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

A.

THE ANTI-FEDERALIST PERSUASION

On the eve of the Federal Convention, the Anti-Federalists were basically in agreement with the Federalists that the Articles of Confederation needed to be changed. They admitted that the Articles were weak and that the powers of Congress, at least those respecting domestic and foreign commerce, needed to be strengthened. But they did not sense a need to abandon the Articles entirely and substitute a new system. Above all, the Anti-Federalists opposed any fundamental change in the existing relationship between the Confederation government and the States. They were strong advocates of States’ Rights who believed that self-government, independence, and individual liberty were best protected at the local level. A distant and powerful central government over which they might exert little control or influence represented a threat to the values they cherished.

The Constitution Establishes a Consolidated Empire

Thus the Anti-Federalists’ main objection to the proposed Constitution was that it created a central government that was too strong. “We drew the spirit of liberty from our British ancestors,” Patrick Henry told the delegates of the Virginia ratifying convention, and “by that spirit we have triumphed over every difficulty. But now, Sir, the American spirit, assisted by the ropes and chains of consolidation, is about to convert this country to a powerful and mighty empire. If you make the citizens of this country agree to become the subjects of one great consolidated empire of America, your government will not have sufficient energy to keep them together. Such a government is incompatible with the genius of republicanism. There will be no checks, no real balances in this government.” Like other Anti-Federalists, Henry saw no need for a powerful Federal government, preferring instead a loose-knit confederation that allowed the States to determine their own needs and interests. Why, asked Henry, should Virginia, a State with a large population, vast resources, and extensive territory, compromise its sovereignty and share power with smaller, less influential States? Given the great political, economic, cultural, and geographical differences among the States, was a powerful union either possible or desirable?

The Anti-Federalists did not think so. “Agrippa,” the pseudonym of a Boston Anti-Federalist, warned the citizens of Massachusetts that the new Constitution was impractical and dangerous. “We find,” he said,

The Constitution Establishes an Aristocracy

The size and diversity of the existing confederation, in other words, led the Anti-Federalists to believe that the union envisioned by the Framers should not even be attempted.

By republicanism, the Anti-Federalists meant democratic self-government, government close to the people, limited in scope, in which the representatives were held directly accountable through frequent elections. The problem with the new Constitution, they argued, was that it gave representatives too much power and independence. Once elected, representatives would be far from home, comfortable in their jobs, enjoying a big salary that they set themselves. They would be living in some distant, yet-to-be-built city far removed from the watchful eye of the people they represented. Under these circumstances, they surely would lose touch with their constituents. The system was an invitation to despotism.

These fears and suspicions were also confirmed by certain deficiencies in the Constitution itself. The Constitution, for example, made no provision for recalling elections; and rotation in office, argued the Anti-Federalists, was not frequent enough. A common theme in Anti-Federalist literature was the complaint, as “A Plebian” from New York wrote, that “the power of the general legislature to alter and regulate the time, place, and manner of holding elections [Article I, Section 4] … will place in the hands of the general government the authority whenever they shall be disposed, and a favorable opportunity offers, to deprive the body of the people, in effect, of all share in the government.”

Republicanism also meant rule by the majority. But the Constitution, insisted the Anti-Federalists, seemed to encourage government by minority factions and wealthy aristocrats. There would be too few members in the House of Representatives (only one for every 30,000 persons), and a mere handful of Senators—as few as eighteen if only nine States joined the Union—would be able to block legislation desired by a majority of the people. “Far from being a regular balanced government,” complained “Centinel,” a Pennsylvania Anti-Federalist, “it would be in practice a permanent aristocracy.” Patrick Henry of Virginia echoed these sentiments, contending that the two-thirds requirement for proposing amendments and the three-fourths requirement for their adoption allowed entrenched minorities and “the most unworthy characters” to obstruct the will of the majority. It would be impossible, he argued, to pass an amendment by those difficult means:

Quoting from the Virginia Bill of Rights, Henry went on to assert that “a majority of the community have an indubitable, unalienable, and indefeasible right to reform, alter, or abolish” their government when it becomes inadequate. “This, sir, is the language of democracy: that a majority of the community have the right to alter their government when found to be oppressive. But how different is the genius of your new Constitution from this.”

The Constitution Confers Too Much Power

No less disturbing to these critics of the Constitution were specific provisions which seemed to be inconsistent with the ideals of limited constitutional government. Elbridge Gerry, a delegate to the Federal Convention from Massachusetts who refused to sign the Constitution, spoke for most Anti-Federalists when he challenged the Constitution’s broad delegations of power. In addition to the problems of representation and Congressional control of elections, “some of the powers of the Legislature are ambiguous, and others indefinite and dangerous.” The President “is balanced with and will have undue influence over the Legislature.” The Federal Judiciary “will be oppressive.” And, Gerry argued, “the system is without the security of a bill of rights.”

An Imperial Congress

Among the powers delegated to Congress, those authorizing the national legislature to provide for the general welfare, levy taxes, regulate the States’ militia, regulate interstate commerce, and make all laws necessary and proper, gave the Anti-Federalists their deepest misgivings. “Brutus,” writing in the New York Journal, offered one of the most perceptive and far-reaching examinations of Congressional power from the Anti-Federalist perspective. The “most natural and grammatical” construction of the General Welfare Clause in Article I, he observed, is that it authorizes the Congress “to do anything which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases. …” The tax power is fundamentally unsound because “there is no limitation on this power” and Congress could levy any amount that it pleases, for any purpose, leaving the States no source of revenue. “This power therefore is neither more nor less than a power to lay and collect taxes, imposts, and excises, at their pleasure.”

Likewise, the necessary and proper clause, wrote “Brutus,” “is a power very comprehensive and … [may] be exercised in such manner as entirely to abolish the State legislatures.” Taking the General Welfare, Tax, and Necessary and Proper clauses together, concluded “Brutus,” “It is therefore evident that the legislature under this Constitution may pass any law which they may think proper.”

There was also criticism of the Commerce Clause, mostly from the southern States. What is meant by the power to “regulate”? What, precisely, is “commerce”? The Constitution did not define these terms. Although vagueness and the possibility of an indefinite grant of power were considerations, the southern Anti-Federalists were especially concerned that northern States might use their superior numbers in the Congress to discriminate against southern commercial and economic interests.

It was Patrick Henry who opposed the Constitution because it impeded majority rule. On the question of commerce, however, the Anti-Federalists argued that majority rule was not enough: extraordinary or “super” majorities ought to be required for the enactment of commercial laws, in order to protect the agricultural interests of the South. Richard Henry Lee of Virginia thus complained that, “In this congressional legislature a bare majority of votes can enact commercial laws, so that the representatives of seven Northern States, as they will have a majority, can by law create the most oppressive monopoly upon the five Southern States.” Opposition to the Constitution, it may thus be seen, stemmed not only from republican considerations and a general distrust of centralized power, but from other causes as well, including sectional differences and jealousies among the States.

An Elected Monarch

Nor was Anti-Federalist dissatisfaction with Federal power under the new Constitution limited to Congress. Patrick Henry alleged that the Constitution “has an awful squinting; it squints towards monarchy. … Your President may easily become king.” A New York Anti-Federalist, writing under the name of “Cato,” repeated the charge, asserting that the Constitution inclines toward an “odious aristocracy and monarchy.” The President, he said, has so much power that his office “differs very immaterially from the establishment of monarchy in Great Britain.”

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.