Constitutional Debate II

As Madison and Yates entered the tavern they were seated in a corner where they could continue their conversation privately.

“James,” said Robert, “I have another specific concern. The Judiciary.”

“The Judiciary ?” said Madison. “This was not expected. Tell me what troubles you.”

“As you have constructed this branch, it has no authority greater. There should be a body greater of some sort tied to the people. As you have it, in due time this body will give the constitution a construction according to the spirit and reason as they see it and not to confine themselves to its letter.”

Madison seemed almost confused. “The simple view of the matter suggests that the judiciary is beyond comparison, the weakest of the three departments of power. Even the celebrated Montesquieu, whom you like to quote, said, ‘Of the three powers above mentioned, the judiciary is next to nothing.’

Your fears of judicial usurpation are unfounded. Until the people have, by some solemn and authoritative act, annulled or changed the Constitution, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant the departure from it, prior to such an act.”

Yates shook his head, “As always your view of the nature of man is more promising than mine, James.”

 Let me ask you another that greatly concerns me. 

The power to borrow money.

The power to borrow money is general and unlimited, James. Under this authority, the Congress may mortgage any or all the revenues of the union, as a fund to loan money upon, and it is probably, in this way, they may borrow of foreign nations, a principal sum, the interest of which will be equal to the annual revenues of the country. — by this means, they may create a national debt, so large, as to exceed the ability of the country ever to pay it. I can scarcely contemplate a greater calamity that could befall this country, than to be loaded with a debt exceeding their ability ever to discharge.”

Madison was standing now. Having had enough of “Brutus”, he said, “The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require. No government can be sustained in any other way. I must take my leave.”

“There is one final subject—the most serious of subjects—and this one Mr. Madison must be answered or New York will not approve of your Constitution. “

“A Bill of Rights.”

James Madison sat down.

Brutus #8,#12, Federalist Papers #49,78,79