G. The Anti-Federalist Papers and Proto-Libertarianism
A Radical Centrist Vision for the Future > Appendix > G. The Anti-Federalist Papers and Proto-Libertarianism (next)
The following selections from the Antifederalist Papers should be useful in reaching conclusions about “original intent” of the US Constitution. The Anti-Federalists were not libertarians in the modern sense but do represent the antecedents of the movement. These are the papers that seem to me to be most relevant to the issue of “proto-libertarianism” in 1787 -1788 at the birth of the federal republic.
Probably better to characterize most (or a plurality of) Anti-Federalists as “minarchists” more than pure libertarians, but even there they are better thought of as what may be called advocates of strong minarchism. Other Anti-Federalists could be almost anything, from quasi-Anarchists (hence one current Anti-Federalist group is avowedly secessionist and Anarchist, for which they cite as authority a number of Anti-Federalists), to advocates of aristocracy, to crackpots.
Things are not all that clear cut, in any case, since much Anti-Federalist “libertarian” sentiment was found on the frontier, where, for example, the State of Franklin movement sought as much autonomy as conceivable, only to plead for Federal military and other help when the Franklin settlers were under attack by Indians. You can also find something like libertarian sentiment even in the thought of someone you might suppose was unlikely as a proto-libertarian, namely Benjamin Franklin (after whom the would-be state was named). Similarly while Jefferson is sometimes identified with libertarianism, which is true enough, doing so requires a very selective reading of his writings; at other times he was a strong supporter of centralized Constitutional government, primarily in the years he served as President.
Here are several Anti-Federalist papers from the “standard collection” of 85 of the best of these essays, which, at least in part, reveal something of a libertarian spirit in the late 18th century, just prior to the ratification of the Constitution.
You are free, of course, to look up the other papers if you so desire. they are available for free on the Web, courtesy of the University of Texas at El Paso, aka, UTEP.
Selected and edited by Morton Borden
By Harold W. Bolinger, Founder and Director of LEADERS
In contrast to Hamilton, Madison and Jay who supported ratification of the Constitution of the United States, many others did not. While the former’s works were more logically organized (and eventually won the debate), the Antifederalist writers were nonetheless articulate. Serious questions were raised which eventually led to some of the Federalist writings that served as answers to allegations of the Antifederalists.
No serious student of the Constitution can be without both sides of the story. Some Antifederalist prophecies have strangely come true. Writings by “Brutus” and “A Federal Farmer,” particularly relating to the “necessary and proper” clause (Article I, Section 8, Clause 18), view the future under an unrestrained Congress. Although the “necessary and proper” clause was never meant to be a blanket grant of power, over the years, as the intentions of the Founding Fathers have passed further and further from our memories, all three branches of the federal government have assumed things that simply do not — and never did — exist. As the states have forgotten how to be a check against a Congress run amok, things are getting worse.
This document, like the Federalist Papers themselves, cannot be considered all inclusive. Many other pro and con pieces appeared in newspapers, in the state ratification conventions, in pamphlets, books, and other sources of the time. But these are considered the premier Antifederalist writings, organized somewhat to coincide with the Federalist Papers.
I personally scanned this document into ASCII, converted the text, spell checked it, and proofed it several times. Undoubtedly, I may have missed a dropped character, hyphenation may be inadvertently missing, or other minor flaws may appear. Please note any such mistakes and call them to my attention so that future releases can be more accurate.
Also note it was scanned from the following document:
The Antifederalist Papers Edited with an Introduction by Morton Borden Michigan State University Press, 1965 Library of Congress Catalog Card Number: 65-17929…
BR Comment —The Introduction by Jon Roland is not included here and does not seem to be available on the Web. However, the following statement seems to have been written by Roland and provides an overview of the Antifederalist Papers:
constitution.org & Liberty Library
Anti-Federalists as Strict Constructionists During the period from the drafting and proposal of the federal Constitution in September, 1787, to its ratification in 1789 there was an intense debate on ratification. The principal arguments in favor of it were stated in the series written by Madison, Hamilton, and Jay called the Federalist Papers, although they were not as widely read as numerous independent local speeches and articles. The arguments against ratification appeared in various forms, by various authors, most of whom used a pseudonym. Collectively, these writings have become known as the Anti-Federalist Papers……They contain warnings of dangers from tyranny that weaknesses in the proposed Constitution did not adequately provide against, and while some of those weaknesses were corrected by adoption of the Bill of Rights, others remained, and some of these dangers are now coming to pass.
The most important way to read the pro- and anti-federalist papers is as a debate on how the provisions of the Constitution would be interpreted, or “constructed”. Those opposing ratification, or at least raising doubts about it, were not so much arguing against the ratification of some kind of federal constitution, as against expansive construction of provisions delegating powers to the national government, and the responses from pro-ratificationists largely consisted of assurances that the delegations of power would be constructed strictly and narrowly. Therefore, to win the support of their opponents, the pro-ratificationists essentially had to consent to a doctrine of interpretation that must be considered a part of the Constitution, and that therefore must be the basis for interpretation today. This doctrine can be summed up by saying, “if a construction would have been objectionable to the anti-federalists, it should be initially presumed unconstitutional”.
Antifederalist No. 7 ADOPTION OF THE CONSTITUTION WILL LEAD TO CIVIL WAR
“PHILANTHROPOS,” (an anonymous Virginia Antifederalist) appeared in The Virginia Journal and Alexandria Advertiser, December 6, 1787, writing his version of history under the proposed new Constitution.
The time in which the constitution or government of a nation undergoes any particular change, is always interesting and critical. Enemies are vigilant, allies are in suspense, friends hesitating between hope and fear; and all men are in eager expectation to see what such a change may produce. But the state of our affairs at present, is of such moment, as even to arouse the dead…
[A certain defender of the Constitution has stated that objections to it] are more calculated to alarm the fears of the people than to answer any valuable end. Was that the case, as it is not, will any man in his sober senses say, that the least infringement or appearance of infringement on our liberty -that liberty which has lately cost so much blood and treasure, together with anxious days and sleepless nights-ought not both to rouse our fears and awaken our jealousy?… The new constitution in its present form is calculated to produce despotism, thraldom and confusion, and if the United States do swallow it, they will find it a bolus, that will create convulsions to their utmost extremities. Were they mine enemies, the worst imprecation I could devise would be, may they adopt it. For tyranny, where it has been chained (as for a few years past) is always more cursed, and sticks its teeth in deeper than before. Were Col. [George] Mason’s objections obviated, the improvement would be very considerable, though even then, not so complete as might be. The Congress’s having power without control-to borrow money on the credit of the United States; their having power to appoint their own salaries, and their being paid out of the treasury of the United States, thereby, in some measure, rendering them independent of the individual states; their being judges of the qualification and election of their own members, by which means they can get men to suit any purpose; together with Col. Mason’s wise and judicious objections-are grievances, the very idea of which is enough to make every honest citizen exclaim in the language of Cato, 0 Liberty, 0 my country! Our present constitution, with a few additional powers to Congress, seems better calculated to preserve the rights and defend the liberties of our citizens, than the one proposed, without proper amendments. Let us therefore, for once, show our judgment and solidity by continuing it, and prove the opinion to be erroneous, that levity and fickleness are not only the foibles of our tempers, but the reigning principles in these states. There are men amongst us, of such dissatisfied tempers, that place them in Heaven, they would find something to blame; and so restless and self- sufficient, that they must be eternally reforming the state. But the misfortune is, they always leave affairs worse than they find them. A change of government is at all times dangerous, but at present may be fatal, without the utmost caution, just after emerging out of a tedious and expensive war. Feeble in our nature, and complicated in our form, we are little able to bear the rough Posting of civil dissensions which are likely to ensue. Even now, discontent and opposition distract our councils. Division and despondency affect our people. Is it then a time to alter our government, that government which even now totters on its foundation, and will, without tender care, produce ruin by its fall?
Beware my countrymen! Our enemies- -uncontrolled as they are in their ambitious schemes, fretted with losses, and perplexed with disappointments-will exert their whole power and policy to increase and continue our confusion. And while we are destroying one another, they will be repairing their losses, and ruining our trade.
Of all the plagues that infest a nation, a civil war is the worst. Famine is severe, pestilence is dreadful; but in these, though men die, they die in peace. The father expires without the guilt of the son; and the son, if he survives, enjoys the inheritance of his father. Cities may be thinned, but they neither plundered nor burnt. But when a civil war is kindled, there is then forth no security of property nor protection from any law. Life and fortune become precarious. And all that is dear to men is at the discretion of profligate soldiery, doubly licentious on such an occasion. Cities are exhausted by heavy contributions, or sacked because they cannot answer exorbitant demand. Countries are eaten up by the parties they favor, and ravaged by the one they oppose. Fathers and sons, sheath their swords in anothers bowels in the field, and their wives and daughters are exposed to rudeness and lust of ruffians at home. And when the sword has decided quarrel, the scene is closed with banishments, forfeitures, and barbarous executions that entail distress on children then unborn. May Heaven avert the dreadful catastrophe! In the most limited governments, what wranglings, animosities, factions, partiality, and all other evils that tend to embroil a nation and weaken a state, are constantly practised by legislators. What then may we expect if the new constitution be adopted as it now stands? The great will struggle for power, honor and wealth; the poor become a prey to avarice, insolence and oppression. And while some are studying to supplant their neighbors, and others striving to keep their stations, one villain will wink at the oppression of another, the people be fleeced, and the public business neglected. From despotism and tyranny good Lord deliver us.
Antifederalist No. 6 THE HOBGOBLINS OF ANARCHY AND DISSENSIONS AMONG THE STATES
One of largest series of Antifederalist essays was penned under the pseudonym “CENTINEL.” The Philadelphia Independent Gazetteer ran this 24 essay series between October 5, 1787 and November 24, 1788.
Some historians feel most of the “Centinel” letters were written by Samuel Bryan, and a few by Eleazer Oswald, owner of the Independent Gazetteer. A more recent study by Charles Page Smith, James Wilson, Founding Father (Chapel Hill, 1956), refrains from making such theory
This selection is from the eleventh letter of “Centinel,” appearing in the Independent Gazetteer on January 16, 1788.
The evils of anarchy have been portrayed with all the imagery of language in the growing colors of eloquence; the affrighted mind is thence led to clasp the new Constitution as the instrument of deliverance, as the only avenue to safety and happiness. To avoid the possible and transitory evils of one extreme, it is seduced into the certain and permanent misery necessarily attendant on the other. A state of anarchy from its very nature can never be of long continuance; the greater its violence the shorter the duration. Order and security are immediately sought by the distracted people beneath the shelter of equal laws and the salutary restraints of regular government; and if this be not attainable, absolute power is assumed by the one, or a few, who shall be the most enterprising and successful. If anarchy, therefore, were the inevitable consequence of rejecting the new Constitution, it would be infinitely better to incur it, for even then there would be at least the chance of a good government rising out of licentiousness. But to rush at once into despotism because there is a bare possibility of anarchy ensuing from the rejection, or from what is yet more visionary, the small delay that would be occasioned by a revision and correction of the proposed system of government is so superlatively weak, so fatally blind, that it is astonishing any person of common understanding should suffer such an imposition to have the least influence on his judgment; still more astonishing that so flimsy and deceptive a doctrine should make converts among the enlightened freemen of America, who have so long enjoyed the blessings of liberty. But when I view among such converts men otherwise pre-eminent it raises a blush for the weakness of humanity that these, her brightest ornaments, should be so dimsighted to what is self-evident to most men, that such imbecility of judgment should appear where so much perfection was looked for. This ought to teach us to depend more on our own judgment and the nature of the case than upon the opinions of the greatest and best of men, who, from constitutional infirmities or particular situations, may sometimes view an object through a delusive medium; but the opinions of great men are more frequently the dictates of ambition or private interest.
The source of the apprehensions of this so much dreaded anarchy would upon investigation be found to arise from the artful suggestions of designing men, and not from a rational probability grounded on the actual state of affairs. The least reflection is sufficient to detect the fallacy to show that there is no one circumstance to justify the prediction of such an event. On the contrary a short time will evince, to the utter dismay and confusion of the conspirators, that a perseverance in cramming down their scheme of power upon the freemen of this State [Pennsylvania] will inevitably produce an anarchy destructive of their darling domination, and may kindle a flame prejudicial to their safety. They should be cautious not to trespass too far on the forbearance of freemen when wresting their dearest concerns, but prudently retreat from the gathering storm.
The other specter that has been raised to terrify and alarm the people out of the exercise of their judgment on this great occasion, is the dread of our splitting into separate confederacies or republics, that might become rival powers and consequently liable to mutual wars from the usual motives of contention. This is an event still more improbable than the foregoing. It is a presumption unwarranted, either by the situation of affairs, or the sentiments of the people; no disposition leading to it exists; the advocates of the new constitution seem to view such a separation with horror, and its opponents are strenuously contending for a confederation that shall embrace all America under its comprehensive and salutary protection. This hobgoblin appears to have sprung from the deranged brain of Publius, [The Federalist] a New York writer, who, mistaking sound for argument, has with Herculean labor accumulated myriads of unmeaning sentences, and mechanically endeavored to force conviction by a torrent of misplaced words. He might have spared his readers the fatigue of wading through his long-winded disquisitions on the direful effects of the contentions of inimical states, as totally inapplicable to the subject he was professedly treating; this writer has devoted much time, and wasted more paper in combating chimeras of his own creation. However, for the sake of argument, I will admit that the necessary consequence of rejecting or delaying the establishment of the new constitution would be the dissolution of the union, and the institution of even rival and inimical republics; yet ought such an apprehension, if well founded, to drive us into the fangs of despotism? Infinitely preferable would be occasional wars to such an event. The former, although a severe scourge, is transient in its continuance, and in its operation partial, but a small proportion of the community are exposed to its greatest horrors, and yet fewer experience its greatest evils; the latter is permanent and universal misery, without remission or exemption. As passing clouds obscure for a time the splendor of the sun, so do wars interrupt the welfare of mankind; but despotism is a settled gloom that totally extinguishes happiness. Not a ray of comfort can penetrate to cheer the dejected mind; the goad of power with unabating rigor insists upon the utmost exaction; like a merciless taskmaster, [it] is continually inflicting the lash, and is never satiated with the feast of unfeeling domination, or the most abject servility.
The celebrated Lord Kaims, whose disquisitions of human nature evidence extraordinary strength of judgment and depth of investigation, says that a continual civil war, which is the most destructive and horrible scene of human discord, is preferable to the uniformity of wretchedness and misery attendant upon despotism; of all possible evils, as I observed in my first number, this is the worst and the most to be dreaded.
I congratulate my fellow citizens that a good government, the greatest earthly blessing, may be so easily obtained, that our circumstances are so favorable, that nothing but the folly of the conspirators can produce anarchy or civil war, which would presently terminate in their destruction and the permanent harmony of the state, alone interrupted by their ambitious machinations.
Antifederalist No. 15 RHODE ISLAND IS RIGHT!
This essay appeared in The Massachusetts Gazette, December 7, 1787, as reprinted From The Freeman’s Journal; (Or, The North-American Intelligencer?)
The abuse which has been thrown upon the state of Rhode Island seems to be greatly unmerited. Popular favor is variable, and those who are now despised and insulted may soon change situations with the present idols of the people. Rhode Island has out done even Pennsylvania in the glorious work of freeing the Negroes in this country, without which the patriotism of some states appears ridiculous. The General Assembly of the state of Rhode Island has prevented the further importation of Negroes, and have made a law by which all blacks born in that state after March, 1784, are absolutely and at once free.
They have fully complied with the recommendations of Congress in regard to the late treaty of peace with Great Britain, and have passed an act declaring it to be the law of the land. They have never refused their quota of taxes demanded by Congress, excepting the five per cent impost, which they considered as a dangerous tax, and for which at present there is perhaps no great necessity, as the western territory, of which a part has very lately been sold at a considerable price, may soon produce an immense revenue; and, in the interim, Congress may raise in the old manner the taxes which shall be found necessary for the support of the government.
The state of Rhode Island refused to send delegates to the Federal Convention, and the event has manifested that their refusal was a happy one as the new constitution, which the Convention has proposed to us, is an elective monarchy, which is proverbially the worst government. This new government would have been supported at a vast expense, by which our taxes-the right of which is solely vested in Congress, (a circumstance which manifests that the various states of the union will be merely corporations) — would be doubled or trebled. The liberty of the press is not stipulated for, and therefore may be invaded at pleasure. The supreme continental court is to have, almost in every case, “appellate jurisdiction, both as to law and fact,” which signifies, if there is any meaning in words, the setting aside the trial by jury. Congress will have the power of guaranteeing to every state a right to import Negroes for twenty one years, by which some of the states, who have now declined that iniquitous traffic, may re-enter into it-for the private laws of every state are to submit to the superior jurisdiction of Congress. A standing army is to be kept on foot, by which the vicious, the sycophantick, and the time- serving will be exalted, and the brave, the patriotic, and the virtuous will be depressed.
The writer, therefore, thinks it the part of wisdom to abide, like the state of Rhode Island, by the old articles of confederation, which, if re-examined with attention, we shall find worthy of great regard; that we should give high praise to the manly and public spirited sixteen members, who lately seceded from our house of Assembly [in Pennsylvania]; and that we should all impress with great care, this truth on our minds-That it is very easy to change a free government into an arbitrary one, but that it is very difficult to convert tyranny into freedom.
Antifederalist No. 17 FEDERALIST POWER WILL ULTIMATELY SUBVERT STATE AUTHORITY
The “necessary and proper” clause has, from the beginning, been a thorn in the side of those seeking to reduce federal power, but its attack by Brutus served to call attention to it, leaving a paper trail of intent verifying its purpose was not to give Congress anything the Constitution “forgot,” but rather to show two additional tests for any legislation Congress should attempt: to wit–that the intended actions would be both necessary AND proper to executing powers given under clauses 1-17 of Article I Section 8. This is the fameous BRUTUS.
This [new] government is to possess absolute and uncontrollable powers, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section eighth, article first, it is declared, that the Congress shall have power “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or office thereof.” And by the sixth article, it is declared, “that this Constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution or law of any State to the contrary notwithstanding.” It appears from these articles, that there is no need of any intervention of the State governments, between the Congress and the people, to execute any one power vested in the general government, and that the Constitution and laws of every State are nullified and declared void, so far as they are or shall be inconsistent with this Constitution, or the laws made in pursuance of it, or with treaties made under the authority of the United States. The government, then, so far as it extends, is a complete one, and not a confederation. It is as much one complete government as that of New York or Massachusetts; has as absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offenses, and annex penalties, with respect to every object to which it extends, as any other in the world. So far, therefore, as its powers reach, all ideas of confederation are given up and lost. It is true this government is limited to certain objects, or to speak more properly, some small degree of power is still left to the States; but a little attention to the powers vested in the general government, will convince every candid man, that if it is capable of being executed, all that is reserved for the individual States must very soon be annihilated, except so far as they are barely necessary to the organization of the general government. The powers of the general legislature extend to every case that is of the least importance-there is nothing valuable to human nature, nothing dear to freemen, but what is within its power. It has the authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the Constitution or laws of any State, in any way prevent or impede the full and complete execution of every power given. The legislative power is competent to lay taxes, duties, imposts, and excises;-there is no limitation to this power, unless it be said that the clause which directs the use to which those taxes and duties shall be applied, may be said to be a limitation. But this is no restriction of the power at all, for by this clause they are to be applied to pay the debts and provide for the common defense and general welfare of the United States; but the legislature have authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defense, and they only are to determine what is for the general welfare. This power, therefore, is neither more nor less than a power to lay and collect taxes, imposts, and excises, at their pleasure; not only the power to lay taxes unlimited as to the amount they may require, but it is perfect and absolute to raise;hem in any mode they please. No State legislature, or any power in the State governments, have any more to do in carrying this into effect than the authority of one State has to do with that of another. In the business, therefore, of laying and collecting taxes, the idea of confederation is totally lost, and that of one entire republic is embraced. It is proper here to remark, that the authority to lay and collect taxes is the most important of any power that can be granted; it connects with it almost all other powers, or at least will in process of time draw all others after it; it is the great mean of protection, security, and defense, in a good government, and the great engine of oppression and tyranny in a bad one. This cannot fail of being the case, if we consider the contracted limits which are set by this Constitution, to the State governments, on this article of raising money. No State can emit paper money, lay any duties or imposts, on imports, or exports, but by consent of the Congress; and then the net produce shall be for the benefit of the United States. The only means, therefore, left for any State to support its government and discharge its debts, is by direct taxation; and the United States have also power to lay and collect taxes, in any way they please. Everyone who has thought on the subject, must be convinced that but small sums of money can he collected in any country, by direct tax; when the federal government begins to exercise the right of taxation in all its parts, the legislatures of the several states will find it impossible to raise monies to support their governments. Without money they cannot be supported, and they must dwindle away, and, as before observed, their powers be absorbed in that of the general government.
It might be here shown, that the power in the federal legislature, to raise and support armies at pleasure, as well in peace as in war, and their control over the militia, tend not only to a consolidation of the government, but the destruction of liberty. I shall not, however, dwell upon these, as a few observations upon the judicial power of this government, in addition to the preceding, will fully evince the truth of the position.
The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress may, from time to time, ordain and establish. The powers of these courts are very extensive; their jurisdiction comprehends all civil causes, except such as arise between citizens of the same State; and it extends to all cases in law and equity arising under the Constitution. One inferior court must be established, I presume, in each State, at least, with the necessary executive officers appendant thereto. It is easy to see, that in the common course of things, these courts will eclipse the dignity, and take away from the respectability, of the State courts. These courts will be, in themselves, totally independent of the States, deriving their authority from the United States, and receiving from them fixed salaries; and in the course of human events it is to be expected that they will swallow up all the powers of the courts in the respective States.
How far the clause in the eighth section of the first article may operate to do away with all idea of confederated States, and to effect an entire consolidation of the whole into one general government, it is impossible to say. The powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing almost any law. A power to make all laws, which shall be necessary and proper, for carrying into execution all powers vested by the Constitution in the government of the United States, or any department or officer thereof, is a power very comprehensive and definite, and may, for aught I know, be exercised in such manner as entirely to abolish the State legislatures. Suppose the legislature of a State should pass a law to raise money to support their government and pay the State debt; may the Congress repeal this law, because it may prevent the collection of a tax which they may think proper and necessary to lay, to provide for the general welfare of the United States? For all laws made, in pursuance of this Constitution, are the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of the different States to the contrary notwithstanding. By such a law, the government of a particular State might be overturned at one stroke, and thereby be deprived of every means of its support.
It is not meant, by stating this case, to insinuate that the Constitution would warrant a law of this kind! Or unnecessarily to alarm the fears of the people, by suggesting that the Federal legislature would be more likely to pass the limits assigned them by the Constitution, than that of an individual State, further than they are less responsible to the people. But what is meant is, that the legislature of the United States are vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers; and are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the State governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual States, small as it is, will be a clog upon the wheels of the government of the United States; the latter, therefore, will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way. This disposition, which is implanted in human nature, will operate in the Federal legislature to lessen and ultimately to subvert the State authority, and having such advantages, will most certainly succeed, if the Federal government succeeds at all. It must be very evident, then, that what this Constitution wants of being a complete consolidation of the several parts of the union into one complete government, possessed of perfect legislative, judicial, and executive powers, to all intents and purposes, it will necessarily acquire in its exercise in operation.
Antifederalist No. 37 FACTIONS AND THE CONSTITUTION
By: Federal Farmer
…. To have a just idea of the government before us, and to show that a consolidated one is the object in view, it is necessary not only to examine the plan, but also its history, and the politics of its particular friends.
The confederation was formed when great confidence was placed in the voluntary exertions of individuals, and of the respective states; and the framers of it, to guard against usurpation, so limited, and checked the powers, that, in many respects, they are inadequate to the exigencies of the union. We find, therefore, members of congress urging alterations in the federal system almost as soon as it was adopted. It was early proposed to vest congress with powers to levy an impost, to regulate trade, etc., but such was known to be the caution of the states in parting with power, that the vestment even of these, was proposed to be under several checks and limitations. During the war, the general confusion, and the introduction of paper money, infused in the minds of the people vague ideas respecting government and credit. We expected too much from the return of peace, and of course we have been disappointed. Our governments have been new and unsettled; and several legislatures, by making tender, suspension, and paper money laws, have given just cause of uneasiness to creditors. By these and other causes, several orders of men in the community have been prepared, by degrees, for a change of government. And this very abuse of power in the legislatures, which in some cases has been charged upon the democratic part of the community, has furnished aristocratical men with those very weapons, and those very means, with which, in great measure, they are rapidly effecting their favorite object. And should an oppressive government be the consequence of the proposed change, posterity may reproach not only a few overbearing, unprincipled men, but those parties in the states which have misused their powers.
The conduct of several legislatures, touching paper money, and tender laws, has prepared many honest men for changes in government, which otherwise they would not have thought of-when by the evils, on the one hand, and by the secret instigations of artful men, on the other, the minds of men were become sufficiently uneasy, a bold step was taken, which is usually followed by a revolution, or a civil war. A general convention for mere commercial purposes was moved for-the authors of this measure saw that the people’s attention was turned solely to the amendment of the federal system; and that, had the idea of a total change been started, probably no state would have appointed members to the convention. The idea of destroying ultimately, the state government, and forming one consolidated system, could not have been admitted-a convention, therefore, merely for vesting in congress power to regulate trade was proposed. This was pleasing to the commercial towns; and the landed people had little or no concern about it. In September, 1786, a few men from the middle states met at Annapolis, and hastily proposed a convention to be held in May, 1787, for the purpose, generally, of amending the confederation. This was done before the delegates of Massachusetts, and of the other states arrived-still not a word was said about destroying the old constitution, and making a new one. The states still unsuspecting, and not aware that they were passing the Rubicon, appointed members to the new convention, for the sole and express purpose of revising and amending the confederation-and, probably, not one man in ten thousand in the United States, till within these ten or twelve days, had an idea that the old ship was to be destroyed, and be put to the alternative of embarking in the new ship presented, or of being left in danger of sinking. The States, I believe, universally supposed the convention would report alterations in the confederation, which would pass an examination in congress, and after being agreed to there, would be confirmed by all the legislatures, or be rejected. Virginia made a very respectable appointment, and placed at the head of it the first man in America. In this appointment there was a mixture of political characters; but Pennsylvania appointed principally those men who are esteemed aristocratical. Here the favorite moment for changing the government was evidently discerned by a few men, who seized it with address. Ten other states appointed, and tho’ they chose men principally connected with commerce and the judicial department yet they appointed many good republican characters. Had they all attended we should now see, I am persuaded, a better system presented. The nonattendance of eight or nine men, who were appointed members of the convention, I shall ever consider as a very unfortunate event to the United States. Had they attended, I am pretty clear that the result of the convention would not have had that strong tendency to aristocracy now discernible in every part of the plan. There would not have been so great an accumulation of powers, especially as to the internal police of this country in a few hands as the constitution reported proposes to vest in them-the young visionary men, and the consolidating aristocracy, would have been more restrained than they have been. Eleven states met in the convention, and after four months close attention presented the new constitution, to be adopted or rejected by the people. The uneasy and fickle part of the community may be prepared to receive any form of government; but I presume the enlightened and substantial part will give any constitution presented for their adoption a candid and thorough examination…. We shall view the convention with proper respect-and, at the same time, that we reflect there were men of abilities and integrity in it, we must recollect how disproportionately the democratic and aristocratic parts of the community were represented. Perhaps the judicious friends and opposers of the new constitution will agree, that it is best to let it rely solely on its own merits, or be condemned for its own defects….
This subject of consolidating the states is new. And because forty or fifty men have agreed in a system, to suppose the good sense of this country, an enlightened nation, must adopt it without examination, and though in a state of profound peace, without endeavoring to amend those parts they perceive are defective, dangerous to freedom, and destructive of the valuable principles of republican government -is truly humiliating. It is true there may be danger in delay; but there is danger in adopting the system in its present form.
And I see the danger in either case will arise principally from the conduct and views of two very unprincipled parties in the United States-two fires, between which the honest and substantial people have long found themselves situated. One party is composed of little insurgents, men in debt, who want no law, and who want a share of the property of others; these are called revellers, Shayites, etc. The other party is composed of a few, but more dangerous men, with their servile dependents; these avariciously grasp at all power and property; you may discover in all the actions of these men, an evident dislike to free and equal government, and they will go systematically to work to change, essentially, the forms of government in this country; these are called aristocrats, monarchists, etc. Between these two parties is the weight of the community; the men of middling property, men not in debt on the one hand, and men, on the other, content with republican governments, and not aiming at immense fortunes, offices, and power. In 1786, the little insurgents, the revellers, came forth, invaded the rights of others, and attempted to establish governments according to their wills. Their movements evidently gave encouragement to the other party, which, in 1787, has taken the political field, and with its fashionable dependents, and the tongue and the pen, is endeavoring to establish in a great haste, a politer kind of government. These two parties, which will probably be opposed or united as it may suit their interests and views, are really insignificant, compared with the solid, free, and independent part of the community. It is not my intention to suggest, that either of these parties, and the real friends of the proposed constitution, are the same men. The fact is, these aristocrats support and hasten the adoption of the proposed constitution, merely because they think it is a stepping stone to their favorite object. I think I am well founded in this idea. I think the general politics of these men support it, as well as the common observation among them: That the proffered plan is the best that can be got at present, it will do for a few years, and lead to something better. The sensible and judicious part of the community will carefully weigh all these circumstances; they will view the late convention as a respectable body of men-America probably never will see an assembly of men, of a like number, more respectable. But the members of the convention met without knowing the sentiments of one man in ten thousand in these states respecting the new ground taken. Their doings are but the first attempts in the most important scene ever opened. Though each individual in the state conventions will not, probably, be so respectable as each individual in the federal convention, yet as the state conventions will probably consist of fifteen hundred or two thousand men of abilities, and versed in the science of government, collected from all parts of the community and from all orders of men, it must be acknowledged that the weight of respectability will be in them. In them will be collected the solid sense and the real political character of the country. Being revisers of the subject, they will possess peculiar advantages. To say that these conventions ought not to attempt, coolly and deliberately, the revision of the system, or that they cannot amend it, is very foolish or very assuming….
Antifederalist No. 40 ON THE MOTIVATIONS AND AUTHORITY OF THE FOUNDING FATHERS
(Anti-Federalist #40 is a compilation of short articles.)
Make the best of this new government-say it is composed of any thing but inspiration-you ought to be extremely cautious, watchful, jealous of your liberty; for, instead of securing your rights, you may lose them forever. If a wrong step be now made, the republic may be lost forever. If this new government will not come up to the expectation of the people, and they shall be disappointed, their liberty will be lost, and tyranny must and will arise. I repeat it again, and I beg gentlemen to consider, that a wrong step, made now, will plunge us into misery, and our republic will be lost. It will be necessary for this [Virginia Ratifying] Convention to have a faithful historical detail of the facts that preceded the session of the federal Convention, and the reasons that actuated its members in proposing an entire alteration of government, and to demonstrate the dangers that awaited us. If they were of such awful magnitude as to warrant a proposal so extremely perilous as this, I must assert, that this Convention has an absolute right to a thorough discovery of every circumstance relative to this great event. And here I would make this inquiry of those worthy characters who composed a part of the late federal Convention. I am sure they were fully impressed with the necessity of forming a great consolidated government, instead of a confederation. That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen; but, sir, give me leave to demand: What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask: Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states. I have the highest respect for those gentlemen who formed the Convention, and, were some of them not here, I would express some testimonial of esteem for them. America had, on a former occasion, put the utmost confidence in them-a confidence which was well placed; and I am sure, sir, I would give up any thing to them; I would cheerfully confide in them as my representatives. But, sir, on this great occasion, I would demand the cause of their conduct. Even from that illustrious man who saved us by his valor, I would have a reason for his conduct…. That they exceeded their power is perfectly clear…. The federal Convention ought to have amended the old system; for this purpose they were solely delegated; the object of their mission extended to no other consideration. You must, therefore, forgive the solicitation of one unworthy member to know what danger could have arisen under the present Confederation, and what are the causes of this proposal to change our government.
What then are we to think of the motives and designs of those men who are urging the implicit and immediate adoption of the proposed government; are they fearful, that if you exercise your good sense and discernment, you will discover the masqued aristocracy, that they are attempting to smuggle upon you under the suspicious garb of republicanism? When we find that the principal agents in this business are the very men who fabricated the form of government, it certainly ought to be conclusive evidence of their invidious design to deprive us of our liberties. The circumstances attending this matter, are such as should in a peculiar manner excite your suspicion; it might not be useless to take a review of some of them. In many of the states, particularly in this [Pennsylvania] and the northern states, there are aristocratic juntos of the well-horn few, who have been zealously endeavoring since the establishment of their constitutions, to humble that offensive upstart, equal liberty; but all their efforts were unavailing, the ill-bred churl obstinately kept his assumed station…. A comparison of the authority under which the convention acted, and their form of government, will show that they have despised their delegated power, and assumed sovereignty; that they have entirely annihilated the old confederation, and the particular governments of the several States, and instead thereof have established one general government that is to pervade the union; constituted on the most unequal principles, destitute of accountability to its constituents, and as despotic in its nature, as the Venetian aristocracy; a government that will give full scope to the magnificent designs of the well-horn, a government where tyranny may glut its vengeance on the low-born, unchecked by an odious bill of rights…; and yet as a blind upon the understandings of the people, they have continued the forms of the particular governments, and termed the whole a confederation of the United States, pursuant to the sentiments of that profound, but corrupt politician Machiavel, who advises any one who would change the constitution of a state to keep as much as possible to the old forms; for then the people seeing the same officers, the same formalities, courts of justice and other outward appearances, are insensible of the alteration, and believe themselves in possession of their old government. Thus Caesar, when he seized the Roman liberties, caused himself to be chosen dictator (which was an ancient office), continued the senate, the consuls, the tribunes, the censors, and all other offices and forms of the commonwealth; and yet changed Rome from the most free, to the most tyrannical government in the world…. The late convention, in the majesty of its assumed omnipotence, have not even condescended to submit the plan of the new government to the confederation of the people, the true source of authority; but have called upon them by their several constitutions, to ‘assent to and ratify’ in toto, what they have been pleased to decree; just as the grand monarch of France requires the parliament of Paris to register his edicts without revision or alteration, which is necessary previous to their execution….
If you are in doubt about the nature and principles of the proposed government, view the conduct of its authors and patrons: that affords the best explanation, the most striking comment.
The evil genius of darkness presided at its birth, it came forth under the veil of mystery, its true features being carefully concealed, and every deceptive art has been and is practicing to have this spurious brat received as the genuine offspring of heaven-born liberty. So fearful are its patrons that you should discern the imposition, that they have hurried on its adoption, with the greatest precipitation…
After so recent a triumph over British despots, after such torrents of blood and treasure have been spent, after involving ourselves in the distresses of an arduous war, and incurring such a debt for the express purpose of asserting the rights of humanity; it is truly astonishing that a set of men among ourselves should have the effrontery to attempt the destruction of our liberties. But in this enlightened age to hope to dupe the people by the arts they are practicing is still more extraordinary… The advocates of this plan have artfully attempted to veil over the true nature and principles of it with the names of those respectable characters that by consummate cunning and address they have prevailed upon to sign it; and what ought to convince the people of the deception and excite their apprehensions, is that with every advantage which education, the science of government and of law, the knowledge of history and superior talents and endowments, furnish the authors and advocates of this plan with, they have from its publication exerted all their power and influence to prevent all discussion of the subject, and when this could not be prevented they have constantly avoided the ground of argument and recurred to declamation, sophistry and personal abuse, but principally relied upon the magic of names…. Emboldened by the sanction of the august name of a Washington, that they have prostituted to their purpose, they have presumed to overleap the usual gradations to absolute power, and have attempted to seize at once upon the supremacy of dominion.
… Another thing they tell us, that the constitution must be good, from the characters which composed the Convention that framed it. It is graced with the names of a Washington and a Franklin. Illustrious names, we know-worthy characters in civil society. Yet we cannot suppose them to be infallible guides; neither yet that a man must necessarily incur guilt to himself merely by dissenting from them in opinion. We cannot think the noble general has the same ideas with ourselves, with regard to the rules of right and wrong. We cannot think he acts a very consistent part, or did through the whole of the contest with Great Britain. Notwithstanding he wielded the sword in defense of American liberty, yet at the same time was, and is to this day, living upon the labors of several hundreds of miserable Africans, as free born as himself; and some of them very likely, descended from parents who, in point of property and dignity in their own country, might cope with any man in America. We do not conceive we are to be overborne by the weight of any names, however revered. “ALL MEN ARE BORN FREE AND EQUAL”……
THE YEOMANRY OF MASSACHUSETTS
Antifederalist No. 84 ON THE LACK OF A BILL OF RIGHTS
When a building is to be erected which is intended to stand for ages, the foundation should be firmly laid. The Constitution proposed to your acceptance is designed, not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made. But on this subject there is almost an entire silence.
If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self-evident, that all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows. The origin of society, then, is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate. The mutual wants of men at first dictated the propriety of forming societies: and when they were established, protection and defense pointed out the necessity of instituting government. In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest, therefore, directed that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend every one who composed it. The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order that what remained should be preserved. How great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not inquire. So much, however, must be given, as will be sufficient to enable those to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned in order to attain the end for which government is instituted; these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming a government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential rights as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression and violence, on the other, that men came together, and agreed that certain rules should be formed to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested, for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.
This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience. Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their magna charta and bill of rights have long been the boast, as well as the security of that nation. I need say no more, I presume, to an American, than that this principle is a fundamental one, in all the Constitutions of our own States; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pulse of liberty beat high, and when an appeal was made to the people to form Constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is, therefore, the more astonishing, that this grand security to the rights of the people is not to be found in this Constitution.
It has been said, in answer to this objection, that such declarations of rights, however requisite they might be in the Constitutions of the States, are not necessary in the general Constitution, because, “in the former case, every thing which is not reserved is given; but in the latter, the reverse of the proposition prevails, and every thing which is not given is reserved.” It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers, rights and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any State government-it reaches to every thing which concerns human happiness-life, liberty, and property are under its control. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the State governments. To set this matter in a clear light, permit me to instance some of the articles of the bills of rights of the individual States, and apply them to the case in question.
For the security of life, in criminal prosecutions, the bills of rights of most of the States have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself-the witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel. That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that of a particular State? The powers vested in the new Congress extend in many cases to life; they are authorized to provide for the punishment of a variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be in the State where the said crimes shall have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New York, or carried from Kentucky to Richmond for trial for an offense supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to face, or that he shall be fully heard in his own defense by himself or counsel?
For the security of liberty it has been declared, “that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. That all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.”
These provisions are as necessary under the general government as under that of the individual States; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as the other.
For the purpose of securing the property of the citizens, it is declared by all the States, “that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”
Does not the same necessity exist of reserving this right under their national compact, as in that of the States? Yet nothing is said respecting it. In the bills of rights of the States it is declared, that a well regulated militia is the proper and natural defense of a free government; that as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controlled by, the civil power.
The same security is as necessary in this Constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no control in the exercise of it; yet nothing of this is to be found in this new system.
I might proceed to instance a number of other rights, which were as necessary to be reserved, such as, that elections should be free, that the liberty of the press should be held sacred; but the instances adduced are sufficient to prove that this argument is without foundation. Besides, it is evident that the reason here assigned was not the true one, why the framers of this Constitution omitted a bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance. We find they have, in the ninth section of the first article declared, that the writ of habeas corpus shall not be suspended, unless in cases of rebellion,-that no bill of attainder, or ex post facto law, shall be passed,-that no title of nobility shall be granted by the United States, etc. If every thing which is not given is reserved, what propriety is there in these exceptions? Does this Constitution any where grant the power of suspending the habeas corpus, to make ex post facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers which the bills of rights guard against the abuse of, are contained or implied in the general ones granted by this Constitution.
So far is it from being true, that a bill of rights is less necessary in the general Constitution than in those of the States, the contrary is evidently the fact. This system, if it is possible for the people of America to accede to it, will be an original compact; and being the last wilt, in the nature of things, vacate every former agreement inconsistent with it. For it being a plan of government received and ratified by the whole people, all other forms which are in existence at the time of its adoption, must yield to it. This is expressed in positive and unequivocal terms in the sixth article: “That this Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the Constitution, or laws of any State, to the contrary notwithstanding.”
“The senators and representatives before-mentioned, and the members of the several State legislatures, and all executive and judicial officers, both of the United States, and of the several States, shall be bound, by oath or affirmation, to support this Constitution.”
It is therefore not only necessarily implied thereby, but positively expressed, that the different State Constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States. Of what avail will the Constitutions of the respective States be to preserve the rights of its citizens? Should they be pled, the answer would be, the Constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the General or State governments, are bound by oath to support it. No privilege, reserved by the bills of rights, or secured by the State governments, can limit the power granted by this, or restrain any laws made in pursuance of it. It stands, therefore, on its own bottom, and must receive a construction by itself, without any reference to any other. And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made.
This will appear the more necessary, when it is considered, that not only the Constitution and laws made in pursuance thereof, but alt treaties made, under the authority of the United States, are the supreme law of the land, and supersede the Constitutions of all the States. The power to make treaties, is vested in the president, by and with the advice and consent of two-thirds of the senate. I do not find any limitation or restriction to the exercise of this power. The most important article in any Constitution may therefore be repealed, even without a legislative act. Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought.
So clear a point is this, that I cannot help suspecting that persons who attempt to persuade people that such reservations were less necessary under this Constitution than under those of the States, are wilfully endeavoring to deceive, and to lead you into an absolute state of vassalage.
The Bill of Rights does more than express commonplace “early libertarian” values since Federalists also favored all (or most) of these principles, but the Anti-Federalists made the most out of the issue of a need for such a comprehensive statement.
A Radical Centrist Vision for the Future > Appendix > H. Why We Need Bills of Rights for the 21st Century (next)