Having just finished the “Lion of LIberty: Patrick Henry and the Call to a New Nation” by Harlow Giles Unger I have been taken back to the great national debate over the powers of government. The discussions of the 1790s are very contemporary. After winning the revolutionary war the country was taken into the constant debate of how to empower and how to limit a national government. Patrick Henry as Governor of Virginia joined others in arguing against the ratification of the proposed constitution considering it granted far too many powers to a Federal government over the people and the states. In language prescient to today’s debate he warned of an out of control national government.
Sharing some of those concerns was James Madison and he promised the anti-constitutionalists that if the Constitution was ratified he would propose a Bill of Rights to protect individual liberties and to limit the national government. Elected to Congress from Virginia is 1790 he made good on that promise. But not all of his proposals were adopted. This made me curious as to what was left out.
The Madison package that was adopted actually consisted of 12 amendments. The ten we know were ratified but two were not. One was the restriction of congressional pay increases until after the next election. Thanks to a national effort that one was adopted 201 years after being sent to the states.
The other lost amendment is still pending with state legislatures is one that as originally proposed limits congressional districts to 30,000 unless changed by statute. Now the idea of 9000 representatives is scary but the reality of smaller congressional districts where you have a chance of actually knowing your representative is a vital aspect of representative government. It would be a true national assembly and I am disappointed that the states did not ratify this one.
However, there are several other of Madison’s proposals that did not make it out of the congressional conference committee and as I read them I wonder how different our history might have been if they had become part of our Constitution.
Madison’s borrowed from the Declaration of Independence which conservatives know was Lincoln’s favorite founding document and which is a more complete definition of freedom that the Constitution. Congressman Madison proposed the following:
“First, That there be prefixed to the constitution a declaration, that all power is originally rested in, and consequently derived from, the people.
That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety.
That the people have an indubitable, unalienable, and indefeasible right to reform or change their Government, whenever it be found adverse or inadequate to the purposes of its institution.”
Great language! Clearly declaring that power rests in the people and also that people can change their government. This would have been a merger of the Declaration with the supreme law of the land.
Another area of controversy was Madison’s idea for a constitutional limit on the powers of states in favor of individual rights. The 14th amendment capped this debate 70 some years after Madison proposed it.
“No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”
And the one I like best given the history of the courts writing their own laws and the executive branch making its regulations have the force of law is the proposal that the 3 branches of government must stick to their duties as described and limited by the Constitution.
“The powers delegated by this constitution are appropriated to the departments to which they are respectively distributed: so that the legislative department shall never exercise the powers vested in the executive or judicial nor the executive exercise the powers vested in the legislative or judicial, nor the judicial exercise the powers vested in the legislative or executive departments.”
This is such clear language it should be a real restraint on power grabs.
The 9th amendment is a vague caution that just because certain rights are guaranteed here does not mean that other rights are limited. However I like Madison’s original language much better as it is clearer that the government cannot take powers unless they are specifically delegated to it.
“The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”
The language of the 2d Amendment creates its own disputes as to whether the “well regulated militia” words modify the “right to bear arms” or simply help explain it. Again I like Madison’s language better.
“The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”
Madison’s language banning government established churches is much clearer than what was finally adopted. He makes it clear that our national government is against a federal government sponsored religion and is not anti-God. If only the new Congress had seen the wisdom of Madison’s commitment to individual freedom.
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
While these amendments went a long way to mollify those concerned about individual rights and the power of states it did not satisfy all. Patrick Henry for one was not convinced and continued to predict an expansion of federal power the expense of the people and the states.
What this history lesson also teaches is that we the citizens of America in the 21st century should be no less engaged than our founding leaders in seeking the right balance of freedom versus government power. Can we reverse the damage that Patrick Henry predicted?