But perhaps the most absolute proof that our national lawmakers and
judges are as regardless of all constitutional, as they are of all
natural, law, and that their statutes and decisions are as destitute of
all constitutional, as they are of all natural, authority, is to be
found in the fact that these lawmakers and judges have trampled upon,
and utterly ignored, certain amendments to the constitution, which had
been adopted, and (constitutionally speaking) become authoritative, as
early as 1791; only two years after the government went into operation.
If these amendments had been obeyed, they would have compelled all
congresses and courts to understand that, if the government had any
constitutional powers at all, they were simply powers to protect men's
natural rights, and not to destroy any of them.
These amendments have actually forbidden any lawmaking whatever in
violation of men's natural rights. And this is equivalent to a
prohibition of any lawmaking at all. And if lawmakers and courts had
been as desirous of preserving men's natural rights, as they have been
of violating them, they would long ago have found out that, since these
amendments, the constitution authorized no lawmaking at all.
These amendments were ten in number. They were recommended by the first
congress, at its first session, in 1789; two-thirds of both houses
concurring. And in 1791, they had been ratified by all the States: and
from that time they imposed the restrictions mentioned upon all the
powers of congress.
These amendments were proposed, by the first congress, for the reason
that, although the constitution, as originally framed, had been adopted,
its adoption had been procured only with great difficulty, and in spite
of great objections. _These objections were that, as originally framed
and adopted, the constitution contained no adequate security for the
private rights of the people._
These objections were admitted, by very many, if not all, the friends of
the constitution themselves, to be very weighty; and such as ought to be
immediately removed by amendments. And it was only because these friends
of the constitution pledged themselves to use their influence to secure
these amendments, that the adoption of the constitution itself was
secured. And it was in fulfilment of these pledges, and to remove these
objections, that the amendments were proposed and adopted.
The first eight amendments specified particularly various prohibitions
upon the power of congress; such, for example, as those securing to the
people the free exercise of religion, the freedom of speech and the
press, the right to keep and bear arms, etc., etc. Then followed the
ninth amendment, in these words:
The enumeration in the constitution, of certain rights,
[retained by the people] shall not be construed to deny or
disparage others retained by the people.
Here is an authoritative declaration, that "the people" have "_other
rights_" than those specially "enumerated in the constitution"; and that
these "_other rights_" were "_retained by the people_"; that is, _that
congress should have no power to infringe them_.
What, then, were these "other rights," that had not been "enumerated";
but which were nevertheless "retained by the people"?
Plainly they were men's natural "rights"; for these are the only
"rights" that "the people" ever had, or, consequently, that they could
"retain."
And as no attempt is made to enumerate _all_ these "other rights," or
any considerable number of them, and as it would be obviously impossible
to enumerate all, or any considerable number, of them; and as no
exceptions are made of any of them, the necessary, the legal, the
inevitable inference is, that they were _all_ "retained"; and that
congress should have no power to violate any of them.
Now, if congress and the courts had attempted to obey this amendment, as
they were constitutionally bound to do, they would soon have found that
they had really no lawmaking power whatever left to them; because they
would have found that they could make no law at all, _of their own
invention_, that would _not_ violate men's natural rights.
All men's natural rights are co-extensive with natural law, the law of
justice; or justice as a science. This law is the exact measure, and the
only measure, of any and every man's natural rights. No one of these
natural rights can be taken from any man, without doing him an
injustice; and no more than these rights can be given to any one, unless
by taking from the natural rights of one or more others.
In short, every man's natural rights are, first, the right to do, with
himself and his property, everything that he pleases to do, and that
justice towards others does not forbid him to do; and, secondly, to be
free from all compulsion, by others, to do anything whatever, except
what justice to others requires him to do.
Such, then, has been the constitutional law of this country since 1791;
admitting, for the sake of the argument--what I do not really admit to
be a fact--that the constitution, so called, has ever been a law at all.
This amendment, from the remarkable circumstances under which it was
proposed and adopted, must have made an impression upon the minds of all
the public men of the time; although they may not have fully
comprehended, and doubtless did not fully comprehend, its sweeping
effects upon all the supposed powers of the government.
But whatever impression it may have made upon the public men of that
time, its authority and power were wholly lost upon their successors;
and probably, for at least eighty years, it has never been heard of,
either in congress or the courts.
John Marshall was perfectly familiar with all the circumstances, under
which this, and the other nine amendments, were proposed and adopted. He
was thirty-two years old (lacking seven days) when the constitution, as
originally framed, was published (September 17, 1787); and he was a
member of the Virginia convention that ratified it. He knew perfectly
the objections that were raised to it, in that convention, on the ground
of its inadequate guaranty of men's natural rights. He knew with what
force these objections were urged by some of the ablest members of the
convention. And he knew that, to obviate these objections, the
convention, as a body, without a dissenting voice, so far as appears,
recommended that very stringent amendments, for securing men's natural
rights, be made to the constitution. And he knew further, that, but for
these amendments being recommended, the constitution would not have been
adopted by the convention.[6]
[6] For the amendments recommended by the Virginia convention,
see "Elliot's Debates," Vol. 3, pp. 657 to 663. For the debates
upon these amendments, see pages 444 to 452, and 460 to 462, and
466 to 471, and 579 to 652.
The amendments proposed were too numerous to be repeated here, although
they would be very instructive, as showing how jealous the people were,
lest their natural rights should be invaded by laws made by congress.
And that the convention might do everything in its power to secure the
adoption of these amendments, it resolved as follows:
And the convention do, in the name and behalf of the people of
this commonwealth, enjoin it upon their representatives in
congress to exert all their influence, and use all reasonable
and legal methods, to obtain a ratification of the foregoing
alterations and provisions, in the manner provided by the 5th
article of the said Constitution; and, in all congressional
laws to be passed in the meantime, to conform to the spirit of
these amendments, as far as the said Constitution will
admit.--_Elliot's Debates, Vol. 3, p. 661._
In seven other State conventions, to wit, in those of Massachusetts, New
Hampshire, Rhode Island, New York, Maryland, North Carolina, and South
Carolina, the inadequate security for men's natural rights, and the
necessity for amendments, were admitted, and insisted upon, in very
similar terms to those in Virginia.
In Massachusetts, the convention proposed nine amendments to the
constitution; and resolved as follows:
And the convention do, in the name and in the behalf of the
people of this commonwealth, enjoin it upon their
representatives in Congress, at all times, until the
alterations and provisions aforesaid have been considered,
agreeably to the 5th article of the said Constitution, to exert
all their influence, and use all reasonable and legal methods,
to obtain a ratification of the said alterations and
provisions, in such manner as is provided in the said
article.--_Elliot's Debates, Vol. 2, p. 178._
The New Hampshire convention, that ratified the constitution, proposed
twelve amendments, and added:
And the Convention do, in the name and behalf of the people of
this State, enjoin it upon their representatives in congress,
at all times, until the alterations and provisions aforesaid
have been considered agreeably to the fifth article of the said
Constitution, to exert all their influence, and use all
reasonable and legal methods, to obtain a ratification of the
said alterations and provisions, in such manner as is provided
in the article.--_Elliot's Debates, Vol. 1, p. 326._
The Rhode Island convention, in ratifying the constitution, put forth a
declaration of rights, in eighteen articles, and also proposed
twenty-one amendments to the constitution; and prescribed as follows:
And the Convention do, in the name and behalf of the people of
the State of Rhode Island and Providence Plantations, enjoin it
upon their senators and representative or representatives,
which may be elected to represent this State in congress, to
exert all their influence, and use all reasonable means, to
obtain a ratification of the following amendments to the said
Constitution, in the manner prescribed therein; and in all laws
to be passed by the congress in the mean time, to conform to
the spirit of the said amendments, as far as the Constitution
will admit.--_Elliot's Debates, Vol. 1, p. 335._
The New York convention, that ratified the constitution, proposed a
great many amendments, and added:
And the Convention do, in the name and behalf of the people of
the State of New York, enjoin it upon their representatives in
congress, to exert all their influence, and use all reasonable
means, to obtain a ratification of the following amendments to
the said Constitution, in the manner prescribed therein; and in
all laws to be passed by the congress, in the mean time, to
conform to the spirit of the said amendments as far as the
Constitution will admit.--_Elliot's Debates, Vol. 1, p. 329._
The New York convention also addressed a "CIRCULAR LETTER" to the
governors of all the other States, the first two paragraphs of which are
as follows:
THE CIRCULAR LETTER,
_From the Convention of the State of New York to the Governors
of the several States in the Union._
POUGHKEEPSIE, JULY 28, 1788.
Sir, We, the members of the Convention of this State, have
deliberately and maturely considered the Constitution proposed
for the United States. Several articles in it appear so
exceptionable to a majority of us, that nothing but the fullest
confidence of obtaining a revision of them by a general
convention, and an invincible reluctance to separating from our
sister States, could have prevailed upon a sufficient number to
ratify it, without stipulating for previous amendments. We all
unite in opinion, that such a revision will be necessary to
recommend it to the approbation and support of a numerous body
of our constituents.
We observe that amendments have been proposed, and are
anxiously desired, by several of the States, as well as by
this; and we think it of great importance that effectual
measures be immediately taken for calling a convention, to meet
at a period not far remote; for we are convinced that the
apprehensions and discontents, which those articles occasion,
cannot be removed or allayed, unless an act to provide for it
be among the first that shall be passed by the new
congress.--_Elliot's Debates, Vol. 2, p. 413._
In the Maryland convention, numerous amendments were proposed, and
thirteen were agreed to; "most of them by a unanimous vote, and all by a
great majority." Fifteen others were proposed, but there was so much
disagreement in regard to them, that none at all were formally
recommended to congress. But, says Elliot:
All the members, who voted for the ratification [of the
constitution], declared that they would engage themselves,
under every tie of honor, to support the amendments they had
agreed to, both in their public and private characters, until
they should become a part of the general government.--_Elliot's
Debates, Vol. 2, pp. 550, 552-3._
The first North Carolina convention refused to ratify the constitution,
and
_Resolved_, That a declaration of rights, asserting and
securing from encroachments the great principles of civil and
religious liberty, and the inalienable rights of the people,
together with amendments to the most ambiguous and
exceptionable parts of the said constitution of government,
ought to be laid before congress, and the convention of States
that shall or may be called for the purpose of amending the
said Constitution, for their consideration, previous to the
ratification of the Constitution aforesaid, on the part of the
State of North Carolina.--_Elliot's Debates, Vol. 1, p. 332._
The South Carolina convention, that ratified the constitution, proposed
certain amendments, and
_Resolved_, That it be a standing instruction to all such
delegates as may hereafter be elected to represent this State
in the General Government, to exert their utmost abilities and
influence to effect an alteration of the Constitution,
conformably to the foregoing resolutions.--_Elliot's Debates,
Vol. 1. p. 325._
In the Pennsylvania convention, numerous objections were made to the
constitution, but it does not appear that the convention, as a
convention, recommended any specific amendments. But a strong movement,
outside of the convention, was afterwards made in favor of such
amendments. ("Elliot's Debates," Vol. 2, p. 542.)
Of the debates in the Connecticut convention, Elliot gives only what he
calls "_A Fragment_."
Of the debates in the conventions of New Jersey, Delaware, and Georgia,
Elliot gives no accounts at all.
I therefore cannot state the grounds, on which the adoption of the
constitution was opposed. They were doubtless very similar to those in
the other States. This is rendered morally certain by the fact, that the
amendments, soon afterwards proposed by congress, were immediately
ratified by all the States. Also by the further fact, that these States,
by reason of the smallness of their representation in the popular branch
of congress, would naturally be even more jealous of their rights, than
the people of the larger States.
It is especially worthy of notice that, in some, if not in all, the
conventions that ratified the constitution, although the ratification
was accompanied by such urgent recommendations of amendments, and by an
almost absolute assurance that they would be made, it was nevertheless
secured only by very small majorities.
Thus in Virginia, the vote was only 89 ayes to 79 nays. (Elliot, Vol. 3,
p. 654.)
In Massachusetts, the ratification was secured only by a vote of 187
yeas to 168 nays. (Elliot, Vol. 2, p. 181.)
In New York, the vote was only 30 yeas to 27 nays. (Elliot, Vol. 2, p.
413.)
In New Hampshire and Rhode Island, neither the yeas nor nays are given.
(Elliot, Vol. 1, pp. 327-335.)
In Connecticut, the yeas were 128; _nays not given_. (Elliot, Vol. 1. p.
321-2.)
In New Jersey, the yeas were 38; _nays not given_. (Elliot, Vol. 1, p.
321.)
In Pennsylvania, the yeas were 46; _the nays not given_. (Elliot, Vol.
1, p. 320.)
In Delaware, the yeas were 30; _nays not given_. (Elliot, Vol. 1, p.
319.)
In Maryland, the vote was 57 yeas; _nays not given_. (Elliot, Vol. 1, p.
325.)
In North Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1,
p. 333.)
In South Carolina, neither the yeas nor nays are given. (Elliot, Vol. 1,
p. 325.)
In Georgia, the yeas were 26; _nays not given_. (Elliot, Vol. 1, p.
324.)
We can thus see by what meagre votes the constitution was adopted. We
can also see that, but for the prospect that important amendments would
be made, specially for securing the natural rights of the people, the
constitution would have been spurned with contempt, as it deserved to
be.
And yet now, owing to the usurpations of lawmakers and courts, the
original constitution--with the worst possible construction put upon
it--has been carried into effect; and the amendments have been simply
cast into the waste baskets.
Marshall was thirty-six years old, when these amendments became a part
of the constitution in 1791. Ten years after, in 1801, he became Chief
Justice. It then became his sworn constitutional duty to scrutinize
severely every act of congress, and to condemn, as unconstitutional, all
that should violate any of these natural rights. Yet he appears never to
have thought of the matter afterwards. Or, rather, this ninth amendment,
the most important of all, seems to have been so utterly antagonistic to
all his ideas of government, that he chose to ignore it altogether, and,
as far as he could, to bury it out of sight.
Instead of recognizing it as an absolute guaranty of all the natural
rights of the people, he chose to assume--for it was all a mere
assumption, a mere making a constitution out of his own head, to suit
himself--that the people had all voluntarily "come into society," and
had voluntarily "surrendered" to "society" all their natural rights, of
every name and nature--trusting that they would be secured; and that
now, "society," having thus got possession of all these natural rights
of the people, had the "unquestionable right" to dispose of them, at the
pleasure--or, as he would say, according to the "wisdom and
discretion"--of a few contemptible, detestable, and irresponsible
lawmakers, whom the constitution (thus amended) had forbidden to dispose
of any one of them.
If, now, Marshall did not see, in this amendment, any legal force or
authority, what becomes of his reputation as a constitutional lawyer? If
he did see this force and authority, but chose to trample them under his
feet, he was a perjured tyrant and traitor.
What, also, are we to think of all the judges,--forty in all,--his
associates and successors, who, for eighty years, have been telling the
people that the government has all power, and the people no rights? Have
they all been mere blockheads, who never read this amendment, or knew
nothing of its meaning? Or have they, too, been perjured tyrants and
traitors?
What, too, becomes of those great constitutional lawyers, as we have
called them, who have been supposed to have won such immortal honors, as
"expounders of the constitution," but who seem never to have discovered
in it any security for men's natural rights? Is their apparent
ignorance, on this point, to be accounted for by the fact, that that
portion of the people, who, by authority of the government, are
systematically robbed of all their earnings, beyond a bare subsistence,
are not able to pay such fees as are the robbers who are authorized to
plunder them?
If any one will now look back to the records of congress and the courts,
for the last eighty years, I do not think he will find a single mention
of this amendment. And why has this been so? Solely because the
amendment--if its authority had been recognized--would have stood as an
insuperable barrier against all the ambition and rapacity--all the
arbitrary power, all the plunder, and all the tyranny--which the
ambitious and rapacious classes have determined to accomplish through
the agency of the government.
The fact that these classes have been so successful in perverting the
constitution (thus amended) from an instrument avowedly securing all
men's natural rights, into an authority for utterly destroying them, is
a sufficient proof that no lawmaking power can be safely intrusted to
any body, for any purpose whatever.
And that this perversion of the constitution should have been sanctioned
by all the judicial tribunals of the country, is also a proof, not only
of the servility, audacity, and villainy of the judges, but also of the
utter rottenness of our judicial system. It is a sufficient proof that
judges, who are dependent upon lawmakers for their offices and salaries,
and are responsible to them by impeachment, cannot be relied on to put
the least restraint upon the acts of their masters, the lawmakers.
Such, then, would have been the effect of the ninth amendment, if it had
been permitted to have its legitimate authority.