Editor’s note: This is the 18th in a series of essays on the history and meaning of the American political tradition.
In the political debate about the Constitution, its supporters labeled themselves “Federalists,” although they might better have called themselves “nationalists,” for they favored a strong national government rather than a loose federation of states. Among the founders, Washington, Adams, Hamilton, and Madison were Federalists, and a strong central government was their goal. On the other side of this debate stood Anti-Federalists. The term was coined in 1787 as an odious label, applied to any and all who opposed adoption of the Constitution.
The debate over the Constitution lasted three years, from the time that the Constitutional Convention was first convened until its ratification by all 13 states — from May 1787 until May 1790. There is an abundant record of it in notebooks and diaries of participants, newspaper articles, and speeches in public assemblies, and these have been preserved and reprinted in scholarly and popular editions. The opinions of the Anti-Federalists are therefore as accessible to us as those of the Federalists. They are worth attending to, for issues they raised are still current, and in some respects unsettled.
One of them concerned the legality of the Constitution. Anti-Federalists noted that the Constitutional Convention was originally convened by Congress to consider revising the Articles of Confederation, which was then the official constitution of the United States. It was charged that the delegates ignored this directive, and chose to make a new beginning exceeding the authority of Congress. The Constitution they produced acknowledged “The People of the United States” as the sole authority to establish it as law. As I noted in a previous essay, the Preamble of the constitution performs an act of self creation, “The People of the United States of America” declare themselves sovereign, and their union a sovereign nation.
But one may ask, by what authority did they do this? If I may take the liberty of responding for the Federalists, I can imagine them dismissing the question as impertinent, “One might as well ask by what authority God created the world.” It is enough that God has this originative power. The people of the United States had a similar authority and right, not to create worlds, but to form themselves into a nation, their nation, and to give it a fundamental law. This is the power of covenant, a principle of natural right.
The Anti-Federalists did not deny this sort of power, and this natural right. The problem for them is that that act of self-creation had already been done, 13 times. The states already had their own constitutions, and by their own declaration were free and sovereign entities, self-founded and independent. The Constitution negated these actions. To be sure, their declaration of independence was jointly made, but it did not create a new sovereign nation, rather 13 sovereign states united in a common cause. The Anti-Federalists worried that the Constitution would negate the sovereignty of the states, violating their independence and their liberty.
Moreover, they suspected that “The People of the United States” was a mere fiction, invented to subvert the authority of the states. This was not an idle suspicion, and I suspect that many of us, would be hard pressed to relieve it by giving a full and cogent explanation of the origin and meaning of the term, and even more important, the right and power of the entity that it connotes.
Furthermore, it was argued that the proposed Constitution made no provision for individual rights. This was a criticism raised by those of a Jeffersonian persuasion. In this respect, the Constitution appeared to ignore the self-evident truth appealed to in the Declaration of Independence, the right of every individual to life, liberty and the pursuit of happiness. This deficiency was quickly acknowledged and rectified. The Bill of Rights, consisting of the first ten amendments to the Constitution, was adopted by Congress on September 25, 1789, and sent to the States. It was ratified on December 15, 1791. Madison drafted the Bill, incorporating into it rights proposed by Anti-Federalists.
Anti-Federalists also raised questions concerning representation. The Constitution established two legislative bodies, The House of Representatives and the Senate. The House was to consist of delegations from each state proportional to their population. The size of the population of each state was to be equal to the number of free persons dwelling in each state, including indentured servants, plus 3/5 of all others not free — that is slaves. For purposes of representation, Slaves counted as 3/5 of a person, but not as citizens, for they had been denied the right to vote, were not free persons. They were regarded as property. The effect of this rule was to give slave states an advantage in congressional representation over those that were not. For example, according to the census of 1790, Virginia had a population of 747 thousand of which 292 thousand were slaves, contrasted to Pennsylvania with a population of 443 thousand including only 3,707 slaves.
The Senate posed other problems of representation. It was a select body, consisting of two senators from each state originally chosen by their respective state legislators — the 17th Amendment, adopted in 1912, required the election of senators by popular vote. This gave a disproportional representation to states with small populations. Some Anti-Federalists feared that the Senate would become an elitist body, that it would lead to the establishment of a noble class, a clear violation of the principle of equality. Their fear was enlarged by the fact that the terms of Senators were six years. As a general rule, Anti-Federalists preferred that the offices of government be renewed every year.
Anti-Federalists worried about the office of the President and its executive powers.
They expressed the fear that the office was “a monarchy in the making.” All that was lacking was succession by heredity. The current quarrel over the President’s power to declare a national emergency and appropriate funds disregarding Congress suggests that the fear was not unadvised. The current fear of autocracy is not ill-advised.
Finally, Anti-Federalists opposed the appointment of Justices of the Supreme Court to life terms. And because justices were nominated by the President they feared that their power could become an extension of the executive power of the President.
Postscript: A comprehensive body of Anti-Federalist documents has been collected and critically edited by the late Herbert Storing and published in seven volumes by the University of Chicago Press in 1981. Volume 1 contains an excellent introduction by Professor Storing. A selection of papers gathered from Storing’s collection was published in 1985, edited by Murray Dry of Middlebury College and is available in paperback. Another handy collection of Anti-Federalist discourses also based on Storing’s collection but with additional material is The Anti-Federalism Papers and the Constitutional Convention Debates, edited by Ralph Ketcham, Signet Classics.