I think we’re reaching the end of this debate, or at least my side of it. I’ve laid out pretty much my entire position on this topic, with the exception of authorities for my last assertion regarding reserved rights under State constitutions, which I provide in this spoiler.
Authorities (lots of them)
My assertion that the people surrender all rights not protected by their State constitution to the power of that State is, in my opinion, particularly well founded. It flows from the plenary grants of legislative powers given up by the people to the States in their respective constitutions.
Even if the State is not imbued with a plenary power to legislate, it wouldn’t be the federal government’s job to get involved with disputes about State constitutions until a specific provision of the federal Constitution is invoked to provide jurisdiction or other federal powers to intervene.
In the 1776 constitution of Virginia, the plenary legislative power power to pass laws is implied:
The legislative, executive, and judiciary department, shall be separate and distinct, so that neither exercise the powers properly belonging to the other […]
All laws shall originate in the House of Delegates, to be approved of or rejected by the Senate, or to be amended, with consent of the House of Delegates; except money-bills, which in no instance shall be altered by the Senate, but wholly approved or rejected.
Article I of the Constitution of New York, 1777, it is explicit,
This convention doth further, in the name and by the authority of the good people of this State, ordain, determine, and declare that the supreme legislative power within this State shall be vested in two separate and distinct bodies of men; the one to be called the assembly of the State of New York, the other to be called the senate of the State of New York; who together shall form the legislature, and meet once at least in every year for the despatch of business.
Article IV of the Constitution of Massachussets, 1780, grants the plenary power explicitly,
And further, full power and authority are hereby given and granted to the said general court, from time to time, to make, ordain, and establish, all manner of wholesome and reasonable orders, laws, statutes, and ordinances, directions and instructions, either with penalties or without; so as the same be not repugnant or contrary to this constitution, as they shall judge to be for the good and welfare of this commonwealth, and for the government and ordering thereof, and of the subjects of the same, and for the necessary support and defence of the government thereof; […]
and etcetera.
From James Wilson’s Statehouse Speech, October 6, 1787
It will be proper, however, before I enter into the refutation of the charges that are alleged, to mark the leading discrimination between the state constitutions, and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve; and therefore upon every question, respecting the jurisdiction of the house of assembly, if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional authority is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of union. Hence it is evident, that in the former case every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given, is reserved. This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights, a defect in the proposed Constitution: for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges, of which we are not divested either by the intention or the act, that has brought that body into existence.
From the Federal Farmer IV, 10/12/1787
. . . It is said, that when the people make a constitution, and delegate powers that all powers not delegated by them to those who govern is [ sic ] reserved in the people; and that the people, in the present case, have reserved in themselves, and in their state governments, every right and power not expressly given by the federal Constitution to those who shall administer the national government. It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves. The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes: But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favorably for increasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefully described the powers parted with and the powers reserved. By the state constitutions, certain rights have been reserved in the people; or rather, they have been recognized and established in such a manner, that state legislatures are bound to respect them, and to make no laws infringing upon them. The state legislatures are obliged to take notice of the bills of rights of their respective states. The bills of rights, and the state constitutions, are fundamental compacts only between those who govern, and the people of the same state.
George Mason addresses the Virginia Ratification Convention on June 11, 1788,
It is urged that no new power is given up to the general government, and that the Confederation had those powers before. That system derived its power from the state governments. When the people of Virginia formed their government, they reserved certain great powers in the bill of rights. They would not trust their own citizens, who had a similarity of interest with themselves, and who had frequent and intimate communication with them. They would not trust their own fellow-citizens, I say, with the exercise of those great powers reserved in the bill of rights. Do we not, by this system, give up a great part of the rights, reserved by the bill of rights, to those who have no fellow-feeling for the people–to a government where the representatives will have no communication with the people? I say, then, there are great and important powers, which were not transferred to the state government, given up to the general government by this Constitution.
Let us advert to the 6th article. It expressly declares, that “this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which Shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby; any thing in the Constitution or laws of any state to the contrary notwithstanding.” Now, sir, if the laws and Constitution of the general government, as expressly said, be paramount to those of any state, are not those rights with which we were afraid to trust our own citizens annulled and given up to the general government? The bill of rights is a part of our own Constitution. The judges are obliged to take notice of the laws of the general government; consequently, the rights secured by our bill of rights are given up. If they are not given up, where are they secured? By implication! Let gentlemen show that they are secured in a plain, direct, unequivocal manner. It is not in their power. Then where is the security? Where is the barrier drawn between the government and the rights of the citizens, as secured in our own state government? These rights are given up in that paper; but I trust that this Convention will never give them up; but will take pains to secure them to the latest posterity. If a check be necessary in our own state government, it is much more so in a government where our representatives are to be at the distance of a thousand miles from us, without any responsibility.
Patrick Henry addresses the Virginia Ratifying Convention on June 12, 1788,
We are told that all powers not given are reserved. I am sorry to bring forth hackneyed observations. But, sir, important truths lose nothing of their validity or weight, by frequency of repetition. The English history is frequently recurred to by gentlemen. Let us advert to the conduct of the people of that country. The people of England lived without a declaration of rights till the war in the time of Charles I. That king made usurpations upon the rights of the people. Those rights were, in a great measure, before that time undefined. Power and privilege then depended on implication and logical discussion. Though the declaration of rights was obtained from that king, his usurpations cost him his life. The limits between the liberty of the people, and the prerogative of the king, were still not clearly defined.
The rights of the people continued to be violated till the Stuart family was banished, in the year 1688. The people of England magnanimously defended their rights, banished the tyrant, and prescribed to William, Prince of Orange, by the bill of rights, on what terms he should reign; and this bill of rights put an end to all construction and implication. Before this, sir, the situation of the public liberty of England was dreadful. For upwards of a century, the nation was involved in every kind of calamity, till the bill of rights put an end to all, by defining the rights of the people, and limiting the king’s prerogative. Give me leave to add (if I can add any thing to so splendid an example) the conduct of the American people. They, sir, thought a bill of rights necessary. It is alleged that several states, in the formation of their government, omitted a bill of rights. To this I answer, that they had the substance of a bill of rights contained in their constitutions, which is the same thing. I believe that Connecticut has preserved it, by her Constitution, her royal charter, which clearly defines and secures the great rights of mankind–secures to us the great, important rights of humanity; and I care not in what form it is done.
Patrick Henry addresses the Virginia Ratifying Convention on June 16, 1788,
Mr. Chairman, the necessity of a bill of rights appears to me to be greater in this government than ever it was in any government before. I have observed already, that the sense of the European nations, and particularly Great Britain, is against the construction of rights being retained which are not expressly relinquished. I repeat, that all nations have adopted this construction – that all rights not expressly and unequivocally reserved to the people are impliedly and incidentally relinquished to rulers, as necessarily inseparable from the delegated powers. It is so in Great Britain; for every possible right, which is not reserved to the people by some express provision or compact, is within the king’s prerogative. It is so in that country which is said to be in such full possession of freedom. It is so in Spain, Germany, and other parts of the world. Let us consider the sentiments which have been entertained by the people of America on this subject. At the revolution, it must be admitted that it was their sense to set down those great rights which ought, in all countries, to be held inviolable and sacred. Virginia did so, we all remember. She made a compact to reserve, expressly, certain rights. […]
William Grayson addresses the Virginia Ratifying Convention after Patrick Henry’s speech, above,
Mr. GRAYSON thought it questionable whether rights not given up were reserved. A majority of the states, he observed, had expressly reserved certain important rights by bills of rights, and that in the Confederation there was a clause declaring expressly that every power and right not given up was retained by the states. It was the general sense of America that such a clause was necessary; other, wise, why did they introduce a clause which was totally unnecessary? It had been insisted, he said, in many parts of America, that a bill of rights was only necessary between a prince and people, and not in such a government as this, which was a compact between the people themselves. This did not satisfy his mind; for so extensive was the power of legislation, in his estimation, that he doubted whether, when it was once given up, any thing was retained. He further remarked, that there were some negative clauses in the Constitution, which refuted the doctrine contended for by the other side. For instance; the 2d clause of the 9th section of the 1st article provided that “the privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” And, by the last clause of the same section, “no title of nobility shall be granted by the United States.” Now, if these restrictions had not been here inserted, he asked whether Congress would not most clearly have had a right to suspend that great and valuable right, and to grant titles of nobility. When, in addition to these considerations, he saw they had an indefinite power to provide for the general welfare, he thought there were great reasons to apprehend great dangers. He thought, therefore, that there ought to be a bill of rights.
Governor Edmund Randolph addresses the Virginia Ratifying Convention on June 17, 1788,
Give me leave to make a distinction between the representatives of the people of a particular country, who are appointed as the ordinary legislature, having no limitation to their powers, and another body arising from a compact, and with certain delineated powers. Were a bill of rights necessary in the former, it would not be in the latter; for the best security that can be in the latter is the express enumeration of its powers.
Patrick Henry, addressing the Virginia Ratifying Convention on June 24, 1788,
The honorable member [Mr. Wythe] must forgive me for declaring my dissent from it; because, if I understand it rightly, it admits that the new system is defective, and most capitally; for, immediately after the proposed ratification, there comes a declaration that the paper before you is not intended to violate any of these three great rights–the liberty of religion, liberty of the press, and the trial by jury. What is the inference when you enumerate the rights which you are to enjoy? That those not enumerated are relinquished. There are only three things to be retained–religion, freedom of the press, and jury trial. Will not the ratification carry every thing, without excepting these three things? Will not all the world pronounce that we intended to give up all the rest? Every thing it speaks of, by way of rights, is comprised in these things. Your subsequent amendments only go to these three amendments. […] In the honorable member’s proposal, jury trial, the press and religion, and other essential rights, are not to be given up. Other essential rights–what are they? The world will say that you intended to give them up. When you go into an enumeration of your rights, and stop that enumeration, the inevitable conclusion is, that what is omitted is intended to be surrendered.
James Madison, addressing the Virginia Ratifying Convention on June 24, 1788,
With respect to the proposition of the honorable gentleman to my left, (Mr. Wythe,) gentlemen apprehend that, by enumerating three rights, it implied there were no more. The observations made by a gentleman lately up, on that subject, correspond precisely with my opinion. That resolution declares that the powers granted by the proposed Constitution are the gift of the people, and may be resumed by them when perverted to their oppression, and every power not granted thereby remains with the people, and at their will. It adds, likewise, that no right, of any denomination, can be cancelled, abridged, restrained, or modified, by the general government, or any of its officers, except in those instances in which power is given by the Constitution for these purposes. There cannot be a more positive and unequivocal declaration of the principle of the adoption–that every thing not granted is reserved. This is obviously and self-evidently the case, without the declaration. Can the general government exercise any power not delegated? If an enumeration be made of our rights, will it not be implied that every thing omitted is given to the general government? Has not the honorable gentleman himself admitted that an imperfect enumeration is dangerous? Does the Constitution say that they shall not alter the law of descents, or do those things which would subvert the whole system of the state laws? If it did, what was not excepted would be granted. Does it follow, from the omission of such restrictions that they can exercise powers not delegated? The reverse of the proposition holds. The delegation alone warrants the exercise of any power.
From John Jay’s address to the people of the State of New York, in 1788,
In days and countries where monarchs and their subjects were frequently disputing about prerogative and privileges, the latter then found it necessary, as it were, to run out the line between them, and oblige the former to admit, by solemn acts, called bills of rights, that certain enumerated rights belonged to the people, and were not comprehended in the royal prerogative.
I could dig up more, but this will probably do.
I have identified a number of grounds on which, I beleive, we agree,
- The judicial power of the United States, so vested in Article III, did not originally extend to cases brought against a State by its own citizens, even on suggestion that the State infringed the citizens’ unenumerated rights.
- The due process clause of Amendment XIV is not the proper vehicle to extending the judicial power to cases where a State infringes upon its own citizens’ unenumerated rights.
- The framers and the people who ratified Amendment IX and the Constitution were at least partially motivated by federalism concerns; specifically, that enumerating a bill of rights would increase the federal government’s powers, by implication that all rights not protected are surrendered.
and also critical points on which we disagree,
- Whether and when the Privileges or Immunities clause of Amendment XIV can extend the judicial power to cases where a State infringes upon its own citizens’ unenumerated (natural) rights
- Whether Amendment IX’s prohibition on denying or disparaging unenumerated rights applies to interpretation of anything except the mere fact that other rights are enumerated in the Constitution
- Whether “rights reserved to the people” includes anything more than the rights reserved to the people through their existing State governments
Hamlet, I thoroughly enjoyed our debate. I still think I am right in my interpretation, of course; however, I am willing to admit that if I condeded all three points of disagreement, or even the latter two, that you would be right.
The closing statement is yours, should you wish to make one. I’m happy to respond to any questions, but I don’t have any additional arguments to make.
~Max