Constitutional scholars, federal justices, and lawyers who try cases in federal courts and the Supreme Court often go to the Declaration of Independence and the Federalist papers and other historic documents to get to the original intent of our constitution. Although my education on American history was woefully lacking, I was, at least, aware the something called the Federalist Papers existed. It was decades later when I actually read any of the Federalist Papers and then only about ten of the eighty-five or more papers. It was only recently that I decided it might be educational to find out what those opposed to the ratification of our constitution had to say. I have now read about ten of Anti-Federalist Papers.
The Articles of Confederation signed in 1781 is considered our first constitution. Although written by essentially the same group of Founders, their first attempt at forming a federal government for the United States was a total disaster. The thirteen states were so intent on maintaining their power and sovereignty that they created a Federal government that was toothless. Article II stated:
Each state retains its sovereignty, freedom, and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.
Under the Articles of Confederation, there was no Executive branch, there was no judicial branch, there was no one designated as head of state to negotiate treaties or commerce with other nations,there was no taxing authority, and the federal government had no control over interstate commerce or in the coinage of a national currency and each state was, therefore, setting tariffs to protect their own industries and creating their own currencies. The Federal government was a joke and that was how it was perceived by other nations.
There were during the years after the ratification of the Articles of Confederation a few attempts to fix parts of it; but they went nowhere. Finally in May of 1787 twelve states, Rhode Island was the exception, sent delegates to Philadelphia to amend the Articles of Confederation such that the federal government could truly function. However, after about four weeks, the majority of the delegates voted to throw out the Articles of Confederation and start over on a new constitution. Some delegate were very unhappy over this turn of events and the New York delegates walked out temporarily.
Working behind closed doors the delegates worked and debated in secrecy until the final document of seven articles on four pages was completed on September 17, 1787. Copies printed so as each state could then hold ratifying conventions and that is when the “fun” began. The destiny of our constitution was fought until March 4, 1989. Supporters of ratification published papers explaining and defending the new constitution. All of these 85 papers were signed Plubius. But, consensus today atributes 52 to Alexander Hamilton, 28 to James Madison, and five to John Jay. Collectively they have become known as the Federalist Papers. Those that opposed ratification of the constitution as it was written also published their arguments against ratification. Most were written under pseudonyms, such as, Centinel and Brutus and Federal Farmer and Cato. Some, however were signed with the authors proper name. These letters became collectively known as the Anti-Federalist Papers.
In the course of ny research for this post, I found several references to the Anti-Federalst as the “old patriots” (those that had been loyal to the crown and did not support the Revolution) and the Federalist were refered to as the “new patriots who had supported the Revolution. I think that is an over statement because as you will see Patrick Henry was an Anti-Federalist and argued against ratification of the constitution as written.
If you click on the link above to the Anti-Federalist Papers, you will find an index to 85 papers. Scroll through it and look at the titles and you will the gamut of concerns the Anti-Federalist had.
The fear that an American aristocracy would take over our new government was common to many of the Anti-Federalist. Massachusetts, for example, was appalled that Senators would be elected to serve six-year terms and could possibly serve for a life time. The Federalist argued that they had addressed that concern because Senators were to be appointed by the state legislature and they could remove an appointee at will. Sadly, the states lost that power with the 17th Amendment in 1013.
Patrick Henry gave a total of 24 speeches before the Virginia ratification convention. If you have time, you may want to read Henry’s Speech No. 1. Patrick Henry was very much a states rights man. He objected to the words “We the People” and would have prefered “We the States”.
I was impressed that in several of the A-F papers I read the authors were concerned about the “Commerce Clause” and thee “General Welfare Clause” would be used to expand the powers of the federal government. The Federalist, of course, were quick to point to the “Enumerated Powers” as the restraint against the federal government.We all know how that worked out, don’t we?. I doubt we could find a conservative today that doesn’t wish the founders had been more specific with those two clauses.
There was another concern that came up often in the papers I read. It was a reference to the well known political philosopher Montesquieu who believed that republics could only function in relatively small geographical areas with relatively small populations. The reason being that otherwise the connection between the people and their representatives would be lost. The Federalist argued that this had been addressed through the proportional representation in the House of Representatives. The constitution allowed that the number of Representatives shall not exceed one for every thirty thousand. Congress regularly increased the size of the House to account for population growth until it fixed the number of voting House members at 435 in 1911. Today with a population of 330 million a House member represents on average about 759,000 people. Maybe the Anti-Federalist had a point.
In the end the Anti-Federalist lost, which explains why so few Americans are even aware that there were arguments against ratifying the constitution as it was written. But, even my cursory review of their concerns makes me think that they were quite prescient.
Well, that’s what I’m thinking. What are your thoughts?
Original Post: Conservatives on Fire