Who qualifies as a Founder? Who is a Framer? These are questions about which we often assume general agreement, but the reality is otherwise.
“Founders” can sometimes refer to anyone who supported or participated in the
American Revolution through the ratification of the
U.S. Constitution, or it can mean only those who participated in the Philadelphia Convention and/or the various state ratification debates. “Framer” is similarly ambiguous. For some it means anyone who participated in the Philadelphia Convention, but others reserve it only for those who signed off on the finished product.
Among the best ways of approaching these questions is examining the contributions of those delegates who participated in the national Convention, but actually chose to
oppose rather than endorse the final draft of the Constitution. Among these,
John Francis Mercer should be one of the leading contenders for our attention. His contributions to the
debates in the Philadelphia Convention argued powerfully against the centralization of power.
Madison recorded some of Mercer’s main arguments in his notes of
August 14, 1787, during which Mercer observed that it was in the nature of all governments to form aristocracies and that a proper balance would need to be struck between the executive, a council, and the legislature. While recognizing that the maladministration of the state governments was responsible in large measure for the calling together of the Convention in Philadelphia, Mercer would eventually side with his fellow Marylander, Luther Martin, against ratification of the document.
In his collection
The Complete Anti-Federalist, Herbert Storing identified Mercer as the most likely candidate for authoring what many believe to be among the most sophisticated of the essays against the Constitution: “A (Maryland) Farmer,” published in the
Maryland Gazette between February and April of 1788. These essays not only raised the issue of aristocracy, but also, in the third letter published on March 7, 1788, specifically contended against the misappropriation of the term “federalism,” contending that the “Federalists” had improperly applied the name to themselves, and explicitly questioned “whether any form of
national government is preferable for the Americans to a league or confederacy.”
Even more interesting, Mercer cited the Swiss confederacy as the better example of a true and stable federal form of constitutional order, while citing the history of the Roman Empire (as recounted by
Edward Gibbon) as an example of what not to do. The true protection for liberty, Mercer argued, was to be found in the ability of citizens to vote with their feet: “In small independent States,”
he wrote, “the people run away and leave despotism, to reek [sic] its vengeance on itself.”
Mercer’s writings present the core themes that animated the opposition to the Constitution. They illustrate the sort of issues that often only narrowly separated
Anti-Federalist ideas from the Constitution’s supporters and as such influenced the kinds of arguments that Madison and others would have to make to effectively advocate for ratification. Whatever private intentions, therefore, may have been entertained by those at the Philadelphia Convention, it is proper to consider the arguments of the so-called Anti-Federalists as adding to our understanding of such key terms as “federal” and “national” when deciding on the original meaning of constitutional powers.
Mercer’s statements should be compared to others of his time, including both Madison and Jefferson. Indeed, he had studied law for a short time under Jefferson just before the Revolution, and would later join the Democratic Republican Party in the first years of the early republic. He would break with the party only from opposition to the War of 1812.
The idea of liberty that Mercer espoused, however, would continue on in his heirs. Indeed, his espousal of liberty and his owning of slaves would come into direct tension within his own family. His daughter Margaret Mercer, who was educated largely in her father’s own extensive library, would become a leading abolitionist and free all the slaves she inherited upon her father’s death.