Thursday, December 4, 1788
Observations on the Alterations Proposed as Amendments to the
new Federal Constitution.
Six of the states have adopted the new constitution without
proposing any alteration, and the most of those proposed by the
conventions of other states may be provided for by congress in a
code of laws without altering the constitution. If congress may
be safely trusted with the affairs of the Union, and have sufficient
powers for that purpose, and possess no powers but such as respect
the common interest of the states (as I have endeavored to
show in a former piece), then all the matters that can be regulated
by law may safely be left to their discretion, and those will include
all that I have noticed except the following, which I think
on due consideration will appear to be improper or unnecessary.
It is proposed that the consent of two-thirds or three-fourths
of the members present in this branch of the congress shall be
required for passing certain acts.
On which I would observe, that this would give a minority in
congress power to controul the majority, joined with the concurrent
voice of the president, for if the president dissents, no act can
pass without the consent of two-thirds of the members in each
branch of congress; and would not that be contrary to the general
principles of republican government?
That impeachments ought not to be tried by the senate, or
not by the senate alone.
But what good reason can be assigned why the senate is not
the most proper tribunal for that purpose? The members are to
be chosen by the legislatures of the several states, who will doubtless
appoint persons of wisdom and probity, and from their office
can have no interested motives to partiality. The house of peers
in Great Britain try impeachments and are also a branch of the
It is said that the president ought not to have power to
grant pardons in cases of high treason, but the congress.
It does not appear that any great mischief can arise from the
exercise of this power by the president (though perhaps it might
as well have been lodged in congress). The president cannot
pardon in case of impeachment, so that such offenders may be
excluded from office notwithstanding his pardon.
It is proposed that members of congress be rendered ineligible
to any other office during the time for which they are elected
members of that body.
This is an objection that will admit of something plausible to
be said on both sides, and it was settled in convention on full discussion
and deliberation. There are some offices which a member
of congress may be best qualified to fill, from his knowledge of
public affairs acquired by being a member, such as minister to
foreign courts, &c., and on accepting any other office his seat in
congress will be vacated, and no member is eligible to any office
that shall have been instituted or the emoluments increased while
he was a member.
It is proposed to make the president and senators ineligible
after certain periods.
But this would abridge the privilege of the people, and remove
one great motive to fidelity in office, and render persons incapable
of serving in offices, on account of their experience, which would
best qualify them for usefulness in office—but if their, services are
not acceptable they may be left out at any new election.
It is proposed that no commercial treaty should be made
without the consent of two-thirds of the senators, nor any cession
of territory, right of navigation or fishery, without the consent of
three-fourths of the members present in each branch of congress.
It is provided by the constitution that no commercial treaty
shall be made by the president without the consent of two-thirds
of the senators present, and as each state has an equal representation
and suffrage in the senate, the rights of the state will be as
well secured under the new constitution as under the old; and it
is not probable that they would ever make a cession of territory
or any important national right without the consent of congress.
The king of Great Britian has by the constitution a power to make
treaties, yet in matters of great importance he consults the parliament.
There is one amendment proposed by the convention of
South Carolina respecting religious tests, by inserting the word
other, between the words no and religious in that article, which is
an ingenious thought, and had that word been inserted, it would
probably have prevented any objection on that head. But it may
be considered as a clerical omission and be inserted without calling
a convention; as it now stands the effect will be the same.
On the whole it is hoped that all the states will consent to make
a fair trial of the constitution before they attempt to alter it; experience
will best show whether it is deficent or not, on trial it
may appear that the alterations that have been proposed are not
necessary, or that others not yet thought of may be necessary;
everything that tends to disunion ought to be avoided. Instability
in government and laws tends to weaken a state and render
the rights of the people precarious.
If another convention should be called to revise the constitution,
'tis not likely they would be more unanimous than the former;
they might judge differently in some things, but is it certain that
they would judge better? When experience has convinced the
states and people in general that alterations are necessary, they
may be easily made, but attempting it at present may be detrimental
if not fatal to the union of the states.
The judiciary department is perhaps the most difficult to be
precisely limited by the constitution, but congress have full power
to regulate it by law, and it may be found necessary to vary the regulations
at different times as circumstances may differ.
Congress may make requisitions for supplies previous to direct
taxation, if it should be thought to be expedient, but if requisitions
be made and some states comply and others not, the noncomplying
states must be considered and treated as delinquents,
which will tend to excite disaffection and disunion among the
states, besides occasioning delay; but if congress lay the taxes in
the first instance these evils will be prevented, and they will doubtless
accommodate the taxes to the customs and convenience of the
Some suppose that the representation will be too small, but I
think it is in the power of congress to make it too large, but I believe
that it may be safely trusted with them. Great Britian contains
about three times the number of the inhabitants in the United
States, and according to Burgh's account in his political disquisitions,
the members of parliament in that kingdom do not exceed
131, and if 69 more be added from the principal cities and towns
the number would be 200; and strike off those who are elected by
the small boroughs, which are called the rotten part of the constitution
by their best patriots and politicians, that nation would
be more equally and better represented than at present; and if
that would be a sufficient number for their national legislature,
one-third of that number will be more than sufficient for our
federal legislature who will have few general matters to transact.
But these and other objections have been considered in a
former paper, before referred to. I shall therefore conclude this
with my best wishes for the continuance of the peace, liberty and
union of these states.