The Liberty Amendments: Restoring the American Republic (19 page)

Federalism also defuses conflict and even promotes harmony. Proponents of the death penalty can live in Texas, which has the most active execution chamber, and not care much that New Jersey abolished the punishment. Proponents of right-to-work laws can live in Virginia, and not care much that Pennsylvania is a union-friendly state. States are governmental entities that reflect the personalities, characteristics, histories, and priorities of the individuals who choose to inhabit them. They have diverse geographies, climates, resources, and populations. No two states are alike. States are more likely to better reflect the interests of their citizens—localities even more so—albeit imperfectly, than the federal government. Consequently, individuals with widely divergent beliefs are able to coexist in the same country because of the diversity and tolerance that federalism promotes.

It is undeniable that the states created the federal government and enumerated its powers among three separate branches; the states reserved for themselves all governing powers not granted to the federal government; and the Constitution they established enshrined both.
The Federalist Papers
emphasize this truism. In
Federalist
39, James Madison argued that the federal government
has only “certain enumerated” powers and the states retained “residuary and inviolable sovereignty” over all else. “Each State, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a FEDERAL, and not a NATIONAL constitution.”
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In
Federalist
45, Madison asserted that the proposed federal powers were “few and defined” and the power in the states remained “numerous and indefinite.”
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This was even before the adoption of the Tenth Amendment.

The ratification of the Constitution was, in fact, in doubt in certain large states, including Massachusetts, Virginia, and New York. The Federalists were forced to agree to introduce a number of amendments when the First Congress would meet after the Constitution’s ratification. The purpose of the amendments was to further protect the individual from potential abuses by the new central government. It is important to recognize that it was several of the states, at the urging of the Anti-Federalists, which threatened to scuttle the ratification of the Constitution. They insisted on what would later become the Bill of Rights. The states were relied on by the citizenry to uphold their freedom and rights and serve as a buffer between the federal government and the individual.

For example, on February 6, 1788, the Massachusetts Ratification Convention not only ratified the Constitution, but in so doing set forth a number of proposed “amendments & alterations . . . that would remove the fears & quiet the apprehensions of many of the good people of this Commonwealth & more effectually guard against an undue administration of the Federal Government. . . . ”
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The Convention recommended, in part:

 . . . That it be explicitly declared that all Powers not expressly delegated by the aforesaid Constitution are reserved to the several States to be by them exercised. . . .

 . . . That no person shall be tried for any Crime by which he may incur an infamous punishment or loss of life until he be first indicted by a Grand Jury, except in such cases as may arise in the Government & regulation of the Land and Naval forces. . . .

 . . . In civil actions between Citizens of different States every issue of fact arising in Actions at common law shall be tried by a Jury if the parties or either of them request it. . . .
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On June 27, 1788, the Virginia Ratification Convention ratified the Constitution but also proposed “[t]hat there be a Declaration or Bill of Rights asserting and securing from encroachment the essential and unalienable rights of the people.”
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Among the proposals:

 . . . That there are certain natural rights of which men when they form a social compact cannot deprive or divest their posterity, among which are the enjoyment of life, and liberty, with the means of acquiring, possessing and protecting property, and pursuing and obtaining happiness and safety.

 . . . That all power is naturally vested in, and consequently derived from, the people; that magistrates therefore are their trustees, and agents, and at all times amenable to them. . . .

 . . . That in all criminal and capital prosecutions, a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to
call for evidence and be allowed counsel in his favor, and to a fair and speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty (except in the government of the land and naval forces) nor can he be compelled to give evidence against himself.

 . . . That no freeman ought to be taken, imprisoned, or disseized of his freehold, liberties, privileges or franchises, or outlawed, or exiled, or in any manner destroyed or deprived of his life, liberty, or property, but by the law of the land.

 . . . That every freeman restrained of his liberty is entitled to a remedy to enquire into the lawfulness thereof, and to remove the same, if unlawful, and that such remedy ought not to be denied nor delayed.

 . . . That in controversies respecting property, and in suits between man and man, the ancient trial by jury, is one of the greatest securities to the rights of the people, and ought to remain sacred and inviolable. . . .

 . . . That excessive bail ought not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.

 . . . That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property: all warrants therefore to search suspected places, or seize any freeman, his papers or property, without information upon oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive, and all general warrants to search suspected places, or to apprehend any suspected person without specially naming or describing the place or person, are dangerous and ought not be granted.

 . . . That people have a right peaceably to assemble together
and consult for the common good, or to instruct their Representatives; and that every freeman has a right to petition or apply to the Legislature for redress of grievances.

 . . . That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.

 . . . That the people have a right to keep and bear arms; that a well regulated militia composed of the body of the people trained to arms, is the proper, natural and safe defence of a free States. . . . [T]he military should be under strict subordination to the governed by the civil power.

 . . . That no soldier in time of peace ought to be quartered in any house without the consent of the owners, and in time of war in such manner only as the laws direct.

 . . . [A]ll men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and that no particular religious sect or society ought to be favored or established by law in preference to others. . . .
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On July 26, 1788, the New York Ratification Convention ratified the Constitution. However, it also forwarded a list of declarations, including:

 . . . That the enjoyment of Life, Liberty and the pursuit of Happiness are essential rights which every Government ought to respect and preserve.

 . . . [T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the
Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same; And that those Clauses in the said Constitution, which declare, that Congress shall not have or exercise certain Powers, do not imply that Congress is entitled to any Powers not given by the said Constitution; but such Clauses are to be construed either as exceptions to certain specified Powers, or as inserted merely for greater Caution.

 . . . That the People have an equal, natural and unalienable right, freely and peaceably, to Exercise their Religion according to the dictates of Conscience, and that no Religious Sect or Society ought to be favoured or established by Law in preference of others.

 . . . That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State . . .

 . . . [T]hat at all times, the Military should be under strict Subordination to the civil Power.

 . . . That in time of Peace no Soldier ought to be quartered in any House without the consent of the Owner, and in time of war only by the civil Magistrate in such manner as the Laws may direct.

 . . . That no Person ought to be taken imprisoned, or disseised of his freehold, or be exiled or deprived of his Privileges, Franchises, Life, Liberty or Property, but by due process of Law.

 . . . That no Person ought to be put twice in Jeopardy of Life or Limb for one and the same Offence, nor, unless in
case of impeachment, be punished more than once for the same Offence.

 . . . That every Person restrained of His Liberty is entitled to an enquiry into the lawfulness of such restraint, and to a removal thereof if unlawful, and that such enquiry and removal ought not to be denied or delayed, except when on account of Public Danger the Congress shall suspend the privilege of the Writ of Habeas Corpus.

 . . . That excessive Bail ought not to be required; nor excessive Fines imposed; nor Cruel or unusual Punishments inflicted.

 . . . That (except in the Government of the Land and Naval Forces, and of the Militia when in actual Service, and in cases of Impeachment) a Presentment of Indictment by a Grand Jury ought to be observed as a necessary preliminary to the trial of all Crimes cognizable by the Judiciary of the United States, and such Trial should be speedy, public, and by an impartial Jury of the County where the Crime was committed; and that no person can be found Guilty without the unanimous consent of Jury. . . . And that in all Criminal Prosecutions, the Accused ought to be informed of the cause and nature of his Accusation, to be confronted with his accusers and the Witness against him, to have the means of producing Witnesses, and the assistance of Council for his defense, and should not be compelled to give Evidence against himself.

 . . . That the trial by Jury in the extent that it obtains by the Common Law of England is one of the greatest securities to the rights of a free People, and ought to remain inviolate.

 . . . That every Freeman has a right to be secure from all unreasonable searches and seizures of his person, his paper
or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath and Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.

 . . . That the People have a right peaceably to assemble together to consult for their common good, or to instruct their Representatives; and that every person has a right to Petition or apply to the Legislature for redress of Grievances.—That the Freeman of the Press ought not be violated or restrained. . . .

 . . . That the Jurisdiction of the Supreme Court of the United States, or of any other Court to be instituted by Congress, is not in any case to be increased enlarged or extended by any Fiction Collusion or mere suggestion;—And That no Treaty is to be construed so to operate as to alter the Constitution of any State. . . .
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Nonetheless, after the Constitution was ratified, and the First Congress convened, the Federalists controlled both Houses, and they were in no hurry to consider any amendments. Madison, a member of the House from Virginia, continued pressing Congress to take up the matter, given the representations that had been made to state ratification delegates, particularly the Anti-Federalists.

On June 8, 1789, Madison was eventually able to raise the subject of his proposed amendments, which were patterned after those urged by several states. He had wanted the whole House to
take up the amendments. Instead, they would be submitted to a committee for consideration. Madison began his speech to the House this way: “I am sorry to be accessory to the loss of a single moment of time by the House. If I had been indulged in my motion, and we had gone into a Committee of the Whole, I think we might have rose and resumed the consideration of other business before this time; that is, so far as it depended upon what I proposed to bring forward. As that mode seems not to give satisfaction, I will withdraw the motion, and move you, sir, that a select committee to be appointed to consider and report such amendments as are proper for Congress to propose to the Legislatures of the several States. . . . ”
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During the course of his speech, Madison noted that “there is a great probability that such a declaration (bill of rights) in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operation of this [federal] government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the State Legislatures to be sure guardians of the people’s liberty. . . . ”
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In
Ameritopia
I explained, “The debates between the Federalist and Anti-Federalist camps did not involve fundamental disagreements about the nature of man and inalienable rights, about which there was near-universal consent and for which a revolution had been fought and won, but how best to arrange a government, after the revolution, to ensure the perpetuation of American Society. The delegates at the constitutional and state conventions feared above all else the concentration of too much power in the new federal government. . . . Not only was there no support for an all-powerful central government, but the delegates
at the Constitutional Convention spent most of the summer trying to figure out how to ensure that no office or officeholder in the new federal government would become too powerful. . . . ”
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