Constitution Sunday: Abraham Holmes and Christopher Gore on the Possible Abuses of the Federal Judiciary

Massachusetts Ratifying Convention

January 30, 1788

One of the most fundamental concerns when framing a Constitution, or any law for that matter, is the danger of abuse. Those who believe that power will be abused will choose to err on the side of depriving a government of power. And those people would go one step further to posit that where there are ambiguities in a law, that law should not stand. Abraham Holmes and Christopher Gore debated this point at the Massachusetts ratifying convention.

Holmes argued that the draft Constitution was alarming “as the model of criminal process is to be pointed out by Congress, and they have no constitutional check on them, except that the trial is to be by a jury, but who this jury is to be, how qualified, where to live, how appointed, or by what rules to regulate their procedure, we are ignorant as of yet.” Likewise, the “mode of trial is altogether indetermined.” To Holmes, these were “matters of by no means small consequence, yet we have not the smallest constitutional security, that we shall be allowed the exercise of these privileges, neither is it made certain in the Constitution, that a person charged with a crime, shall have the privileges of appearing before the court or jury which is to try them.”

He continued: “On the whole, when we fully consider this matter, and fully investigate the powers granted—explicitly given, and especially delegated, we shall find Congress possessed of powers enabling them to institute judicatories, little less inauspicious than a certain tribunal in Spain, which has long been the disgrace of Christendom—I mean that diabolical institution the INQUISITION.”

This meant that Congress could prescribe bizarre punishments not prohibited in the Constitution and pass laws “which shall compel a man who is accused or suspected of a crime, to furnish evidence against himself, and even from establishing laws which shall order the court to take the charge exhibited against a man for truth, unless he can furnish evidence of his innocence.” To Holmes, it wasn’t that Congress would do these things but that Congress may do those things and that it would be “owing intirely to the GOODNESS of the MEN, and not in the least degree owing to the GOODNESS of the CONSTITUTION.”

Holmes embraced the thinking that government, unless restricted from the outset, would abuse the power granted to it and overstep its bounds. That debate is inevitable and will continue, but the fact remains that any drafter of a law, and especially a Constitution, will not be able to contemplate every application of the law. There must be a trust in future generations that those generations can be responsible caretakers and implement sensible extensions of the Constitution. Otherwise, the expectation—that a law, as originally written, and without clarification—will surely be disappointed.

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