Arguments Against the Constitution (1787-1790)

• Opponents warned that the document would allow government to seize liberty and abridge natural rights.

• Patrick Henry warned: “without a bill of rights, you will exhibit the most absurd thing to mankind that ever the world saw — government that has abandoned all its powers — the powers of direct taxation, the sword, and the purse. You have disposed of them to Congress, without a bill of rights — without check, limitation, or control. And still you have checks and guards; still you keep barriers — pointed where? Pointed against your weakened, prostrated, enervated state government! You have a bill of rights to defend you against the state government, which is bereaved of all power, and yet you have none against Congress, though in full and exclusive possession of all power!”

Claim: The Document Lacks a Bill of Rights

• James Wilson, Pennsylvania State House Yard Speech: “This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence.”

• Alexander Hamilton, The Federalist #85: “I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

• Federalist friends of the Constitution insisted that a Bill of Rights was “superfluous” and unnecessary – many states already had bills of rights

• Federalists claimed Bill of Rights would infer that government had such powers in the first place, a “dangerous” view.

How Federalists Disputed This Claim

• Some, including George Mason, warned that the general judiciary would usurp authority of the state courts.

• George Mason: “There is no limitation. It goes to every thing. The inferior Courts are to be as numerous as Congress may think proper. They are to be of whatever nature they please.”

• John Marshall answered: “The objection, which was made by the Honorable member who was first up yesterday (Mason) has been so fully refuted, that it is not worth while to notice it.”

• Mason was told that his words had not been an accurate synopsis of judicial power.

• When Mason suggested that the judiciary would attempt to settle state disputes, he was told that it wouldn’t.

Claim: The Judiciary Would Be Too Powerful

• Brutus #1: “This government is to possess absolute and uncontrollable powers, legislative, executive and judicial, with respect to every object to which it extends…all that is reserved for the individual States must very soon be annihilated.”

• An Old Whig #4: “It is beyond a doubt that the new federal constitution, if adopted, will in a great measure destroy, if it do not totally annihilate, the separate governments of the several states.”

Claim: It Takes All Power From the States

• Edmund Randolph, Richmond Convention, answered: “If I did believe, with the honorable gentleman, that all power not expressly retained was given up by the people, I would detest this government. But I never thought so, nor do I now.”

• James Madison answered “We shall be convinced that the general will never destroy the individual governments.”

• The Federalist #45: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”

How Federalists Disputed This Claim

• That the executive will be as a “military king” –claimed by Philadelphiensis

• There was good reason to hold such trepidations, as Alexander Hamilton had proposed a particularly kingly executive in the Philadelphia Convention

• Fear that the President would emulate the British model

• Claim that the problems facing states were being overblown

• Many claimed only rebellions (Shays Rebellion) and fiat currency were the only real problems

• Many thought problems were being overblown by people like Hamilton and Madison

• Claim that the representatives don’t have the power to create new government framework

• Cited that the purpose of convention was to amend Articles of Confederation

• Believed a “runaway” convention had gotten out of control

Other Allegations

• Inclusion of a Bill of Rights

• Amendments were already recommended by the ratifying states

• 10th Amendment, first on the list of most states, reiterated state power

• Federal Judiciary could only adjudicate a small number of cases, mostly involving disputes between states and cases where the United States is a party

• Three states instituted explicit “resumption clauses” which made it clear that if power was usurped, it could be rightfully taken back by the state

• New York – “That the powers of government may be reassumed by the people whensoeverit shall become necessary to their happiness”

• Rhode Island – Same text as New York’s

• Virginia – “the powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression”

How Antifederalist Concerns Were Placated

• The Constitution would have never been ratified by the several sovereign states without such assurances by proponents of the Constitution.

• Each substantial argument against the Constitution was refuted strongly, with assurances that it gave a limited subset of powers to the general government

• It has only been through reinterpretation and political desire that such tenets have become muddled

• Patriots need to spread and disseminate the original understanding of the Constitution as ratified

Summary

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