Debating the Constitution: Symmes v. Bowdoin--From the Massachusetts Ratifying Convention

A thorough study of the construction and ratification of the United States Constitution is a daunting task; however, sometimes one finds an apt articulation that subsumes a common bone of contention, debated to one degree or another, in all of the ratifying conventions revealing general assumptions, expectations, and fears about the proposed system. Such is the case here.

In Massachusetts, two contestants, Mr. Symmes and Mr. Bowdoin, squared off over the powers given to Congress in Article I, Section 8. The two well-advocated their respective positions with several quote-worthy observations and claims.

Symmes believed the Constitution would give opportunity to ambition and end in exploitation and tyranny via, primarily, the unlimited powers of taxation. Bowdoin countered with all of the checks and balances in the Constitution itself that would render Symmes' fears nugatory.

Since this is a lengthy post (shortening the arguments would have neutered them to some degree), reading the summary of Bowdoin's arguments below--including Mr. Parson's contribution--may be helpful.

August Glen-James, editor

According to  Bowdoin, the protections against tyranny and exploitation are as follows:

1.     The ability of the Constitution to be amended

2.     The powers of Congress (legislative) and the Executive are the powers of the   people . . . and they won’t abuse themselves

3.     The Constitution provides checks on the abuse of power in the following ways:

·      The government is elected directly or indirectly by the people

·      Pres. and VP will take an oath to defend the Constitution

·      Impeachment

·      Senators and Representatives and members of the state legislatures, etc., will   be bound by oath or affirmation to support the Constitution

·      Prohibition on emoluments and office by those who create said emoluments   and offices

·      No titles of nobility shall be granted by the U.S., nor shall office holders accept   emoluments, office, or title (without the consent of Congress) from any             foreign powers

·      The guarantee of a republican form of government to each state and protection      from invasion and domestic violence

·      The publishing, for public examination, of their proceedings, receipts, and   accounts of money . . . no money withdrawn except for appropriations made   by law

·      The people must be/will be attentive and elect men of moral character and   ability

·      The lawmakers have to live under their own laws

·      As to a declaration of rights not being included, it doesn’t need one since the   entire Constitution is of that nature: “The rights of particular states, or private   citizens, not being the object or subject of the Constitution, they are only            incidentally mentioned.”

·      Added by Mr. Parsons: the oath of office to support the Constitution on all   levels of government; the “thirteen state legislatures,” completely organized   and possessing the confidence of the people, can resist usurpation; and,              finally, a jury can exonerate a private citizen from resisting unconstitutional           laws.

Mr. Symmes--

Sir, I shall be told that these are imaginary evils; but I hold to this maxim, that power was never given, (of this kind especially,) but it was exercised; nor ever exercised but it was finally abused. We must not be amused with handsome probabilities; but we must be assured that we are in no danger, and that this Congress could not distress us, if they were ever so much disposed.

[Mr. Symmes's argument in full]

Mr. President, in such an assembly as this, and on a subject that puzzles the oldest politicians, a young man, sir, will scarcely dare to think for himself; but, if he venture to speak, the effort must certainly be greater. This Convention is the first representative body in which I have been honored with a seat, and men will not wonder that a scene at once so new and so august should confuse, oppress, and almost disqualify me to proceed.

Sir, I wish to bespeak the candor of the Convention—that candor, which, I know, I need but ask, to have it extended to me, while I make a few indigested observations on the paragraph now in debate [i.e., Article I, Section 8]. I have hitherto attended with diligence, but no great anxiety, to the reasoning of the ablest partisans on both sides of the question. Indeed, I could have wished for a more effectual, and, if I may term it so, a more feeling representation in the Lower House, and for a representation of the people in the Senate. I have been, and still am, desirous of a rotation in office, to prevent the final perpetuation of power in the same men; and I have not been able clearly to see why the place and manner of holding elections should be in the disposal of Congress.

But, sir, in my humble opinion, these things are comparative by the lesser things of the law. They, doubtless, have their influence in the grand effect, and so are essential to the system. But, sir, I view the section to which we have at length arrived, as the cement of the fabric, and this clause as the keystone, or (if I may apply the metaphor) the magic talisman, on which the fate of it depends.

Allow me, sir, to recall to your remembrance that yesterday, when states were in doubt about granting to Congress a 5 per cent impost, and the simple power of regulating trade—the time when, so delicate was the patriotic mind, that power was to be transferred with a reluctant, with a sparing hand, and the most obvious utility could scarcely extort it from the people. It appears to me of some importance to consider this matter, and to demand complete satisfaction upon the question, why an unlimited power in the affair of taxation is so soon required. Is our situation so vastly different, that the powers so lately sufficient are now but the dust of the balance? I observe, sir, that many men, who, within a few years past, were strenuous opposers of an augmentation of the power of Congress, are now the warmest advocates of power so large as not to admit of a comparison with those which they opposed. Cannot some of them state their reasons then, and their reasons now, that we may judge of their consistency? or [sic] shall we be left to suppose that the opinions of politicians, like those of the multitude, vibrate from one extreme to the other, and that we have no men among us to whom we can intrust the philosophic task of pointing out the golden mean?

At present, Congress have no power to lay taxes, &c., not even to compel a compliance with their requisitions. May we not suppose that the members of the great Convention had severely felt the impotency of Congress, while they were in, and, therefore, were rather too keenly set for an effectual increase of power? that [sic] that the difficulties they had encountered in obtaining decent requisitions, had wrought in them a degree of impatience, which prompted them to demand the purse-strings of the nation, as if we were insolvent, and the proposed Congress were to compound with our creditors? Whence, sir, can this great, I had almost said, this bold demand have originated? Will it be said that it is but a consistent and necessary part of the general system? I shall not deny these gentlemen the praise of inventing a system completely consistent with itself, and pretty free from contradiction; but I would ask,--I shall expect to be answered, --how a system can be necessary for us, of which this is a consistent and necessary part. But, sir, to the paragraph in hand: Congress, &c. Here sir, (however kindly Congress may be pleased to deal with us,) is a very good and valid conveyance of all the property in the United States, --to certain uses indeed, but those uses capable of any construction the trustees may think proper to make. This body is not amenable to any tribunal, and therefore this Congress can do no wrong. It will not be denied that they may tax us to any extent; but some gentlemen are fond of arguing that this body never will do anything but what is for the common good. Let us consider that matter.

Faction, sir, is the vehicle of all transactions in public bodies; and when gentlemen know this so well, I am rather surprised to hear them so sanguine in this respect. The prevalent faction is the body; these gentlemen, therefore, must mean that the prevalent faction will always be right, and that the true patriots will always outnumber the men of less and selfish principles. From this it would follow that no public measure was ever wrong, because it must have been passed by the majority; and so, I grant, no power ever was, or ever will be, abused. In short, we know that all governments have degenerated, and consequently have abused the powers reposed in them; and why we should imagine better of the proposed Congress than of myriads of public bodies who have gone before them, I cannot at present conceive.

Sir, we ought (I speak it with submission) to consider that what we now grant from certain motives, well grounded at present, will be exacted of posterity as a prerogative, when we are not alive, to testify the tacit conditions of the grant; that the wisdom of this age will then be pleaded by those in power; and that the cession we are now about to make will be actually clothed with the venerable habit of ancestral sanction.

Therefore, sir, I humbly presume we ought not to take advantage of our situation in point of time, so as to bind posterity to be obedient to laws they may very possibly disapprove, nor expose them to a rebellion which, in that period will very probably end only in their further subjugation.

The paragraph in question is an absolute decree of the people. The Congress shall have power. It does not say that they shall exercise it; but our necessities say they must, and the experience of ages say that they will; and finally, when the expense of the nation, by their ambition, are grown enormous, that they will oppress and subject; for, sir, they may lay taxes, duties, imposts, and excises! One would suppose that the Convention, sir, were not at all afraid to multiply words when any thing was to be got by it. By another clause, all imposts or duties on exports and imports, wherever laid, go into the federal chest; so that Congress may not only lay imposts and excises, but all imposts and duties that are laid on imports and exports, by any state, shall be a part of the national revenue; and besides, Congress may lay an impost on the produce and manufactures of the country, which are consumed at home. And all these shall be equal through the states. Here, sir, I raise two objections; first, that Congress should have this power. It is a universal, unbounded permission, and as such, I think, no free people ought ever to consent to it, especially in so important a matter as that of property. I will not descend, sir, to an abuse of the future Congress, until it exists; nor then, until it misbehaves; nor then, unless I dare. But I think that some certain revenue, amply adequate to all necessary purposes, upon a peace establishment, but certain and definite, would have been better; and the collection of it might have been guarantied by every state to every other. We should then have known to what we were about to subscribe, and should have cheerfully granted it. But now we may indeed grant, but who can cheerfully grant he knows not what?

Again, sir, I object to the equality of these duties through the states. It matters not with me, in the present argument, which of them will suffer by this proportion. Some probably will, as the consumption of dutied articles will not, if we may judge from experience, be united in all.

But some say, with whom I have conversed, it was for this reason that taxes were provided; that, by their assistance, the defect of duties in some states ought to be supplied. Now, then, let us suppose that the duties are so laid, that, if every state paid in proportion to that which paid most, the duties alone would supply a frugal treasury. Some states will pay but half their proportion, and some will scarcely pay anything. But those in general who pay the least duty, viz., the inland states, are least of all able to pay a land tax; and therefore I do not see but that this tax would operate most against those who are least able to pay it.

I humbly submit it, sir, whether, if each state had its proportion of some certain gross sum assigned, according to its numbers, and a power was given to Congress to collect the same, in case of default in the state, this would not have been a safer Constitution. For, sir, I also disapprove of the power to collect, which is here vested in Congress. It is a power, sir, to burden us with a standing army of ravenous collectors, --harpies, perhaps, from another state, but who, however, were never known to have bowels for any purpose, but to fatten on the life-blood of the people. In an age or two, this will be the case; and when the Congress shall become tyrannical, these vultures, their servants, will be the tyrants of the village, by whose presence all freedom of speech and action will be taken away.

Sir, I shall be told that these are imaginary evils; but I hold to this maxim, that power was never given, (of this kind especially,) but it was exercised; nor ever exercised but it was finally abused. We must not be amused with handsome probabilities; but we must be assured that we are in no danger, and that this Congress could not distress us, if they were ever so much disposed.

To pay the debts, &c.

These words, sir, I confess, are an ornament to the page, and very musical words; but they are too general to be understood as any kind of limitation of the power of Congress, and not very easy to be understood at all. When Congress have the purse, they are not confined to rigid economy; and the word debts, here, is not confined to debts already contracted; or indeed if it were, the term “general welfare” might be applied to any expenditure whatever. Or, if it could not, who shall dare to gainsay the proceedings of this body at a future day, when, according to the course of nature, it shall be too firmly fixed in the saddle to be overthrown by any thing but a general insurrection? –an event not to be expected, considering the extent of this continent; and, if it were to be expected, a sufficient reason in itself for rejecting this or any constitution that would tend to produce it.

This clause, sir, contains the very sinews of the Constitution. And I hope the universality of it may be singular but it may be easily seen, that it tends to produce, in time, as universal powers in every other respect. As the poverty of individuals prevents luxury, so the poverty of public bodies, whether sole or aggregate, prevents tyranny. A nation cannot, perhaps, do a more politic thing than to supply the purse of its sovereign with that parsimony which results from a sense of the labor it costs, and so to compel him to comply with the genius of his people, and to conform to their situation, whether he will or not. How different will be our conduct, if we give the entire disposal of our property to a body as yet almost unknown in theory, in practice quite heterogeneous in it composition, and whose maxims are yet entirely unknown!

Sir, I wish the gentlemen who so ably advocate this instrument would enlarge upon this formidable cause; and I most sincerely wish that the effect of their reasoning may be my conviction. For, sir, I will not dishonor my constituents, by supposing that they expect me to resist that which is irresistible—the force of reason. No, sir; my constituents wish for a firm, efficient Continental government, but fear the operation of this which is now proposed. Let them be convinced that their fears are groundless, and I venture to declare in their name, that no town in the commonwealth will sooner approve the form, or be better subjects under it.

[In response to Symmes's concerns . . .]

Col. Varnum challenged “the gentleman from Andover, (Mr. Symmes,) or any other gentleman, to produce an instance where any government, consisting of three branches, elected by the people, and having checks on each other, as this has, abused the power delegated to them.”

“Mr. Choate said, that this clause gives power to Congress to levy duties, excises, imposts, &c., considering the trust delegated to Congress, that they are to “provide for the common defence, promote the general welfare,” &c. If this is to be the object of their delegation, the next question is, whether they shall not be vested with powers to prosecute it. And this can be no other than an unlimited power of taxation, if that defence requires it. Mr. C. contended that it was the power of the people concentrated to a point; that, as all power is lodged in them, this power ought to be supreme.

[The most extensive challenge to Mr. Symmes, however, came from the Hon. Mr. Bowdoin as follows.]

Mr. Bowdoin--

It will be, and has been said, this great power may be abused, and, instead of protecting, may be employed by Congress in oppressing, their constituents. A possibility of abuse, as it may be affirmed of all delegated power whatever, is by itself no sufficient reason for withholding the delegation. If it were a sufficient one, no power could be delegated; nor could government of any sort subsist.

[Mr. Bowdoin's argument in full.]

Mr. President, on the subject of government, which admits of so great a variety in its parts and combinations, a diversity of opinions is to be expected; and it was natural to suppose that, in this Convention, respectable for its numbers, but much more so for the characters which compose it, there would be a like diversity concerning the federal Constitution, that is now the subject of our consideration.

[Mr. Bowdoin then recounted various financial issues for the Union under the Articles of Confederation centering on the inability of the Continental Congress to fund itself. The solution, in his estimation, was the proposed Constitution thus “giving Congress adequate and proper power.” He continued:]

In determining on this question [i.e., the proper powers for Congress], every gentleman will, doubtless, consider the importance of cultivating a spirit of union among ourselves, and with the several states. This spirit procured our emancipation from British tyranny; and the same spirit, by uniting us in the necessary means, must secure to us our dear-bought, blood-purchased liberty and independence, and deliver us from evils which, unless remedied, must end in national ruin. The means for effecting these purposes are within our reach; and the adoption of the proposed Constitution will give us the possession of them. Like all other human productions, it may be imperfect; but most of the imperfections imputed to it are ideal and unfounded, and the rest are of such a nature that they cannot be certainly known but by the operations of the Constitution; and if, in its operation, it should in any respect be essentially bad, it will be amended in one of the modes prescribed by it. I say, will be amended, because the Constitution is constructed on such principles, that its bad effects, if any such should arise from it, will injure the members of Congress equally with their constituents; and, therefore, both of them must be equally indued to seek for, and effectuate, if possible, the requisite amendments.

There have been many objections offered against the Constitution; and of these the one most strongly urged has been, the great power vested in Congress. On this subject, I beg leave to make a few general observations, which ought to be attended to, as being applicable to every branch of that power.

It may, therefore, be observed, that the investiture of such power, so far from being an objection, is a most cogent reason for accepting the Constitution. The power of Congress, both in the legislative and executive line, is the power of the people, collected through a certain medium, to a focal point, at all times ready to be exerted for the general benefit, according as circumstances or exigencies may require. If you diminish or annihilate it, you diminish or annihilate the means of your own safety and prosperity; which means, if they were to be measured like mathematical quantities, would be in exact proportion, as the power is greater or less. But this is not the case; for power that does not reach, or is inadequate to the object, is worse than none. An exertion of such power would increase the evil it was intended to remove, and at the same time create a further evil, which might be a very great one—the expense of a fruitless exertion.

If we consider the objects of the power, they are numerous and important; and as human foresight cannot extend to many of them, and all of them are in the womb of futurity, the quantum of the power cannot be estimated. Less than the whole, as relative to federal purposes, may, through its insufficiency, occasion the dissolution of the Union, and a subjugation or division of it among foreign powers. Their attention is drawn to the United States; their emissaries are watching our conduct, particularly upon the present most important occasion; and if we should be so unhappy as to reject the federal Constitution proposed to us, and continue much longer our present weak, unenergetic federal government, their policy will probably induce them to plan a division or partition of the states among themselves, and unite their forces to effect it.

In short, the commercial and political happiness, the liberty and property, the peace, safety, and general welfare, both internal and external, of each and all the states, depend on that power; which, as it must be applied to a vast variety of objects, and to cases and exigencies beyond the ken of human prescience, must be very great; and which cannot be limited without endangering the public safety.

It will be, and has been said, this great power may be abused, and, instead of protecting, may be employed by Congress in oppressing, their constituents. A possibility of abuse, as it may be affirmed of all delegated power whatever, is by itself no sufficient reason for withholding the delegation. If it were a sufficient one, no power could be delegated; nor could government of any sort subsist. The possibility, however, should make us careful, that, in all delegations of importance, like the one contained in the proposed Constitution, there should be such checks provided as would not frustrate the end and intention of delegating the power, but would, as far as it could be safely done, prevent the abuse of it; and such checks are provided in the Constitution. . . . I shall exhibit all of them in one view.

The two capital departments of government, the legislative and executive, in which the delegated power resides, consisting of the President, Vice-President, Senate and Representatives, are directly, and by the respective legislatures and delegates, chosen by the people.

The President, and also the Vice-President, when acting as President, before they enter on the execution of the office, shall each “solemnly swear or affirm, that he will faithfully execute the office of President of the United States, and will, to the best of his ability, preserve, protect, and defend, the Constitution of the United States.”

“The senators and representatives before mentioned, and the members of the state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound, by oath or affirmation, to support this Constitution.”

“The President and Vice-President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes or misdemeanors.”

“No senator or representative shall, during the time for which he was elected, be appointed to any civil office, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house, during his continuance in office.”

“No title of nobility shall be granted by the United States, or by any particular state; and no person holding any office of profit or trust under the United States shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

“The United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion and domestic violence.”

To these great checks may be added sever other very essential ones, as, the negative which each house has upon the acts of the other; the disapproving power of the President, which subjects those acts to a revision by the two houses, and to a final negative, unless two thirds of each house shall agree to pass the returned acts, notwithstanding the President’s objections; the printing the journals of each house, containing their joint and respective proceedings; and the publishing, from time to time, a regular statement and account of receipts and expenditures of all public money, none of which shall be drawn from the treasury but in consequence of appropriations made by law.

All these checks and precautions, provided in the Constitution, must, in a great measure, prevent an abuse of power, at least in all flagrant instances, even if Congress should consist wholly of men who were guided by no other principle than their own interest. Under the influence of such checks, this would compel them to a conduct which, in the general, would answer the intention of the Constitution. But the presumption is, --and, if the people duly attend to the objects of their choice, it would be realized,--that the President of the United States and the members of Congress would, for the most part, be men, not only of ability, but of good moral character; in which case, an abuse of power is not to be apprehended, nor any error in the government, but such as every human institution is subject to.

There is a further guard against the abuse of power, which though not expressed, is strongly implied in the federal Constitution, and, indeed, in the constitution of every government founded on the principles of equal liberty; and that is, that those who make the laws, and particularly laws for the levying of taxes, do, in common with their fellow-citizens, fall within the power and operation of those laws.

As, then, the individuals in Congress will all share in the burdens they impose, and be personally affected by the good or bad laws they make for the Union, they will be under the strongest motives of interest to lay the lightest burdens possible, and to make the best laws, or such laws as shall not unnecessarily affect either the property or the personal rights of their fellow-citizens.

With regard to rights, the whole Constitution is a declaration of rights, which primarily and principally respect the general government intended to be formed by it. The rights of particular states, or private citizens, not being the object or subject of the Constitution, they are only incidentally mentioned. In regard to the former, it would require a volume to describe them, as they extend to every subject of legislation, not included in the powers vested in Congress; and, in regard to the latter, as all governments are founded on the relinquishment of personal rights in a certain degree, there was a clear impropriety in being very particular about them. By such a particularity the government might be embarrassed, and prevented from doing what the private, as well as the public and general, good of the citizens and states might require.

The public good, in which private is necessarily involved, might be hurt by too particular an enumeration; and the private good could suffer no injury from a deficient enumeration, because Congress could not injure the rights of private citizens without injuring their own, as they must, in their public as well as private character, participate equally with others in consequence of their own acts. And by this most important circumstance, in connection with the checks above mentioned, the several states at large, and each citizen in particular, will be secured, as fare as human wisdom can secure them, against the abuse of the delegated power.

In considering the Constitution, we shall consider it, in all its parts, upon those general principles which operate through the whole of it, and are equivalent to the most extensive bill of rights that can be formed. . . . If the Constitution should be finally accepted and established, it will complete the temple of American liberty, and, like the keystone of a grand and magnificent arch, be the bond of union to keep all the parts firm and compacted together. May this temple, sacred to liberty and virtue, sacred to justice, the first and greatest political virtue, and built upon the broad and solid foundation of perfect union, be dissoluble only by the dissolution of nature; and may this Convention have the distinguished honor of erecting one of its pillars on that lasting foundation.

[Subsequent to Mr. Bowdin’s speech, Mr. Parsons (of Newburyport) added the following:]

The honorable gentleman from Boston has stated at large most of the checks the people have against usurpation, and the abuse of power, under the proposed Constitution; but from the abundance of his matter, he has, in my opinion, omitted two or three, which I shall mention. The oath the several legislative, executive, and judicial officers of the several states take to support the federal Constitution, is as effectual a security against the usurpation of the general government as it is against the encroachment of the state governments. For an increase of the powers by usurpation is as clearly a violation of the federal Constitution as a diminution of these powers by private encroachment; and that the oath obliges the officers of the several states as vigorously to oppose the one as the other. But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, it will not be on the farmer and merchant, employed and attentive only to their several occupations; it will be upon thirteen legislatures, completely organized, possessed of the confidence of the people, and having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation. But, sir, the people themselves have it in their power effectually to resist usurpation, without being driven to an appeal to arms. An act of usurpation is not obligatory; it is not law; and any man may be justified in this resistance. Let him be considered as a criminal by the general government, yet only his own fellow-citizens can convict him; they are his jury, and if they pronounce him innocent, not all the powers of Congress can hurt him; and innocent they certainly will pronounce him, if the supposed law he resisted was an act of usurpation.

From: Elliot’s Debates, Debates in Massachusetts (Vol. 2, pgs. 36-49)