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The Danger Not Over

August 19, 2010

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[This 1801 essay is excerpted from Liberty and Order: The First American Party Struggle (Indianapolis: Liberty Fund, 2004). Pendleton first published it in the Richmond Examiner in October 1801, and it was subsequently reprinted in other newspapers before the first meeting of the Republican Congress in December of the same year.]

 

Although one of my age1 can have little to hope, and less to fear, from forms of government, as rather belonging to the next world, than the present, and possibly may be charged with intermeddling where he has no interest whenever he utters opinions concerning social regulations, yet I feel impelled by an anxious desire to promote the happiness of my country to submit to the public consideration some reflections on our present political state.

It is far from my intention to damp the public joy occasioned by the late changes of our public agents or to disturb the calm that already presages the most beneficial consequences. On the contrary, I consider this event as having arrested a train of measures that were gradually conducting us towards ruin.

These changes will be a matter of tenfold congratulation if we make the proper use of them. If, instead of negligently reposing upon that wisdom and integrity which have already softened even political malice, we seize an opportunity to erect new barriers against folly, fraud, and ambition; and to explain such parts of the Constitution as have been already, or may be, interpreted contrary to the intention of those who adopted it.

This proposition does not argue a want of proper confidence in our present Chief Magistrate,2 but the contrary. It can be no censure to believe that he has a nobler destiny to fulfill than that of making his contemporary countrymen happy for a few years, and that the rare event of such a character at the head of a nation imposes on us the sacred duty of seizing the propitious opportunity to do all in our power to perpetuate that happiness. As to that species of confidence that would extinguish free inquiry and popular watchfulness, it is never desired by patriotism nor ought to be yielded by freemen.

In pursuit of our purpose, we ought to keep in mind certain principles which are believed to be sound; to enquire whether they have been violated under the Constitution; and then consider how a repetition of those violations may be prevented. As thus:

  1. Government is instituted for the good of the community and not to gratify avarice or ambition; therefore, unnecessary increase of debt — appointment of useless officers such as stationary ministers to foreign courts with which we have little connection and 16 additional judges at a time when the business of the federal courts had greatly diminished3 — and engaging us in a war abroad for the sake of advancing party projects at home, are abuses in government.

  2. The chief good derivable from government is civil liberty, and if government is so constructed as to enable its administration to assail that liberty with the several weapons heretofore most fatal to it, the structure is defective. Of this sort, standing armies, fleets, severe penal laws, war, and a multitude of civil officers, are universally admitted to be; and if our government can, with ease and impunity, array those forces against social liberty, the Constitution is defective.

  3. Peace is undoubtedly that state which proposes to society the best chance for the continuance of freedom and happiness, and the situation of America is such as to expose her to fewer occasions for war than any other nation, whilst it also disables her from gaining anything by war. But if, by indirect means, the executive can involve us in war not declared by the legislature; if a treaty may be made which will incidentally produce a war, and the legislature are bound to pass all laws necessary to give it full effect; or if the judiciary may determine a war to exist although the legislature hath refused to declare it; then the Constitution is defective, since it admits constructions which pawn our freedom and happiness upon the security of executive patriotism, which is inconsistent with republican principles.

  4. Union is certainly the basis of our political prosperity, and this can only be preserved by confining, with precision, the federal government to the exercise of powers clearly required by the general interest or respecting foreign nations and the state governments to objects of a local nature; because the states exhibit such varieties of character and interests that a consolidated general government would be in a perpetual conflict with state interests, from its want of local knowledge or from a prevalence of local prejudice or interest, so as certainly to produce civil war and disunion.

    If, then, the distinct provinces of the general and state governments are not clearly defined; if the former may assail the latter by penalties and by absorbing all subjects of taxation; if a system leading to consolidation may be formed or pursued; and if, instead of leaving it to the respective states to encourage their agriculture or manufactures as their local interest may dictate, the general government may by bounties or protecting duties tax the one to promote the other; then the Constitution has not sufficiently provided for the continuance of the union by securing the rights of the state governments and local interests.

  5. It is necessary for the preservation of republican government that the legislative, executive, and judiciary powers should be kept separate and distinct from each other, so that no man or body of men shall be authorized to exercise more than one of them at the same time. The Constitution, therefore, in consigning to the federal Senate a participation in the powers of each department, violates this important principle and tends to create in that body a dangerous aristocracy.

  6. An essential principle of representative government is that it be influenced by the will of the people, which will can never be expressed if such representatives are corrupted or influenced by hopes of office. If this hope may multiply offices and extend patronage, if the president may nominate to valuable offices members of the legislature who shall please him and displease the people by increasing his power and patronage, if he may be tempted to use this power and patronage for securing his reelection, and if he may even bestow lucrative diplomas upon judges whilst they are receiving liberal salaries paid as the price of their independence and purity, then a risk exists lest the legislature should legislate, the judges decide, and the senator concur in nominations with an eye to those offices, and lest the president may appoint with a view to his reelection; and thus may at length appear the phenomenon of a government republican in form without possessing a single chaste organ for expressing the public will.

Many of these observations were foreseen when the Constitution was ratified by those who voted for its adoption but waived then because of the vast importance of the union, which a rejection might have placed in hazard, of the provision made for amendments as trial should discover defects, and the hope that in the meantime the instrument, with all its defects, might produce social happiness if a proper tone was given to the government by the several agents in its operation. But since experience has evinced that much mischief may be done under an unwise administration, and that even the most valuable parts of the Constitution may be evaded or violated, we count no longer to rest our security upon the vain hope which depends on the rectitude of fallible men in successive administrations. But now that the union is as firmly established by the general opinion of the citizens as we can ever hope it to be, it behooves us to bring forward amendments which may fix it upon principles capable of restraining human passions.

Having, I trust, shown the utility and necessity of such efforts at this time, I will venture to submit to the consideration of my fellow citizens, with great humility and deference, whether it would not be advisable to have the Constitution amended:

  1. By rendering a president ineligible for the next turn and transferring from him to the legislature the appointment of the judges and stationary foreign ministers, making the stipends of the latter to be no longer discretionary in the president.4

  2. By depriving the senate of all executive power and shortening their term of service, or subjecting its members to removal by their constituents.

  3. By rendering members of the legislature and the judges whilst in office [and] for a limited time thereafter incapable of taking any other office whatsoever (the offices of president and vice president excepted) and subjecting the judges to removal by the concurring vote of both houses of Congress.5

  4. By forming some check upon the abuse of public credit, which, though in some instances useful, like fleets and armies, may, like those, be carried to extremes dangerous to liberty and inconsistent with economical government.

  5. By instituting a fair mode of impaneling juries.

  6. By declaring that no treaty with a foreign nation, so far as it may relate to peace or war, to the expenditure of public money, or to commercial regulations, shall be law until ratified by the legislature, the interval between such treaty and the next meeting of Congress excepted, so far as it may not relate to the grant of money.

  7. By defining prohibited powers so explicitly as to defy the wiles of construction. If nothing more should be gained, it will be a great acquisition clearly to interdict laws relating to the freedom of speech, of the press, and of religion, to declare that the common law of England or of any other foreign country in criminal cases shall not be considered as a law of the United States, and that treason shall be confined to the cases stated in the Constitution, so as not to be extended further by law or construction or by using other terms such as sedition, etc.

  8. By marking out with more precision the distinct powers of the general and state governments.

In the Virginia Bill of Rights is expressed this inestimable sentiment:

That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.

A sentiment produced, no doubt, by the experience of this melancholy truth, "That of men advanced to power, more are inclined to destroy liberty than to defend it; there is of course a continual effort for its destruction, which ought to be met by correspondent efforts for its preservation."6

These principles and propositions are most respectfully submitted to my fellow citizens with this observation: that it is only when great and good men are at the head of a nation that the people can expect to succeed in forming such barriers to counteract recent encroachments on their rights; and whenever a nation is so supine as to suffer such an opportunity to be lost, they will soon feel that the danger was not over.

  • 1. Pendleton was 80 when he wrote this letter.
  • 2. President Jefferson.
  • 3. He is probably referring to the Judiciary Act of 1801, which the outgoing Federalist Congress used to create a number of new circuit courts. The Republican Congress repealed these new judgeships in 1802.
  • 4. Congress began fixing the salaries of ministers around 1810.
  • 5. In 1805, four years after Pendleton wrote this, House Republicans proposed just such an amendment after the Senate acquitted Supreme Court Justice Samuel Chase on several articles of impeachment.
  • 6. Pendleton doesn't say who he is quoting. Reassessing the Presidency (Mises Institute, 2001) describes the source as "an unnamed classical-republican author" (p. 71).


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