legislature, and will be the rule by
which they will explain their own powers. This appears evident from this consideration, that if
the legislature pass laws, which, in the judgment of the court, they are not authorised to do by the
constitution, the court will not take notice of them; for it will not be denied, that the constitution
is the highest or supreme law. And the courts are vested with the supreme and uncontrollable
power, to determine in all cases that come before them, what the constitution means. They
cannot, therefore, execute a law, which in their judgment, opposes the constitution, unless we
can suppose they can make a superior law give way to an inferior. The legislature, therefore, will
not go over the limits by which the courts may adjudge they are confined. And there is little
room to doubt but that they will come up to those bounds, as often as occasion and opportunity
may offer, and they may judge it proper to do it. For as on the one hand, they will not readily
pass taws which they know the courts will not execute, so on the other, we may be sure they will
not scruple to pass such as they know they will give effect, as often as they may judge it proper.
From these observations it appears, that the judgment of the judicial, on the constitution, will
become the rule to guide the legislature in their construction of their powers.
What the principles are, which the courts will adopt, it is impossible for us to say. But taking up
the powers as I have explained them in my last number, which they will possess under this
clause, it is not difficult to see, that they may, and probably will, be very liberal ones.
We have seen, that they will be authorized to give the constitution a construction according to its
spirit and reason, and not to confine themselves to its letter.
To discover the spirit of the constitution, it is of the first importance to attend to the principal
ends and designs it has in view. These are expressed in the preamble, in the following words,
viz., “We, the people of the United States, 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 ourselves and our posterity, do ordain and establish
this constitution,” etc. If the end of the government is to be learned from these words, which are
clearly designed to declare it, it is obvious it has in view every object which is embraced by any
government. The preservation of internal peace-the due admission of justice-and to provide for
the defense of the community-seems to include all the objects of government. But if they do not,
they are certainly comprehended in the words, “to provide for the general welfare.” If it be
further considered, that this constitution, if it is ratified, will not be a compact entered into by
states, in their corporate capacities, but an agreement of the people of the United States as one
great body politic, no doubt can remain but that the great end of the constitution, if it is to be
collected from the preamble, in which its end is declared, is to constitute a government which is
to extend to every case for which any government is instituted, whether external or internal. The
courts, therefore, will establish this as a principle in expounding the constitution, and will give
every part of it such an explanation as will give latitude to every department under it, to take
cognizance of every matter, not only that affects the general and national concerns of the union,
but also of such as relate to the administration of private justice, and to regulating the internal
and local affairs of the different parts.
Such a rule of exposition is not only consistent with the general spirit of the preamble, but it will
stand confirmed by considering more minutely the different clauses of it.
The first object declared to be in view, is “To form a more perfect union.” It is to be observed, it
is not an union of states or bodies corporate; had this been the case the existence of the state
governments might have been secured. But it is a union of the people of the United States
considered as one body, who are to ratify this constitution if it is adopted. Now to make a union
of this kind perfect, it is necessary to abolish all inferior governments, and to give the general
one complete legislative, executive and judicial powers to every purpose. The courts therefore
will establish it as a rule in explaining the constitution; to give it such a construction as will best
tend to perfect the union or take from the state governments every power of either making or
executing laws. The second object is “to establish justice.” This must include not only the idea of
instituting the rule of justice, or of making laws which shall be the measure or rule of right, but
also of providing for the application of this rule or of administering justice under it. And under
this the courts will in their decisions extend the power of the government to all cases they
possibly can, or otherwise they will be restricted in doing what appears to be the intent of the
constitution they should do, to wit, pass laws and provide for the execution of them, for the
general distribution of justice between man and man. Another end declared is “to insure domestic
tranquility.” This comprehends a provision against all private breaches of the peace, as well as
against all public commotions or general insurrections; and to attain the object of this clause
fully, the government must exercise the power of passing laws in these subjects, as well as of
appointing magistrates with authority to execute them. And the courts will adopt these ideas in
their expositions. I might proceed to the other clause, in the preamble, and it would appear by a
consideration of all of them separately, as it does by taking them together, that if the spirit of this
system is to be known from its declared end and design in the preamble, its spirit is to subvert
and abolish all the powers of the state governments, and to embrace every object to which any
government extends.
As it sets out in the preamble with this declared intention, so it proceeds in the different parts
with the same idea. Any person, who will peruse the 5th section with attention, in which most of
the powers are enumerated, will perceive that they either expressly or by implication extend to
almost every thing about which any legislative power can be employed. If this equitable mode of
construction is applied to this part of the constitution, nothing can stand before it.
This will certainly give the first clause in that article a construction which I confess I think the
most natural and grammatical one, to authorise the Congress to do any thing which in their
judgment will tend to provide for the general welfare, and this amounts to the same thing as
general and unlimited powers of legislation in all cases.
This same manner of explaining the constitution, will fix a meaning, and a very important one
too, to the 12th clause of the same section, which authorises the Congress to make all laws which
shall be proper and necessary for carrying into effect the foregoing powers, etc. A voluminous
writer in favor of this system, has taken great pains to convince the public, that this clause means
nothing: for that the same powers expressed in this, are implied in other parts of the constitution.
Perhaps it is so, but still this will undoubtedly be an excellent auxiliary to assist the courts to
discover the spirit and reason of the constitution, and when applied to any and every of the other
clauses granting power, will operate powerfully in extracting the spirit from them.
I might instance a number of clauses in the constitution, which, if explained in an equitable
manner, would extend the powers of the government to every case, and reduce the state
legislatures to nothing. But, I should draw out my remarks to an undue length, and I presume
enough has been said to show, that the courts have sufficient ground in the exercise of this
power, to determine, that the legislature have no bounds set to them by this constitution, by any
supposed right the legislatures of the respective states may have to regulate any of their local
concerns.
I proceed, 2nd, to inquire, in what manner this power will increase the jurisdiction of the courts.
I would here observe, that the judicial power extends, expressly, to all civil cases that may arise
save such as arise between citizens of the same state, with this exception to those of that
description, that the judicial of the United States have cognizance of cases between citizens of
the same state, claiming lands -under grants of different states. Nothing more, therefore, is
necessary to give the courts of law, under this constitution, complete jurisdiction of all civil
causes, but to comprehend cases between citizens of the same state not included in the foregoing
exception.
I presume there will be no difficulty in accomplishing this. Nothing more is necessary than to set
forth in the process, that the party who brings the suit is a citizen of a different state from the one
against whom the suit is brought and there can be little doubt but that the court will take
cognizance of the matter. And if they do, who is to restrain them? Indeed, I will freely confess,
that it is my decided opinion, that the courts ought to take cognizance of such causes under the
powers of the constitution. For one of the great ends of the constitution is, “to establish justice.”
This supposes that this cannot be done under the existing governments of the states; and there is
certainly as good reason why individuals, living in the same state, should have justice, as those
who live in different states. Moreover, the constitution expressly declares, that “the citizens of
each state shall be entitled to all the privileges and immunities of citizens in the several states,” It
will therefore be no fiction, for a citizen of one state to set forth, in a suit, that he is a citizen of
another; for he that is entitled to all the privileges and immunities of a country, is a citizen of that
country. And in truth, the citizen of one state will, under this constitution, be a citizen of every
state….
It is obvious that these courts will have authority to decide upon the validity of the laws of any of
the states, in all cases where they come in question before them. Where the constitution gives the
general government exclusive jurisdiction, they will adjudge all laws made by the states, in such
cases, void ab inilio. Where the constitution gives them concurrent jurisdiction, the laws of the
United States must prevail, because they are the supreme law. In such cases, therefore, the laws
of the state legislatures must be repealed, restricted, or so construed, as to give full effect to the
laws of the union on the same subject. From these remarks it is easy to see, that in proportion as
the general government acquires power and jurisdiction, by the liberal construction which the
judges may give the constitution, those of the states will lose their rights, until they become so
trifling and unimportant, as not to be worth having. I am much mistaken, if this system will not
operate to effect this with as much celerity, as those who have the administration of it will think
prudent to suffer it. The remaining objections of the judicial power shall be considered in a
future paper.
The second paragraph of sect. 2, art. 3, is in these words: “In all cases affecting ambassadors,
other public ministers and consuls, and those in which a state shall be a party, the supreme court
shall have original jurisdiction. In all the other cases before mentioned, 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.”
Although it is proper that the courts of the general government should have cognizance of all
matters affecting ambassadors, foreign ministers, and consuls, yet I question much the propriety
of giving the supreme court original jurisdiction in all cases of this kind.
Ambassadors, and other public ministers, claim, and are entitled by the law of nations, to certain
privileges, and exemptions, both for their persons and their servants. The meanest servant of an
ambassador is exempted by the law of nations from being sued for debt. Should a suit be brought
against such an one by a citizen, through inadvertency or want of information, he will be subject
to an action in the supreme court. All the officers concerned in issuing or executing the process
will be liable to like actions. Thus may a citizen of a state be compelled, at great expense and
inconveniency, to defend himself against a suit, brought against him in the supreme court, for
inadvertently commencing an action against the most menial servant of an ambassador for a just
debt.
The appellate jurisdiction granted to the supreme court, in this paragraph, has justly been
considered as one of the most objectionable parts of the constitution. Under this power, appeals
may be had from the inferior courts to the supreme, in every case to which the judicial power
extends, except in the few instances in which the supreme court will have original jurisdiction.
By this article, appeals will lie to the supreme court, in all criminal as well as civil causes. This I
know, has been disputed by some; but I presume the point will appear clear to any one, who will
attend to the connection of this paragraph with the one that precedes it. In the former, all the
cases, to which the power of the judicial shall extend, whether civil or criminal, are enumerated.
There is no criminal matter, to which the judicial power of the United States will extend, but
such as are included under some one of the cases specified in this section. For this section is
intended to define all cases, of every description, to which the power of the judicial shall reach.
But in all these cases it is declared, the supreme court shall have appellate jurisdiction, except in
those which affect ambassadors, other public ministers and consuls, and those in which a state
shall be a party. If then this section extends the power of the judicial, to criminal cases, it allows
appeals in such cases. If the power of the judicial is not extended to criminal matters by this
section, I ask, by what part of this system does it appear, that they have any cognizance of them?
I believe it is a new and unusual thing to allow appeals in criminal matters. It is contrary to the
sense of our laws, and dangerous to our lives and liberties. . . . As our taw now stands, a person
charged with a crime has a right to a fair and impartial trial by a jury of his country, and their
verdict is final. If be is acquitted no other court can call upon him to answer for the same crime.
But by this system, a man may have had ever so fair a trial, have been acquitted by ever so
respectable a jury of his country, and still the officer of the government who prosecutes may
appeal to the supreme court. The whole matter may have a second hearing. By this means,
persons who may have disobliged those who execute the general government, may be subjected
to intolerable oppression. They may be kept in long and ruinous confinement, and exposed to
heavy and insupportable charges, to procure the attendance of witnesses, and provide the means
of their defense, at a great distance from their places of residence.
I can scarcely believe there can be a considerate citizen of the United States that will approve of
this appellate jurisdiction, as extending to criminal cases, if they will give themselves time for
reflection.
Whether the appellate jurisdiction as it respects civil matters, will not prove injurious to the
rights of the citizens, and destructive of those privileges which have ever been held sacred by
Americans, and whether it will not render the administration of justice intolerably burdensome,
intricate, and dilatory, will best appear, when we have considered the nature and operation of this
power.
It has been the fate of this clause, as it has of most of those against which unanswerable
objections have been offered, to be explained different ways, by the advocates and opponents to
the constitution. I confess I do not know what the advocates of the system would make it mean,
for I have not been fortunate enough to see in any publication this clause taken up and
considered. It is certain however, they do not admit the explanation which those who oppose the
constitution give it, or otherwise they would not so frequently charge them with want of candor,
for alleging that it takes away the trial by jury. Appeals from an inferior to a superior court, as
practised in the civil law courts, are well understood. In these courts, the judges determine both
on the law and the fact; and appeals are allowed from the inferior to the superior courts, on the
whole merits; the superior tribunal will re-examine all the facts as well as the law, and frequently
new facts will be introduced, so as many times to render the cause in the court of appeals very
different from what it was in the court below.
If the appellate jurisdiction of the supreme court, be understood in the above sense, the term is
perfectly intelligible. The meaning then is, that in an the civil case enumerated, the supreme
court shall have authority to reexamine the whole merits of the case, both with respect to the
facts and the law which may arise under it, without the intervention of a jury; that this is the
sense of this part of the system appears to me clear, from the express words of it, “in all the other
cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and
fact, etc.” Who are the supreme court? Does it not consist of the judges? . . . They will therefore
have the same authority to determine the fact as they will have to determine the law, and no
room is left for a jury on appeals to the supreme court.
If we understand the appellate jurisdiction in any other way, we shall be left utterly at a loss to
give it a meaning. The common law is a, stranger to any such jurisdiction: no appeals can lie
from any of our common law courts, upon the merits of the case. The only way in which they
can go up from an inferior to a superior tribunal is by habeas corpus before a hearing, or by
certiorari, or writ of error, after they are determined in the subordinate courts. But in no case,
when they are carried up, are the facts re-examined, but they are always taken as established in
the inferior court.
BRUTUS

Antifederalist No. 82 THE POWER OF THE JUDICIARY
(PART IV)
Part I: Part II of “Brutus'” 14th essay (from the March 6, 1788, New-York Journal)
Part II: The final segment of the 15th essay (March 20, 1788 New York Journal)
It may still be insisted that this clause [on appellate jurisdiction] does not take away the trial by
jury on appeals, but that this may be provided for by the legislature, under that paragraph which
authorises them to form regulations and restrictions for the court in the exercise of this power.
The natural meaning of this paragraph seems to be no more than this, that Congress may declare,
that certain cases shall not be subject to the appellate jurisdiction, and they may point out the
mode in which the court shall proceed in bringing up the causes before them, the manner of their
taking evidence to establish the facts, and the method of the court’s proceeding. But I presume
they cannot take from the court the right of deciding on the fact, any more than they can deprive
them of the right of determining on the law, when a cause is once before them; for they have the
same jurisdiction as to fact, as they have as to the law. But supposing the Congress may under
this clause establish the trial by jury on appeals. It does not seem to me that it will render this
article much less exceptionable. An appeal from one court and jury, to another court and jury, is
a thing altogether unknown in the laws of our state [New York], and in most of the states in the
union. A practice of this kind prevails in the eastern states: actions are there commenced in the
inferior courts, and an appeal lies from them on the whole merits to the superior courts. The
consequence is well known. Very few actions are determined in the lower courts; it is rare that a
case of any importance is not carried by appeal to the supreme court, and the jurisdiction of the
inferior courts is merely nominal; this has proved so burdensome to the people in Massachusetts,
that it was one of the principal causes which excited the insurrection in that state, in the year
past. [There are] very few sensible and moderate men in that state but what will admit, that the
inferior courts are almost entirely useless, and answer very little purpose, save only to
accumulate costs against the poor debtors who are already unable to pay their just debts.
But the operation of the appellate power in the supreme judicial of the United States, would work
infinitely more mischief than any such power can do in a single state.
The trouble and expense to the parties would be endless and intolerable. No man can say where
the supreme court are to hold their sessions; the presumption is, however, that it must be at the
seat of the general government. In this case parties must travel many hundred miles, with their
witnesses and lawyers, to prosecute or defend a suit. No man of middling fortune, can sustain the
expense of such a law suit, and therefore the poorer and middling class of citizens will be under
the necessity of submitting to the demands of the rich and the lordly, in cases that will come
under the cognizance of this court. If it be said, that to prevent this oppression, the supreme court
will sit in different parts of the union, it may be replied, that this would only make the oppression
somewhat more tolerable, but by no means so much as to give a chance of justice to the poor and
middling class. It is utterly impossible that the supreme court can move into so many different
parts of the Union, as to make it convenient or even tolerable to attend before them with
witnesses to try causes from every part of the United States. If to avoid the expense and
inconvenience of calling witnesses from a great distance, to give evidence before the supreme
court, the expedient of taking the deposition of witnesses in writing should be adopted, it would
not help the matter. It is of great importance in the distribution of justice that witnesses should be
examined face to face, that the parties should have the fairest opportunity of cross examining
them in order to bring out the whole truth. There is something in the manner in which a witness
delivers his testimony which can not be committed to paper, and which yet very frequently gives
a complexion to his evidence, very different from what it would bear if committed to writing.
Besides, the expense of taking written testimony would be, enormous. Those who are acquainted
with the costs that arise in the courts, where all the evidence is taken in writing, well know that
they exceed beyond all comparison those of the common law courts, where witnesses are
examined viva voce.
The costs accruing in courts generally advance with the grade of the courts. Thus the charges
attending a suit in our common pleas, is much less than those in the supreme court, and these are
much lower than those in the court of chancery. Indeed, the costs in the last mentioned court, are
in many cases so exorbitant and the proceedings so dilatory that the suitor had almost as well
give up his demand as to prosecute his suit. We have just reason to suppose, that the costs in the
supreme general court will exceed either of our courts. The officers of the general court will be
more dignified than those of the states, the lawyers of the most ability will practice in them, and
the trouble and expense of attending them will be greater. From all these considerations, it
appears, that the expense attending suits in the supreme court will be so great, as to put it out of
the power of the poor and middling class of citizens to contest a suit in it.
From these remarks it appears, that the administration of justice under the powers of the judicial
will be dilatory; that it will be attended with such an heavy expense as to amount to little short of
a denial of justice to the poor and middling class of people who in every government stand most
in need of the protection of the law; and that the trial by jury, which has so justly been the boast
of our forefathers as well as ourselves is taken away under them.
These extraordinary powers in this court are the more objectionable, because there does not
appear the least necessity for them, in order to secure a due and impartial distribution of justice.
The want of ability or integrity, or a disposition to render justice to every suitor, has not been
objected against the courts of the respective states. So far as I have been informed, the courts of
justice in all the states have ever been found ready to administer justice with promptitude and
impartiality according to the laws of the land. It is true in some of the states, paper money has
been made, and the debtor authorised to discharge his debts with it, at a depreciated value; in
others, tender laws have been passed, obliging the creditor to receive on execution other property
than money in discharge of his demand; and in several of the states laws have been made
unfavorable to the creditor and tending to render property insecure.
But these evils have not happened from any defect in the judicial departments of the states. The
courts indeed are bound to take notice of these laws, and so will the courts of the general
government be under obligation to observe the laws made by the general legislature not
repugnant to the constitution. But so far have the judicial been from giving undue latitude of
construction to laws of this kind, that they have invariably strongly inclined to the other side. All
the acts of our legislature, which have been charged with being of this complexion, have
uniformly received the strictest construction by the judges, and have been extended to no cases
but to such as came within the strict letter of the law. In this way, have our courts, I will not say
evaded the law, but so limited its operation as to work the least possible injustice. The same
thing has taken place in Rhode-Island, which has justly rendered herself infamous, by
tenaciously adhering to her paper money system. The judges there gave a decision, in opposition
to the words of the statute, on this principle: that a construction according to the words of it
would contradict the fundamental maxims of their laws and constitution.
No pretext therefore can be formed, from the conduct of the judicial courts [of the states], which
will justify giving such powers to the supreme general court. For their decisions have been such
as to give just ground of confidence in them, that they will finally adhere to the principles of
rectitude; and there is no necessity of lodging these powers in the [federal] courts, in order to
guard against the evils justly complained of, on the subject of security of property under this
constitution. For it has provided, “that no state shall emit bills of credit, or make any thing but
gold and silver coin a tender in payment of debts.” It has also declared, that “no state shall pass
any law impairing the obligation of contracts.” These prohibitions give the most perfect security
against those attacks upon property which I am sorry to say some of the states have but too
wantonly made, . . . For “this constitution will be the supreme law of the land, and the judges in
every state will be bound thereby; any thing in the constitution and laws of any state to the
contrary notwithstanding.”
The courts of the respective states might therefore have been securely trusted with deciding all
cases between man and man, whether citizens of the same state or of different states, or between
foreigners and citizens. Indeed, for ought I see, every case that can arise under the constitution or
laws of the United States ought in the first instance to be tried in the court of the state, except
those which might arise b@tween states, such as respect ambassadors, or other public ministers,
and perhaps such as call in question the claim of lands under grants from different states. The
state courts would be under sufficient control, if writs of error were allowed from the state courts
to the supreme court of the union, according to the practice of the courts in England and of this
state, on all cases in which the laws of the union are concerned, and perhaps to all cases in which
a foreigner is a party.
This method would preserve the good old way of administering justice, would bring justice to
every man’s door, and preserve the inestimable right of trial by jury. It would be following, as
near as our circumstances will admit, the practice of the courts in England, which is almost the
only thing I would wish to copy in their government.
But as this system now stands, there is to be as many inferior courts as Congress may see fit to
appoint, who are to be authorised to originate and in the first instance to try all the cases falling
under the description of this article. There is no security that a trial by jury shall be had in these
courts, but the trial here will soon become, as it is in Massachusetts’ inferior courts, [a] mere
matter of form; for an appeal may be had to the supreme court on the whole merits. This court is
to have power to determine in law and in equity, on the law and the fact, and this court is exalted
above all other power in the government, subject to no control; and so fixed as not to be
removable, but upon impeachment, which is much the same thing as not to be removable at all.
To obviate the objections made to the judicial power, it has been said, that the Congress, in
forming the regulations and exceptions which they are authorised to make respecting the
appellate jurisdiction, will make provision against all the evils which are apprehended from this
article. On this I would remark, that this way of answering the objection made to the power,
implies an admission that the power is in itself improper without restraint; and if so, why not
restrict it in the first instance.
The just way of investigating any power given to a government, is to examine its operation
supposing it to be put in exercise. If upon inquiry, it appears that the power, if exercised, would
be prejudicial, it ought not to be given. For to answer objections made to a power given to a
government, by saying it will never be exercised, is really admitting that the power ought not to
be exercised, and therefore ought not to be granted.
I have, in the course of my observation on this constitution, affirmed and endeavored to show,
that it was calculated to abolish entirely the state governments, and to melt down the states into
one entire government, for every purpose as well internal and local, as external and national. In
this opinion the opposers of the system have generally agreed – and this has been uniformly
denied by its advocates in public. Some individuals indeed, among them, will confess that it has
this tendency, and scruple not to say it is what they wish; and I will venture to predict, without
the spirit of prophecy, that if it is adopted without amendments, or some such precautions as will
insure amendments immediately after its adoption, that the same gentlemen who have employed
their talents and abilities with such success to influence the public mind to adopt this plan, will
employ the same to persuade the people, that it will be for their good to abolish the state
governments as useless and burdensome.
Perhaps nothing could have been better conceived to facilitate the abolition of the state
governments than the constitution of the judicial. They will be able to extend the limits of the
general government gradually, and by insensible degrees, and to accommodate themselves to the
temper of the people. Their decisions on the meaning of the constitution will commonly take
place in cases which arise between individuals, with which the public will not be generally
acquainted. One adjudication will form a precedent to the next, and this to a following one.
These cases will immediately affect individuals only, so that a series of determinations will
probably take place before even the people will be informed of them. In the meantime all the art
and address of those who wish for the change will be employed to make converts to their
opinion. The people will be told that their state officers, and state legislatures, are a burden and
expense without affording any solid advantage; that all the laws passed by them might be equally
well made by the general legislature. If to those who will be interested in the change, be added
those who will be under their influence, and such who will submit to almost any change of
government which they can be persuaded to believe will ease them of taxes, it is easy to see the
party who will favor the abolition of the state governments would be far from being
inconsiderable. In this situation, the general legislature might pass one law after another,
extending the general and abridging the state jurisdictions, and to sanction their proceedings
would have a course of decisions of the judicial to whom the constitution has committed the
power of explaining the constitution. If the states remonstrated, the constitutional mode of
deciding upon the validity of the law is with the supreme court; and neither people, nor state
legislatures, nor the general legislature can remove them or reverse their decrees. Had the
construction of the constitution been less [more?] with the legislature, they would have explained
it at their peril. If they exceed[ed] their powers, or sought to find in the spirit of the constitution,
more than was expressed in the letter, the people from whom they derived their power could
remove them, . . . Indeed, I can see no other remedy that the people can have against their rulers
for encroachments of this nature. A constitution is a compact of a people with their rulers; if the
rulers break the compact, the people have a right and ought to remove them and do themselves
justice. But in order to enable them to do this with the greater facility, those whom the people
choose at stated periods should have the power in the last resort to determine the sense of the
compact. If they determine contrary to the understanding of the people, an appeal will lie to the
people at the period when the rulers are to be elected, and they will have it in their power to
remedy the evil. But when this power is lodged in the hands of men independent of the people,
and of their representatives, and who are not constitutionally accountable for their opinions, no
way is left to control them but with a high hand and an outstretched arm.
BRUTUS
Antifederalist No. 83 THE FEDERAL JUDICIARY AND THE
ISSUE OF TRIAL BY JURY
by Luther Martin of Maryland
. . . . in all those cases, where the general government has jurisdiction in civil questions, the
proposed Constitution not only makes no provision for the trial by jury in the first instance, but,
by its appellate jurisdiction, absolutely takes away that inestimable privilege, since it expressly
declares the Supreme Court shall have appellate jurisdiction both as to law and fact. Should,
therefore, a jury be adopted in the inferior court, it would only be a needless expense, since, on
an appeal, the determination of that jury, even on questions of fact, however honest and upright,
is to be of no possible effect. The Supreme Court is to take up all questions of fact; to examine
the evidence relative thereto; to decide upon them, in the same manner as if they had never been
tried by a jury. Nor is trial by jury secured in criminal cases. It is true that, in the first instance, in
the inferior court, the trial is to be by jury. In this, and in this only, is the difference between
criminal and civil cases. But, sir, the appellate jurisdiction extends, as I have observed, to cases
criminal, as well as civil, and on the appeal the court is to decide not only on the law but on the
fact. If, therefore, even in criminal cases, the general government is not satisfied with the verdict
of the jury, its officer may remove the prosecution to the Supreme Court; and there the verdict of
the jury is to be of no effect, but the judges of this court are to decide upon the fact as well as the
law, the same as in civil cases.
Thus, sir, jury trials, which have ever been the boast of the English constitution-which have been
by our several state constitutions so cautiously secured to us-jury trials, which have so long been
considered the surest barrier against arbitrary power, and the palladium of liberty, with the loss
of which the loss of our freedom may be dated, are taken away by the proposed form of
government, not only in a great variety of questions between individual and individual, but in
every case, whether civil or criminal, arising under the laws of the United States, or the
execution of those laws. It is taken away in those very cases where, of all others, it is most
essential for our liberty to have it sacredly guarded and preserved: in every case, whether civil or
criminal, between government and its officers on the one part, and the subject or citizen on the
other. Nor was this the effect of inattention, nor did it arise from any real difficulty in
establishing and securing jury trials by the proposed Constitution if the Convention had wished
to do so; but the same reason influenced here as in the case of the establishment of the inferior
courts. As they could not trust state judges, so would they not confide in state juries. They
alleged that the general government and the state governments would always be at variance-that
the citizens of the different states would enter into the views and interests of their respective
states, and therefore ought not to be trusted in determining causes in which the general
government was any way interested, without giving the general government an opportunity, if it
disapproved the verdict of the jury, to appeal, and to have the facts examined into again, and
decided upon by its own judges, on whom it was thought a reliance might be had by the general
government, they being appointed under its authority. Thus, sir, in consequence of this appellate
jurisdiction, and its extension to facts as well as to law, every arbitrary act of the general
government, and every oppression of all that variety of officers appointed under its authority for
the collection of taxes, duties, impost, excise, and other purposes, must be submitted to by the
individual, or must be opposed with little prospect of success, and almost a certain prospect of
ruin, at least in those cases where the middle and common class of citizens are interested. Since,
to avoid that oppression, or to obtain redress, the application must be made to one of the courts
of the United States-by good fortune, should this application be in the first instance attended with
success, and should damages be recovered equivalent to the injury sustained, an appeal lies to the
Supreme Court, in which case the citizen must at once give up his cause, or he must attend to it
at the distance, perhaps, of more than a thousand miles from the place of his residence, and must
take measures to procure before that court, on the appeal, all the evidence necessary to support
his action, which, even if ultimately prosperous, must be attended with a loss of time, a neglect
of business, and an expense, which will be greater than the original grievance, and to which men
in moderate circumstances would be utterly unequal.
Antifederalist No. 84 ON THE LACK OF A BILL OF RIGHTS
By “BRUTUS”
When a building is to be erected which is intended to stand for ages, the foundation should be
firmly laid. The Constitution proposed to your acceptance is designed, not for yourselves alone,
but for generations yet unborn. The principles, therefore, upon which the social compact is
founded, ought to have been clearly and precisely stated, and the most express and full
declaration of rights to have been made. But on this subject there is almost an entire silence.
If we may collect the sentiments of the people of America, from their own most solemn
declarations, they hold this truth as self-evident, that all men are by nature free. No one man,
therefore, or any class of men, have a right, by the law of nature, or of God, to assume or
exercise authority over their fellows. The origin of society, then, is to be sought, not in any
natural right which one man has to exercise authority over another, but in the united consent of
those who associate. The mutual wants of men at first dictated the propriety of forming societies:
and when they were established, protection and defense pointed out the necessity of instituting
government. In a state of nature every individual pursues his own interest; in this pursuit it
frequently happened, that the possessions or enjoyments of one were sacrificed to the views and
designs of another; thus the weak were a prey to the strong, the simple and unwary were subject
to impositions from those who were more crafty and designing. In this state of things, every
individual was insecure; common interest, therefore, directed that government should be
established, in which the force of the whole community should be collected, and under such
directions, as to protect and defend every one who composed it. The common good, therefore, is
the end of civil government, and common consent, the foundation on which it is established. To
effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in
order that what remained should be preserved. How great a proportion of natural freedom is
necessary to be yielded by individuals, when they submit to government, I shall not inquire. So
much, however, must be given, as will be sufficient to enable those to whom the administration
of the government is committed, to establish laws for the promoting the happiness of the
community, and to carry those laws into effect. But it is not necessary, for this purpose, that
individuals should relinquish all their natural rights. Some are of such a nature that they cannot
be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life,
etc. Others are not necessary to be resigned in order to attain the end for which government is
instituted; these therefore ought not to be given up. To surrender them, would counteract the very
end of government, to wit, the common good. From these observations it appears, that in forming
a government on its true principles, the foundation should be laid in the manner I before stated,
by expressly reserving to the people such of their essential rights as are not necessary to be
parted with. The same reasons which at first induced mankind to associate and institute
government, will operate to influence them to observe this precaution. If they had been disposed
to conform themselves to the rule of immutable righteousness, government would not have been
requisite. It was because one part exercised fraud, oppression and violence, on the other, that
men came together, and agreed that certain rules should be formed to regulate the conduct of all,
and the power of the whole community lodged in the hands of rulers to enforce an obedience to
them. But rulers have the same propensities as other men; they are as likely to use the power
with which they are vested, for private purposes, and to the injury and oppression of those over
whom they are placed, as individuals in a state of nature are to injure and oppress one another. It
is therefore as proper that bounds should be set to their authority, as that government should have
at first been instituted to restrain private injuries.
This principle, which seems so evidently founded in the reason and nature of things, is confirmed
by universal experience. Those who have governed, have been found in all ages ever active to
enlarge their powers and abridge the public liberty. This has induced the people in all countries,
where any sense of freedom remained, to fix barriers against the encroachments of their rulers.
The country from which we have derived our origin, is an eminent example of this. Their magna
charta and bill of rights have long been the boast, as well as the security of that nation. I need say
no more, I presume, to an American, than that this principle is a fundamental one, in all the
Constitutions of our own States; there is not one of them but what is either founded on a
declaration or bill of rights, or has certain express reservation of rights interwoven in the body of
them. From this it appears, that at a time when the pulse of liberty beat high, and when an appeal
was made to the people to form Constitutions for the government of themselves, it was their
universal sense, that such declarations should make a part of their frames of government. It is,
therefore, the more astonishing, that this grand security to the rights of the people is not to be
found in this Constitution.
It has been said, in answer to this objection, that such declarations of rights, however requisite
they might be in the Constitutions of the States, are not necessary in the general Constitution,
because, “in the former case, every thing which is not reserved is given; but in the latter, the
reverse of the proposition prevails, and every thing which is not given is reserved.” It requires
but little attention to discover, that this mode of reasoning is rather specious than solid. The
powers, rights and authority, granted to the general government by this Constitution, are as
complete, with respect to every object to which they extend, as that of any State government-it
reaches to every thing which concerns human happiness-life, liberty, and property are under its
control. There is the same reason, therefore, that the exercise of power, in this case, should be
restrained within proper limits, as in that of the State governments. To set this matter in a clear
light, permit me to instance some of the articles of the bills of rights of the individual States, and
apply them to the case in question.
For the security of life, in criminal prosecutions, the bills of rights of most of the States have
declared, that no man shall be held to answer for a crime until he is made fully acquainted with
the charge brought against him; he shall not be compelled to accuse, or furnish evidence against
himself-the witnesses against him shall be brought face to face, and he shall be fully heard by
himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in
the vicinity where they happen. Are not provisions of this kind as necessary in the general
government, as in that of a particular State? The powers vested in the new Congress extend in
many cases to life; they are authorized to provide for the punishment of a variety of capital
crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes,
except in cases of impeachment, shall be by jury; and such trial shall be in the State where the
said crimes shall have been committed.” No man is secure of a trial in the county where he is
charged to have committed a crime; he may be brought from Niagara to New York, or carried
from Kentucky to Richmond for trial for an offense supposed to be committed. What security is
there, that a man shall be furnished with a full and plain description of the charges against him?
That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses
against him face to face, or that he shall be fully heard in his own defense by himself or counsel?
For the security of liberty it has been declared, “that excessive bail should not be required, nor
excessive fines imposed, nor cruel or unusual punishments inflicted. That all warrants, without
oath or affirmation, to search suspected places, or seize any person, his papers or property, are
grievous and oppressive.”
These provisions are as necessary under the general government as under that of the individual
States; for the power of the former is as complete to the purpose of requiring bail, imposing
fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property,
in certain cases, as the other.
For the purpose of securing the property of the citizens, it is declared by all the States, “that in all
controversies at law, respecting property, the ancient mode of trial by jury is one of the best
securities of the rights of the people, and ought to remain sacred and inviolable.”
Does not the same necessity exist of reserving this right under their national compact, as in that
of the States? Yet nothing is said respecting it. In the bills of rights of the States it is declared,
that a well regulated militia is the proper and natural defense of a free government; that as
standing armies in time of peace are dangerous, they are not to be kept up, and that the military
should be kept under strict subordination to, and controlled by, the civil power.
The same security is as necessary in this Constitution, and much more so; for the general
government will have the sole power to raise and to pay armies, and are under no control in the
exercise of it; yet nothing of this is to be found in this new system.
I might proceed to instance a number of other rights, which were as necessary to be reserved,
such as, that elections should be free, that the liberty of the press should be held sacred; but the
instances adduced are sufficient to prove that this argument is without foundation. Besides, it is
evident that the reason here assigned was not the true one, why the framers of this Constitution
omitted a bill of rights; if it had been, they would not have made certain reservations, while they
totally omitted others of more importance. We find they have, in the ninth section of the first
article declared, that the writ of habeas corpus shall not be suspended, unless in cases of
rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility
shall be granted by the United States, etc. If every thing which is not given is reserved, what
propriety is there in these exceptions? Does this Constitution any where grant the power of
suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of
nobility? It certainly does not in express terms. The only answer that can be given is, that these
are implied in the general powers granted. With equal truth it may be said, that all the powers
which the bills of rights guard against the abuse of, are contained or implied in the general ones
granted by this Constitution.
So far is it from being true, that a bill of rights is less necessary in the general Constitution than
in those of the States, the contrary is evidently the fact. This system, if it is possible for the
people of America to accede to it, will be an original compact; and being the last wilt, in the
nature of things, vacate every former agreement inconsistent with it. For it being a plan of
government received and ratified by the whole people, all other forms which are in existence at
the time of its adoption, must yield to it. This is expressed in positive and unequivocal terms in
the sixth article: “That this Constitution, and the laws of the United States which shall be made in
pursuance thereof, and all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in every State shall be bound
thereby, any thing in the Constitution, or laws of any State, to the contrary notwithstanding.”
“The senators and representatives before-mentioned, and the members of the several State
legislatures, and all executive and judicial officers, both of the United States, and of the several
States, shall be bound, by oath or affirmation, to support this Constitution.”
It is therefore not only necessarily implied thereby, but positively expressed, that the different
State Constitutions are repealed and entirely done away, so far as they are inconsistent with this,
with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be
made, under the authority of the United States. Of what avail will the Constitutions of the
respective States be to preserve the rights of its citizens? Should they be pled, the answer would
be, the Constitution of the United States, and the laws made in pursuance thereof, is the supreme
law, and all legislatures and judicial officers, whether of the General or State governments, are
bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the State
governments, can limit the power granted by this, or restrain any laws made in pursuance of it. It
stands, therefore, on its own bottom, and must receive a construction by itself, without any
reference to any other. And hence it was of the highest importance, that the most precise and
express declarations and reservations of rights should have been made.
This will appear the more necessary, when it is considered, that not only the Constitution and
laws made in pursuance thereof, but alt treaties made, under the authority of the United States,
are the supreme law of the land, and supersede the Constitutions of all the States. The power to
make treaties, is vested in the president, by and with the advice and consent of two-thirds of the
senate. I do not find any limitation or restriction to the exercise of this power. The most
important article in any Constitution may therefore be repealed, even without a legislative act.
Ought not a government, vested with such extensive and indefinite authority, to have been
restricted by a declaration of rights? It certainly ought.
So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people
that such reservations were less necessary under this Constitution than under those of the States,
are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.
BRUTUS
Antifederalist No. 85 CONCLUDING REMARKS: EVILS
UNDER CONFEDERATION EXAGGERATED; CONSTITUTION
MUST BE DRASTICALLY REVISED BEFORE ADOPTION
By Melancthon Smith (a “PLEBIAN”)
. . . . It is agreed, the plan is defective-that some of the powers granted are dangerous-others not
well defined-and amendments are necessary why then not amend it? Why not remove the cause
of danger, and, possible, even the apprehension of it? The instrument is yet in the hands of the
people; it is not signed, sealed, and delivered, and they have power to give it any form they
please.
But it is contended, adopt it first, and then amend it. I ask, why not amend, and then adopt it?
Most certainly the latter mode of proceeding is more consistent with our ideas of prudence in the
ordinary concerns of life If men were about entering into a contract respecting their private
concerns it would be highly absurd in them to sign and seal an instrument containing stipulations
which are contrary to their interests and wishes, under the expectation, that the parties, after its
execution, would agree to make alteration agreeable to their desire. They would insist upon the
exceptionable clause being altered before they would ratify the contract. And is a compact for the
government of ourselves and our posterity of less moment than contract between individuals?
Certainly not. But to this reasoning, which at first vie would appear to admit of no reply, a
variety of objections are made, and number of reasons urged for adopting the system, and
afterwards proposing amendments. Such as have come under my observation, I shall state, an
remark upon.
It is insisted, that the present situation of our country is such, as not t admit of a delay in forming
a new government, or of time sufficient to deliberate and agree upon the amendments which are
proper, without involving ourselves in a state of anarchy and confusion.
On this head, all the powers of rhetoric, and arts of description, ar employed to paint the
condition of this country, in the most hideous an frightful colors. We are told, that agriculture is
without encouragement trade is languishing; private faith and credit are disregarded, and public
credit is prostrate; that the laws and magistrates are condemned and set at naught; that a spirit of
licentiousness is rampant, and ready to break over every bound set to it by the government; that
private embarrassments and distresses invade the house of every man of middling property, and
insecurity threatens every man in affluent circumstances: in short, that we are in a state of the
most grievous calamity at home, and that we are contemptible abroad, the scorn of foreign
nations, and the ridicule of the world. From this high wrought picture, one would suppose that
we were in a condition the most deplorable of any people upon earth. But suffer me, my
countrymen, to call your attention to a serious and sober estimate of the situation in which you
are placed, while I trace the embarrassments under which you labor, to their true sources, What
is your condition? Does not every man sit under his own vine and under his own fig-tree, having
none to make him afraid? Does not every one follow his calling without impediments and
receive the reward of his well-earned industry? The farmer cultivates his land, and reaps the fruit
which the bounty of heaven bestows on his honest toil. The mechanic is exercised in his art, and
receives the reward of his labor. The merchant drives his commerce, and none can deprive him
of the gain he honestly acquires; all classes and callings of men amongst us are protected in their
various pursuits, and secured by the laws in the possession and enjoyment of the property
obtained in those pursuits. The laws are as well executed as they ever were, in this or any other
country. Neither the hand of private violence, nor the more to be dreaded hand of legal
oppression, are reached out to distress us.
It is true, many individuals labor under embarrassments, but these are to be imputed to the
unavoidable circumstances of things, rather than to any defect in our governments. We have just
emerged from a long and expensive war. During its existence few people were in a situation to
increase their fortunes, but many to diminish them. Debts contracted before the war were left
unpaid while it existed, and these were left a burden too heavy to be home at the commencement
of peace. Add to these, that when the war was over, too many of us, instead of reassuming our
old habits of frugality, and industry, by which alone every country must be placed in a
prosperous condition, took up the profuse use of foreign commodities. The country was deluged
with articles imported from abroad, and the cash of the country has been sent to pay for them,
and still left us laboring under the weight of a huge debt to persons abroad. These are the true
sources to which we are to trace all the private difficulties of individuals. But will a new
government relieve you from these? … Your present condition is such as is common to take place
after the conclusion of a war. Those who can remember our situation after the termination of the
war preceding the last, will recollect that our condition was similar to the present, but time and
industry soon recovered us from it. Money was scarce, the produce of the country much lower
than it has been since the peace, and many individuals were extremely embarrassed with debts;
and this happened although we did not experience the ravages, desolations, and loss of property,
that were suffered during the late war.
With regard to our public and national concerns, what is there in our condition that threatens us
with any immediate danger? We are at peace with all the world; no nation menaces us with war;
nor are we called upon by any cause of sufficient importance to attack any nation. The state
governments answer the purposes of preserving the peace, and providing for present exigencies.
Our condition as a nation is in no respect worse than it has been for several years past. Our
public debt has been lessened in various ways, and the western territory, which has been relied
upon as a productive fund to discharge the national debt has at length been brought to market,
and a considerable part actually applied to its reduction. I mention these things to show, that
there is nothing special, in our present situation, as it respects our national affairs, that should
induce us to accept the proffered system, without taking sufficient time to consider and amend it.
I do not mean by this, to insinuate, that our government does not stand in need of reform. It is
admitted by all parties, that alterations are necessary in our federal constitution, but the
circumstances of our case do by no means oblige us to precipitate this business, or require that
we should adopt a system materially defective. We may safely take time to deliberate and
amend, without in the meantime hazarding a condition, in any considerable degree, worse than
the present.
But it is said that if we postpone the ratification of this system until the necessary amendments
are first incorporated, the consequence will be a civil war among the states. . . . The idea of [New
York] being attacked by the other states, will appear visionary and chimerical, if we consider that
tho’ several of them have adopted the new constitution, yet the opposition to it has been
numerous and formidable. The eastern states from whom we are told we have most to fear,
should a civil war be blown up, would have full employ to keep in awe those who are opposed to
it in their own governments. Massachusetts, after a long and dubious contest in their convention,
has adopted it by an inconsiderable majority, and in the very act has marked it with a stigma in
its present form. No man of candor, judging from their public proceedings, will undertake to say
on which side the majority of the people are. Connecticut, it is true, have acceded to it, by a large
majority of their convention; but it is a fact well known, that a large proportion of the yeomanry
of the country are against it. And it is equally true, that a considerable part of those who voted
for it in the convention, wish to see it altered. In both these states the body of the common
people, who always do the fighting of a country, would be more likely to fight against than for it.
Can it then be presumed, that a country divided among themselves, upon a question where even
the advocates for it, admit the system they contend for needs amendments, would make war upon
a sister state? . . . The idea is preposterous. . .
The reasonings made use of to persuade us, that no alterations can be agreed upon previous to the
adoption of the system, are as curious as they are futile. It is alleged, that there was great
diversity of sentiments in forming the proposed constitution; that it was the effect of mutual
concessions and a spirit of accommodation, and from hence it is inferred, that further changes
cannot be hoped for. I should suppose that the contrary inference was the fair one. If the
convention, who framed this plan, were possessed of such a spirit of moderation and
condescension, as to be induced to yield to each other certain points, and to accommodate
themselves to each other’s opinions, and even prejudices, there is reason to expect, that this same
spirit will continue and prevail in a future convention, and produce an union of sentiments on the
points objected to. There is more reason to hope for this, because the subject has received a full
discussion, and the minds of the people much better known than they were when the convention
sat. Previous to the meeting of the convention, the subject of a new form of government had been
little thought of, and scarcely written upon at all. It is true, it was the general opinion, that some
alterations were requisite in the federal system. This subject had been contemplated by almost
every thinking man in the union. It had been the subject of many well- written essays, and it was
the anxious wish of every true friend to America. But it was Dever in the contemplation of one in
a thousand of those who had reflected on the matter, to have an entire change in the nature of our
federal government-to alter it from a confederation of states, to that of one entire government,
which will swallow up that of the individual states. I will venture to say, that the idea of a
government similar to the one proposed, never entered the minds of the legislatures who
appointed the convention, and of but very few of the members who composed it, until they had
assembled and heard it proposed in that body: much less had the people any conception of such a
plan until after it was promulgated, While it was agitated, the debates of the convention were
kept an impenetrable secret, and no opportunity was given for well informed men to offer their
sentiments upon the subject. The system was therefore never publicly discussed, nor indeed
could be, because it was not known to the people until after it was proposed. Since then, it has
been the object of universal attention-it has been thought of by every reflecting man-been
discussed in a public and private manner, in conversation and in print; its defects have been
pointed out, and every objection to it stated; able advocates have written in its favor, and able
opponents have written against it. And what is the result? It cannot be denied but that the general
opinion is, that it contains material errors, and requires important amendments. This then being
the general sentiment, both of the friends and foes of the system, can it be doubted, that another
convention would concur in such amendments as would quiet the fears of the opposers, and
effect a great degree of union on the subject? — An event most devoutly to be wished. But it is
further said, that there can be no prospect of procuring alterations before it is acceded to, because
those who oppose it do not agree among themselves with respect to the amendments that are
necessary. To this I reply, that this may be urged against attempting alterations after it is
received, with as much force as before; and therefore, if it concludes anything, it is that we must
receive any system of government proposed to us, because those who object to it do not entirely
concur in their objections. But the assertion is not true to any considerable extent. There is a
remarkable uniformity in the objections made to the constitution, on the most important points. It
is also worthy of notice, that very few of the matters found fault with in it, are of a local nature,
or such as affect any particular state; on the contrary, they are such as concern the principles of
general liberty, in which the people of New Hampshire, New York and Georgia are equally
interested. . . .
It has been objected too that the new system . . . is calculated to and will effect such a
consolidation of the States, as to supplant and overturn the state governments….
It has been said that the representation in the general legislature is too small to secure liberty, or
to answer the intention of representation. In this there is an union of sentiments in the opposers.
The constitution has been opposed, because it gives to the legislature an unlimited power of
taxation both with respect to direct and indirect taxes, a right to lay and collect taxes, duties,
imposts and excises of every kind and description, and to any amount. In this there has been as
general a concurrence of opinion as in the former.
The opposers to the constitution have said that it is dangerous, because the judicial power may
extend to many cases which ought to be reserved to the decision of the State courts, and because
the right of trial by jury is not secured in the judicial courts of the general government, in civil
cases. All the opposers are agreed in this objection.
The power of the general legislature to alter and regulate the time, place and manner of holding
elections, has been stated as an argument against the adoption of the system. The opposers to the
constitution universally agree in this objection. . .
The mixture of legislative, judicial, and executive powers in the Senate; the little degree of
responsibility under which the great officers of government will be held; and the liberty granted
by the system to establish and maintain a standing army without any limitation or restriction, are
also objected to the constitution; and in these there is a great degree of unanimity of sentiment in
the opposers. . . .
You have heard that both sides on this great question, agree, that there are in it great defects; yet
the one side tell you, choose such men as will adopt it, and then amend it-while the other say,
amend previous to its adoption. I have stated to you my reasons for the latter, and I think they are
unanswerable. Consider, you the common people, the yeomanry of the country, for to such I
principally address myself, you are to be the principal losers, if the constitution should prove
oppressive. When a tyranny is established, there are always masters as well as slaves; the great
and well-born are generally the former, and the middling class the latter. Attempts have been
made, and will be repeated, to alarm you with the fear of consequences; but reflect there are
consequences on both sides, and none can be apprehended more dreadful, than entailing on
ourselves and posterity a government which will raise a few to the height of human greatness and
wealth, while it will depress the many to the extreme of poverty and wretchedness.
Consequences are under the control of that all-wise and all-powerful being, whose providence
conducts the affairs of all men. Our part is to act right, and we may then have confidence that the
consequences will be favorable. The path in which you should walk is plain and open before
you; be united as one man, and direct your choice to such men as have been uniform in their
opposition to the proposed system in its present form, or without proper alterations. In men of
this description you have reason to place confidence, while on the other hand, you have just
cause to distrust those who urge the adoption of a bad constitution, under the delusive
expectation of making amendments after it is acceded to. Your jealousy of such characters
should be the more excited, when you consider that the advocates for the constitution have
shifted their ground. When men are uniform in their opinions, it affords evidence that they are
sincere. When they are shifting, it gives reason to believe, they do not change from conviction. It
must be recollected, that when this plan was first announced to the public, its supporters cried it
up as the most perfect production of human wisdom, It was represented either as having no
defects, or if it had, they were so trifling and inconsiderable, that they served only, as the shades
in a fine picture, to set off the piece to the greater advantage. One gentleman in Philadelphia
went so far in the ardor of his enthusiasm in its favor, as to pronounce, that the men who formed
it were as really under the guidance of Divine Revelation, as was Moses, the Jewish lawgiver.
Their language is now changed; the question has been discussed; the objections to the plan ably
stated, and they are admitted to be unanswerable. The same men who held it almost perfect, now
admit it is very imperfect; that it is necessary it should be amended. The only question between
us, is simply this@hall we accede to a bad constitution, under the uncertain prospect of getting it
amended, after we have received it, or shall we amend it before we adopt it? Common sense will
point out which is the most rational, which is the most secure line of conduct. May heaven
inspire you with wisdom, union, moderation and firmness, and give you hearts to make a proper
estimate of your invaluable privileges, and preserve them to you, to be transmitted to your
posterity unimpaired, and may they be maintained in this our country, while Sun and Moon
endure.
A PLEBEIAN

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