A Defense of the Constitution – One Hundred and Ninety- Nine Years Ago

constitution-signing

(Signing of the U. S. Constitution in Philadelphia, Photo: Library of Congress)

“A constitution should be considered as a pillar of marble, not as a figure of wax; it must remain as it comes from the hand of the artist, and not be moulded by officious hands into a more convenient shape.” — Richard Stockton

While doing research on the War of 1812, I came across this incredibly important speech given by Richard Stockton before the U. S. House of Representatives on December 10, 1814.

Stockton’s speech, which was occasioned by a specific question before Congress regarding the raising of an enormous militia, is to me an almost perfect and general defense of the U. S. Constitution and the rule of law. The principles which this orator expressed are as valid and important now as they were then. If he were alive today, Stockton would strongly disagree with modern liberal orthodoxy which falsely claims that the Constitution is a “living, breathing” document. He believed, as shall be seen, that the words of the Constitution should be strictly construed because the framers had chosen the words of that document very carefully and with very specific intent.

“These grants being from the people to their rulers, are always deliberately framed. They are penned with the utmost accuracy and precision of language. All powers intended to be granted are granted—and those not included in the terms made use of are withheld. This is not a mere technical rule of the schoolsmen or the forum.

Stockton would be shocked to see how far our country has strayed from the essential principles behind and contained in our Constitution.

It is unfortunate that modern-day defenders of our Constitution, who toil at guarding and upholding the integrity of it are mocked, ridiculed and demonized by liberals in politics, in media and academia. These liberals, who style themselves “progressives,” often view the Constitution as a mere obstacle placed before their expedient designs. I have no doubt that Stockton himself, if he were here today, would be an object of their ridicule.

Richard Stockton (1764-1828) was a son of Declaration of Independence signer, Richard Stockton.  Both resided at Princeton, New Jersey. The younger Stockton was a highly regarded lawyer like his father and was a leader in the New Jersey Federalist Party, which generally opposed the War of 1812 with Great Britain.

One notable point in this speech I would like to highlight is Stockton’s description of what a militia is and what the framers of the Constitution thought a militia was. Clearly, armed citizens were the militia, but don’t take my word for it – read on!

Note: I have abridged this speech in the interest of remaining on point and for brevity’s sake, but I can assure the reader that there has been no clever editing done with the intent to change Stockton’s intended meaning. The full speech can be read on the Library of Congress’ website: http://archive.org/details/speechofhonricha00stoc

An American

“SPEECH OF THE HON. RICHARD STOCKTON, DELIVERED IN THE HOUSE OF REPRESENTATIVES OF THE UNITED STATES, On the 10th December, 1814,

“ON A BILL

“To authorise the President of the United States to call upon the several States and Territories thereof for their respective quotas of eighty thousand four hundred and thirty Militia for the defence of the Frontiers of the United States against invasion.

“Mr. Speaker –

“I have moved for the indefinite postponement of this bill… I can assure you, sir, that I rise to advocate this motion in no spirit of party or of opposition; but because I feel myself constrained by all the ties which bind me to my constituents and country, to make use of every exertion to prevent the passage of the bill. I know the difficulties which at this moment surround the government and the nation. I know and I feel, as sensibly as any member can feel—the crisis—the awful crisis, at which our public affairs have arrived. I know, sir, that we are engaged in a war with a powerful, irritated and revengeful enemy.[i]

“Mr. Speaker, there are certain general principles which lie at the bottom of this subject. —In a limited government, such as that established by the Constitution of the United States, they may truly be called fundamental. By some they may be considered as familiar and trite—and by others as scarcely worthy of attention in these enlightened days. But the great men to whom we are indebted for our independence and civil institutions thought differently. They supposed that they were all-important. They believed that it was always necessary to bear them in mind—and advisable frequently to recur to them, to keep this government within its proper sphere, and to defend the rights and liberties of the people. One of these general principles is that the Militia of the several states belongs to the people and government of the states—and not to the government of the United States. I consider this, sir, as a proposition too clear to require illustration, or to admit of doubt. The militia consists of the whole people of a state, or rather of the whole male population capable of bearing arms; including all, of every description, avocation or age. Exemption from militia duty is a mere matter of grace. This militia, being the very people, belongs to the people, or to the state governments, for their use and protection. It was their’s at the time of the revolution; under the old confederation—and when the present form of government was adopted. Neither the people nor their state governments have ever surrendered this their property in the militia to the general government, but have carefully kept and preserved their general dominion or control, for their own use, protection and defense. They have, it is true, granted or lent (if I may use such an expression) to Congress a special concurrent authority or power over the militia in certain cases; which cases are particularly set down—guarded—limited and restricted, as fully as the most scrupulous caution, and the use of the most apt and significant words our language affords could limit and- restrict them. The people have granted to Congress a right to call forth the militia in certain cases of necessity and emergency….

“Hence, it follows, that the general power, authority or jurisdiction remains in the state governments. A special, qualified, limited and concurrent power is vested in Congress, to be exercised when the event happens, and in the manner pointed out, prescribed and limited in the Constitution. And hence it also follows, that this delegated power cannot be executed upon any other occasions, nor in any other ways than those prescribed by the Constitution. There is another general rule or principle of construction to which I must allude. It is, that all particular, special, limited powers, taken from or carved out of the general power, must be construed strictly. The general power remains in full force, unimpaired, except where it is expressly granted away, and the construction must be on the words of the grant, and not by recurring to the doctrine of analogy or parity of reason. This is a rule applicable to all grants of power, public or private, but it is particularly to be attended to in grants of public authority; and most of all in those solemn grants denominated Constitutions. These grants being from the people to their rulers, are always deliberately framed. They are penned with the utmost accuracy and precision of language. All powers intended to be granted are granted—and those not included in the terms made use of are withheld. This is not a mere technical rule of the schoolsmen or the forum. It is founded in reason, good sense, and justice; and is all-important in the construction of constitutions. If the words of such grants are departed from, upon any pretense, what safety do they afford? If reasoning by analogy is once permitted, so that cases not enumerated but supposed to stand upon a footing in point of reason and expediency, are, by liberal construction, held to be included in it, what security is there but the discretion of those who undertake to expound it? A constitution should be considered as a pillar of marble, not as a figure of wax; it must remain as it comes from the hand of the artist, and not be moulded by officious hands into a more convenient shape. The rule I have laid down, has been considered of sufficient importance to be engrafted into the constitution itself. — The tenth amendment, in ordaining that  “all powers not delegated by the constitution, nor prohibited by it to the states, are reserved to the states respectively and to the people,” declares in the spirit of the rule I have stated, that all powers not granted to the Congress by the constitutional charter, remain with, the people or the state governments.

“Mr. Speaker, this special, limited, concurrent power over the militia, is given by the States to the Congress only in three cases—”To enforce the laws, suppress insurrections, and repel invasion.” (Article I, Section 8) I call it a special concurrent power, and it is clearly no more; for the states, notwithstanding this grant, retain the power to call forth their militia for the same or any other lawful purposes. There is, then, no grant of absolute power even in these cases; and the people and the state governments have not only the right of insisting upon a strict observance of the limitation; but the corresponding right to resist all encroachments upon what they have reserved unto themselves—for as it is of the very essence of a limited government to be kept within its proper orbit, so it is the unquestionable right and duty of the people to oblige those who administer it, to preserve the boundary, and to resist and repel illegal encroachments.

“I consider these principles to be unquestionable.

“Let me ask, sir, what section of the Constitution empowers Congress to call forth the militia to defend the frontiers from invasion? None can be produced. And it never was the intention of the people to grant such a power. A power to call forth the militia to “defend the frontiers against invasion,” would be a general power to make use of the militia during a war—it would lie destitute of all substantial limitation, and might he exercised without control.

“The power actually given to Congress is to call forth the militia to repel invasion not to defend the frontiers from invasion. The power claimed by this bill is, that whenever Congress think an invasion probable, they may call forth the militia to defend against it.

“The power granted by the Constitution is, that when invasion takes place Congress may call forth the militia to repel it. These powers are not the same, but essentially and substantially different. The one is general, depending for its just exercise on will and discretion. The other is limited, guarded by express words, and defended against perversion, by the requirement of a notorious fact, of the existence of which, the state governments are as competent to judge and decide, as the government of the United States.

“The power claimed, in its practical operation, places the militia of the states, without limitation as to number or time of service, in the power of Congress.

“The power granted only authorizes calling them forth on a particular emergency, which carries with it its own limitation, both as to numbers and time of service.

“The power claimed subjects the militia to the general duty and service of the war. It makes them, in truth, Regulars, though they are called militia; for the President may command them to perform every service without restriction, and at any place.

“The power granted preserves the essential quality of being called out in aid of a regular army, upon the contemplated emergency happening, and of returning to their homes as soon as the emergency has ceased.

“The power claimed subjects the citizen to be made a soldier without his consent, for any length of time. For, whether he shall serve one year—or two, or ten—or during a war, is admitted to be only a matter of sound discretion.

“The power granted leaves him all his rights as a citizen—guards and protects him in the service required—calls him to arms to repel an invader, and as soon as he is repelled, returns the citizen to his family.

“Mr. Speaker, I consider the claim now for the first time set up by the general government to the personal service of every citizen—subjecting him to be made a soldier, under the pretense of defending against invasion—and binding him to military service whether it happens or not and after the enemy is expelled, as entirely unwarranted, whether we regard the words of the constitutional grant, or the manifest intention of its makers. The people have never vested such a power in Congress—they have reserved it to themselves—or it is deposited, together with the general mass of sovereignty, in the state governments.

“The noxious illegal character of this bill is not at all taken away or altered by the amendment made in committee, requiring only a service of one year instead of two. It is true that it alleviates its harshness. It will be less oppressive. It may be more palatable, and for that reason it may be the more dangerous. When the oppressor assumes the form of a giant he creates alarm, and will be sure to meet with due opposition. When oppression comes like a mighty flood to overwhelm the privileges of the people, they will not fail to breast the torrent with firmness and spirit. But, when he assumes a reasonable shape—a common form—when the measure carries with it the imposing pretense of public wants, or public defense—and especially, when the original plan is softened and meliorated in its application; then we are apt to comfort ourselves that it is no worse, and finally, to disregard the dangerous principle which lurks beneath.

“There was also a further reason for leaving the general authority over the militia in the state governments, and denying it to the general government; that it might be a check upon the great powers of war and peace, sword and purse, thus surrendered to the general government. The federal government is not only a limited government, but it is furnished with its balances and checks. It was framed upon the principle, that no set of men can be safely trusted with power, without some means, left elsewhere, to keep it within proper bounds. It was this proud principle of jealousy of power, wherever it might be deposited, that produced the revolution. That great event was not so much brought about by actual oppression, as by the assertion of principles which were derogatory to the rights of freemen. So thought the great men who formed and adopted this Constitution. They were high-minded Republicans indeed, and not merely in name. Their political creed was, that no set of men were to be trusted with discretionary powers. They knew that paper limitations were useless, unless accompanied by the means of defense. Hence they denied some powers to the general, and some to the state governments. They limited others, and when they bestowed general powers on the federal head, the means of a wholesome control was left with the people, and the state governments. But these salutary principles are now out of fashion. They are either unknown, forgotten, or disregarded. The plan of the Republican administration (headed by President Madison) has been evidently to accumulate power in the Executive branch of the government, from the President down to the lowest collector or tax gatherer. Scarcely is a bill reported upon any subject relating either to war or revenue, which does not contain some covert attack on the unquestionable rights of a free people.

“And I might, with perfect safety, hazard the assertion, that if the power, now contended for, to call forth the whole militia for the general purposes of war, without any regard to the constitutional limitation, or to time, or place of service, had been inserted, in plain terms in the charter, it would have been rejected.

It is not necessary to detain the House in remarking on the circumstance that the enemy are in possession of some part of the territory of the United States, as that circumstance can afford no aid to this bill; and indeed does not seem to be much relied on. None of the provisions of this bill are adapted to that case. It is not designed to enable the President to call forth the militia to expel them. The existing laws are already fully competent to this end. He may call forth the militia to repel this invasion. But the object of this bill is to form a militia armament, not to expel those invaders, but to serve for one year. The enemy is left in quiet possession of what he has taken and this army is to be raised to carry on the war as the President shall direct. It may be marched into Canada, leaving the invaders behind. But more of this hereafter.

“As to the second object of this bill which is to induce this corps of 80,000 militia to furnish 40,000 regulars; to be sure it does not figure in the title of the act, yet it has been avowed by many gentlemen to be the real object which this bill is to attain.

“I cannot avoid remarking how admirably the title of this act has been contrived, to give notice of a matter which is not to be found in the bill—that is, a plan to defend the frontiers against invasion, and to conceal what it does contain, an illegal device to compel the militia to furnish recruits for the regular army.

“And I cannot refrain from again remarking on the title of this bill—its deceptive form and character.

“If prudence—if reasons of state, or alledged necessity require a longer period of service, recourse must be had to the state Legislatures. The state governments are absolute, except where they are controlled by their own constitutions. They may safely be trusted—they would co-operate with the general government in all necessary measures of defense as long as that government respected their rights and performed its relative duties.

“The militia consists of all the people—the entire male population.”

Congressional Biography:

Stockton, Richard, (son of Richard Stockton [1730-1781], father of Robert Field Stockton, grandfather of John Potter Stockton, and uncle of Richard Stockton Field), a Senator and a Representative from New Jersey; born in Princeton, N.J., April 17, 1764; tutored privately; graduated from the College of New Jersey (now Princeton University) in 1779; studied law; admitted to the bar in 1784 and commenced practice in Princeton, N.J.; elected as a Federalist to the United States Senate to fill the vacancy caused by the resignation of Frederick Frelinghuysen and served from November 12, 1796, to March 3, 1799; declined to be a candidate for reelection; unsuccessful candidate for governor of New Jersey in 1801, 1803, and 1804; elected as a Federalist to the Thirteenth Congress (March 4, 1813-March 3, 1815); declined to be a candidate for renomination to the Fourteenth Congress; resumed the practice of his profession; died at ‘Morven,’ near Princeton, Mercer County, N.J., March 7, 1828; interment in Princeton Cemetery, Princeton, N.J.


[i] The United States was at that time involved in a destructive, expensive and deadly war with Great Britain. Three and a half months earlier the US capital city of Washington had been invaded by the British army and set on fire. Many public buildings were burned including the White House and the U.S. Capitol.

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