The Online Library of Liberty

A project of Liberty Fund, Inc.

• About the Author
• Preface
• Part 1: The Constitution’s Deep Roots
• Points to Remember
• The Meaning of Constitutional Government
• The Lamp of Experience
• The Constitutions of Antiquity
• English Origins of America’s Constitution
• The Growth of Parliament
• The Challenge of Parliamentary Supremacy
• The Common Law Tradition
• The Republican Tradition and the Struggle For Constitutional Liberty
• The Influence of Continental Thinkers
• The Education of the Founders
• The French and American Revolutions Compared
• Appendix A: Relevant Chapters of Magna Charta (1215)
• Appendix B: Petition of Right (1628)
• Appendix C: The English Bill of Rights (1689) an Act For Declaring the Rights and Liberties of the Subject, and Settling the Succession of the Crown.
• Part 2: America’s First Constitutions and Declarations of Rights
• Points to Remember
• Colonial Governments
• Relations With Great Britain
• Local Government In the Colonies
• Civil Liberties In the Colonies
• The Movement Toward Independence
• The Declaration of Independence
• The Rights Proclaimed
• The First State Constitutions, 1776–1783
• The Articles of Confederation
• Appendix A: the Mayflower Compact
• Appendix B: Fundamental Orders of Connecticut
• Appendix C: Declaration and Resolves of the First Continental Congress
• Appendix D: Declaration of the Causes and Necessity of Taking Up Arms
• Appendix E: the Declaration of Independence (1776)
• Appendix F: Virginia Bill of Rights
• Appendix G: Thoughts On Government
• Appendix H: Massachusetts Constitution of 1780
• Appendix I: Articles of Confederation (1778)
• Part 3: The Achievement of the Philadelphia Convention
• Points to Remember
• The Problems of the Convention
• The Delegates to the Convention
• A Wide Range of Talents
• Plans and Progress At Philadelphia
• The Meaning of “federal”
• The Virginia Plan: a Supreme National Government
• Hamilton’s Concept of a Unified America
• The New Jersey Plan:checks Upon Central Power
• The Benefits of Compromise
• Compromise and Consensus
• Appendix A: Virginia Plan
• Appendix B: New Jersey Plan
• Appendix C: Constitution of the United States of America (1787)
• Part 4: Basic Constitutional Concepts: Federalism, Separation of Powers, and Rule of Law
• Points to Remember
• A.: Federalism
• Powers Delegated to Congress
• Powers Denied to Congress
• Powers Denied to the States
• The Division of Powers
• The Supremacy Clause
• National and State Obligations
• Obligations of the National Government to the States
• Obligations of the States to the National Government
• Obligations of the States to Each Other
• The Role of the States In the Amendment Process
• The Federalism Factor
• The Advantages of Federalism
• The Future of Federalism
• B.: the Separation of Powers
• Checks and Balances
• Checks Upon the Congress
• Checks Upon the President
• Checks Upon the Judiciary
• The Independence of Congress
• The Independence of the President
• The Independence of the Judiciary
• Summary and Review
• Separation of Powers: a Critical Evaluation
• Separation of Powers At the Crossroads
• C.: The Rule of Law
• The Basic Principles of the American Constitution
• Appendix A: the Federalist No. 10
• Appendix B: the Federalist No. 45
• Appendix C: The Federalist No. 47
• Part 5: Defending the Constitution: the Struggle Over Ratification and the Bill of Rights
• Points to Remember
• A.: the Anti-federalist Persuasion
• The Constitution Establishes a Consolidated Empire
• The Constitution Establishes an Aristocracy
• The Constitution Confers Too Much Power
• An Imperial Congress
• An Elected Monarch
• An Omnipotent Judiciary
• B.: the Federalist Response
• The Constitution Limits and Distributes Power
• Congress Is Not an Oligarchy
• The President Is Not a King
• The Judiciary Is the Least Dangerous Branch
• Whether a Bill of Rights Was Necessary
• The Clash of Values
• C.: The Bill of Rights
• The First Amendment: Religious Freedom, and Freedom to Speak, Print, Assemble, and Petition
• The Second Amendment: the Right to Bear Arms
• The Third Amendment: Quartering Troops
• The Fourth Amendment: Search and Seizure
• The Fifth Amendment: Rights of Persons
• The Sixth Amendment: Rights of the Accused
• The Seventh Amendment: Trial By Jury In Civil Cases
• The Eighth Amendment: Bail and Cruel and Unusual Punishments
• The Ninth Amendment: Rights Retained By the People
• The Tenth Amendment: Rights Retained By the States
• Rights Versus Duties
• Appendix A: the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents
• Appendix B: Northwest Ordinance (1787)
• Part 6: Interpreting and Preserving the Constitution
• Points to Remember
• Principles of Statutory Construction
• The Doctrine of Judicial Review
• The Supreme Court As Final Interpreter
• The States As Final Interpreters
• Strict Versus Loose Construction
• The Independence of the Judiciary
• A.: Origins of Judicial Independence
• B.: the Judicial Power
• C.: Jurisdiction
• Appendix A: Marbury V. Madison
• Appendix B: Martin V. Hunter’s Lessee
• Appendix C: Washington’s Farewell Address (1796)
• Part 7: Changing the Constitution—together With an Explanation of the Amendments Added Since 1791
• Points to Remember
• Our Living Constitution
• Our Changing Constitution
• Amending the Constitution
• The Limits of the Amending Power
• The Amended Constitution
• A.: Amendment Xi (1798)
• B.: Amendment Xii (1804)
• C.: Amendment Xiii (1865)
• D.: Amendment Xiv (1868)
• E.: Amendment Xv (1870)
• F.: Amendment Xvi (1913)
• G.: Amendment Xvii (1913)
• H.: Amendment Xviii (1919)
• I.: Amendment Xix (1920)
• J.: Amendment Xx (1933)
• K.: Amendment Xxi (1933)
• L.: Amendment Xxii (1951)
• M.: Amendment Xxiii (1961)
• N.: Amendment Xxiv (1964)
• O.: Amendment Xxv (1967)
• P.: Amendment Xxvi (1971)
• Q.: Amendment Xxvii (1992)
• Conclusion

An Omnipotent Judiciary

The Anti-Federalists were also generally agreed that the Federal Judiciary would swallow up the State courts under the new system of government. “Brutus” addressed the issue at considerable length, producing what are surely the most extensive analyses of judicial power written by an Anti-Federalist. His main concern was Article III, Section 2, which provides that “The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws, and treaties made, or which shall be made, under their authority.” This can only mean, said “Brutus,” that Article III vests the judicial branch “with a power to resolve all questions that may arise in any case on the construction of the Constitution, either in law or in equity.” By what principles of interpretation, he asked, is the Constitution to be construed?

Since the Federal courts were empowered to decide cases in equity as well as law, it appeared that the Federal judges were free to interpret the Constitution “according to the reasoning and spirit of it, without being confined to the words or letter.” This was true, said “Brutus,” because equity law gave the courts broad discretion. Equity law emerged not in the common law courts of England, which follow strict rules of construction, but in the courts of chancery, which follow virtually no principles of interpretation. The goal of equity jurisprudence is “natural justice”; it seeks to produce fairness, as the judges understand it, and to override the common law when it stands in the way of this objective. Quoting Hugo Grotius, the great scholar of international law, “Brutus” contended “That equity, thus depending essentially upon each individual case [rather than precedent], there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and reducing it to a positive law.”

It therefore followed, said Brutus, that “The judicial power will operate to effect in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the Constitution: an entire subversion of the legislative, executive, and judicial powers of the individual States.” The inquiring citizen, he concluded, need only examine the Constitution itself, written “in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions,” to appreciate the truth of these remarks. “I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers.”

In light of criticisms like these, the Anti-Federalists insisted that the Constitution must either be rejected or substantially amended. Their points of disagreement with the basic design of the system and its particular provisions varied from writer to writer, and they did not agree in all respects. Taken together, however, their writings demonstrated a remarkable uniformity when we consider the distances in time and location, and the limited means of communication from one State to the next in that era. And on one issue they were almost unanimously agreed: the Constitution, because it conferred so much power upon the Federal government, was a threat to personal freedom and States’ Rights. They believed, therefore, that prohibiting the Federal government from abridging certain freedoms was absolutely essential. In the end, the Anti-Federalists were wholly unsuccessful in their effort to change the language of the Constitution and limit the power of the Federal government. They did succeed, however, in persuading the Federalists to add a bill of rights to the Constitution. This was their most important and lasting contribution to the making of the American Constitution.

B.

THE FEDERALIST RESPONSE

Although the essays written by Hamilton, Madison, and Jay (“Publius”) in The Federalist were by no means the only thoughtful response to Anti-Federalists’ arguments, they were surely the most influential. Over the years they have come to be recognized as a primary source of understanding concerning the meaning and purpose of the Constitution. Indeed, no study of our political system and the ideas of the Framers is complete without a reading of this great American classic.

In defending the Constitution, the authors of The Federalist faced the difficult task of explaining and justifying a document that differed sharply from the Articles of Confederation. Although the Articles were unsatisfactory in a number of ways, they were nevertheless tolerable to a great many Americans. There had been no popular uprisings anywhere in the country demanding a new constitution, and many prominent political leaders—now Anti-Federalists—preferred a modest revision rather than abandonment of the Articles.

The Federalists thus found themselves in the awkward position of defending what appeared to be, at least on the surface, a radical and revolutionary change of government. Many though not all of the delegates to the Federal Convention had been instructed by their States to seek a modification of the Articles—not their wholesale elimination. These delegates were therefore highly vulnerable to the charge that they had violated the trust that had been placed in them, and had acted ultra vires (beyond the power vested in them). The Constitution itself, as the Anti-Federalists hotly contended, displayed all the characteristics of a novel experiment in government. The basic question was whether it strengthened and preserved freedom and independence, or whether it nullified the hard-fought gains of the American Revolution and promised to return America to the kind of tyranny it had known under George III.