Governments are
instituted among men to safeguard their inalienable rights, not to sell them
off to the highest bidder. The US Constitution and its appended Bill of Rights
is widely regarded as the most perfect exemplar of that desideratum. However,
our Constitution was, and remains, a compromise reached between the men of
their day.
We’ve noted the
Federalist papers as the repository of Constitutional intent to which our
Judiciary are compelled for clarity and guidance. However, our Constitution
being a Compromise; there was also an Anti-Federalist view.
These
Anti-Federalist concerns went into creating our Constitution’s Contract
limiting Government power over the Individual Citizens, …...
Let’s visit the
major points of Anti-Federalist contention. The following summation is from
William Wirt’s biography of Anti-Federalist Patrick Henry.
“The chief
objections to the Constitution are reducible to the following heads.
I: That it was a
consolidated, rather than a confederated government: that, in making it so, the
delegates at Philadelphia had transcended the limits of their commission:
changed fundamentally the relations which the states had chosen to bear to each
other: annihilated their respective sovereignties: destroyed the barriers which
divided them: and converted the whole into one, solid empire. To this leading
objection almost all the rest had reference, and were urged principally with
the view to illustrate it and enforce it.
2: The vast and
alarming array of specific powers given to the general government, and the wide
door opened for an unlimited extension of those powers by the clause which
authorized Congress to pass all laws necessary to carry the given powers into
effect. It was urged, that this clause rendered the previous specification of
powers an idle illusion; since, by the force of construction arising from that
clause, congress might do easily everything and anything that it chose, under
the pretense of giving effect to some specified power.
3: The unlimited
power of taxation of all kinds: the states were no longer to be required, in
their federative characters, to contribute their respective portions towards
the expenses and engagements of the general government; but congress were
authorized to go directly to the pockets of the people and sweep from them, en
masse, from north to south, whatever portion of the earnings of the industrious
poor the rapacity of the general government, or their schemes of ambitious
grandeur, might suggest. It was contended that such a power could not be
exercised, without just complaint, over a country so extensive, and so
diversified in its productions and the pursuits of its people: that it was impossible
to select any subject of general taxation which would not operate unequally on
the different sections of the union, produce discontent and heart burnings
among the people, and most probably terminate in open resistance to the laws:
that the representatives in congress were too few to carry with them a
knowledge of the wants and capacities of the people in the different parts of a
large state, and that the representation could not be made full enough to
attain that object, without becoming oppressively expensive to the country:
that hence taxation ought to be left to the states themselves, whose
representation was full enough to obtain that object, without becoming
oppressively expensive to the country: that hence taxation ought to be left to
the states themselves, whose representation was full, who best knew the habits
and circumstances of their constituents, and on what subjects a tax could be
most conveniently laid. Mr. Henry said that he was willing to grant this power
conditionally; that is, upon the failure of the states to comply with
requisitions from Congress: but that the absolute and unconditional grant of
it, in the first instance, filled his mind with the most awful anticipations.
It was resolved, he saw clearly, that we must be a great and splendid people;
and that in order to be so, immense revenues must be raised from the people:
the people were to be bowed down under the load of their taxes, direct and
indirect; and a swarm of federal tax gatherers were to cover this land, to
blight every blade of grass, and every leaf of vegetation, and consume its
productions for the enrichment of themselves and their masters: it was not
contended, he supposed, but that the state legislature, also, might impose
taxes for their own internal purposes: thus the people were to be doubly
oppressed, and between the state sheriffs and the federal sheriffs to be ground
to dust: on this subject he drew such a vivid and affecting picture of those
officers, entering in succession the cabin of the broken-hearted peasant, and
the last one rifling the poor remains which the first had left, as is said to
have drawn tears from every eye.
4: The power of
raising armies and building navies, and still more emphatically, the control
given to the general government over the militia of the states, was most
strenuously opposed. The power thus given was a part of the means of that
aggrandizement which was obviously meditated, and there could be no doubt that
it would be exercised: so this republic whose best policy was peace, was to be
saddled with the expense of maintaining standing armies and navies, useless for
any other purpose than to insult her citizens, to afford a pretext for
increased taxes, and an augmented public debt, and finally to subvert the
liberties of her people: her militia too, her last remaining defense, was gone.
“Congress”, said Mr. Henry, “by the power of taxation – by that of raising an
army and navy – and by their control over the militia – have the sword in one
hand, and the purse in the other. Shall we be safe without either? Congress
have an unlimited power over both; they are entirely given up by us. Let Him
(Mr. Madison) candidly tell me, where and when did freedom exist, when the
sword and purse were given up from the people? Unless a miracle in human
affairs shall interpose, no nation ever did or ever can retain its liberty,
after the loss of the sword and the purse.
The unlimited
control over the militia was vehemently opposed, on the ground, that the
marching militia from distant states to quell insurrection, and repel
invasions, and keeping the free yeomanry of the country under the lash of
martial law, would, in the first instance produce an affect extremely inimical
to the peace and harmony of the union; and in the next, harass the agricultural
body of the people so much, as to reconcile them, as a less evil, to that curse
of nations, and bane of freedom, a standing army: - and secondly, this power
was opposed, on the ground, that Congress, under the boundless charter of
constructive power which it possessed might transfer, to the president the
power of calling forth the militia, and thus enable him to disarm all
opposition to his schemes.
5: The several
clauses providing for the federal judiciary were objected to, on the ground of
the clashing jurisdictions of the state and federal courts; and secondly,
because infinite power was given to Congress to multiply inferior federal
courts at pleasure, a power which they would not fail to exercise, in order to
swell the patronage of the president, to their own emolument, and thus enable him to reward their
devotion to his views, by bestowing on them and their dependants those offices
which they themselves had created.
6: It was
contended that the trial by jury was gone in civil cases, by that clause which
gives to the supreme court appellate power over the law and the fact in every
case; and which thereby enabled that tribunal to annihilate both the verdict
and the judgment of the inferior courts: and that in criminal cases also, the
trial by jury was worse than gone, because it was admitted, that the common
law, which alone gave the challenge for favour, would not be in force as to the
federal courts; and hence a jury might, in every instance, be packed to suit
the purpose of the prosecution.
7: The authority
of the president to take command of the armies of the United States, in person,
was warmly resisted, on the ground, that if he were a military character, he
might easily convert them into an engine for the worst of purposes.
8: The cession
of the whole treaty-making power of the president and senate was considered as
one of the most formidable features in the instrument, in as much as it put in
the power of the president and any ten senators, who might represent the five
smallest states, to enter into the most ruinous foreign engagements, and even
to cede away by treaty any portion of the territory of the larger states: it
was insisted, that the lower house, who were the immediate representatives of
the people, instead of being excluded as they were by the constitution from all
participation in the treaty making power, ought at least to be consulted, if
not to have the principle agency in so interesting a national act.
9: The immense
patronage of the president was objected to; because it placed in his hands the
means of corrupting the Congress, the navy, and army, and of distributing,
moreover, throughout the society, a band of retainers in the shape of judges,
revenue officers, and tax gatherers, which would render him irresistible in any
scheme of ambition that he might mediate against the liberties of his country.
10: The
irresponsibility of the whole gang of federal officers (as they were called)
was objected to: there was indeed, in some instances, a power of impeachment
pretended to be given, but it was mere sham and mockery; since, instead of being tried by a tribunal, zealous and
interested to bring them to justice, they were to try each other for offences,
in which, probably, they were all mutually implicated.
11: It was
insisted that if we must adopt a Constitution ceding away such vast powers,
express and implied, and so fraught with dangers to the liberties of the
people, it ought at least to be guarded by a Bill of Rights; that in all free
governments, and in the estimation of all men attached to liberty, there were
certain rights unalienable – imprescriptible – and of so sacred a character,
that they could not be guarded with too much caution: among these were the
liberty of speech and of the press – what security had we, that even these sacred
privileges would not be invaded? Congress might think it necessary, in order to
carry into effect the given powers, to silence the clamours and censures of the
people; and, if they meditated views of lawless ambition, they certainly will
think so: what then would become of the liberty of speech, and of the press?
It’s important
to remember the views of these seemingly anarchistic firebrands, because, ….
today’s Empire of Eugenic, Political Medicine can’t even bring itself to
conform to the COMPROMISE of Inalienable Rights ceded away by the
Anti-Federalists codified into our existing Federal Constitution.
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