This is the third and final part of a three-part series on the Virginia Ratifying Convention that took place between June 2-27, 1788.
Interestingly enough, the issue of slavery was brought up during the debate over the limits of the federal government at the Virginia Ratifying Convention. Several anti-federalists, including George Mason, cited Article 1 Section 9 of the United States Constitution, which forbade a ban on the slave trade until 1808, as proof that the proposed government’s powers weren’t limited. If it was necessary to specifically include a restriction on federal powers concerning the slave trade, he argued, how could it not apply to the rest of federal authority.
Madison explained that “it was a restraint on the exercise of a power expressly delegated to Congress; namely, that of regulating commerce with foreign nations.”
But then Patrick Henry inquired why the Constitution included specific guarantees of rights such as habeas corpus. If the federal government had limited powers why did the constitution need to specifically include these rights while others were left out?
“The few restrictions in that section are your only safeguards,” he said. “They may control your actions, and your very words, without being repugnant to that paper….I trust that gentlemen, on this occasion, will see the great objects of religion, liberty of the press, trial by jury, interdiction of cruel punishments, and every other sacred right, secured, before they agree to that paper. These most important human rights are not protected by that section, which is the only safeguard in the Constitution. My mind will not be quieted till I see something substantial come forth in the shape of a bill of rights.”
Edmund Randolph defended the Constitution by saying, as stated repeatedly before, that the general government was only delegated specific powers.
Let me say that, in my opinion, the adversaries of the Constitution wander equally from the true meaning. If it would not fatigue the house too far, I would go back to the question of reserved rights. The gentleman (Patrick Henry) supposes that complete and unlimited legislation is vested in the Congress of the United States. This supposition is founded on false reasoning. What is the present situation of this state? She has possession of all rights of sovereignty, except those given to the Confederation. She must delegate powers to the confederate government.
Now, is there not a demonstrable difference between the principle of the state government and of the general government? There is not a word said, in the state government, of the powers given to it, because they are general. But in the general Constitution, its powers are enumerated. Is it not, then, fairly deducible, that it has no power but what is expressly given it? – for if its powers were to be general, an enumeration would be needless. [Emphasis added]
He went on to say that the inclusion of these rights pertains to enumerated powers given to the federal government.
I persuade myself that every exception here mentioned is an exception, not from general powers, but from the particular powers therein vested…. He (Patrick Henry) asks, Where is the power to which the prohibition of suspending the habeas corpus is an exception? I contend that, by virtue of the power given to Congress to regulate courts, they could suspend the writ of habeas corpus. This is therefore an exception to that power.
But the rhetoric of the gentleman has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given.
Returning to the issue of religious protections, he said “no part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion.”
The disagreement over the meaning of the Constitution would persist for the duration of the convention. Finally George Mason and Patrick Henry’s insistence won over Edmund Randolph, who admitted there was no reason to exclude a bill of rights.
If, in the ratification, we put words to this purpose, “and that all authority not given is retained by the people, and may be resumed when perverted to their oppression; and that no right can be cancelled, abridged, or restrained, by the Congress, or any officer of the United States,” — I say, if we do this, I conceive that, as this style of ratification would manifest the principles on which Virginia adopted it, we should be at liberty to consider as a violation of the Constitution every exercise of a power not expressly delegated therein. I see no objection to this.
It is demonstrably clear to me that rights not given are retained, and that liberty of religion, and other rights, are secure.
Still, debates persisted over other parts of the Constitution. Anti-federalists pointed to Article 1 Section 8 charging Congress to provide for the “general welfare.”
This charge could only be carried out by enumerated powers, said Edmund Randolph.
“No man who reads it can say it is general,” he said. “You must violate every rule of construction and common sense, if you sever it from the power of raising money, and annex it to anything else, in order to make it that formidable power which it is represented to be.”
As the convention progressed a motion was made approving a resolution that the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people, and at their will.
James Madison felt such a resolution was not needed because “there cannot be a more positive and unequivocal declaration of the principle of the adoption — that everything not granted is reserved.”
“This is obviously and self-evidently the case, without the declaration,” he added. “Can the general government exercise any power not delegated? If an enumeration be made of our rights, will it not be implied that everything omitted is given to the general government?”
Finally, a vote came for ratification. While men like Madison, Randolph, and Marshall voted to ratify the Constitution, George Mason and Patrick Henry still opposed it.
The ratification included the following declaration, which left no doubt as to what kind of government they were approving.
We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceeding of the federal Convention, and being prepared, as well as the most mature deliberation hath enabled us, to decide thereon, Do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shah be perverted to their injury or oppression, and that every power, not granted thereby, remains with them, and at their will; that, therefore, no right, of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.
But ultimately, anti-federalists’ persistence paid off. While they had hoped to get a bill of rights and subsequent amendments to the Constitution as conditions for adoption, Virginia ratification did included them as recommendations.
The first amendment they recommended read as follows:
That each state in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States, or to the departments of the federal government.
Proposed by Congress in 1789, the Tenth Amendment to the Constitution was ratified with the following text:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
While proposing the amendment in Congress, James Madison made the following statement:
I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated.
In other words, if it was unnecessary it was because it was obvious the federal government only had specific, limited powers. But there was no reason not to include it.
The Virginia Ratifying Convention left no ambiguities about the federal government or its role. It was to be limited, its power explicitly defined and pertaining chiefly to external matters related to war. All the rest of those powers to be reserved to the people in their respective states, where they could decide how much authority to delegate to their local governments.
Sadly, the limited government approved in 1788 bears little resemblance to the one in D.C. today. Instead of leaving most matters for the people and their states to decide, it considers it good and proper to control every facet of our lives from what we put into our bodies to whom we associate with.
Yet while those who violate the Constitution deserve the shame due, the blame for our dire circumstances cannot be laid solely at their feet. It took years and thousands of willing accomplices to create the monstrosity of a central government we have. Furthermore, it was never the ultimate moral responsibility of the federal government to protect the rights of the people because they are not ultimately in authority over the people. The people are in authority over themselves.
On June 4 at the Virginia Ratifying Convention George Nicholas made a prophetic declaration that serves as an appropriate warning to those who place their hope in government to protect our liberties.
As long as the people remain virtuous and uncorrupted, so long, we may fairly conclude, will their representatives, even at their present number, guard their interests, and discharge their duty with fidelity and zeal: when they become otherwise, no government can possibly secure their freedom.
Governments do not restrain themselves. Governments do not keep people free. The people must restrain their governments. The people must preserve their freedoms.
If they do not, then they doubly suffer the agony of a tyrannical government and the bitter tragedy of never knowing what it is like to be truly free.
Visit his personal site at tjmartinell.com.
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