From Brutus – on adoption of the proposed Constitution - Restated
1 November 1787
To the Citizens of the State of New-York.
I flatter myself that in my last publication I established the position that to reduce the Thirteen States into one government, would prove to be the destruction of your liberties.
But since may you doubt this truth, I will now share with you my thoughts in support of its merits.
Admittedly, the arguments against reducing all the states into one consolidated government, are not sufficient to fully establish the point; they will however give credibility to the conclusion, that in creating a constitution for such a country, great care should be taken to limit and constrain its powers, adjust its parts, and guard against an abuse of authority. How much attention has been given to these considerations shall be the subject of future scrutiny. When a building is to be erected and which is intended to stand for ages, the foundation should be firmly laid. The constitution which is being proposed for your acceptance, is not designed for you alone but for the generations to come. Therefore, the principles upon which the collective agreement is based, ought to be clearly and precisely stated, and the clear and full declaration of the people’s rights to have been shared – but on this subject there is almost nothing [in the proposed document].
By collecting the sentiments of the people of America, by their own declarations, they hold this truth as self evident, that all people are naturally free. No one person, or any class of people, have a right, by the law of nature or of God, to assume or exercise authority over others. The beginning of a society then is to be sought, not in any natural right which one person has to exercise authority over another, but in the united consent of those who choose to associate [for that purpose]. The shared desires of people, at first, made clear the appropriateness of forming societies; and when they were established, ensuring their protection and defense pointed out the necessity of establishing government. In the [fundamental] state of nature, every individual pursues his or her own interest; in doing so it frequently happened, that the possessions or pleasures of one were sacrificed to the views and/or intentions of another; thus the weak were a target to the strong, the simple and less alert were imposed on by those who were more crafty and cunning. In this state of things, every individual was at risk; the common interest of the people therefore directed, that government should be established, in which the force of the whole community should be collected, and under such regulation, as to protect and defend every one who comprised it. The common good, therefore, is the desired end of civil government, and common consent, the foundation on which it is established. To achieve this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: exactly how much of their natural freedom is necessary to be given up when they submit to being governed, I shall not at this time inquire. However, so much must be given up, as will be sufficient to enable those, to whom the role of administration of the government is entrusted, to establish laws for the promotion of happiness of the community, and to see to it that those laws are implemented. But it is not necessary, for this purpose, that individuals should relinquish all of their natural rights. Some of these rights are of such a nature that they cannot be surrendered. Specifically are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to relinquish, in order to achieve the ends for which a government is established, these rights therefor should not be given up. To surrender them, would be contrary to the very intent of government, that is, 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 previously stated, by expressly reserving the essential natural rights which are not necessary to be surrendered by the people. The same reasons which first motivated humanity to collaborate and establish government, will serve to influence them to pay attention to this precaution. If people had been inclined to change and align themselves to the rule of unchanging righteousness, government would not have been a requirement. In fact, it was because one group practiced fraud, oppression, and violence on the others, that people came together, and agreed that certain rules should be formed, to regulate the conduct of all, and that the power of the whole community be placed firmly in the hands of rulers to enforce the obedience to them. But rulers have the same short-comings as everyone; they are as likely to use the powers entrusted to them for their own private purposes, and to do so to the injury and oppression of those over whom they are meant to serve, just as individuals in a natural state are likely to injure and oppress one another. It is therefor proper that limits should be set on their authority, as that government should have from the outset been established to restrain injuries to its people.
This principle, which appears to soundly founded in reason and the nature of things, is verified by a universally shared common experience. Those that have been given the authority to govern, have proven in all the ages of humanity, to increase their own powers and to decrease the liberty of the people. This has motivated the people in all countries, where any sense of freedom remained, to establish barriers against the boundary violations of their rulers. The very country from which we came is great example of this. Their Magna Carta and bill of rights have for a long time been something of which they boast, as well as the security of that nation. Nothing more needs to be said, I presume then, to an American, than this principle is a fundamental in all the constitutions of our own states; there is not one of them that is not either established on a declaration or a bill of rights, or which has certain specific rights to be reserved, interwoven into the body of them. From these it’s obvious that at the time when the pulse of liberty beat strongly and when an appeal was made to the people to establish constitutions for the government of themselves, it was their universally shared common opinion that such declarations should be a part of their respective frameworks of government. It’s all the more astonishing, that this noble security, that is the rights of the people, is not to be found in this constitution.
In answer to this objection, it has been said that such declaration of rights, however necessary they might be to in the constitutions of the states, are not necessary in the federal constitution, because “in the former case, everything which is not reserved is given [to the Federal], but in the latter, the reverse of the proposition prevails, and everything which is not given is reserved [to the states].” It only takes a little consideration to discover, that this type of reasoning is somewhat deceptive and more flimsy than solid. The powers, rights, and authority, granted to the federal constitution, are as complete as that of any state government with respect to every matter they address – It encompasses everything which concerns human happiness – Life, liberty, and property, are under its control. There is the same argument then, that the execution of power, in this case, should be constrained within proper limits, just it is in that of state governments. To set this matter in a clear light, permit me to point out some of the existing articles of the bills of rights of the individual states, and apply them to this matter.
For the security of life, in criminal prosecutions, the bills of rights of most states have declared, that no person shall be held to answer for a crime until he is made fully aware and understanding of the charge being brought against him or her; no person shall be compelled to accuse, or furnish evidence against themselves – The witnesses for the prosecution shall be brought face to face, and will be fully heard by the accused or counsel. For it is essential to the security of life and liberty, that a trial of facts be held in the vicinity where they happened. Is it any less required that provisions of this kind be included in the general government, as that of a particular state? The powers which are vested in the new Congress extend in many cases to matters of life; they are authorized to provide for the punishment of a variety of capital crimes, and no limitation is placed on them in so doing, with the exception that “the trial of crimes, expect 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 facing trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New York, or transported from Kentucky to Richmond for trial for an offense he is accused of being committed. What security shall a person have then with a full description of the charges against them? That the individual shall be allowed to produce all proof in his or her favor? That he or she will 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, not excessive fines imposed, nor cruel or unusual punishments inflicted – That all warrants, without [lacking] oath or affirmation, to search suspected places, or seize any person, of his or her papers or property, are grievous and oppressive.”
These provisions are as necessary within the federal government as within the government of the individual states; for the power of the former [the federal] is as absolute 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 their citizens, it is declared by all the states, “that in all controversies at law, respecting property, the ancient practice of trial by jury is one of the best ways to secure the rights of the people, and ought to remain sacred and inviolable.
Under this new national compact, does not this same necessity of reserving this right at the national level exist as in that of the states? Yet nothing in the new compact is said respecting it. In the bills of right of the states, it is declared, that a well regulated militia is the proper and natural defense of a free and sovereign government – that is because standing armies in times 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 constraint is as necessary in this constitution, and much more so; for the federal government will have the sole power to raise and pay armies, and are no control of the mission and exercise of it, yet nothing of these things is to be found in the new system and document.
I might go on to cite a number of other rights which were as necessary to be reserved, such as, that elections should be free, that liberty of the press should be held sacred; but the instances which I have brought forth as evidence are sufficient to prove that this argument [for the Constitution] is without foundation. – Besides, it is evident, that reason provided was not the true one, that is, 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 that they have declared in Article 1, Sec 9, 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 everything which is not given is reserved, what appropriateness is there in these exceptions? Does this constitution anywhere grant the power of suspending habeas corpus, or to make ex-post facto laws, to pass bills of attainder, or to grant titles of nobility? It certainly does not in express terms. The only answer that can be given then is, that these are implied in the general powers granted it. With equal truth it may be said, that all the powers, which the bills of right, guard against the abuse of, are contained or implied in the general ones granted this constitution.
So far from true is it, that a bill of rights is less necessary in the general constitution that in those of the states, in fact exactly the opposite is the fact. – This system, if it possible of the people of America to accept and implement it, will be an original compact; and being the last, will, in the nature of things, void every former agreement inconsistent with the new one. For because it will be a plan of government received and ratified by the whole people, all other form, which are in existence at the time of adoption, must yield to it. This is stated and made clear in positive and unequivocal terms, in Article 6, “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 therein, but positively stated, that the different state constitutions are repealed and entirely done away with, in so far as they are inconsistent with the new one and with the laws which shall be made in the continuation thereof or with treaties made or which shall be made, under the authority of the United States; of what help then will the constitutions of prospective states be to preserve the rights of its citizens? Should the make a plea the answer would be, the Constitution of the United States, and the laws made in accordance thereof, is the supreme law, and all legislatures and judicial officers, whether or the federal of state governments, are bound by oath to support it. No privilege, reserved by the bills of rights of the states, or secured by the state government, can limit the power granted by the new accord or restrain any laws made in the further development of it. It stands therefor on its own foundation, and must receive construction by itself without any reference to any other – And going forward, it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made in the original.
This will become all the more necessary, when it is considered, that not only the constitution and laws made in the furtherance thereof, but all treaties made, or which shall be made, under the authority of the United State, are the supreme law of the land, and which supersede the constitutions of 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 find no limit or restriction on the exercise of this power. The most important article in any constitution then may be repealed, even without a legislative act. Should not then a government, trusted and empowered with such extensive and unspecified authority, have restrictions by the declaration of rights? It certainly should.
So the clear point is this, that I cannot help but suspect that the persons who attempt to persuade people that such reservations aren’t as great under this constitution than those of the states, are willfully working to deceive you and to lead you into an absolute state of slavery.