The debates over ratification of the Constitution represent the most important and intellectually sophisticated
public debates in American history. On the one side, the supporters of the Constitution, or "Federalists,"
argued that the nation desperately needed a stronger national government to bring order, stability and unity to
its efforts to find its way in an increasingly complicated world. Opponents of the Constitution, or
"Antifederalists," countered that the the governments of the states were strong enough to realize the
objectives of each state. Any government that diminished the power of the states, as the new Constitution
surely promised to do, would also diminish the ability of each state to meet the needs of its citizens. More
dramatically, the Antifederalists argued that the new national government, far removed from the people, would
be all to quick to compromise their rights and liberties in the name of establishing order and unity.
A handful of men on each side of the debate became the central figures in an extensive public discussion
about the proposed Constitution, publishing a series of widely-published and carefully read articles explaining
their positions. James Madison, Alexander Hamilton and John Jay, writing under the pseudonym Publius,
wrote dozens of articles supporting the Constitution which are now collectively referred to as The Federalist Papers. Articles written in response by George Mason, Elbridge Gerry and Patrick Henry are, appropriately,
known as the Antifederalist Papers. While these writings are the best known and most widely read today,
there were hundreds, even thousands of others who joined in the debates through public argument or
speech-making and by writing articles, letters and pamphlets.
The arguments in favor of the Constitution are well known. The supporters of ratification were troubled by the
lack of energy and authority in the national government under the Articles of Confederation. They saw a
stronger national government as the answer to a host of persistent problems--the lack of a common currency,
constant trade disputes between the states, lack of unity in trade and defense policies being only the most
notable of them.
The features of the Constitution, the Federalists argued, would provide sufficient energy in the national
government to address these problems while preserving a large degree of independence in the states and
protecting the rights and liberties of the people.
Because they lost the battle over ratification of the Constitution, very little attention is paid to the
Antifederalists. Their reasons for opposing ratification, however, deserve our attention. The Antifederalists
became, along with the Federalists of their day, one of the first two political parties in the United States.
Furthermore, while the Antifederalist party disappeared long ago, traces of Antifederalist thought persist in
American politics today.
In general, the Antifederalists were opposed to the Constitution because they were much less optimistic than
the Federalists about the ability of civic virtue and auxiliary precautions to keep the national government in
check. But their lists of objections to the Constitution went well beyond those concerns. First and foremost,
Antifederalists argued (correctly) that the Convention had exceeded the authority granted to it by the
Confederal Congress. Instead of amending the Articles of Confederation, they had abolished them. This, they
argued, made the proposed Constitution invalid. As to the document itself, they complained that its scheme
of representation was inadequate, that there were not enough restrictions on the authority of the national
government--the Constitution merely offered "paper checks" they argued--and that states were stripped of the
ability to protect their economic interests through tariffs. Some Antifederalists were also opposed to the
Constitution because of its provisions about the "importation" of slaves.
Ironically, the Antifederalists claimed that it was they who were the true supporters of "federalism" and what
the Federalists supported was not really a federal system at all, but one which trampled on the sovereignty
and independence of the states. They wanted a national Congress that had, at best, authority equal to the
states, not greater than them. In short, the Antifederalists wanted to maintain the same kind of relationship
that had existed between the states under the Articles of Confederation. They supported a "league of
friendship" or a treaty between the states, not a union of the states.
The Antifederalists believed that government should be small and close to the people so that liberty could be
preserved to the greatest extent possible. The Constitution, they believed would tip the scales too far in the
direction of establishing order, not protecting the liberties of the people. Moreover, they argued that the civic
virtue the Federalists seemed to count on for the success of the Constitution was more likely to flourish in
smaller communities where the people were more naturally attached to and prone to obey their government. It
was also easier in smaller republics, the Antifederalists argued, to achieve the consensus necessary to
pursue and realize the common good of a political body.
In spite of the long list of significant objections the Antifederalists made, their opposition to ratification never
seemed to solidify around any key structural defect of the Constitution. While Antifederalists variously
proposed changing the preamble to read "we the states" instead of "we the people," shortening the terms of
national elected officials, creating a multi-person executive and limiting the jurisdiction of the national court,
the rallying point for opponents of the Constitution had little to do with the form of government it would
ultimately establish. Perhaps sensing that the people would react most positively to the Constitution's failure
to provide a listing of guaranteed rights and liberties, the Antifederalists pinned their hopes of defeating the
Constitution on their demands that it include a "bill of rights."
The Battle Over a Bill of Rights
The question of a "bill of rights" in the Constitution had been raised at the Convention. There the idea had
been rejected for two reasons. First, the delegates seemed to make every effort to avoid making profound,
philosophical statements about rights and the nature of government in the Constitution. They were more
concerned with the practical business of creating a workable government. During the long, hot Philadelphia
summer, they were reluctant to spend time on matters that they considered secondary to that objective.
Second, the delegates recognized that listing the rights of the people might imply that anything not listed
was not a protected right. Moreover, most of the states already had bills of rights in their constitutions and
listing them in the national constitution, many delegates believed, would be redundant.
Arguments in Favor of a Bill of Rights
The arguments against a bill of rights at the Convention notwithstanding, the Antifederalists focused almost
all of their energies on attacking the Constitution because it did not explicitly guarantee the rights of the
people. Given the "supremacy" clause and the "necessary and proper" clause in the Constitution, the
Antifederalists argued that there were effectively no limits on the authority of the national government and,
hence, no protections from it for individual citizens.
Turning one of the arguments against a bill of rights on its head, the Antifederalists argued that, if the state
constitutions list the rights of the people, why shouldn't the national constitution? Thomas Jefferson, out of
the country at the time as the U.S. Ambassador to France, wrote to his Federalist friends that if they
expected the people to pledge their allegiance to a new government, the people were "entitled" to a listing of
their rights. To feel secure in their rights, those had to be documented.1
Arguments Against a Bill of Rights
While the Antifederalists' arguments in favor of a bill of rights may seem reasonable as you read them today,
the Federalists were strongly opposed to the idea. First, the Federalists feared that adding a bill of rights in
the middle of the ratification process would tip the scales in favor of the Antifederalists. Some states had
ratified the Constitution quickly. Would those ratifications remain in effect if the Constitution was changed in
any way? The Antifederalists would probably demand that the Constitution be ratified again in those states.
Moreover, the Antifederalists demanded that a new convention be called so they could add a bill of rights to
the Constitution. At such a convention, the Federalists feared, the Antifederalists would seek to undo the
work of the original convention.
The Federalists were opposed to a bill of rights for philosophical reasons as well. As has been noted, they
viewed the new government the Constitution would establish as a covenant between sovereign citizens. Given
the limited grant of power from the people to the national government under the Constitution, an enumeration
of the rights reserved by the people would be "superfluous and absurd." Government did not have power
simply because it was the government, it had power because the people granted it power. If a list of rights
were included in the Constitution, the Federalists feared that the implication would be that any right not
included on the list was not retained by the people.
With the fate of the Constitution in the balance, Madison and other Federalists agreed to a list of
amendments that would be proposed as a "bill of rights" after the first new Congress convened. This
compromise was enough to win the support of many Antifederalist sympathizers.
If a bill of rights could secure ratification and, perhaps, contribute to the preservation of liberty, it was a
compromise the Federalists were willing to make. Madison also speculated that the Bill of Rights, once
incorporated into the Constitution would provide a legal basis for the judiciary to protect the rights and
liberties of the people. Indeed, the Supreme Court has played a significant role in interpreting and applying
the Bill of Rights
Below you will find a list of the most notable issues that the Federalists and Anti-Federalists argued over. Read over them and take notes as we will hold a class debate on Wednesday, October 18th. Half of the class will argue as Federalists, the other will take the position of Anti-Federalists. Everyone will be expected to participate, so take the time to understand this material.
1. Legitimacy of the Convention and the Proposed Constitution
believed that the Constitution Convention went beyond its powers when they wrote the constitution; they were only to amend the Articles of Confederation
believed that they had the right to propose a new document, because they were appointed to the Convention by legitimate means; the issue was beside the point
2. Nature of the Union-Federal vs. State: (a) The Fate of States under Proposed Constitution
insisted that the general government outlined in the proposed Constitution would swallow up the states, reducing them to administrative districts at best, and thus destroying the people's liberties and right to self-government
insisted that the likelihood was that the states would continue to infringe on the just powers of the general government rather than the reverse
2. Nature of the Union-Federal vs. State: (b) The Fate of Union without Proposed Constitution
insisted that only a government at least as strong as that outlined in the proposed Constitution would be sufficient to protect the general good and the liberties of the people; otherwise the Union would come apart into two or three or more separate confederacies
denied any plan to break up the Union and insisted that even if the Confederation was too weak to safeguard American interests, the answer was not the dangerous plan incarnated by the proposed Constitution
3. Representation and the Powers of Congress
maintained that the scheme of representation in Congress was far too inadequate to take account of the extent and diversity of the American people and their interests. They drew unfavorable contrasts between the small House of Representatives and the comparatively minuscule Senate, on the one hand, and the large state legislatures, on the other
they also noted that because of this unjust scheme of representation, which would limit service in the House or the Senate only to the powerful and wealthy men and would exclude most others, the powers of legislation entrusted to Congress were far too sweeping and dangerous
insisted that the scheme of representation was designed to elevate men of refined and enlarged views, who could take account of the interests of the whole nation
moreover, future reapportionments would expand the size of the House far beyond what it would be in the first years under the Constitution
believed that the powers accorded to the Congress were both circumscribed enough to avoid infringing the rights of the people or the legitimate powers of the states, yet extensive enough to safeguard the general good and vindicate American interests.
4. The Presidency
distrusted a one-man chief executive because it resembled a monarchy, especially since there were no term limits set for the office
the powers of the president would remain unchecked and impeachment was too difficult to invoke
insisted that because the President exercised his powers alone he would be more accountable than a group executive
the electoral college would ensure a careful choice of the best man for the job
also believed that George Washington would be chosen as the first president and he would set a good example
5. The Judiciary
decried provision for a federal court system as unnecessary and expensive
worried that the federal courts would use all available legal expedients to infringe on the jurisdiction, caseload, and legal business of the state court systems, which would result in subjecting people to a tyrannous federal court
criticized the lack of such legal provisions as a trial by jury
argued that the federal court system was the foundation of liberty, defending the Constitution against potential unconstitutional excesses by the Congress or President or State
6. Lack of a Declaration of Rights
most powerful and persuasive argument against the proposed Constitution was the lack of a declaration of rights, or any means to defend individual civil liberties
believed that a bill of rights was unnecessary because the Constitution gave the federal government no powers to infringe or interfere with individual rights
more importantly, did not need to protect the individual from the government, a government born out of the fight for freedom
important to note, however, that many Federalists including John Adams and Thomas Jefferson agreed that a bill of rights should be included
7. Amendments to the Constitution: Too Hard or Too Easy?
believed that the amending process was too easy; needed the unanimous consent of all states
believed that the amending process was too difficult under the Articles of Confederation because it would be impossible for all states to agree on a single subject, so the majority must rule
8. A National Capital
did not like the idea of a new permanent federal capital, arguing that the enemies of the people would shelter themselves in a powerful citadel against the people's wrath
believed that there needed to be a central location for the business of the country
a new nation required the stability and permanence of a capital, one built to humble foreign heads of state
9. Religious Tests
denounced the Constitution's ban on religious tests for voting or holding office as opening the door for a Jew, a Turk, or an infidel to become President or hold other major national offices (remember, Anti-Federalists were mostly from Puritan New England)
believed that this ban was one of the key rights-protecting clauses in the proposed Constitution
denounced the various clauses of the Constitution that protected slavery (though none mentioned slavery by name)
Federalists in the South praised these clauses as desirable safeguards for their peculiar institution