Antifederalist No. 49 ON CONSTITUTIONAL CONVENTIONS (PART 1)
The following essay is in two parts: the first is by "MASSACHUSETTENSIS,"
and is reprinted from The Massachusetts Gazette of January 29, 1788; the second
part was written by "AN OLD WHIG," and is taken from The New-York
Journal of November 27, 1787.
That the new constitution cannot make a union of states, but only of
individuals, and purposes the beginning of one new society, one new government
in all matters, is evident from these considerations, viz: It marks no line of
distinction between separate state matters, and what would of right come under
the control of the powers ordained in a union of states. To say that no line
could be drawn, is giving me the argument. For what can be more absurd than to
say, that states are united where a general power is established that extends to
all objects of government, i.e., all that exist among the people who make the
compact? And is it not clear that Congress have the right (by the
constitution), to make general laws for proving all acts, records, proceedings,
and the effect thereof, in what are now called the states? Is it possible after
this that any state act can exist, or any public business be done, without the
direction and sanction of Congress, or by virtue of some subordinate authority?
If not, how in the nature of things can there be a union of states? Does not
the uniting of states, as states, necessarily imply the existence of separate
state powers?
Again, the constitution makes no consistent, adequate provision for
amendments to be made to it by states, as states. Not they who drew up the
amendments (should any be made), but they who ratify them, must be considered as
making them. Three fourths of the legislatures of the several states, as they
are now called, may ratify amendments-that is, if Congress see fit, but not
without. Where is then any independent state authority recognized in the plan?
And if there is no independent state authority, how can there be a union of
states? But is it not a question of importance why the states in their present
capacity, cannot ratify the original? I mean, why the legislatures of the
several states cannot do this business? I wish to be informed where to find the
regular exercise and legal sanction of state power, if the legislative authority
of the state is set aside. Have the people some other constitutional means by
which they can give their united voice in state affairs? This leads me to
observe, that should the new constitution be received as it stands, it can never
be proved that it originated from any proper state authority; because there is
no such authority recognized either in the form of it, or in the mode fixed upon
for its ratification. It says, "We the people of the United States,"
etc., make this constitution; but does this phrase, "We the people of the
United States," prove that the people are acting in state character, or
that the several states must of necessity exist with separate governments? Who
that understands the subject will believe either? ...
The plan does not acknowledge any constitutional state authority as
necessary in the ratification of it. This work is to be done by a mere
convention, only in consequence of mere recommendation; which does by no means
amount to a proper state act. As no state act can exist independent of the
supreme authority of the state, and this authority is out of the question in the
ratification of the new constitution, it clearly follows that the ratifying of
it, by a mere convention, is no proper state business. To conclude, the people
may make the original, but the people have no right to alter it. Congress may
order this matter just as they please, and consequently have whom they please
elected for governors or representatives, not of the states but of the people;
and not of the people as men but as property. . . .
MASSACHUSETTENSIS
It appears to me that I was mistaken in supposing that we could
so very easily make trial of this constitution, and again change it at our
pleasure. The conventions of the several states cannot propose any
alterations-they are only to give their assent and ratification. And after the
constitution is once ratified, it must remain fixed until two thirds of both the
houses of Congress shall deem it necessary to propose amendments; or the
legislatures of two thirds of the several states shall make application to
Congress for the calling a convention for proposing amendments - which
amendments shall not be valid until they are ratified by the legislatures of
three fourths of the several states, or by conventions in three fourths thereof,
as one or the other mode of ratification may be proposed by Congress. This
appears to me to be only a cunning way of saying that no alteration shall ever
be made; so that whether it is a good constitution or a bad constitution, it
will remain forever unamended. Lycurgus, when he promulgated his laws to the
Spartans, made them swear that they would make no alterations in them until he
should return from a journey which he was then about to undertake. He chose
never to return, and therefore no alteration could be made in his laws. The
people were made to believe that they could make trial of his laws for a few
months or years, during his absence, and as soon as he returned they could
continue to observe them or reject at pleasure. Thus this celebrated republic
was in reality established by a trick. In like manner the proposed constitution
holds out a prospect of being subject to be changed if it be found necessary or
convenient to change it; but the conditions upon which an alteration can take
place, are such as in all probability will never exist. The consequence will be
that when the constitution is once established it never can be altered or
amended without some violent convulsion or civil war.
The conditions, I say, upon which any alterations can take
place, appear to me to be such as never will exist. Two thirds of both houses
of congress, or the legislatures of two thirds of the states, must agree in
desiring a convention to be called. This will probably never happen. But if it
should happen, then the convention may agree to the amendments or not, as they
think right; and after all three fourths of the states must ratify the
amendments. Before all this labyrinth can be traced to a conclusion, ages will
revolve, and perhaps the great principles upon which our late glorious
revolution was founded, will be totally forgotten. If the principles of liberty
are not firmly fixed and established in the present constitution, in vain may we
hope for retrieving them hereafter. People once possessed of power are always
loathe to part with it; and we shall never find two thirds of a Congress voting
or proposing anything which shall derogate from their own authority and
importance, or agreeing to give back to the people any part of those privileges
which they have once parted with-so far from it, that the greater occasion there
may be for a reformation, the less likelihood will there be of accomplishing it.
The greater the abuse of power, the more obstinately is it always persisted in.
As to any expectation of two thirds of the legislatures concurring in such a
request, it is if possible still more remote. The legislatures of the states
will be but forms and shadows, and it will be the height of arrogance and
presumption in them, to turn their thoughts to such high subjects. After this
constitution is once established, it is too evident that we shall be obliged to
fill up the offices of assemblymen and councillors, as we do those of
constables, by appointing men to serve whether they will or not, and fining them
if they refuse. The members thus appointed, as soon as they can hurry through a
law or two for repairing highways, or impounding cattle, will conclude the
business of their sessions as suddenly as possible, that they may return to
their own business. Their heads will not be perplexed with the great affairs of
state. We need not expect two thirds of them ever to interfere in so momentous
a question as that of calling a continental convention. The different
legislatures will have no communication with one another, from the time of the
new constitution being ratified to the end of the world. Congress will be the
great focus of power as well as the great and only medium of communication from
one state to another. The great and the wise and the mighty will be in
possession of places and offices; they will oppose all changes in favor of
liberty; they will steadily pursue the acquisition of more and more power to
themselves and their adherents....
AN OLD WHIG
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