Federalist Papers Nos. 84 and 85 bring the series to a close. Written by Alexander Hamilton, they address the remaining miscellaneous objections to the Constitution and make the final case for its immediate ratification.
● Federalist 84 focuses primarily on the most persistent Anti-Federalist complaint: the absence of a Bill of Rights.
Hamilton argues that a separate bill of rights is unnecessary – and even dangerous – because the Constitution itself is, “in every rational sense, and to every useful purpose, a BILL OF RIGHTS.”
He points to the many specific protections already written into the document (habeas corpus, prohibitions on bills of attainder and ex post facto laws, carefully limited definition of treason, trial by jury in criminal cases, ban on titles of nobility, and the impeachment power).
In a government of limited and enumerated powers created by “We the People,” listing rights that the government was never given power to violate would only create the false implication that the government possesses powers it does not have.
Hamilton also briefly dismisses other scattered objections concerning expense, the location of the capital, and the handling of the public debt.
● Federalist 85 offers the concluding remarks.
Hamilton acknowledges that the Constitution is not perfect—no work of imperfect men ever is – but insists it is the best plan the circumstances of the country will allow and far superior to the Articles of Confederation.
He stresses that continued delay risks anarchy, foreign interference, and the collapse of the Union.
Amendments, he notes, will be far easier to adopt after ratification (requiring only nine states under Article V) than any attempt to rewrite the entire document beforehand.
He ends with a strong appeal: a nation without a national government is “an awful spectacle,” and the Constitution, once established by the people, will be “a prodigy.”
Together these two essays complete the defense of the Constitution, answer the last major objections, and urge swift ratification while leaving open the path for future improvement through the amendment process.
Federalist 84: Why the Constitution Is Itself a Bill of Rights
The Constitution Already Contains Provisions that Would Be Included in a Bill of Rights
I HAVE NOTICED AND ANSWERED most of the objections against the Constitution in the course of reviewing it.
The few remaining ones either did not fall naturally under any particular head or were forgotten in their proper places.
I shall consult brevity to comprise all my observations on these miscellaneous points in a single paper.
The most considerable remaining objection is the absence of a bill of rights in the Constitution. Indeed, some of the most ardent partisans of a bill of rights are from New York, even though its constitution contains no bill of rights, like those in several other States.
To justify the inconsistency, these intemperate zealots assert the reason why New York needs no bill of rights is the presence of certain provisions in favor of particular privileges and rights which amount to the same thing as a bill of rights, since its constitution fully adopts the common and statutory law of Great Britain, through which many other rights are equally secured, even though unexpressed in the New York constitution itself.
In the first place, the Constitution – like the constitution of New York – already contains a number of provisions that would be included in a bill of rights.
The Constitution Establishes the Writ of Habeas Corpus, and Prohibits Ex Post Facto Laws and Titles of Nobility
We find the following in Article I, section 3, clause 7: “Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”
Article I, section 9, clause 2 provides: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
Clause 3 of the same section provides: “No Bill of Attainder or ex-post-facto Law shall be passed.”
And clause 8 thereof adds: “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”
Article III, section 2, paragraph 3 provides: “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”
Article III, section 3, paragraph 1 provides: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. ”
Paragraph 2 of the same section adds: “The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
These provisions are of equal importance with any found in the constitution of New York.
Three of them – the establishment of the writ of habeas corpus (to determine who has control of a petitioner’s body) and the prohibitions of both ex post facto laws (criminalization of an act after it is done) and titles of nobility (which purport to rank some individuals higher than others) – are greater securities to liberty and republicanism than any found in New York’s constitution.
Throughout the ages, the favorite and most formidable instruments of tyranny are arbitrary imprisonments, and the creation of crimes after the commission of the fact, thereby subjecting persons to punishment for acts which breached no law when done.
Habeas Corpus Is an Essential Defense Against Arbitrary Imprisonments
Throughout the ages, the favorite and most formidable instruments of tyranny are arbitrary imprisonments, and the creation of crimes after the commission of the act, thereby subjecting persons to punishment for acts which breached no law when done.
The observations of the judicious Blackstone on arbitrary imprisonments are worthy of recital: “To bereave a man of life, or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism, as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.”
Blackstone repeatedly emphasized the remedy for this fatal evil he is the habeas corpus act, which in one place he called “the bulwark of the British Constitution.”
Prohibiting Titles of Nobility Preserves Power to the People
The importance of the prohibition of titles of nobility needs no illustration.
This is the cornerstone of republican government.
So long as titles of nobility are excluded, the government will not be any other than that of the People.
New York’s Vaunted Bill of Rights Is Subject to Legislative Revision
As for the pretended establishment of common and statutory law in the New York constitution, it is expressly made subject to such alterations as the legislature shall from time to time make.
These supposed protections are at any moment liable to repeal by ordinary legislative power, thereby negating any constitutional sanction.
The only real use of the declaration was to recognize the ancient law and to remove doubts occasioned by the Revolution.
This is not a true declaration of rights, which under our constitutions are declarations intended as limitations on the power of the government itself.
The Magna Carta and Subsequent Acts Wrested Privileges from the Absolute Prerogative of Monarchs
Bills of rights are, in their origin, stipulations between kings and their subjects. They abridge prerogative in favor of privilege.
All rights not surrendered by the prince are reserved.
Such was the Magna Carta, obtained by the barons, sword in hand, from King John.
Such were the subsequent confirmations of that charter by succeeding princes.
So too was the Petition of Right assented to by Charles I at the commencement of his reign.
Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights.
The Constitution Assumes All Power Rests with the People
These primitive acts cannot apply to constitutions professedly founded upon the power of the People, and executed by their immediate representatives and servants.
Strictly speaking, the People of America surrender nothing, and therefore retain everything.
No reservation of rights is necessary:
“We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (Emphasis added.)
These 30 words at the commencement of the Constitution better recognize popular rights than those innumerable volumes whose aphorisms make the principal figure in several State bills of rights, and would sound much better in a treatise on ethics than in a constitution of government.
The Constitution of the United States needs no minute detail of particular rights. It is intended merely to regulate the general political interests of the nation.
It is not a constitution that regulates every species of personal and private concerns.
If the loud clamors from New York for a bill of rights are well founded, then no epithet would be too strong for the constitution of that State.
But the truth is both of them contain all which, in relation to their objects, is reasonably to be desired.
“We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” These 30 words better recognize popular rights than those innumerable volumes whose aphorisms make the principal figure in several State bills of rights, and would sound much better in a treatise on ethics than in a constitution of government.
A Bill of Rights Can Imply that Power Has Been Granted to the Government Where It Has Not
A bill of rights in our Constitution is unnecessary.
It would even be dangerous.
It would contain various exceptions to powers not granted to the Federal government.
This would afford a colorable pretext to claim more powers were granted than actually were.
Why declare that things shall not be done when there is no power to do them?
Why, for instance, should the Constitution say the liberty of the press shall not be restrained?
No power is given to impose restrictions. An expression in favor of liberty of the press would furnish a plausible pretense for those who would usurp to claim the power to restrain it.
They might argue the Constitution should not be charged with the absurdity of having provided against the abuse of an authority that was never given, and that the inclusion of a provision against restraining the liberty of the press clearly implies an intent to vest in the Federal government a power to prescribe proper regulations concerning it.
This is only one specimen of the numerous handles that will be given to the doctrine of constructive powers.
Such is the indulgence of an injudicious zeal for bills of rights.
New York’s constitution utters no syllable on liberty of the press, and whatever has been said about it in any other State amounts to nothing. What does a declaration that the liberty of the press shall be inviolably preserved signify? What is the liberty of the press? Who can give it a definition that cannot be evaded? It is impossible.
Liberty of the Press Cannot Be Defined
New York’s constitution utters no syllable on liberty of the press, and whatever has been said about it in any other State amounts to nothing.
What does a declaration that the liberty of the press shall be inviolably preserved signify?
What is the liberty of the press?
Who can give it a definition that cannot be evaded?
It is impossible.
The security of the freedom of the press depends altogether on public opinion, and on the general spirit of the People and their government, no matter what fine declarations are inserted in any constitution respecting it.
The only solid basis of all of our rights is the People.
The Taxing Power Does Not Limit Freedom of the Press
Some pretend the power of taxation affects the liberty of the press, since duties may be laid so high as to prohibit publications.
Yet we know newspapers are taxed in Great Britain, and it is notorious that the press nowhere enjoys greater liberty.
The extent of the duties depends on legislative discretion, since duties of any kind may be laid without a violation of the liberty of the press.
From this it is evident the declarations in State constitutions in favor of the freedom of the press are no constitutional impediment to the imposition such duties by State legislatures.
To express it differently: these declarations give no greater security to the press because the legislative invasions may be as easily effected under the State constitutions containing such declarations as under the Constitution, which has nothing of the kind.
In sum, an expression that the liberty of the press ought not be restrained would have the same utility as a declaration that government ought to be free and taxes not excessive.
Some pretend the power of taxation affects the liberty of the press, since duties may be laid so high as to prohibit publications. Yet we know newspapers are taxed in Great Britain, and it is notorious that the press nowhere enjoys greater liberty.
Like the Constitutions of State Governments, the Federal Constitution Is Itself a Bill of Rights
After all the declamations have subsided, the truth is the Constitution is itself a bill of rights, in every rational sense, and to every useful purpose.
The Constitution of Great Britain is its composed of its several bills of rights.
The constitution of each State is its bill of rights.
And the Constitution will be the bill of rights of the United States.
In sum, an expression that the liberty of the press ought not be restrained would have the same utility as a declaration that government ought to be free and taxes not excessive.
Is not one object of a bill of rights to declare and specify the political privileges of the citizens in the structure and administration of the government?
This is done in the most ample and precise manner in the Constitution.
It comprehends various precautions for the public security not to be found in any of the State constitutions.
Another object of a bill of rights is to define certain immunities and modes of proceeding relative to personal and private concerns.
The Constitution attends to these in a variety of cases, and it is absurd to allege otherwise.
Some may say it goes not far enough, but this is untrue.
If the rights of the citizens are found in the instrument which establishes the government, as here, the mode of ordering those rights is immaterial.
Much of what has been said on this subject rests merely on verbal and nominal distinctions which are entirely foreign from the substance of the thing.
The Geographical Distance Between the Seats of the Federal Government and the States Will Not Diminish Rights
Another objection to the Constitution was that it conferred large powers upon a Federal government whose seat was too remote from many of the States to convey to citizens a proper knowledge of the conduct of their representative body.
If this objection proved anything, it was that there ought to be no general government whatever.
Yet all hands agreed that certain powers ought properly to be vested in the United States, in a representative body which is under every requisite control.
Objections based on distance were palpable illusions of the imagination.
Consider those States where some counties are far removed from the seat of power.
By what sources of information will the People of a distant county regulate their judgment of the conduct of their representatives in the State legislatures?
They cannot benefit from personal observation because this is confined to the citizens on the spot.
Therefore they must depend on the information of intelligent persons whom they trust.
And how do these intelligent persons obtain their information?
Evidently from the proposed measures themselves, the public discourse, and correspondences with their representatives and other persons who reside at the place of the deliberations.
These factors apply to all the counties at any considerable distance from the seat of their State governments.
The same sources of information are open to the People in relation to the conduct of their representatives in the Federal government.
The impediments to a prompt communication which distance may be supposed to create will be overbalanced by the effects of the vigilance of the State governments.
The executive and legislative bodies of each State are so many sentinels over the persons employed in every department of the Federal government.
It will be in their power to adopt and pursue a regular and effectual system of intelligence, so they can never be at a loss to know the behavior of those who represent their constituents in the national councils, and can readily communicate the same knowledge to the People.
If only from their rivalry for power, these leaders are predisposed to apprise the community of potential prejudice to their interests from other quarters.
Through that channel, the People will be better informed of the conduct of their national representatives than by any means they now possess to monitor the conduct of their State representatives.
Citizens who inhabit the country near the seat of government will stand ready to sound the alarm and point out the actors in any pernicious project, since these citizens will have the same interest as those who are at a distance on all questions affecting the general liberty and prosperity.
Finally, the public papers will be expeditious messengers of intelligence to the most remote inhabitants of the United States.
The United States Will Be Responsible for the Debts of Its Predecessor
The most extraordinary and least colorable of all the curious objections to the Constitution was its supposed want of some provision respecting the debts due to the United States.
Inflammatory newspapers represented this as a tacit relinquishment of those debts, and as a wicked contrivance to hide a public default.
The suggestion was entirely void of foundation, the offspring of extreme ignorance or extreme dishonesty.
It is a plain dictate of common sense and established doctrine of political law that States neither lose any of their rights – nor are discharged from any of their obligations, by a change in the form of their civil government.
The Likely Expenses of the Federal Government Are Necessary for Its Purposes
The last objection of any consequence turned upon the expense of the Federal government.
Even assuming the adoption of the Constitution would occasion a considerable increase of expense, the objection was without weight.
The great bulk of the citizens of America were with reason convinced that the formation of the United States would be the basis of their political happiness. With few exceptions, sensible persons of all parties agreed that our union could not be preserved under the former system, absent radical alterations.
New and extensive powers granted to the Federal government required its complete reorganization.
In conceding all this, the question of expense had to be given up, for it was impossible to narrow the foundation upon which the Federal system was to stand with any degree of safety.
The two branches of the Federal legislature initially consist of only 65 persons, which was the same number of members comprising Congress under the former government.
This will naturally increase to keep pace with the progress of the population and resources of the country.
Just as a lesser number of representatives would be unsafe at the outset, a continuance of the present number would be a very inadequate representation of the People in a more advanced stage of population.
And from whence was the dreaded augmentation of expense to spring?
One source indicated the multiplication of offices under the new government, but it was evident the principal departments of the administration under the United States were the same required under the former national government, which had a Secretary of War, a Secretary of Foreign Affairs, a Secretary for Domestic Affairs, a Board of Treasury consisting of three persons, a Treasurer, assistants, clerks, and others.
These officers are indispensable under any system, and will suffice under the new as well as the old.
As to ambassadors and other ministers and agents in foreign countries, the Constitution makes no difference other than to render their characters and where they reside more respectable, and their services more useful.
As to persons to be employed in the collection of revenues, it is unquestionably true that they will form a very considerable addition to the number of Federal officers, but it does not follow they will occasion an increase of public expense.
In most cases it will be nothing more than an exchange of State for national officers.
Since all duties will be collected by persons employed by the Federal government, States will stand in no need of any for this purpose.
What difference does it make in overall expense whether officers of the customs are appointed by the State or by the Federal government?
There is no good reason to suppose the numbers or salaries of Federal officers will exceed those of the current State officers.
Bills of rights are, in their origin, stipulations between kings and their subjects. They abridge prerogative in favor of privilege. All rights not surrendered by the prince are reserved. Such was the Magna Carta, obtained by the barons, sword in hand, from King John.
Such were the subsequent confirmations of that charter by succeeding princes. So too was the Petition of Right assented to by Charles I at the commencement of his reign.
Such, also, was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterwards thrown into the form of an act of parliament called the Bill of Rights.
These primitive acts cannot apply to constitutions professedly founded upon the power of the People, and executed by their immediate representatives and servants. Strictly speaking, the People of America surrender nothing, and therefore retain everything. No reservation is necessary.
The only item that will cause an increase of expense is the support of the judges of the United States. (I do not add the President because there formerly was a president of the Congress, whose expenses were not far short of those to be incurred by the President of the United States.)
The extent of the extra expense for the support of the judges depends on the particular plan adopted.
It will not amount to a sum of material consequence once a reasonable plan is approved.
The extra expense attending the establishment of the Federal government will be counterbalanced by savings to the States.
A great part of the business which had kept Congress sitting through the year will be transacted by the President.
The management of foreign negotiations will naturally devolve upon the President, according to general principles concerted with the Senate, and subject to their final concurrence.
Three months should suffice for the session of the Senate, and four to six months for that of the House of Representatives.
The Senate will find extra occupation in the business of treaties and appointments.
Until the House of Representatives is increased greatly beyond its present number, there will be a considerable saving of expense from the difference between the constant sessions held under the articles of Confederation and the temporary sessions of future Congresses.
Another circumstance of savings is that the Congress under the new government will do all the business of the United States itself, without resorting to State legislatures, who were hitherto occupied with congressional requisitions, which protracted the sessions of the State legislatures greatly beyond what was necessary for the execution of their local business.
Henceforth State legislatures will have only to attend to the affairs of their particular States.
Shorter sessions of the State legislatures provide clear gains, and will alone form an article of saving, which may be regarded as an equivalent for any additional objects of expense occasioned by the adoption of the new system.
The sources of additional expense from the establishment of the Constitution are much fewer than may have been imagined.
They are counterbalanced by considerable objects of saving. Even if the expenses outweigh the savings, a less expensive Federal government would be incompetent to the purposes of the United States.
Hamilton
[Ed. note: Hamilton here makes one his best closing arguments, ultimately observing the Constitution is one for the government, created by the properly deputed representatives of the citizens entitled to vote. Perhaps that explains why the words written above the Constitution, and in extra large font, designate its authors and grantors to be “We the People.” In the law, font size matters.
Who might We the People comprise?
Is it everyone in the U.S.?
U.S. citizens?
Yes to both. Citizens elect representatives, and representatives naturally consider the views and interests of all inhabitants. (See Federalist 35.) In the end, representatives selected by voters (electors) act as deputies of those electors.
Hamilton also shows the laws of Great Britain are based on a misconception, namely, that core human rights (e.g., self-defense, discussed in Federalist 28) are not privileges that granted by a sovereign individual or government, but rather arise from the will of a free and sovereign People, as expressed through their elected representatives. (While it may have been (and still must be) a disappointment for subjects of the Crown to read Hamilton’s refutation of their conception of government, there is hope, for the Constitution and these papers fashion a template for those longing for a republican form of the executive.)
Hamilton does agree with many of the legal principles developed in Britain, particularly the writ of habeas corpus (a court directive to an inmate’s jailor requiring the jailor to show cause for the continuance of any arbitrary, unlawful, and sometimes secret imprisonment, or to release the inmate).
In the end, Hamilton proves to be the People’s champion, for he pronounces without equivocation that all power to create government rests with the People, as if decreed by nature, which suggests that it, too, is a core right of humans.]
Federalist 85: Concluding Remarks
ACCORDING TO THE FORMAL DIVISION OF SUBJECTS announced in Federalist 1, two points appear to remain for discussion: (1) the analogy of the proposed government to your own State constitution, and (2) “the additional security which its adoption will afford to republican government, to liberty, and to property.”
A review the of these papers shows I have fully anticipated and exhausted my points on these heads in the progress of the work, so at this advanced stage of the question, it would scarcely be possible to do anything more than repeat in a more dilated form what has been heretofore said.
The Alleged Defects of the U.S. Constitution Are Also Present in New York’s Constitution
The proposed Constitution remarkably resembles the act organizing the government of New York, both with respect to their excellences and their supposed defects.
Among the pretended defects of the Federal Constitution are the re-eligibility of the executive, the want of an executive council, the omission of a formal bill of rights, and the omission of a provision respecting the liberty of the press.
These and other defects noted in the course of our inquiries (see primarily Federalist 72 and Federalist 84) are as much chargeable to the existing Constitution of New York as to the Constitution for the United States.
An individual who can rail at the Federal constitution for imperfections but easily excuse the same in his own constitution has slender pretensions to consistency.
Is there a better proof to establish the insincerity and affectation of those zealous adversaries of the Federal constitution?
They profess devotion to their State constitution, yet with fury attack the Federal constitution for defects of which their own is more vulnerable.
Additional Securities to Republican Government, Liberty, and Property
The Constitution and preservation of the Union will provide additional securities to republican government, to liberty and to property. It will:
1. Restrain local factions and insurrections, and impose on the ambition of powerful individuals in single states, who may acquire credit and influence enough, from leaders and favorites, to become the despots of the People;
2. Diminish the opportunities for foreign intrigue, which the dissolution of the Confederacy would invite and facilitate;
3. Prevent extensive military establishments, which would grow out of wars between disunited States;
4. Guarantee expressly to each a republican form of government;
5. Exclude absolutely and universally titles of nobility; and
6. Take precautions against the repetition of those practices by State governments which have undermined the foundations of property and credit, planted mutual distrust in the breasts of all classes of citizens, and occasioned an almost universal prostration of morals.
I have, my fellow citizens, executed the task I assigned to myself.
With what success, your conduct must determine.
I trust at least I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted, addressing myself purely to your judgments, and studiously attempting to avoid those asperities which are too apt to disgrace political disputants of all parties.
I must confess, I have been not a little provoked by the language and conduct of the opponents of the Constitution.
The charge of a conspiracy against the liberties of the People has been indiscriminately brought against the advocates of the plan.
The charge has something in it too wanton and too malignant not to excite the indignation of everyone who desires a refutation of the calumny.
The perpetual charges rung upon the wealthy, the well-born, and the great inspire the disgust of all sensible individuals.
All those of honesty reprove the unwarranted misrepresentations practiced to keep the truth from the public eye.
These circumstances may have occasionally betrayed me into intemperances of expression.
It is certain I have frequently felt a struggle between sensibility and moderation over the course of these papers.
Let us pause now and ask ourselves whether the proposed Constitution is vindicated from the aspersions thrown upon it, is worthy of public approbation, and necessary to the public safety and prosperity?
Everyone is bound to answer these questions according to the best of their conscience and understanding, and to act agreeably to the genuine and sober dictates of that judgment.
This is a solemn duty – constrained by all the obligations forming the bands of society – to be discharged sincerely and honestly, without dispensation from any source.
There is no justification for an improper selection.
No pride of opinion, no temporary passion or prejudice, no partial motive, no particular interest, no obstinate adherence to party; no particular interest of the community, instead: the very existence of the nation.
And let the citizens of New York remember a majority of America has already given its sanction to the plan which is to be approved or rejected.
The Pursuit of a “Perfect Plan” Ultimately Proves Fruitless
I shall not dissemble that I feel an entire confidence in the arguments which recommend the proposed system to your adoption, and that I am unable to discern any real force in those by which it has been opposed.
I am persuaded that it is the best which our political situation, habits, and opinions will admit, and superior to any the Revolution has produced.
Some enemies have felt triumph over the seeming concession that the proposed Constitution does not claim absolute perfection.
“Why,” say they, “should we adopt an imperfect thing?
Why not amend it and make it perfect before it is irrevocably established?”
While these seem like plausible questions, they assume and greatly exaggerate concessions not made, to argue the plan is radically defective and needs material alterations or the rights and the interests of the community cannot safely be confided to it.
But every advocate declares the system is a good one that promises every species of security a reasonable People can desire, and that while it may not be perfect in every part, on the whole it is the best the present views and circumstances of the country permit.
In the next place, the chimerical pursuit of a perfect plan would prolong the precarious state of our national affairs and expose the existing Union to the jeopardy of successive experiments.
To begin with, I never expect to see a perfect work from imperfect man. Further, the result of the deliberations of all collective bodies must necessarily be a compound – and include the errors and prejudices as well as the good sense and wisdom of the individuals composing it.
A compact which embraces many distinct States in a common bond of amity and union must necessarily be a compromise of many dissimilar interests and inclinations.
How can perfection spring from such materials?
Amending the Constitution Prior to Ratification Is more Difficult than Amending It Afterwards
That it will be far easier to amend the Constitution after ratification rather than before is absolutely demonstrable.
The moment an alteration is made in proposed Constitution, it becomes a new one for purpose of adoption, and must undergo a new decision of each State.
It will therefore require the concurrence of all thirteen States to complete its establishment throughout the union.
But if the proposed Constitution is ratified by all thirteen States, only two thirds of the States are needed to propose an alteration, and three fourths to effect it.
The chances of successful amendment are thus higher after ratification than before.
Attempting to Amend the Constitution before Ratification Will Upset the Balance Among Competing Interests
This is not all.
Every proposed Federal constitution will inevitably consist of a great variety of particulars, in which States are to be accommodated in their interests – or in their opinion of their interests.
In any body of individuals charged with formation of an original constitution, we see very different combinations of the parts upon different points.
Many of those who form a majority on one question may become part of the minority on a second, and form a dissimilar majority on a third.
Hence the necessity of molding and arranging all the particulars which are to compose the whole. All the parties to the compact must be satisfied.
The number of particulars and the number of parties must be multiplied to grasp the difficulties and casualties in obtaining the collective assent to a final act.
But once the Constitution is established, every amendment would be a single proposition brought forward singly.
Management and compromise – the giving or taking of points – would be unnecessary.
The will of the requisite number of States would at once bring the matter to a decisive issue.
When the requisite number of States are united in the desire for a particular amendment, that amendment must infallibly take place.
The facility of affecting an amendment is infinitely easier than establishing a complete constitution in the first instance.
I see no weight in the assertion that the persons delegated to the administration of the Federal government – upon ratification of an amendment – always will be disinclined to yield up any portion of the authority of which they were once possessed.
Upon mature consideration, any amendments thought useful will be applicable to the organization of the government, and not to the mass of its powers.
I also think there is little weight is due to the intrinsic difficulty of governing numerous states – independently of calculations upon an ordinary degree of public spirit and integrity – which necessarily will impose on the national rulers a spirit of accommodation to the reasonable expectations of their constituents.
A Duly Ratified Amendment Will Overcome Federal Resistance
But yet a further consideration proves beyond the possibility of a doubt that persons delegated to the administration of the national government will not yield authority: whenever two thirds of the states concur, the national rulers will have no option upon the subject.
Article Five of the Constitution requires Congress – on the application of the legislatures of two thirds of the States – to call a convention for proposing amendments, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures or conventions of three fourths of the states.
The words of this article are peremptory.
The Congress “shall call a convention.”
Nothing in this particular is left to the discretion of that body.
With that, all declamations about the disinclination to change vanish into air.
However difficult it may be to unite two thirds or three fourths of the state legislatures on amendments affecting local interests, can there be any room to apprehend any such difficulty on amendments for the general liberty or security of the People?
We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.
If this is untrue, I am myself deceived by it, for it is one of those rare instances in which a political truth can be brought to the test of a mathematical demonstration.
To those who see the matter in the same light with me – however zealously they desire amendments – the most direct road to their own object is through amendment after the Constitution is ratified.
The zeal to amend prior to ratification must abate in every individual who is ready to accede to the truth of the solid and ingenious observations of Hume:
“To balance a large state or society – whether it be monarchical or republican – on general laws, is a work of so great difficulty that no human genius, however comprehensive, can effect it by the mere dint of reason and reflection. The judgments of many must unite in the work, experience must guide their labor, and time must bring it to perfection. The first trials and experiments will inevitably result in mistakes and difficulties, which must be corrected and overcome.”
These judicious reflections are a lesson of moderation to all the sincere lovers of the union, and ought to put them on guard against hazarding anarchy, civil war, a perpetual alienation of the states from each other, and perhaps the military despotism of a victorious demagoguery, in the pursuit of what they are not likely to obtain but from time and experience.
I cannot entertain an equal tranquility with those who treat the dangers of continuing in our present situation as imaginary.
A nation without a national government is an awful spectacle.
To have composed a Constitution in a time of profound peace by the voluntary consent of a whole people is a prodigy.
I look forward to its ratification with trembling anxiety.
No rule of prudence permits us to let go of the hold we now have and to recommence the course in so arduous an enterprise.
I dread the consequences of new attempts, because I know that powerful individuals in New York and in other States are enemies to a general national government in every possible shape.
Hamilton