MARSHALL

ON THE FEDERAL CONSTITUTION1

(1788)

Born in 1755, died in 1885; served in the army during the Revolution; Member of the Virginia Ratifying Convention in 1788; made Envoy to France in 1797; elected to Congress in 1799; Secretary of State in 1800; Chief Justice of the Supreme Court in 1801-35.

MR. CHAIRMAN, I conceive that the object of the discussion now before us is whether democracy or despotism be most eligible. I am sure that those who framed the system submitted to our investigation, and those who now support it, intend the establishment and security of the former. The supporters of the Constitution claim the title of being firm friends of the liberty and the rights of mankind. They say that they consider it as the best means of protecting liberty. We, sir, idolize democracy. Those who oppose it have bestowed eulogiums on monarchy. We prefer this system to any monarchy because we are convinced that it has a greater tendency to secure our liberty and promote our happiness. We admire it because we think it a wellregulated democracy: it is recommended to the good people of this country: they are, through

1 Delivered on June 10, 1788, in the Virginia Convention called to ratify the Constitution of the United States.

us, to declare whether it be such a plan of government as will establish and secure their freedom.

Permit me to attend to what the honorable gentleman, Mr. Henry,1 has said. He has expatiated on the necessity of a due attention to certain maxims, to certain fundamental principles from which a free people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in every government, but more essential to a democracy than to any other.

What are the favorite maxims of democracy? A strict observance of justice and public faith and a steady adherence to virtue. These, sir, are the principles of a good government. No mischief, no misfortune, ought to deter us from a strict observance of justice and public faith. Would to heaven that these principles had been observed under the present government! Had this been the case the friends of liberty would not be so willing now to part with it. Can we boast that our government is founded on these maxims? Can we pretend to the enjoyment of political freedom or security when we are told that a man has been, by an act of Assembly, struck out of existence without a trial by jury, without examination, without being confronted with his accusers and witnesses, without the benefits of the law of the land? Where is our

1 Patrick Henry. See article for his speech in the Virginia Convention.

safety when we are told that this act was justifiable because the person was not a Socrates? What has become of the worthy member's maxims? Is this one of them? Shall it be a maxim that a man shall be deprived of his life without the benefit of law? Shall such a deprivation of life be justified by answering that a man's life was not taken secundem artem, because he was a bad man? Shall it be a maxim that government ought not to be empowered to protect virtue?

The honorable member, after attempting to vindicate that tyrannical legislative act to which I have been alluding, proceeded to take a view of the dangers to which this country is exposed. He told us that the principal danger arose from a government which, if adopted, would give away the Mississippi.

I intended to proceed regularly by attending to the clause under debate; but I must reply to some observations which were dwelt upon to make impressions on our minds unfavorable to the plan upon the table. Have we no navigation in, or do we derive no benefit from, the Mississippi? How shall we retain it? By retaining that weak government which has hitherto kept it from us? Is it thus that we shall secure that navigation? Give the government the power of retaining it and then we may hope to derive actual advantages from it. Till we do this we can not expect that a government which hitherto has not been able to protect it will have

the power to do it hereafter. Have we attended too long to consider whether this government would be able to protect us? Shall we wait for further proofs of its inefficacy? If on mature consideration the Constitution will be found to be perfectly right on the subject of treaties and containing no danger of losing that navigation, will he still object? Will he object because eight States are unwilling to part with it? This is no good ground of objection.

He then stated the necessity and probability of obtaining amendments. This we ought to postpone until we come to that clause, and make up our minds whether there be anything unsafe in this system. He conceived it impossible to obtain amendments after adopting it. If he was right, does not his own argument prove that in his own conception previous amendments can not be had? for, sir, if subsequent amendments can not be obtained, shall we get amendments before we ratify? The reasons against the latter do not apply against the former.

There are in this State, and in every State in the Union, many who are decided enemies of the Union. Reflect on the probable conduct of such men. What will they do? They will bring amendments which are local in their nature and which they know will not be accepted. What security have we that other States will not do the same? We are told that many in the States were violently opposed to it. They are more mindful of local interests. They will

never propose such amendments as they think would be obtained.

Disunion will be their object. This will be attained by the proposal of unreasonable amendments. This, sir, tho a strong cause, is not the only one that will militate against previous amendments. Look at the comparative temper of this country now, and when the late Federal Convention met. We had no idea then of any particular system. The formation of the most perfect plan was our object and wish. It was imagined that the States would accede to and be pleased with the proposition that would be made them. Consider the violence of opinions, the prejudices, and animosities which have been since imbibed.

Will not these operate greatly against mutual concessions or a friendly concurrence? This will, however, be taken up more properly another time. He says we wish to have a strong, energetic, powerful government. We contend for a well-regulated democracy. He insinuates that the power of the government has been enlarged by the convention and that we may apprehend it will be enlarged by others. The convention did not, in fact, assume any power.

They have proposed to our consideration a scheme of government which they thought advisable. We are not bound to adopt it if we disapprove of it. Had not every individual in this community a right to tender that scheme which he thought most conducive to the welfare