<Debate and Ratification

Timeline of the Essential Antifederalists

Cato I – September 27, 1787

Finally, the Convention has delivered a “new national government.” Cato urges his audience to “deliberate” with “caution and prudence.”  If you are “negligent or inattentive, the ambitious and despotic will entrap you in their toils and bind you with a cord of power from which you, and your posterity, may never be freed.” True, the new form of government has “the recommendations of a man who merits the confidence of the public.” Nevertheless, “every man ought to think for himself.” 

Centinel I – October 5, 1787

There is a difference of opinion with respect to what to call the opponents of the Constitution. The Federalist Papers referred to them as the antifederalists, degrading them to a position of irrelevance and incoherence. Some modern scholars, by contrast, capitalize their name but then hyphenate it, making them Anti-federalists—relevant, but incoherent. We have chosen the nomenclature “Antifederalist” in order to encourage the reader to see their remarks as both relevant and coherent.
This essay of “Centinel” offered one of the earliest public Antifederalist critiques of the Constitutional framers’ work as the ratification process began. He opens his remarks, addressed to the Freemen of Pennsylvania, with a reminder and a question: the essential liberties of the people are secured in the Pennsylvania Bill of Rights; are they secure under the proposed Constitution? He suggests that “all the blessings of liberty and the dearest privileges of freemen are now at stake and dependent on your present conduct.”

Beware, he adds, the work of “artful and designing men.” Unfortunately, Centinel contends, the Convention was inspired by John Adams’s political thought on “good government,” which presumed a balancing of the three functions of government—legislative, executive, and judicial—in three branches. According to Centinel, this means that the Constitution does not rely on the virtue of the people; it simply balances the powers of those governing them. “A republican, or free government, can only exist where the body of the people are virtuous, and where property is pretty equally divided,” Centinel maintains. Furthermore, the plan encourages the exercise of extensive powers by the general government—see the general welfare clause and the supremacy clause—over an extensive territory, which is a recipe not “for a regular balanced government” but for “a permanent ARISTOCRACY.”

Centinel concludes that 1) the new Constitution does not include a bill of rights to ward off future crises and 2) no such crisis exists compelling adoption of the Constitution right away. That we are in crisis “is the argument of tyrants.” We need to follow the wisdom of the French political theorist Montesquieu (whose Spirit of the Laws was widely read among the Framers) concerning the size and homogeneity of republics; if they were to remain free, they need to be small, and their citizens had to have common interests.

The “Centinel” series comprised 24 separate essays, published in the Philadelphia Independent Gazetteer and the Philadelphia Freeman’s Journal, the last appearing November 4, 1788. This first Centinel essay was republished in several other newspapers.

Federal Farmer I – October 8, 1787

Within three weeks of the signing of the Constitution, the Federal Farmer is concerned that the proposed Constitution is the “first important step” toward “one consolidated government.” Thus “The first principal question that occurs, is, Whether, considering our situation, we ought to precipitate the adoption of the proposed constitution?”  True, things could be better at the state and continental level, and “yes” we should move to reform the federal system in a cool and deliberate manner.  But the notion that we are in an irreversible crisis is the invention of designing men intent on producing “one consolidated system.”  In other words, “the plan proposed appears to be partly federal, but principally however, calculated ultimately to make the states one consolidated government.”  What we need is a middle ground or a “partial consolidation.”

Federal Farmer IV – October 12, 1787

The Antifederalist Federal Farmer, without mentioning James Wilson by name (State House Speech), criticized the claim of his State House speech that a bill of rights is unnecessary and dangerous. The Federal Farmer argued that the provisions of Article I, Sections 9 and 10 of the Constitution (Appendix D) were a partial bill of rights—see the restriction on ex post facto laws—so why not either drop such protection for rights or go the whole distance and itemize a bill of rights that incudes “other essential rights”?

The Federal Farmer was concerned that the Constitution contained within itself the potentiality to become a consolidated government despite Wilson’s argument that the Constitution only bestowed powers that were clearly enumerated. If the latter were the case, then Wilson would be arguing that the framers of the Constitution created a confederacy with expressly delegated powers. How strange would that be, since the point of the Constitutional Convention was to provide remedies for the defects of just such a form of government. The Federal Farmer thought the framers created a government and not simply a revision of a confederation. Thus, the government needed a comprehensive bill of rights, since the Constitution contained the seeds of a general government operating with unlimited powers.

Brutus I – October 18, 1787

“Brutus,” a New York Antifederalist, or opponent of the proposed Constitution (generally assumed to have been Robert Yates, a New York delegate to the Constitutional Convention), anticipated by two weeks the opening paragraph of Federalist 1, also addressed to the people of New York. As would “Publius” — author of The Federalist, a collection of newspaper essays published in New York City defending the Constitution — he introduced his own first essay with the observation that “the most important question that was ever proposed to your decision, or to the decision of any people under heaven, is before you.” Nothing less than “the dignity of human nature” and the blessings of liberty are at stake. Brutus then argues that “although the government reported by the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.” The necessary and proper clause, the supremacy clause, and the judicial power have the potentiality to transform America from a system of confederated states into a “complete consolidated government.” Anticipating the distinction between a democracy and a republic in Federalist 10 and 63, and agreeing that a representative government is to be preferred to a pure democracy, Brutus then argued that, contrary to the wisdom of the French political theorist Montesquieu (whose Spirit of the Laws was widely read among the Framers) and contrary to the experience of history, the Framers have given us “an extensive republic” rather than a confederation of small republics. A “free republic” over “such vast extent” of territory is impracticable because, in time, the people will become “acquainted with very few of their rulers” and lose “confidence” in, and control over, the government.

Brutus voiced a concern shared by many Americans: Could a widely dispersed and diverse people be united under one government without sacrificing the blessings of liberty and self-government? Brutus’ powerful arguments prompted Federalists to articulate a more thorough explanation of what the Constitution meant and why it should be ratified.

Old Whig IV – October 27, 1787

An Old Whig, a prominent Pennsylvania Antifederalist whose identity is unknown, contended that the Constitution contains the potential to produce a consolidated government ruling over one large territory. Reflecting received opinion, he argued that such a government, would not remain republican. The only hope for republican government was to form a confederacy of the states. (It was this view that James Madison contended against in the Constitutional Convention, the Virginia Ratifying Convention, and Federalist 10. He offered an alternative “science of politics,” accepting faction, which the republican tradition had deplored, as essential to preserving liberty in an extended republic.) The Old Whig also argued that given the power of the proposed government, a bill of rights was essential. He buttressed his case by appealing to the precedents in English history for such explicit guarantees of rights. In addition to appealing to the British tradition of due process, he also appealed to the new American claim to “natural liberty.” During the campaign over adoption of the Constitution, the appeal to “natural liberty” had a greater impact on the electorate than an appeal to the British tradition. It certainly had a greater impact on Madison in the First Congress.

Old Whig V – November 1, 1787

What every government needs is a Bill of Rights to restrain the excesses of the leaders, even if we the people elect them.  And first among these rights to be protected are the rights of conscience.  Turning to the form of government:  the new plan leaves the rights of the people vulnerable to the will of the President.  Under the proposed Constitution, the President can easily become a monarch. What will restrain the development of a standing army under his command?  

Brutus II – November 1, 1787

In the second of sixteen essays that he published in the New York Journal, the prominent New York Antifederalist, Brutus (thought by some to be Melancton Smith, an experienced New York politician) concurred with the arguments of George Mason and Richard Henry Lee (Objections at the Constitutional Convention and Letter to Edmund Randolph). There was no doubt in their minds that the new plan of government had the potential to concentrate power in the hands of the few. There was also a remarkable uniformity in the specific individual rights they thought needed protection: rights of conscience, freedom of the press, freedom of association, no unreasonable searches and seizures, trial by jury in civil cases, and no cruel and unusual punishment.

In his second essay, Brutus revisited “the merits” of the argument in his first essay, Brutus I, “that to reduce the thirteen states into one government, would prove the destruction of your liberties.” Again anticipating The Federalist, Brutus argued, “when a building is to be erected which is intended to stand for ages, the foundation should be firmly laid.” But the foundation of the Constitution was poorly laid, he thought, because it lacked a declaration of rights “expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with.” He rejected as “specious” the arguments of an unnamed framer’s State House speech (James Wilson) as to why a bill of rights is unnecessary: after all, “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.” Furthermore, Brutus asked, why did the framers secure certain rights in Article I, Section 9, “but omitted others of more importance”? This is similar to the appeal to “natural liberty” by Old Whig. What was emerging in this Antifederalist literature was a coherent case for a bill of rights to constrain a potentially runaway national government that would concentrate all power in a district ten miles square.

Brutus III – November 15, 1787

True, a perfect form of government is not to be expected.  But the main pillars of a free government should at least rest on a solid foundation. Take, for example, the House and Senate.  Neither are based on a proper understanding of representation, namely, that representatives should “resemble,” or “be like” the people in sentiments and interests. 1 representative for 30,000 in the first branch means that the “well born” few and not the yeoman and mechanic will be represented or be a representative.  And the three fifths clause compounds the problem of securing a scheme of representation for a free people.  And things will get worse over time.  Surprisingly, given that a core feature of Antifederalism is based in the equal representation for each state, Brutus is critical of the one state-two representatives formula in the Senate. It violates the principle of popular representation. The representation of the people under the proposed Constitution then “is merely nominal—a mere burlesque; and that no security is provided against corruption and undue influence. No free people on earth, who have elected persons to legislate for them, ever reposed that confidence in so small a number” of representatives.  

Cato V – November 22, 1787

Cato reminds his readers that in Cato IV, he was concerned that the language of Article II of the proposed Constitution—the executive article—“was vague and inexplicit, that the great powers of the President, connected with his duration in office would lead to oppression and ruin.”  In Cato V, he remarks that “inexplicitness seems to pervade the whole political fabric.”  It relies on 1) “a general presumption that rulers will govern well,” and 2) a belief that an American cannot be a tyrant.  He turns to Article I, the legislative article, and invokes the Whig tests of free government 1) where annual elections end tyranny begins, 2) there be an adequate number of representatives to re-present the inclinations of the people. But all this and more has been “ably and fully treated by a writer under the signature of Brutus.” 

Brutus IV – November 29, 1787

Brutus divides the choice of governments into free and tyrannical.  The former aims to secure the public good and operates with the confidence of the people.  The latter aims at the good of the one or the few and relies on the use of force.  “The great art, therefore, in framing a good constitution” is to create a Constitution so that “those to whom power is committed shall be subject to the same feelings and aim at the same objects as the people do, who transfer power to them.”  The proposed plan does not secure full and fair representation (see also Brutus III).  It does not “restrain the conduct” of artful and corrupt rulers who use their “discretion” to secure their own interests at the expense of the people.  Brutus is also concerned that Article 1, Section 4 gives Congress the power to modify and regulate elections so that the members of Congress control the people rather than the people control those whom they elected.  And Congress can always call out the militia to enforce obedience to their will.

Brutus V – December 13, 1787

Brutus continues his inquiry as to whether the Constitution endorses a move from a federal to a consolidated system.  To this end, he examines “the nature and extent of the powers granted to the legislature.”  He gives particular attention to 1) the Preamble of the Constitution, especially the general welfare component; 2) Article I Section 8, especially a) the power of taxation clause and b) the necessary and proper clause. And 3) Article VI, with a focus on the supremacy clause.  Conclusion: the American people are really being asked to ratify a consolidated government rather than a reformed federal arrangement. The state legislatures are not guaranteed “the power to conduct certain internal concerns.” In fact, they face annihilation. We need a bill of rights and a “a larger number of representatives in. the Congress.”

Agrippa VII – December 18, 1787

Agrippa argues in favor of free continental commerce over against the argument that we need a public policy that regulates and restrains local trade in the general interest. “It is vain to tell us that we ought to overlook local interests.”  An attention to local interests helps achieve the objective that free government “depends on the equality of its operation, as far as human affairs will admit, upon all parts of the empire, and upon all the citizens.  Some inequalities indeed will necessarily take place.”  But “unequal operation” is envisioned in the power of taxation by the proposed plan in Article I, Section 8.  

The Dissent of the Minority of the Convention of Pennsylvania – December 18, 1787

Going into the Pennsylvania Ratifying Convention, the expectation was that forty-six delegates would vote in favor and twenty-three against adoption of the proposed Constitution. Indeed, Pennsylvania voted to ratify the Constitution, 46–23. The report issued by the twenty-three Pennsylvania opponents—the Pennsylvania Minority—had no impact on the outcome in Pennsylvania, but it did have a considerable impact on the subsequent campaign over ratification. The report proposed two alterations. On the one hand, the Pennsylvania Minority called for amendments that would re-establish the principles of the Articles of Confederation. These were what James Madison would later argue to be unfriendly to the Constitution (The Virginia Ratifying ConventionJames Madison to Thomas Jefferson and Representative Madison Argues for a Bill of Rights). On the other hand, the Pennsylvania Minority proposed that a declaration of rights be annexed to the Constitution. What became the first, fourth, fifth, sixth, seventh, and eighth amendments to the Constitution were addressed in their list. This distinction between unfriendly structural amendments on the one hand and a friendly bill of rights on the other became critical in the Virginia and New York Ratifying Conventions as well as in the First Congress (The New York Ratifying Convention).

Most notably, the right of conscience led the list of rights to be preserved. Both sides in the debate agreed on the primacy of the right to conscience. Concerning the seventh—the right to bear arms—eight out of the thirteen original states included a right to bear arms for self-defense and service in the militia. James Madison raised this connection in the First Congress (Representative Madison Argues for a Bill of Rights). What is fascinating and unique about the Pennsylvania Bill of Rights (The Pennsylvania Declaration of Rights and Constitution), and confirmed in this report, is the claim that the people have the right to bear arms for the purpose of “killing game,” a right to bear arms not directly connected to the militia.

Brutus IX – January 17, 1788

Brutus begins this essay with the following premise: “The design of civil government is to
protect the rights and promote the happiness of the people.” He claims that the new
Constitution, in the end, fails this test because it omits to state that there shall be no “standing
armies in times of peace.” One advocate of the new Constitution considers Brutus’s concern to
be “ridiculous.” Another writer “who is the boast of the advocates of this new constitution, has
taken great pains to show, that this power was proper and necessary to be vested in the
general government.” [This writer is Publius, Federalist 24]

Brutus XI – January 31, 1788

“The nature and extent of the judicial power…claims our particular attention” in this essay.  He is particularly concerned that the judiciary will be “totally independent” and that “no errors they may commit to can be corrected by any power above them.” He focuses on the language of Article III concerning the extent of the judicial power. Or what we today would call the power of judicial review.  Brutus claims that Article III “vests the judicial with a power to resolve all questions that may arise on any case on the construction of the constitution, either in law or equity.” What particularly concerns Brutus is the latitude that given be given to the word “equity.”  And “from this court there is no appeal.  But the judiciary is not only the supreme branch within the general government; it will also “mold” the Constitution in favor of the general government over the state governments.

Brutus XVI – April 10, 1788

Brutus begins with a question: what sorts of checks and balances are there in the proposed Constitution to curtail judicial abuse of their power?  They are given the power to decide all cases that arise under the Constitution?  What if their decision is wrong?  The plan seems to rely on the doctrine of the separation of powers.  But that is ineffective if there is an inappropriate mixture of powers between the branches and if the Judiciary becomes the supreme branch. The plan ultimately relies on the power of the Congress to remove the justices from office. It places the power to impeach in the House and to convict in the Senate.  But this invites his prior concerns about the 1) absence of full and equal representation in Congress and 2) the long terms in office in the Senate without the guarantee of rotation. “Men long in office are very apt to feel themselves “independent” of the people. Yet “it is improper that the judicial should be elective.” So what is the remedy for judicial abuse?  We need a supreme power by means of which the Supreme Court “ought to be called to account.”  And that “superior power” power must “ultimately rest in the people themselves.”