The Dissent of the Minority of the Convention of Pennsylvania

Introduction

Going into the Pennsylvania Ratifying Convention, the expectation was that forty-six delegates would vote in favor and twenty-three against adoption of the proposed Constitution. Indeed, Pennsylvania voted to ratify the Constitution, 46–23. The report issued by the twenty-three Pennsylvania opponents—the Pennsylvania Minority—had no impact on the outcome in Pennsylvania, but it did have a considerable impact on the subsequent campaign over ratification. The report proposed two alterations. On the one hand, the Pennsylvania Minority called for amendments that would re-establish the principles of the Articles of Confederation. These were what James Madison would later argue to be unfriendly to the Constitution (The Virginia Ratifying Convention, James Madison to Thomas Jefferson and Representative Madison Argues for a Bill of Rights). On the other hand, the Pennsylvania Minority proposed that a declaration of rights be annexed to the Constitution. What became the first, fourth, fifth, sixth, seventh, and eighth amendments to the Constitution were addressed in their list. This distinction between unfriendly structural amendments on the one hand and a friendly bill of rights on the other became critical in the Virginia and New York Ratifying Conventions as well as in the First Congress (The New York Ratifying Convention).

Most notably, the right of conscience led the list of rights to be preserved. Both sides in the debate agreed on the primacy of the right to conscience. Concerning the seventh—the right to bear arms—eight out of the thirteen original states included a right to bear arms for self-defense and service in the militia. James Madison raised this connection in the First Congress (Representative Madison Argues for a Bill of Rights). What is fascinating and unique about the Pennsylvania Bill of Rights (The Pennsylvania Declaration of Rights and Constitution), and confirmed in this report, is the claim that the people have the right to bear arms for the purpose of “killing game,” a right to bear arms not directly connected to the militia.

. . .The Convention met, and the same disposition was soon manifested in considering the proposed Constitution, that had been exhibited in every other stage of the business. We were prohibited by an express vote of the Convention, from taking any question on the separate articles of the plan, and reduced to the necessity of adopting or rejecting in toto. ’Tis true the majority permitted us to debate on each article, but restrained us from proposing amendments. They also determined not to permit us to enter on the minutes our reasons of dissent against any of the articles, nor even on the final question our reasons of dissent against the whole. Thus situated we entered on the examination of the proposed system of government, and found it to be such as we could not adopt, without, as we conceived, surrendering up your dearest rights. We offered our objections to the convention, and opposed those parts of the plan, which, in our opinion, would be injurious to you, in the best manner we were able; and closed our arguments by offering the following propositions to the convention.

1. The right of conscience shall be held inviolable; and neither the legislative, executive, nor judicial powers of the United States shall have authority to alter, abrogate, or infringe any part of the constitution of the several states, which provide for the preservation of liberty in matters of religion.
2. That in controversies respecting property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the federal courts, as in those of the several states.
3. That in all capital and criminal prosecutions, a man has a right to demand the cause and nature of his accusation, as well in the federal courts, as in those of the several states; to be heard by himself and his counsel; to be confronted with the accusers and witnesses; to call for evidence in his favor, and a speedy trial by an impartial jury of his vicinage, without whose unanimous consent, he cannot be found guilty, nor can he be compelled to give evidence against himself; and that no man be deprived of his liberty, except by the law of the land or the judgment of his peers.
4. That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.
5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.
6. That the people have a right to the freedom of speech, of writing and publishing their sentiments, therefore, the freedom of the press shall not be restrained by any law of the United States.
7. That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals; and as standing armies in the time of peace are dangerous to liberty, they ought not to be kept up; and that the military shall be kept under strict subordination to and be governed by the civil powers.
8. The inhabitants of the several states shall have liberty to fowl and hunt in seasonable times, on the lands they hold, and on all other lands in the United States not enclosed, and in like manner to fish in all navigable waters, and others not private property, without being restrained therein by any laws to be passed by the legislature of the United States.
9. That no law shall be passed to restrain the legislatures of the several states from enacting laws for imposing taxes, except imposts and duties on goods imported or exported, and that no taxes, except imposts and duties upon goods imported and exported, and postage on letters shall be levied by the authority of Congress.
10. That the House of Representatives be properly increased in number; that elections shall remain free; that the several states shall have power to regulate the elections for senators and representatives, without being controlled either directly or indirectly by an interference on the part of the Congress; and that elections of representatives be annual.
11. That the power of organizing, arming, and disciplining the militia (the manner of disciplining the militia to be prescribed by Congress) remain with the individual states, and that Congress shall not have authority to call or march any of the militia out of their own state, without the consent of such state, and for such length of time only as such state shall agree. That the sovereignty, freedom, and independency of the several states shall be retained, and every power, jurisdiction, and right which is not by this constitution expressly delegated to the United States in Congress assembled.
12. That the legislative, executive, and judicial powers be kept separate; and to this end that a constitutional council be appointed, to advise and assist the president, who shall be responsible for the advice they give, hereby the senators would be relieved from almost constant attendance; and also that the judges be made completely independent.
13. That no treaty which shall be directly opposed to the existing laws of the United States in Congress assembled shall be valid until such laws shall be repealed, or made conformable to such treaty; neither shall any treaties be valid which are in contradiction to the Constitution of the United States, or the constitutions of the several states.
14. That the judiciary power of the United States shall be confined to cases affecting ambassadors, other public ministers and consuls; to cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states—between a state and citizens of different states—between citizens claiming lands under grants of different states; and between a state or the citizens thereof and foreign states, and in criminal cases, to such only as are expressly enumerated in the constitution, and that the United States in Congress assembled shall not have power to enact laws, which shall alter the laws of descents and distribution of the effects of deceased persons, the titles of lands or goods, or the regulation of contracts in the individual states. . . .