Founding America (Barnes & Noble Classics) - Jack N. Rakove [298]
But these letters also illustrate a profound development in American thinking about rights more generally. Before the Revolution, Americans would have said that their rights were derived from multiple sources. The adoption of bills of rights like those that accompanied the early state constitutions did not create or establish the rights enumerated but merely confirmed their existence. By 1787, however, the idea that a written constitution would have the status of supreme law offered a means of resolving the ambiguities that inevitably arose by appealing to nature or custom as the source of rights. A right that was explicitly mentioned in the text of a constitution would now possess the highest legal status available. But this opened other questions. Would that relegate rights left unmentioned to an inferior, more precarious status? And would it not also require the drafters of a bill of rights to be extremely careful in their use of language?
These were some of the questions that Madison and Jefferson canvassed in these absorbing letters. But they also explored other issues. Where did the real dangers to rights arise? And who could be held most accountable for their protection?
In the summer of 1789, as the First Congress was debating the amendments Madison ultimately proposed, the correspondence took a new twist. In Paris, Jefferson was observing the opening phase of the French Revolution and consulting with those liberals, like the Marquis de Lafayette, who favored American-style solutions for their nation’s constitutional problems. In the wake of these conversations, Jefferson wrote Madison a remarkable letter, posing the question “whether one generation of men has a right to bind another.” In the immediate context, the question was how great a political obligation the French reformers turning into revolutionaries owed to the legal structures they had inherited, with their vast concentration of aristocratic privilege. But in Madison’s thoughtful reply, this question in turn pivoted around the advantages and disadvantages of thinking of constitutions as relatively fixed and stable documents.
—James Madison—
LETTER TO THOMAS JEFFERSON (EXCERPT)
OCTOBER 24 AND NOVEMBER 1, 1787
DEAR SIR,
... You will herewith receive the result of the Convention, which continued its session till the 17th of September. I take the liberty of making some observations on the subject which will help to make up a letter, if they should answer no other purpose.
It appeared to be the sincere and unanimous wish of the Convention to cherish and preserve the Union of the States. No proposition was made, no suggestion was thrown out in favor of a partition of the Empire into two or more Confederacies.
It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States. A voluntary observance of the federal law by all the members could never be hoped for. A compulsive one could evidently never be reduced to practice, and if it could, involved equal calamities to the innocent and the guilty, the necessity of a military force both obnoxious and dangerous, and in general, a scene resembling much more a civil war, than the administration of a regular Government.
Hence was embraced the alternative of a government which instead of operating, on the States, should operate without their intervention on the individuals composing them: and hence the change in the principle and proportion of representation.
This ground-work being laid, the great objects which presented themselves were 1. to unite a proper energy in the Executive and a proper stability in the Legislative departments,