University of Virginia Library

TO THOMAS RITCHIE.

Dear Sir Yours of the Ioth inst: was recd a few
days ago & I give it the earliest answer which circumstances
have permitted.

It has been impossible not to observe the license
of construction applied to the Constitution of the
U. States; and that the premises from which powers
are inferred, often cover more ground than inferences
themselves.

In seeking a remedy for these aberrations, we must
not lose sight of the essential distinction, too little
heeded, between assumptions of power by the
General Government, in opposition to the Will of
the Constituent Body, and assumptions by the
Constituent Body through the Government as the

Organ of its will. In the first case, nothing is
necessary but to rouse the attention of the people,
and a remedy ensues thro' the forms of the Constitution.
This was seen when the Constitution was
violated by the Alien and Sedition Acts. In the
second case, the appeal can only be made to the
recollections, the reason, and the conciliatory spirit
of the Majority of the people agst. their own errors;
with a persevering hope of success, and an eventual
acquiescence in disappointment unless indeed oppression
should reach an extremity overruling all
other considerations. This second case is illustrated
by the apparent call of a majority of the States &
of the people for national Roads & Canals; with
respect to the latter of which, it is remarkable that
Mr. Hamilton, himself on an occasion when he was
giving to the text of the Constitution its utmost
ductility, (see his Report on the Bank) was constrained
to admit that they exceeded the authority
of Congress.

All power in human hands is liable to be abused.
In Governmts. independent of the people, the rights
& interests of the whole may be sacrificed to the
views of the Governmt. In Republics, where the
people govern themselves, and where of course
the majority Govern, a danger to the minority, arises
from opportunities tempting a sacrifice of their
rights to the interests real or supposed of the Majority.
No form of Govt. therefore can be a perfect
guard agst. the abuse of Power. The recommendation
of the Republican form is that the danger of

abuse is less than in any other; and the superior
recommendation of the federo-Republican system
is, that whilst it provides more effectually against
external danger, it involves a greater security to
the minority against the hasty formation of oppressive
majorities.

These general observations lead to the several
questions you ask as to the course which, in the
present state of things, it becomes Virginia to pursue.

1.

• "Ought an amendment of the Constitution,
  giving to Congress a Power as to Roads & Canals,
  to be proposed on her part; and what part taken
  by her if proposed from any other quarter?"

  Those who think the power a proper one, and
  that it does not exist, must espouse such an amendment;
  and those who think the power neither existing
  nor proper, may prefer a specific grant forming
  a restrictive precedent, to a moral certainty of an
  exercise of the power, furnishing a contrary precedent.
  Of the individual ways of thinking on this
  point, you can probably make a better estimate
  than I can.

2.

• "Ought a proposed amendment to comprize
  a particular guard agst. the sweeping misconstruction
  of the terms,' common defence and general welfare.'"

  The wish for such a guard is natural. But the
  fallacious inferences from a failure however happening,
  would seem to require for the experiment a
  very flattering prospect of success. As yet the
  unlimited power expressed by the terms, if disjoined
  from the explanatory specifications, seems
  

  ---

  234

  
  
  
  to have been claimed for Congress rather incidentally
  & unimpressively, than under circumstances indicating
  a dangerous prevalence of the heresy. Gov.
  Van Ness alone appears to have officially adopted it;
  and possibly with some unexpressed qualification.
  Has not the Supreme Court of the U. S. on some
  occasion disclaimed the import of the naked terms
  as the measure of Congressional authority? In
  general the advocates of the Road & Canal powers,
  have rested the claim on deductions from some one
  or more of the enumerated grants.

  The doctrine presenting the most serious aspect
  is that which limits the claim to the mere "appropriation
  of money" for the General Welfare. However
  untenable or artificial the distinction may be,
  its seducing tendencies & the progress made in
  giving it a practical sanction, render it pretty certain
  that a Constitutional prohibition is not at present
  attainable; whilst an abortive attempt would but
  give to the innovation a greater stability. Should
  a specific amendment take place on the subject of
  roads & canals, the zeal for this appropriating power
  would be cooled by the provision for the primary &
  popular object of it; at the same time that the implied
  necessity of the amendment would have a
  salutary influence on other points of Construction.

3.

• "Ought Virga. to protest agst. the Power of internal
  improvement by Roads & Canals; with an
  avowal of readiness to acquiesce in a decision agst.
  her by ¾ of her Sister States?"

By such a decision is understood a mere expression

of concurrent opinions by ¾ of the State Legislatures.
However conciliatory the motives to such a proposition
might be, it could not fail to be criticised as
requiring a surrender of the Constitutional rights
of the majority in expounding the Constitution,
to an extra Constitutional project of a protesting
State. May it not be added that such a test, if
acceded to, would, in the present state of Public
Opinion, end in a riveting decision against Virginia?

Virginia has doubtless a right to manifest her
sense of the Constitution, and of proceedings under
it, either by protest or other equivalent modes.
Perhaps the mode as well suited as any to the present
occasion, if the occasion itself be a suitable one,
would be that of instructions to her Representatives
in Congs. to oppose measures violating her constructions
of the Instrument; with a preamble appealing,
for the truth of her constructions to the contemporary
expositions by those best acquainted with
the intentions of the Convention which framed the
Constitution; to the Debates & proceedings of the
State Conventions which ratified it; to the universal
understanding that the Govt. of the Union was a
limited not an unlimited one; to the inevitable
tendency of the latitude of construction in behalf
of internal improvements, to break down the barriers
against unlimited power; it being obvious that the
ingenuity which deduces the authority for such
measures, could readily find it for any others whatever;
and particularly to the inconclusiveness of the
reasoning from the sovereign character of the powers

vested in Congs., and the great utility of particular
measures, to the rightful exercise of the powers
required for such measures; a reasoning which
however applicable to the case of a single Govt.
charged with the whole powers of Govt. loses its
force in the case of a compound Govt. like that of the
U. S., where the delegated sovereignty is divided
between the General & the State Govts.; where one
sovereignty loses what the other gains; and where
particular powers & duties may have been withheld
from one, because deemed more proper to be left
with the other.

I have thrown out these hasty remarks more in
compliance with your request than from a belief
that they offer anything new on the beaten subject.
Should the topics touched on be thought worthy
on any account of being publicly developed, they
will be in hands very competent to the task. My
views of the Constitutional questions before the
public are already known as far as they can be
entitled to notice, and I find myself every day more
indisposed, and, as may be presumed, less fit, for
reappearance on the political Arena.