7609. RIGHTS, Reserved.—
It had become
an universal and almost uncontroverted
position in the several States, that the purposes
of society do not require a surrender of
all our rights to our ordinary governors; that
there are certain portions of right not necessary
to enable them to carry on an effective
government, and which experience has nevertheless
proved they will be constantly encroaching
on, if submitted to them; that there
are also certain fences which experience has
proved peculiarly efficacious against wrong,
and rarely obstructive of right, which yet the
governing powers have ever shown a disposition
to weaken and remove. Of the first
kind, for instance, is freedom of religion; of
the second, trial by jury, habeas corpus laws,
free presses. These were the settled opinions
of all the States,—of that of Virginia, of
which I was writing [in the Notes on Virginia],
as well as of the others. The others
had, in consequence, delineated these unceded
portions of right, and these fences against
wrong, which they meant to exempt from the
power of their governors, in instruments
called declarations, of rights and constitutions;
and as they did this by conventions,
which they appointed for the express purpose
of reserving those rights, and of delegating
others to their ordinary legislative, executive
and judiciary bodies, none of the reserved
rights can be touched without resorting to
the people to appoint another convention for
the express purpose of permitting it. Where
the constitutions, then, have been so formed
by conventions, named for this express purpose,
they are fixed and unalterable but by a
convention or other body to be specially authorized;
and they have been so formed by,
I believe, all the States, except Virginia.
That State concurs in all these opinions, but
has run into the wonderful error that her
constitution, though made by the ordinary
legislature, cannot yet be altered by the ordinary
legislature.—
To Noah Webster. Washington ed. iii, 201.
Ford ed., v, 254.
(Pa.,
1790)
