Part 3 of 3: Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

(Part 3)

Coroner: Is the exercise of the right then a prudential question?

Mr. Jefferson: [Yes.]

Professor Kirk: [Yes.]

Mr. Locke: Revolutions happen not upon every little mismanagement in publick affairs. Great mistakes in the ruling part, many wrong and inconvenient Laws, and all the slips of humane frailty will be born by the People, without mutiny or murmur. But if a long train of Abuses, Prevarications, and Artifices, all tending the same way, make the design visible to the People, and they cannot but feel, what they lie under, and see, whither they are going; ’tis not to be wonder’d, that they should then rouze themselves, and endeavour to put the rule into such hands, which may secure to them the ends for which Government was at first erected; and without which, ancient Names, and specious Forms, are so far from being better, that they are much worse, than the state of Nature, or pure Anarchy; the inconveniencies being all as great and as near, but the remedy farther off and more difficult.[1]

Coroner: Mr. Hamilton, does the Constitution recognize natural rights?

Mr. Hamilton: [Yes.] Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics in a constitution of government.[2]

Mr. Jefferson: [He doesn’t really believe a word of what he just said.]

Mr. Madison: [Sage it doesn’t matter whether he believes it or not—he said it in the Federalist, which, as you remember, was a collection of written representations and assurances made to the states to induce them to ratify. The Royalist’s personal opinions are therefore irrelevant.]

Mr. Hamilton: [I’m awfully tired of having THEM around.]

In various conversations with foreigners, as well as citizens, [Jefferson] has thrown censure on my principles of government, and on my measures of administration. He has predicted that the people would not long tolerate my proceedings; and that I should not long maintain my ground. Some of those, whom he immediately and notoriously moves, have even whispered suspicions of the rectitude of my motives and conduct. In the question concerning the [National] Bank, he not only delivered an opinion in writing against its constitutionality and expediency, but he did it in a style and manner which I felt as partaking of asperity and ill humor towards me. As one of the trustees of the Sinking Fund, I have experienced, in almost every leading question, opposition from him. When any turn of things in the community has threatened either odium or embarrassment to me, he has not been able to suppress the satisfaction, which it gave him . . . .

I find a strong confirmation in the following circumstances. Freneau, the . . . printer of the “National Gazette,” who was a journeyman, with Childs & Swain, at New York, was a known Anti-Federalist. It is reduced to a certainty, that he was brought to Philadelphia by Mr. Jefferson to be the conductor of a newspaper. It is notorious that, contemporarily with the commencement of his paper, he was a clerk in the Department of State, for foreign languages. Hence a clear inference that his paper has been set on foot and is conducted, under the patronage and not against the views of Mr. Jefferson. What then is the complexion of this paper? Let any impartial man peruse all the numbers down to the present day; and I never was more mistaken if he does not pronounce that it is a paper devoted to the subversion of me and the measures in which I have had an agency; and I am little less mistaken if he do not pronounce, that it is a paper of a tendency generally unfriendly to the government of the United States.

* * * In almost all the questions, great and small, which have arisen since the first session of congress, Mr. Jefferson and Mr. Madison have been found among those who are disposed to narrow the Federal authority . . . .

In respect to our foreign politics, the views of these gentlemen are, in my judgment, equally unsound, and dangerous. They have a womanish attachment to France, and a womanish resentment against Great Britain. They would draw us into the closest embrace of the former, and involve us in all the consequences of her politics; and they would risk the peace of the country, in their endeavors to keep us at the greatest possible distance from the latter. This disposition goes to a length, particularly in Mr. Jefferson, of which, till lately, I had no adequate idea. Various circumstances prove to me that, if these gentlemen were left to pursue their own course, there would be, in less than six months, an open war between the United States and Great Britain . . . .[3]

Coroner: That’s enough. Let’s be good chums and stick to the issues, not the personalities. Mr. Justice Blackstone, do the people have the right to overthrow a government which disregards or abridges their natural liberties?

Mr. Justice Blackstone: [No.] It must be owned that Mr. Locke, and other theoretical writers, have held, that “there remains still inherent in the people a supreme power to remove or alter the legislative, when they find the legislative act contrary to the trust reposed in them; for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.”[4]

But however just this conclusion may be in theory, we cannot practically adopt it, nor take any legal steps for carrying it into execution, under any dispensation of government at present actually existing. For this devolution of power, to the people at large, includes in it a dissolution of the whole form of government established by that people, reduces all the members to their original state of equality, and by annihilating the sovereign power repeals all positive laws whatsoever before enacted. No human laws will therefore suppose a case, which at once must destroy all law, and compel men to build afresh upon a new foundation; nor will they make provision for so desperate an event, as must render all legal provisions ineffectual. So long therefore as the English Constitution lasts, we may venture to affirm, that the power of parliament is absolute and without control.[5]

Mr. Locke: [Why do you call me “theoretical”? The right of revolution is very practical. Even if not exercised, the threat of it looms large in the hearts of would-be tyrants. You would leave the oppressors in power with no remedy?]

Mr. Justice Blackstone: [No. A]s to cases of ordinary public oppression, where the vitals of the Constitution are not attacked, the law hath also assigned a remedy. For, as a king cannot misuse his power, without the advice of evil counsellors, and the assistance of wicked ministers, these men may be examined and punished. The constitution has therefore provided, by means of indictments, and parliamentary impeachments, that no man shall dare to assist the crown in contradiction to the laws of the land. But it is at the same time a maxim in those laws, that the king himself can do no wrong; since it would be a great weakness and absurdity in any system of positive law, to define any possible wrong, without any possible redress.[6]

Coroner: What about when the constitution is attacked?

Mr. Locke: [(Whispering to Mr. Jefferson:) I can’t wait to hear this.]

Mr. Justice Blackstone: Indeed, it is found by experience, that whenever the unconstitutional oppressions, even of the sovereign power, advance with gigantic strides and threaten desolation to a state, mankind will not be reasoned out of the feelings of humanity; nor will sacrifice their liberty by a scrupulous adherence to those political maxims, which were originally established to preserve it. And therefore, though the positive laws are silent, experience will furnish us with a very remarkable case, wherein nature and reason prevailed.[7]

Coroner: What was that case?

Mr. Justice Blackstone: When King James the second invaded the fundamental Constitution of the realm, the convention declared an abdication, whereby the throne was rendered vacant, which induced a new settlement of the crown. And so far as this precedent leads, and no farther, we may now be allowed to lay down the law of redress against public oppression. If therefore any future prince should endeavour to subvert the constitution by breaking the original contract between king and people, should violate the fundamental laws, and should withdraw himself out of the kingdom; we are now authorized to declare that this conjunction of circumstances would amount to an situation, and the throne would be thereby vacant. But it is not for us to say, that any one, or two, of these ingredients would amount to such a situation; for there our precedent would fail us. In these therefore, or other circumstances, which a fertile imagination may furnish, since both law and history are silent, it becomes us to be silent too; leaving to future generations, whenever necessity and the safety of the whole shall require it, the exertion of those inherent (though latent) powers of society, which no climate, no time, no constitution no contract, can ever destroy or diminish.[8]

Mr. Locke: [Aha, just as I said, “no remedy.”]

Coroner: Mr. Madison, how, if at all, does the Constitution deal with the tension between stability in government and protecting individual rights?

Mr. Madison: Stability in Government is essential to national character, and to the advantages annexed to it, as well as to that repose and confidence in the minds of the people, which are among the chief blessings of civil society. An irregular and mutable legislation, is not more an evil in itself, than it is odious to the people; and it may be pronounced with assurance, that the people of this country, enlightened as they are, with regard to the nature, and interested, as the great body of them are, in the effects of good Government, will never be satisfied, till some remedy be applied to the vicissitudes and uncertainties, which characterize the State administrations.

On comparing, however, these valuable ingredients with the vital principles of liberty, we must perceive at once, the difficulty of mingling them together in their due proportions. The genius of Republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those entrusted with it should be kept in dependence on the people, by a short duration of their appointments; and, that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time, the same. A frequent change of men will result from a frequent return of electors, and a frequent change of measures, from a frequent change of men; whilst energy in Government requires not only a certain duration of power, but the execution of it by a single hand.[9]

Coroner: So the Constitution promotes kind of a “stabil-iberty”.

Mr. Madison: [Quite so, my man. Very cleaver word.]

§1:116. Right of representation

Coroner: Thank you. The last explicit right I discern in the Declaration is the right of representation, though I suppose that is in a way part of the “consent of the governed”. Mr. Jefferson, is the right of representation recognized in the Declaration?

Mr. Jefferson: [Yes. The Declaration refers to it in the body of that document.]

Coroner: I should like to introduce someone, who is a great American hero, but is not widely-recognized in the United States. Ladies and Gentlemen, I present Edmund Burke, Englishman, who in Parliament supported the colonies during their revolution from his native country. He appears along with an American Statesman, a disciple of his, John Randolph of Roanoke.

Mr. Burke: [Thank you for having me here. My heart holds great fondness for you, my former countrymen.]

Coroner: Mr. Burke’s was the voice crying out in his dressing room earlier today.

Mr. Randolph of Roanoke: Mr. Burke is “the Newton of political philosophy”.[10]

Coroner: Mr. Randolph, a Virginia congressman and senator in the early 19th Century and an “aristocratic libertarian”,[11] formed a coalition of old Republicans called the “tertium quids, meaning “a third something.”[12] The tiny group was not very influential in Mr. Randolph’s later years . . .

Mr. Randolph of Roanoke: “The little dogs and all . . . see, they bark at me.”[13]

Coroner: . . . but had a great deal of influence on later Southerners, especially John C. Calhoun. Mr. Randolph was a strict constructionist with little faith in the Constitution.

Mr. Randolph of Roanoke: I have no faith in parchment, sir, no faith in the abracadabra of the Constitution. * * * If under a power to regulate trade, you draw the last drop of blood from our veins . . . the last shilling from our pockets, what are the checks of the Constitution to us? A fig for the Constitution! When the scorpion’s sting is probing us to the quick, shall we pause to chop logic?[14]

Coroner: We’re speaking on the right of representation. Here we have the House of Representatives who derive their offices directly from the voters; and who are therefore thought to be the most representative branch of government. In England, the parallel seems to be the House of Commons? What is the purpose or role of that body, Mr. Burke?

Mr. Randolph of Roanoke: I would not live under King Numbers [meaning under a system where there were no voting qualifications]. I would not be his steward . . . .[15]

Mr. Burke: [Kind sir, the question was directed to me.] The House of Commons was supposed originally to be no part of the standing government of this country [England]. It was considered as a control, issuing immediately from the people, and speedily to be resolved into the mass from whence it arose. In this respect it was in the higher part of government what juries are in the lower. The capacity of a magistrate being transitory, and that of a citizen permanent, the [citizen] capacity it was hoped would of course preponderate in all discussions, not only between the people and the standing authority of the crown, but between the people and the fleeting authority of the House of Commons itself. It was hoped that, being of a middle nature between subject and government, they would feel with a more tender and a nearer interest everything that concerned the people, than the other remoter and more permanent parts of legislature.

Whatever alterations time and the necessary accommodation of business may have introduced, this [citizen-based characteristic] can never be sustained, unless the House of Commons shall be made to bear some stamp of the actual disposition of the people at large. It would (among public misfortunes) be an evil more natural and tolerable, that the House of Commons should be infected with every epidemical phrensy of the people, as this would indicate some consanguinity, some sympathy of nature with their constituents, than that they should in all cases be wholly untouched by the opinions and feelings of the people out of doors. By this want of sympathy they would cease to be a House of Commons. For it is not the derivation of the power of that House from the people, which makes it in a distinct sense their representative. The king is the representative of the people; so are the lords; so are the judges. They all are trustees for the people, as well as the Commons; because no power is given for the sole sake of the holder; and although government certainly is an institution of Divine authority, yet its forms, and the persons who administer it, all originate from the people.

A popular origin cannot therefore be the characteristical distinction of a popular representative. This belongs equally to all parts of government, and in all forms.

Coroner: Pray continue, Mr. Burke, with your discussion of the role of your House of Commons. I believe you described it “as a control for the people.”

Mr. Burke: The virtue, spirit, and essence of a House of Commons consists in its being the express image of the feelings of the nation. It was not instituted to be a control upon the people, as of late it has been taught, by a doctrine of the most pernicious tendency. It was designed as a control for the people. Other institutions have been formed for the purpose of checking popular excesses; and they are, I apprehend, fully adequate to their object. If not, they ought to be made so. The House of Commons, as it was never intended for the support of peace and subordination, is miserably appointed for that service; having no stronger weapon than its mace, and no better officer than its sergeant at arms, which it can command of its own proper authority. A vigilant and jealous eye over executory and judicial magistracy; an anxious care of public money; an openness, approaching towards facility, to public complaint; these seem to be the true characteristics of a House of Commons. But an addressing House of Commons, and a petitioning nation; a House of Commons full of confidence, when the nation is plunged in despair; in the utmost harmony with ministers, whom the people regard with the utmost abhorrence; who vote thanks, when the public opinion calls upon them for impeachments; who are eager to grant, when the general voice demands account; who, in all disputes between the people and administration, presume against the people; who punish their disorders, but refuse even to inquire into the provocations to them; this is an unnatural, a monstrous state of things in this constitution. Such an assembly may be a great, wise, awful senate; but it is not, to any popular purpose, a House of Commons. This change from an immediate state of procuration and delegation to a course of acting as from original power, is the way in which all the popular magistracies in the world have been perverted from their purposes. It is indeed their greatest, and sometimes their incurable, corruption. For there is a material distinction between that corruption by which particular points are carried against reason, (this is a thing which cannot be prevented by human wisdom, and is of less consequence,) and the corruption of the principle itself. For then the evil is not accidental, but settled. The distemper becomes the natural habit.[16]

Coroner: Mr. Burke, what are the duties of a political representative? I am thinking, in particular, of the practice of issuing instructions to representatives. Are those binding?

Mr. Burke: [No.] [True i]t ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiassed opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.

My worthy colleague says, his will ought to be subservient to yours. If that be all, the thing is innocent. If government were a matter of will upon any side, yours, without question, ought to be superior. But government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?

To deliver an opinion, is the right of all men; that of constituents is a weighty and respectable opinion, which a representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; mandates issued, which the member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgment and conscience,―these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenor of our Constitution.

Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament. If the local constituent should have an interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the community, the member for that place ought to be as far, as any other, from any endeavour to give it effect. I beg pardon for saying so much on this subject. I have been unwillingly drawn into it; but I shall ever use a respectful frankness of communication with you. Your faithful friend, your devoted servant, I shall be to the end of my life, a flatterer you do not wish for.[17]

* * *

Coroner: Thank you. Changing the subject a bit, Mr. Jefferson, what does the Declaration have to say on the matter of government power?

Mr. Jefferson: [The Declaration recognized that governments necessarily must have powers:] [A]s Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.

Coroner: Doesn’t that give rather a plenary type of authority?

Mr. Madison: [No. It says:] “to do all other Acts and Things which Independent States may of right do.”

Coroner: Meaning that all the powers granted are limited by natural law?

Mr. Madison: [Aye.]

Mr. Jefferson: [Aye.]

Mr. Hamilton: [Aye.]

Mr. Locke: [Indubitably.]

Coroner: Justice Blackstone?

Mr. Justice Blackstone: [Ex concesso.] Coroner: Agreement on all hands, Justice Story?

Mr. Justice Story: [So let it be. Unâ voce.]

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’—Mr. Hamilton

Coroner: Now let’s move forward to our discussion of the Constitution proper, beginning with the Preamble, the preface of the Constitution that links it to the Declaration:

We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

Coroner: In the preceding section, Professor Jaffa, relying on the authority of Messrs. Madison and Jefferson, said “[T]he Declaration remains the most fundamental dimension of the law of the Constitution.” And Dr. Eaton added, the Preamble forges “a seamless weld” between the Declaration and the Constitution. By the end of the last section, we had unanimous agreement that the Constitution embraces the great truths of the Declaration. And we even had Mr. Hamilton, the arch-Monarchist, with this strong concurrence speaking on the Preamble:

Mr. Hamilton: Here, in strictness, the people surrender nothing, and as they retain every thing, they have no need of particular reservations. “We, the people of the United States, to . . . secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our state bills of rights, and which would sound much better in a treatise of ethics in a Constitution of government.[xviii]

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

Coroner: Are there other reasons why, Mr. Justice Story, it is important to understand the Preamble?

Mr. Justice Story: The importance of examining the Preamble, for the purpose of expounding the language of a statute, has been long felt, and universally conceded in all juridical discussions. It is an admitted maxim in the ordinary course of the administration of justice, that the Preamble of a statute is a key to open the mind of the makers, as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute. We find it laid down in some of our earliest authorities in the common law; and civilians are accustomed to a similar expression, cessante legis praemio, cessat et ipsa lex.[xix] Probably it has a foundation in the exposition of every code of written law, from the universal principle of interpretation, that the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part; for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of the intention expressed in the Preamble.[xx]

Coroner: Do you agree, Mr. Madison?

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

Mr. Madison: [Yes. T]he surest and most recognised evidence of the meaning of the Constitution, as of a law, is furnished by the evils which were to be cured or the benefits to be obtained; and by the immediate and long-continued application of the meaning to these ends.[xxi] [Those ends are recited in the Preamble.]

§2:03. Preamble: not to be used to augment constitutional powers—Mr. Justice Story

Coroner: Does the Preamble itself grant any power?

Mr. Justice Story: [No.] The Preamble never can be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se; it can never amount, by implication, to an enlargement of any power expressly given. It can never be the legitimate source of any implied power, when otherwise withdrawn from the Constitution. Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.[xxii]

Coroner: The Preamble is an interpretive tool?

Mr. Justice Story: [Yes.] This Preamble is very important, not only as explanatory of the motives and objects of framing the Constitution; but, as affording the best key to the true interpretation thereof. For it may well be presumed, that the language used will be in conformity to the motives, which govern the parties, and the objects to be attained by the Instrument. Every provision in the instrument may therefore fairly be presumed to have reference to one or more of these objects. And consequently, if any provision is susceptible of two interpretations, that ought to be adopted, and adhered to, which best that ought to be adopted, and adhered to, which best harmonizes with the avowed intentions and objects of the authors, as gathered from their declarations in the instrument itself.[xxiii]

[1] Of Civil Government §225 @

[2] Federalist 84 @

[3] Hamilton’s Estimate of Jefferson, Source: America, Vol. 4, p. 272. Taken from a letter dated May 26, 1792, to Colonel Edward Carrington. /gazette/hamjeff.htm.

[4] Bl. Commentaries @

[5] Bl. Commentaries @

[6] Bl. Commentaries, Founders’ Constitution @

[7] Bl. Commentaries Founders’ Constitution @

[8] Bl. Commentaries, Founders’ Constitution @

[9] Federalist 37 @

[10] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, 4th Ed., Liberty Fund, Indianapolis (1997), JR to Haramanus Blecker, April 14, 1814, p. 35.

[11] Id. at 45, quoting Gregory, Horace, “Our Writers and the Democratic Myth”, Bookman, LXXV, 377-82.

[12] From

[13] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, 4th Ed., Liberty Fund, Indianapolis (1997) p.37, from Act III. Scene VI. King Lear. Craig, W.J., ed. (1914). The Oxford Shakespeare  @

[14] Id. at 61.

[15] Kirk, Russell, John Randolph of Roanoke: A Study in American Politics, Liberty Fund, Indianapolis (1997) p.14., spoken at the Virginia Convention, 1829.

[16] The Works of the Right Honourable Edmund Burke, London, Henry G. Bohn (1854-56), Founders’ Constitution @

[17] Id. @ http:/

[xviii] Federalist 84 @

[xix] Cessante legis praemio, cessat et ipsa lex. The more common way of saying this seems to be Cessante ratione legis, cessat et ipsa lex = Where the reason for a law ceases, the law itself also ceases. See BLD at 207. However, that translation seems not to fit what Justice Story is saying here.

[xx] St. Commentaries §459 @

[xxi] To Joseph C. Cabell, October 30, 1828, Writings of Madison, Vol. 3, 1816-1828, p. 655 @ AFL. Though certainly not true of the Preamble, caution is always important in any legislation for often the result of the legislation brings on a greater evil than the evil that existed before. For example, as Herbert Spenser said, “The evils of competition have all along been the stock cry of the Socialists; and the council of the Democratic Federation denounces the carrying on of exchange under ‘the control of individual greed and profit.’ My second reply is that interferences with the law of supply and demand, which a generation ago were admitted to be habitually mischievous, are now being daily made by Acts of Parliament in new fields; and that, as I shall presently show, they are in these fields increasing the evils to be cured and producing fresh ones, as of old they did in fields no longer intruded upon.” The Man versus the State (1884) @

[xxii] St. Commentaries §462 @

[xxiii] Familiar Exposition §45 @ AFL.

Published in: on August 20, 2013 at 3:42 pm  Leave a Comment  

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