Original Intent? Part II

Excerpts from correspondence of members of the First Federal Congress

JANUARY 2, 1789 (Amendments)

January 2d, 1789

SIR,

Being informed that reports prevail not only that I am opposed to any amendments whatever to the new federal Constitution; but that I have ceased to be a friend to the rights of Conscience; and inferring from a conversation with my brother William, that you are disposed to contradict such reports as far as your knowledge of my sentiments may justify, I am led to trouble you with this communication of them. As a private Citizen it could not be my wish that erroneous opinions should be entertained, with respect to either of those points, particularly, with respect to religious liberty. But having been induced to offer my services to this district as its representative in the federal Legislature, considerations of a public nature make it proper that, with respect to both, my principles and views should be rightly understood.

I freely own that I have never seen in the Constitution as it now stands those serious dangers which have alarmed many respectable Citizens. Accordingly whilst it remained unratified, and it was necessary to unite the States in some one plan, I opposed all previous alterations as calculated to throw the States into dangerous contentions, and to furnish the secret enemies of the Union with an opportunity of promoting its dissolution. Circumstances are now changed: The Constitution is established on the ratifications of eleven States and a very great majority of the people of America; and amendments, if pursued with a proper moderation and in a proper mode, will be not only safe, but may serve the double purpose of satisfying the minds of well meaning opponents, and of providing additional guards in favour of liberty. Under this change of circumstances, it is my sincere opinion that the Constitution ought to be revised, and that the first Congress meeting under it, ought to prepare and recommend to the States for ratification, the most satisfactory provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c. I think it will be proper also to provide expressly in the Constitution, for the periodical increase of the number of Representatives until the amount shall be entirely satisfactory; and to put the judiciary department into such a form as will render vexatious appeals impossible. There are sundry other alterations which are either eligible in themselves, or being at least safe, are recommended by the respect due to such as wish for them.

I have intimated that the amendments ought to be proposed by the first Congress. 1 Prefer this mode to that of a General Convention, 1st. because it is the most expeditious mode. A convention must be delayed, until 2/3 of the State Legislatures shall have applied for one; and afterwards the amendments must be submitted to the States; whereas if the business be undertaken by Congress the amendments may be prepared and submitted in March next. 2dly. because it is the most certain mode. There are not a few States who will absolutely reject the proposal of a Convention, and yet not be averse to amendments in the other mode. Lastly, it is the safest mode. The Congress, who will be appointed to execute as well as to amend the Government, will probably be careful not to destroy or endanger it. A convention, on the other hand, meeting in the present ferment of parties, and containing perhaps insidious characters from different parts of America, would at least spread a general alarm, and be but too likely to turn every thing into confusion and uncertainty. It is to be observed however that the question concerning a General Convention, will not belong to the federal Legislature. If 2/3 of the States apply for one, Congress can not refuse to call it: if not, the other mode of amendments must be pursued. I am Sir with due respect your friend & Obedt. servant

JAMES MADISON

Source: Letter from James Madison to George Eve, January 2, 1789, [Eve was a Baptist minister in Virginia.] Papers of James Madison, 11:404-405. Edited by Robert A. Rutland, Charles F. Hobson. University of Virginia, Charlottesville, 1977

MARCH 1 1789 (Amendments)

The advocates for amendments will be but few, perhaps two from Massachusetts, four from Virginia, and three from South Carolina in the House of Representatives, and the Senators of Virginia, and of this state [New York] if they ever agree to appoint any; I should rather say antifeds, for perhaps the feds. May agree--to propose some amendments after they got through the business of their first session.

Source: Abraham Baldwin to Joel Barlow, March 1, 1789, Abraham Baldwin Papers, Yale University.

MARCH 3, 1789 (Amendments)

I hope Congress will take up the Amendments proposd. by the States and do What is Necessary without there being a New Convention, I think Many of the Amendments are good & Necessary, but the great point of Direct Taxation will be of the Most Importance, When your Body Meets together and they should think it best for Congress to Retain that, I am perfectly Satisttd. they Should Retain it I am very Willing to trust them, but Many of the Opposers to the Goverment will not agree Congress should have that power.

Source: Miles King to James Madison, 3 March 1789, James Madison Papers, Library of Congress.

MARCH 12, 1789 (Amendments - with reference to religion)

If due attention be paid to removing the jealousies and fears of the honest part of the Opposition we may gain strength and respectability without impairing one essential power of the Constitution. Some declarations concerning the liberty of the press, of conscience, etc., ought perhaps to be frankly made part of the Constitution.

Source: Tench Coxe to George Thatcher, March 12, 1789, Independent National Historical Park, Philadelphia,Pennsylvania

MARCH 15, 1789 (Amendments)

...your thoughts on the subject of the Declaration of rights in the letter of Oct. 17 I have weighed with great satisfaction. some of them had not occurred to me before but were acknowledged just in the moment they were presented to my mind. in the arguments in favor of a declaration of rights you omit one which has a great weight with me, the legal check which it puts into the hands of the judiciary. this is a body, which if rendered independent, & kept strictly to their own department merits great confidence for their learning & integrity.

Source: Thomas Jefferson to James Madison, 15 March 1789, James Madison Papers, Library of Congress.

MARCH 18, 1789 (Amendments - with reference to religion)

I have reflected since I had the pleasure of seeing you on the form of a declaration to be introduced into the constitution in favor of religious liberty, and I think the idea of extending the powers of the union to an interposition between the state legislatures & their respective constituents might be accomplished to universal satisfaction, by something like the 4th. Sec. of the 4th- Article relating to a republican form of Government--It would give great éclat to the constitution in Europe, and would give it an honest Triumph over the disingenuousness of those, who have opposed it on that score against their better knowlege.

Source: Tench Core to James Madison, 18 March 1789, James Madison Papers, Library of Congress,

MARCH 24, 1789 (Amendments - with reference to religion)

7· The amendment proposed by the Convention of South-Carolina, respecting religious tests, is an ingenious one, but not very important, because the Constitution as it now stands, will have the same effect, as it would have with that amendment.

On the whole, will it not be best to make a fair trial of the Constitution, before any attempts are made to alter it! It is now become the only frame of government for the United States, and must be supported and conformed to, or they will have no government at all as confederated States. Experience will best shew whether it is deficient or not; on trial it may appear that the alterations proposed are not necessary, or that others not yet thought of may be necessary..

Source: "A Citizen of New Haven" (Roger Sherman), 24 March 1789, published in The New-York Packet, 24 March 1789,

MARCH 29, 1789 (Amendments)

With regard to the Constitution, it is pretty well decided that the disaffected party in the Senate amounts to two or three members only; and that in the other House it does not exceed a very small minority, some of which will also be restrained by the federalism of the States from which they come. Notwithstanding this character of the Body, I hope and expect that some conciliatory sacrifices will be made, in order to extinguish opposition to the system, or at lease break the force of it, by detaching the deluded opponents from their designing leaders.

Source: James Madison to Thomas Jefferson, 29 March 1789, Papers of James Madison, 12:38.

APRIL 3, 1789 (Amendments)

By whatever appellation therefore Gentlemen may choose to be distinguished; whether by federal, or anti-federal, I hope we shall not be wasting time with Idle discussions about amendments of the Constitution, but that we shall go to work immediately about the Finances, &r endeavour to extricate ourselves from our present embarrassed, & disgraceful situation.

Source: Ralph Izard to Thomas Jefferson, 3 April 1789, Ralph Izard Papers, University of South Carolina, Columbia

APRIL 3, 1789 (Amendments)

We shall do well upon the present federal Constitution. Perhaps some Things might be amended. Bur if none but the Trifles I have mentioned above were found expedient to amend, I look upon them of so little Importance, that I shd. pray God they might never be amended. But there are probably others of some Moment & Magnitude & worthy to be amended hereafter. But I wish to have no Amendmts. made these 20 years; or not until by Experience & cool Judgt. we shd. be able to discern what Amendmts. are necessary. The Constitution is so good & excellent, that I do not wish to have it shaken by any speedy Alteration. However desirous a number of States may be for a speedy Convention & Revision, I wish it may be evaded & put off until we are as a public, able to judge upon Experiment.

Source: Ezra Stiles to William S. Johnson, 3 April 1789, Beinecke Library, Yale University.

APRIL 25, 1789 (Amendments)

I don't hear a word about amendments. Money is indeed the first and most important object. Neither civil nor military wheels can turn easily without it. But it had seemed to me that the Delegates from those States which had ordered them to move and urge amendments, would have started them as soon as a Congress was formed. I am glad that a matter of much greater consequence has been brought upon the tapis; and perhaps it would not be amiss to try whether the new government would not do without any alteration.

It is probable whenever amendments are proposed some degree of ill humour may take place of that harmony which I am told, prevails, and I hope will prevail in Congress.

Source: William Ellery to Benjamin Huntington, 25 April 1789, Benjamin Huntington Papers, Rhode Island State Archives.

MAY 1789 (Amendments)

As to the subject of Amendments it is a weighty matter, and may bid fairest for a proper decision by delaying the subject for some time; cannot we venture to bring a little experience to the aid of all the prescience of opponents in order to form a right judgement.

Source: Arthur Campbell to (Andrew Moore?), May 1789, Arthur Campbell Papers, Filson Club, Louisville, Kentucky.

MAY 27, 1789 (Amendments)

The subject of amendments was to have been introduced on Monday last; but is postponed in order that more urgent business may not be delayed. On Monday sevennight it will certainly come forward. A Bill of rights, incorporated perhaps into the Constitution will be proposed, with a few other alterations most called for by the opponents of the Government and least objectionable to its friends.

Source: James Madison to Thomas Jefferson, 27 May 1783, James Madison Papers, Library of Congress.

May 31, 1789, (Amendments)

As far as a momentary consideration has enable me to judge, I see nothing exceptionable in the proposed amendments. Some of them, in my opinion, are importantly necessary, others, though of themselves (in my conception) not very essential, are necessary to quiet the fears of some respectable characters and well-meaning men. Upon the whole, therefore, not foreseeing any evil consequences that can result from their adoption, they have my wishes for a favorable reception in both houses.

Source: George Washington to James Madison, 31 May 1789, Lee-Kohns Collection, Rare Books and Manuscript Division, Astor, Lennox and Tilden Foundations, New York Public Library.

JUNE 1, 1789 (Amendments)

A circumstance trivial indeed, but from its effect here, important, deserves to be told. The opponents had predicted that Congress being once possessed with power, the friends to the new Government would never consent to make any amendments. your motion on that great and delicate subject directly contradicts it. And they swear that they will never forget Bland, Grayson and their other friends for suffering any business however important to be done in Congress prior to the subject of amendments. and moreover for suffering this important prophecy by their tardiness to be contradicted.

If you can do something by way of amendments without any material injury to the system, I shall be much pleased, and as far as I can learn it will be pleasing to my countrymen or a majority of them I mean, we certainly are more friendly than we were at the meeting of our Convention, several counties who were much opposed to it, are now decidedly very friendly and I count on its being adopted at Our next convention.

Source: Excerpt of letter from Benjamin Hawkins to James Madison, June 1, 1789, James Madison Papers, Library of Congress.

JUNE 8, 1789 (Amendments-religious reference)

Madison this morning is to make an essay towards amendments--but whether he means merely a tub to the whale,'or declarations about the press liberty of conscience &c. or will suffer himself to be so far frightened with the anti-federalism of his own state as to attempt to lop off essentials I do not know--I hope however we shall be strong enough to postpone.

Afternoon--Madison's has proved a tub on a number of: Ad. but Gerry is nor content with them alone, and proposes to treat us with all the amendments of all the anti-federalists in America.

Source: George Clymer to Richard Peters, June 8,1789, Richard Peters Papers, Historical Society of Pennsylvania, Philadelphia..

JUNE 11, 1789 (Amendments-religious reference)

Mr. Madison has introduced his long expected Amendments. They are the fruit of much labour and research. He has hunted up all the grievances and complaints of newspapers--all the articles of Conventions--and the small talk of their debates. It contains a Bill of Rights--the right of enjoying property--of changing the govt. at pleasure--freedom of the press--of conscience--of juries--exemption from general Warrants gradual increase of representatives till the whole number at the rate of one to every 30,000 shall amount to and allowing two to every State, at least this is the substance. There is too much of it--O. I had forgot, the right of the people to bear Arms. Risum teneatis amin(1)--

Upon the whole, it may do good towards quieting men who attend to sounds only, and may get the mover some popularity-which he wishes.

FOOTNOTE

(1) Could you forebear the laughter of a friend?

Source: Fisher Ames to Thomas Dwight, June 11, 1789. Fisher Ames Papers, Dedham Historical Society, Massachusetts.

JUNE 12, 1789 (Amendments -religious reference)

The civil departments will employ us next, and the judiciary the Senate. They will finish their stint, as the boys say, before the House has done. Their number is less, and they have matured the business in committee. Yet Mr. Madison has inserted, in his amendments, the increase of representatives, each State having two at least. The rights of conscience, of bearing arms, of changing the government, are declared to be inherent in the People. Freedom of the press, too. There is a prodigious great dose for a medicine. But it will stimulate the stomach as little as hasty pudding. It is rather food than physic. An immense mass of sweet and other herbs and roots for a diet drink.

Source: Fisher Ames to George R. Minor, June 12, 1789. Seth Ames, ed., The Works of Fisher Ames, 2 vols. (Boston, 1854), 1:54

JUNE 12, 1789 (Amendments)

Perhaps the propositions (to be grafted on the constitution, if the intention of the motion succeeds) brought forward by Mr. Madison may make some noise in Maryland--Mr. Duvall has a copy of them. It may be seen from thence that some of them are inapplicable in a great degree, as being needless stipulations between--not a people and a separate and independent power--but between a people and their representatives--in other between a people and--who--why themselves. For it I esteem it a real truth that the Govt. is a Govt. of the people--as much so as any ever was or can be instituted for the successful conduct of the affairs of our extensive Union--extensive I mean in its locality as well as in the importance of its various concerns--which embrace almost innumerable Objects, and many esteemed highly consequential in the Eye of the present improved and enlightened policy of nations--the enclosed paper contains some strictures which may shew the inexpediency of some of the proposed articles.

But a postponement of the business was necessarily induced by other of more importance. at least, it must be acknowledged by all to be, of more immediate importance.

Source: Benjamin Contee to John Eager Howard, June 12, 1783, Executive Papers, 1778-1865, Maryland Stare Archives.

JUNE 12, 1789 (Amendments)

I am exceedingly sorry it is out of my power to hold out to you any flattering expectations on the score of amendments; it appears to me that both houses are almost wholly composed of foederalists: those who call themselves Antis are so extremely luke warm, as scarcely to deserve the appelacion: Some gentlemen here from motives of policy have it in contemplation to effect amendments which shall affect personal liberty alone, leaving the great points of the Jud[icar]y & direct taxation &c. to stand as they are; their object is in my opinion unquestionably to break the spirit of the party by divisions; after this I presume many of the most sanguine expect to go on coolly, in sapping the independence of the State legislatures: In this system however of divide & impera,(1) they are opposed by a very heavy column, from the little states, who being in possession of rights they had no pretensions to in justice, are afraid of touching a subject which may bring into investigation & controversy their fortunate situation: last munday a string of amendments were presented to the lower House; these altogether respected personal liberty; & I would now inclose you a copy did I not know that Parker had done it already: Even these amendments were opposed by Georgia New Hampshire & Connecticut: they were however submitted to a comm[itt]ee. of the whole on the state of the nation, & it is thought will not be taken up again for one while. I understood that the mover was so embarass'd in the course of the business that he was once or twice on the point of withdrawing the motion & it was thought by some that the commitment was more owing to personal respect than a love of the subject introduced.

In the Senate I think that prospects are even less favorable although no direct proposition has yet been brought forward; I have suggested to my colleague the propriety of bringing forward the amendments of the state before the Senate, but he thinks it will be best to wait till they come up from the representatives.

FOOTNOTES

(1) Divide and conquer.

Source: William Grayson to Patrick Henry, June 12, 1789, George N. Meissner Collection, Washington University Libraries.

JUNE 12, 1789 (Amendments)

The enclosed paper will shew you the amendments which Mr. Madison has submitted to the consideration of our house. A very desultory conversation took place on this occasion--Some objected to recommending any amendments till experience should demonstrate the necessity of them--Others considered the investigation of that Subject premature and that it ought to be delayed for some months till the weighty business before us should be dispatched. However I believe the amendments which Mr. Madison proposed will be finally recommended to the Legislatures of the respective States--provided attempts should not be made to introduce others which would destroy the efficacy of the Government--in which case the attainment of any might be risked. The further consideration of this subject will be defered till the important business which presses for immediate decision shall be determined on.

Source: Richard Bland Lee to Leven Powell. June 12, 1789, Leven Powell Papers, The College of William and Mary.

JUNE 15, 1789, (Amendments)

The inclosed paper contains the proposition made on monday last on the subject of amendments. It is limited to points which are important in the eyes of many and can be objectionable in those of none. The structure & stamina of the Govt. are as little touched as possible. Nothing of a controvertible nature can be expected to make its way thro' the caprice & discord of opinions which would encounter it in Congs. when 2/3 must concur in each House, & in the State Legislatures 3/4 of which will be requisite to its final success. The article which 1 fear most for is that which respects the representation. The small States betray already a coolness towards it. And I am not sure that another local policy may not mingle its poisin in the healing experiment.

Source: James Madison to Edmund Randolph, June 15, 1789, James Madison Papers, Library of Congress.

JUNE 18, 1789 (Amendments-religious reference)

I observe you have brought forward the amendments you proposed to the federal Constitution. I have given them a very careful perusal, and have attended particularly to their reception by the public. The most decided friends of the constitution admit (generally) that they will meliorate the government by removing some points of litigation and jealousy, and by heightening and strengthening the barriers between necessary power and indispensible liberty. In short the most ardent sc irritable among our friends are well pleased with them. On the part of the opposition, I do not observe any unfavorable animadversion. Those who are honest are well pleased at the footing on which the press, liberty of conscience, original right & power, trial by jury &ca. are rested. Those who are not honest have hitherto been silent, for in truth they are stript of every rational, and most of the popular arguments they have heretofore used. I will not detain you with further remarks, but feel very great satisfaction in being able to assure you generally that the proposed amendments will greatly tend to promote harmony among the late contending parries and a general confidence in the patriotism of Congress. It has appeared to me that a few well tempered observations on these propositions might have a good effect. I have therefore taken an hour from my present Engagements, which on account of my absence are greater than usual, and have thrown together a few remarks upon the first part of the Resolutions. 1 shall endeavour to pursue them in one or two more short papers · It may perhaps be of use in the present turn of the public opinions in New York state that they should be republished there. It is in fed.Gazette of 18th instant (1).

FOOTNOTE

(1) Coxe's "Remarks on the . . . Amendments to the Federal Constitution" appeared in the [Philadelphia} Federal Gazette on 18 and 30 June over the signature of "A Pennsylvanian."

Source: Tench Core to James Madison, June 18, 1789, James Madison Papers, Library of Congress.

JUNE 21, 1789 ((Amendments)

In the inclosed paper is a copy of a late proposition in Congress on the subject of amending the Constitution. It aims at the twofold object of removing the fears of the discontented and of avoiding all such alterations as would either displease the adverse side, or endanger the success of the measure. I need not remark to you the hazard of attempting any thing of a controvertible nature which is to depend on the concurrence of 2/3 of both Houses here, and the ratification of 3/4 Of the State Legislatures. It will be some time before the proposed amendments will become a subject of discussion in Congress; The bills relating to revenue, and the organization of the Judiciary and Executive Departments, being likely to remain for some time on hand.

Source: James Madison to Samuel Johnston, June 21, 1789, Papers of James Madison 12:250.

JUNE 24, 1789 (Amendments)

It is much to be wished that the discon[ten]ted part of our fellow Citizens could be reconciled to the Government they have opposed, and by means as little as possible unacceptable to those who approve the Constitution in its present form. The amendments proposed in the H. of Reps. had this twofold object in view; besides the third one of avoiding all controvertible points which might endanger the assent of 2/3 of each branch of Congs. and 3/4 Of the State Legislatures. How far the experiment may succeed in any of these respects is wholly uncertain. It will however be greatly favored by explanatory strictures of a healing tendency, and is therefore already indebted to the co-operation of your pen.

Source: James Madison to Tench Core, June 24, 1789, James Madison Papers, Library of Congress.

JUNE 27, 1789 (Amendments)

With these Veiws I sincerely Wish that Congress would not relax from the Principles of the Constitution, nor attempt to effect (what some, I believe, Very erroneously call) Amendments thereto-To bind a government with Fetters of Iron which is founded on periodical Elections is in my Opinion, to guard against Evils of the Most Visionary Nature--

Source: Oliver Wolcott, Sr., to Oliver Ellsworth, June 27, 1789, Wolcott Manuscripts, Connecticut Historical Society.

JUNE 28, 1789 (Amendments)

I fancy the Anti-federalists with you wish to be let down easy, or they would not shew so much satisfaction at Madison's amendments--like a sensible physician he has given his malades imaginaires (1)bread pills powder of paste & neutral mixtures to keep them in play--I am really glad of this disposition in them having greatly feared that as such amendments were not wanted by the federal party so they would not at all have come up to the hopes of the anti-federal.

FOOTNOTES

(1) Imaginary illnesses.

Source: George Clymer to Tench Core, June 28, 1789, Core Papers, Historical Society of Pennsylvania, Philadelphia

JUNE 28, 1789 (Amendments)

You have it in contemplation, I hear, to adjourn in August. Surely you will not do this without recommending those alterations which have been so ardently desird by many of the states, most of which will not materially effect the system, but will render it more secure, and more agreable in the eyes of those who were oppos'd to its establishment.

Source: John Dawson to James Madison, June 28, 1789, James Madison Papers, Library of Congress.

JUNE 28, 1789 (Amendments)

They are much displeased with and Disappointed in the great Man from Virginia they think he appears too serious in his motion for amendments but some of us think that he is going so far and laying aside the Amendments proposed by the Several states in order to prevent any thing being done on the subject, so we the people have our opinions and as yet in some instances dare to speak them. and we believe that through your Exertions and those of others we shall yet hold that priviledge.

Source: James Sullivan to Elbridge Gerry, June 28, 1789. James S. Copley Library, La Jolla, California.

JUNE 30, 1789, (Amendments)

The amendments, proposed by you, are much approved by the strong foederalists here and at the Metropolis [Richmond]; being considered as an anodyne to the discontented. Some others, equally affectionate to the union, but less sanguine, expect to hear at the next session of assembly that a real melioration of the Constitution was not so much intended, as a soporific draught to the restless. I believe indeed, that nothing, nay not even the abolishment of direct taxation would satisfy those, who are most clamorous. But I confess, I am still in hopes to see reported from your mouth some review of the various amendments proposed, and reasons against the fitness of such, as appear'd improper for adoption

Source: Edmund Randolph to James Madison, June 30,1789, James Madison Papers, Library of Congress.

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