University of Virginia Library

825. BILL OF RIGHTS, Where Necessary.—

I cannot refrain from making short
answers to the objections which your letter
states to have been raised. 1. That the
rights in question are reserved by the manner
in which the Federal powers are granted.
Answer. A constitutive act may, certainly,
be so formed as to need no declaration of
rights. The act itself has the force of a declaration
as far as it goes; and if it goes to
all material points, nothing more is wanting.
In the draft of a Constitution which I had
once a thought of proposing in Virginia, I
endeavored to reach all the great objects of
public liberty, and did not mean to add a
declaration of rights. Probably the object
was imperfectly executed; but the deficiencies
would have been supplied by others, in
the course of discussion. But in a constitutive
act which leaves some precious articles
unnoticed, and raises implications against
others, a declaration of rights becomes necessary
by way of supplement. This is the
case of our new Federal Constitution. This
instrument forms us into one State, as to
certain objects, and gives us a legislative and
executive body for these objects. It should,
therefore, guard against their abuses of power
within the field submitted to them. 2. A
positive declaration of some essential rights
could not be obtained in the requisite latitude.
Answer. Half a loaf is better than
no bread. If we cannot secure all our rights,
let us secure what we can. 3. The limited
powers of the Federal Government and jealousy
of the subordinate governments, afford
a security which exists in no other instance.
Answer. The first member of this
seems resolvable into the first objection before
stated. The jealousy of the subordinate
governments is a precious reliance. But
observe that these governments are only agents. They must have principles furnished

them whereon to found their opposition. The
declaration of rights will be the text, whereby
they will try all the acts of the Federal Government.
In this view, it is necessary to the
Federal Government also, as by the same
text, they may try the opposition of the subordinate
governments. 4. Experience proves
the inefficacy of a Bill of Rights. Answer.
True. But though it is not absolutely efficacious
under all circumstances, it is of great
potency always and rarely inefficacious. A
brace the more will often keep up the building
which would have fallen with that brace
the less. There is a remarkable difference
between the characters of the inconveniences
which attend a declaration of rights, and
those which attend the want of it. The inconveniences
of the declaration are that it
may cramp government in its useful exertions.
But the evil of this is short-lived,
moderate and reparable. The inconveniences
of the want of a declaration are permanent,
afflicting and irreparable. They are in constant
progression from bad to worse. The
executive, in our governments, is not the
sole, it is scarcely the principal, object of my
jealousy. The tyranny of the legislatures is
the most formidable dread at present, and
will be for many years. That of the executive
will come in its turn; but it will be at a remote
period. I know there are some among
us who would now establish a monarchy. But
they are inconsiderable in number and weight
of character. The rising race are all republicans.
We were educated in royalism; no
wonder if some of us retain that idolatry
still. Our young people are educated in republicanism;
an apostasy from that to royalism
is unprecedented and impossible. I am much
pleased with the prospect that a declaration
of rights will be added; and I hope it will be
done in that way which will not endanger
the whole frame of government, or any essential
part of it.—
To James Madison. Washington ed. iii, 4. Ford ed., v, 81.
(P. March. 1789)