Part 13

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.

SECTION XXVI.

The tenth amendment is in these words:

The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, _or to the people_.

This amendment, equally with the ninth, secures to "the people" all their natural rights. And why?

Because, in truth, no powers at all, neither legislative, judicial, nor executive, had been "delegated to the United States by the constitution."

But it will be said that the amendment itself implies that certain lawmaking "powers" had been "delegated to the United States by the constitution."

No. It only implies that those who adopted the amendment _believed_ that such lawmaking "powers" had been "delegated to the United States by the constitution."

But in this belief, they were entirely mistaken. And why?

1. Because it is a natural impossibility that any lawmaking "powers" whatever can be delegated by any one man, or any number of men, to any other man, or any number of other men.

Men's natural rights are all inherent and inalienable; and therefore cannot be parted with, or delegated, by one person to another. And all contracts whatsoever, for such a purpose, are necessarily absurd and void contracts.

For example. I cannot delegate to another man any right to _make_ laws--that is, laws of his own invention--and compel me to obey them.

Such a contract, on my part, would be a contract to part with my natural liberty; to give myself, or sell myself, to him as a slave. Such a contract would be an absurd and void contract, utterly destitute of all legal or moral obligation.

2. I cannot delegate to another any right to make laws--that is, laws of his own invention--and compel a third person to obey them.

For example. I cannot delegate to A any right to make laws--that is, laws of his own invention--and compel Z to obey them.

I cannot delegate any such right to A, because I have no such right myself; and I cannot delegate to another what I do not myself possess.

For these reasons no lawmaking powers ever could be--and therefore no lawmaking powers ever were--"delegated to the United States by the constitution"; no matter what the people of that day--any or all of them--may have attempted to do, or may have believed they had power to do, in the way of delegating such powers.

But not only were no lawmaking powers "delegated to the United States by the constitution," but neither were any _judicial_ powers so delegated. And why? Because it is a natural impossibility that one man can delegate his judicial powers to another.

Every man has, by nature, certain judicial powers, or rights. That is to say, he has, by nature, the right to judge of, and enforce his own rights, and judge of, and redress his own wrongs. But, in so doing, he must act only in accordance with his own judgment and conscience, _and subject to his own personal responsibility, if, through either ignorance or design, he commits any error injurious to another_.

Now, inasmuch as no man can delegate, or impart, his own judgment or conscience to another, it is naturally impossible that he can delegate to another his judicial rights or powers.

So, too, every man has, by nature, a right to judge of, and enforce, the rights, and judge of, and redress the wrongs, of any and all other men. This right is included in his natural right to maintain justice between man and man, and to protect the injured party against the wrongdoer. But, in doing this, he must act only in accordance with his own judgment and conscience, and subject to his own personal responsibility for any error he may commit, either through ignorance or design.

But, inasmuch as, in this case, as in the preceding one, he can neither delegate nor impart his own judgment or conscience to another, he cannot delegate his judicial power or right to another.

But not only were no lawmaking or judicial powers "delegated to the United States by the constitution," neither were any executive powers so delegated. And why? Because, in a case of justice or injustice, it is naturally impossible that any one man can delegate his executive right or power to another.

Every man has, by nature, the right to maintain justice for himself, and for all other persons, by the use of so much force as may be reasonably necessary for that purpose. But he can use the force only in accordance with his own judgment and conscience, and on his own personal responsibility, if, through ignorance or design, he commits any wrong to another.

But inasmuch as he cannot delegate, or impart, his own judgment or conscience to another, he cannot delegate his executive power or right to another.

_The result is, that, in all judicial and executive proceedings, for the maintenance of justice, every man must act only in accordance with his own judgment and conscience, and on his own personal responsibility for any wrong he may commit; whether such wrong be committed through either ignorance or design._