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Written during a MicroInternship with the Quill Project in June 2018.
The official records of the House of Representative can be an especially hostile source to approach, even more so if one looks for clearly states arguments and high minded principles. This statement may come as slightly surprising, especially when one considers the gravity of the topics discussed, such as the Bill of Rights. This may be due to a number of things. Firstly, the method of record keeping is only partially consistent, and its accuracy is hard to assess. And secondly, a great portion of the discussion on constitutional amendments is spent deliberating whether the Bill of Rights ought to be discussed on such a day, or in such a format. In spite of this, hidden within the text, there are a number of core issues that keep being raised during the discussion, which touch fundamental issues of jurisprudence, theory of politics, and ethics.
The purpose of this reflection is to provide a brief commentaries on some of the core issues that seem to be underlying the disagreement in the laborious process of the amendment of the constitution. Three core problems seem to be: the balance between matters of principles and matters of expediency, the problem of the role of elected representatives in a democratic republic, and the problem of the vagueness of the language of ‘right’ and ‘power’. The aim here is not to provide an exhaustive discussion, but merely to point to some common threads. This perspective could allow for a more organic understanding of the interplay between the intricate formal procedures of the House, and the underlying substantial disagreements between the speakers.
While from an analysis of the official records only one cannot draw any conclusion on the private beliefs of the participants, and on their genuine commitment to what one may call the general good of the people, it seems safe given the historical circumstances and the tone of the discussion to assume that at least a significant part of the members of the House were genuinely committed to instituting the best possible constitution. If this were to be the case, the presence of lengthy and sometimes useless preliminary debates on the appropriateness of discussing amending the constitution needs an explanation. This is especially so in the light of the fact that the argument most frequently advanced for the delay of the discussion is the need to focus on more urgent matters, such as the establishment of an executive office. The fact that the debates on the formalities take up more time than the discussion of the amendments themselves in certain cases can thus appear puzzling, if efficiency was the concern that moved the objectors in the first place.
If we rule out the explanation that these objection were raised with the explicit purpose of obstructing the discussion of the amendments, which is possible but unlikely to be a sufficient explanation for all cases, we must conclude that there could be something of substantial value hidden behind seemingly pedantic debates of the form that the discussion of the amendments ought to take. The suggestion of this piece is that the disagreement on formalities is but a reflection of a deeper clash of principles between the members of the House of Representatives.
The first disagreement in principle seems to lay on the question of whether matters of principle or matters of expediency ought to take precedence in the business of the House of Representatives. This is visible at two stages: first, at the preliminary stage in which the House needs to decide whether the matter of constitutional amendments is urgent enough to warrant their attention, and secondly at the stage of the discussion of the usefulness of implementing amendments to the constitution at all. Although at first sight there seems to be no obvious predilection in the house as a whole for either arguments of principle or of expediency, some elements seem to suggest that the House was indeed during this time more sensible to arguments of expediency. One example is the fact that even when advancing abstract claims, the members always felt it necessary to 75supplement their argument with an equally compelling practical argument. If this is the case, there could be an opening for interpreting the process of the amendments to the constitution as the struggle of Madison to convey the importance of matters of principles to a House overly preoccupied with the incumbent practicalities of establishing the Government.
A second point of disagreement underlying most of the debate seems to be on the proper nature of the role of elected representatives in democratic institutions. The question here is whether an elected representative has first and foremost a duty to represent, or a duty to advice. In practical terms, should an elected representative advocate for policies that are wanted by an overwhelming majority of their constituents, while also believing them to be noxious or useless? Or should an elected official first and foremost use their position to deliberate with other elected officials on the wisdom of popular policies? This disagreement is most evident during the discussion of the appropriateness of appending a declaration of the inalienable rights of the people, and of expanding the number of seats in the House. Some of the speakers were opposed to the inclusion of a Bill of Rights on the ground that it was either redundant, for the rights were natural and self evident, or that it could be counterproductive for the safeguard of rights, for all the rights not explicitly listed could be construed as alienable. On the other hand, speakers supporting the implementation of the Bill seemed to be concerned with the fact that the amendments were a popular demand in most of the states, and thus that their duty as representatives was to implement the will of the people. For instance, Jackson argues:
In a Republic, the laws should be founded upon the sense of the community; if every man’s opinion could be obtained, it would be the better; it is only in aristocracies, where the few are supposed to understand the general interests of the community better than the many (Annals, pp 752)
Interesting is the case of Gerry (Annals, pp 755), which argues both for the principle of representing the will of the people, and for the tactical expediency of adopting the amendments as a guarantee to the two States that had yet to enter the Union at this point in time. Once again, this highlights the parallelism between arguments of principle and of expediency in the discussion of the House.
Lastly, the discussion also highlights the practical problems that the vagueness of the language of rights has in real life. The question of how right and power should be conceived has troubled both jurisprudence and ethics for centuries; the importance of the discussion of the Annals for these disciplines lies in the fact that it confirms the pragmatic importance of these seemingly abstract questions. This is most evident in the discussion of the 14-15 of August. Some of the main concerns of the opponent of the amendments lie in fact in a different conception of the nature and origins of rights. Some argue that all rights not given to the Government were retained by the states and the people thereof. Others reply that such an approach would devaluate the importance of rights altogether: as one gentlemen posed, “should a man have a right to wear his hat, or to get up when one pleases?”.
As this brief and limited discussion has attempted to show, there is much more than a simple bargain of interests at play in the negotiation of the amendments to the constitution. In a certain sense, these debates and their outcomes contributed to shape the political ideology and culture of the Government and judiciary of the United States, crystallising one of the competing views into the final document of the Bill of Rights. The importance of a close study of these historical texts and processes lies thus in their inherent actuality: their influence extends to this day. But in order to understand how its message has evolved through time, it is necessary to go back to the original purpose and principle for which it was created.