Story of Our Constitution - E. M. Tappan

The States Guard their Rights

The United States of America had now a President. It had also a Constitution—an excellent one; but no one could expect 4,000,000 people to accept without criticisms the work of any one group of men, no matter how wise they might be. Even so good a student of the needs of the country as Thomas Jefferson was alarmed because no plan had been made for rotation in office, and feared lest some President might succeed in becoming powerful enough to establish a hereditary monarchy.

North Carolina did not come "under the roof" until more than six months after Washington's inauguration. This State had had rather a hard time under the rule of her English governors, and a year before the Declaration of Independence was signed, she had declared herself no longer under their control, and had begun to make her own laws. Naturally, her sturdy, liberty-loving people were suspicious of any new government and were slow to put themselves into its power. Looking ahead, however, they saw that they could not expect to stand alone when all the other States had united, and they had shrewdly concluded to be friendly with Congress and leave a way open to join the Union at some future time if they should think best. They knew that Congress would lay an impost upon goods imported into the ratifying States; so these canny people recommended their legislature to pass laws for collecting an impost at their ports and then giving over to Congress the resulting money. At the end of 1789, however, they concluded to ratify.

Rhode Island was even slower than North Carolina to accept the new Constitution, and for almost opposite reasons. She had had no tyrannical governors, but had been free and remarkably independent from the first. Her custom of having her own way was well established, and she had no idea of making any change. For some time she refused even to call a convention to consider the question of ratifying the Constitution. Finally, however, in 1790, more than a year after the inauguration of Washington, she voted for ratification.

This new government could demand money, make peace and war, make treaties with other nations, raise an army and a navy, build roads, establish a post-office system, make laws for commerce. Government was no longer, as in Revolutionary days, obliged to beg for money; it could require, and it had power to enforce its requirements. Remembering that each State had been independent of the others, had made its own laws, and had looked out for its own interests, it is no wonder that there was hesitation in the minds of many as to whether it was well to give up so much of their freedom. It is no wonder that people questioned what this unknown and untried Congress, made up of their own representatives as it was, might choose to do. It is no wonder that of the first eleven States to ratify, six proposed Amendments—105 in all—and one of them a bill of rights in addition. Later, when North Carolina ratified, she presented another bill of rights and called for twenty-six Amendments. Both Virginia and New York petitioned Congress to call another convention to consider the proposed Amendments and report which of them would be for the best good of the country.

Congress had no authority to call a convention save at the request of the legislatures of two-thirds of the States, and could not propose any Amendments unless two-thirds of both Houses deemed it necessary. Five of the States had not demanded Amendments; and the members of Congress were by no means agreed that any were necessary. "Our Constitution is like a vessel just launched, and lying at the wharf," declared one. "She is untried, you can hardly discover any one of her properties. It is not known how she will answer her helm or lay her course; whether she will bear with safety t4Ae precious freight deposited in her hold But, in this state, will the prudent men chant attempt alterations? Will he em ploy workmen to tear off the planking and take asunder the frame? He certainly will not." Another member thought that the people whom they represented would be out of patience and distrustful of them if they did not consider the proposed Amendments at once. Still another said rather tartly, "It strikes me that the great Amendment which the Government wants is expedition in the despatch of business." It was proposed that a committee be appointed to report on the matter. "What," cried one, "can we neither see, hear, smell, or feel, unless we employ a committee for the purpose?" Nevertheless, a committee of eleven was appointed, one from each State that had ratified, to examine all proposed Amendments and present a report on their desirability.

Before this report could be considered, however, and quite aside from the substance of the Amendments themselves, there was an important question to be decided, namely, "Should any Amendment adopted be made a part of the original Constitution, or should it be presented as an addition to it?" Mr. Madison thought it would produce a much more "neat and proper "result if it were interwoven with the Constitution. "We might as well endeavor to mix brass, iron, and clay as to incorporate an Amendment with the original Articles," retorted a second member. A third declared bluntly that it would not be honest, that the document produced would not be the one that Washington and the others of the convention had signed. A fourth member said that he agreed with this last speaker, and objected to patching it up until it resembled Joseph's coat of many colors. But still another member said that if the Amendments were not incorporated with the Constitution, this might in years to come read like a paper which he had once seen: "An act entitled an act to amend a supplement to an act entitled an act for altering part of an act entitled an act for certain purposes therein mentioned."

On one point all were agreed, namely, to reduce the Amendments to as small a number as possible; and they set to work. The House retained seventeen, and the Senate cut down this number to twelve. They were then laid before the separate States, and in the course of the three years following, three-fourths of the States accepted ten of them; and these ten were added to the Constitution.

The ten Amendments are interesting reading, because they show so clearly the thoughts and feelings of the people. The new Government was untried. Congress could make laws; the Supreme Court could interpret them; and the President could call out the army if necessary to see that they were obeyed. There was no chance for escape. These men realized that they were firmly held in the grasp of whatever they now voted for. It is no wonder that they considered the Amendments carefully. Slowly and with much discussion they voted for one after another, emphasizing the rights with which they would brook no interference, and ended with a sturdy declaration to the effect that all rights which the Constitution (lid not give to the general Government or forbid to the States should belong to the States respectively or to the people.

But just what rights belonged to the general Government was not always clear. Even the wise framers of the Constitution could not foresee every case that might arise. Evidently there were some rights of the general Government and also some rights of the separate States that were not "set down in writing," but that were reasonably implied. Just what these were could not be determined save as case after case arose.

One of the most important of these cases was that of Alexander Chisholm of North Carolina, who had a claim against the State of Georgia. The Constitution did not declare whether or not an individual had a right to sue a State; and the Court took the ground that no State should be allowed to do injustice to any person. Georgia had sent no one to represent her, and therefore the Court decided in favor of Chisholm, and issued a writ of inquiry, that is, instructions to ascertain what damages were due him from Georgia.

Then the tempest broke forth. Georgia declared that her sovereignty had been invaded, and passed an act making the execution of such a writ punishable by death. The Eleventh Amendment to the Constitution was proposed in Congress and passed, and the Supreme Court gave up all claim to jurisdiction in such cases.