Selected Arguments of Anti-Federalists, and Rebuttal

Arguments of the Anti-Federalists, and Rebuttals of the Federalists

  • Anti-Federalists:

History has shown that the republican form of government works best in small areas, where the citizens are similar in wealth and values.  Those people are more likely to have the civic virtues necessary for working towards the common good of their area.  These United States cover a vast amount of territory, and includes very diverse people with many different interests.  They will not be able to agree on what is necessary for the good of all states.

  • Federalists:

History has shown that small republics are destroyed by the self-serving interests of a few, rather than all working towards the common good.  An organized central government with checks and balances and with power divided between the federal and state governments will work.  This form of government will make it difficult for special interest groups to pursue their objectives against the will of the people.

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  • Anti-Federalists:

Under the Constitution as written, too much power is given to the federal government, and too much power is taken away from the states.  The Supremacy Clause makes all federal laws superior to the laws of each state, opening the door to the destruction of state sovereignty.

  • Federalists:

The federal government will have more power under the new Constitution than it did under the Articles of Confederation; however, those powers are limited.  The only tasks the federal government may address are those that affect the nation as a whole, such as defense, trade, and currency.  A strong central government is necessary in order to complete those tasks.  The Constitution will protect the governments of the individual states.

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  • Anti-Federalists:

The Necessary and Proper Clause is too vague, and can be interpreted in too many ways.  This clause gives too much power to the federal government – there are many dangers of the federal government using this clause to gain more power over the states and individuals.  There must be a list clearly defining the powers of the federal government, in order to place clear limits upon it.

  • Federalists:

The Necessary and Proper Clause is needed, so that the federal government is able to address the tasks for which it is responsible.

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  • Anti-Federalists:

The Constitution provides the Executive branch of the federal government with too much power, enabling it to potentially become a form of monarchy.

  • Federalists:

The Executive branch of the federal government needs to be strong, so that it can perform its duties.  The federal government is divided into three branches, with checks and balances, so that no one branch can overpower the others.

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  • Anti-Federalists:

A free and republic government must have the active involvement of the people it represents.  The seat of the federal government is too far away from the majority of the people, which prevents them from being active participants.  This can lead to tyranny.

  • Federalists:

The federal government will be effective and fair in protecting the rights of the states and of the people, thus earning their trust.  The limits imposed upon the federal government through the separation of powers and checks and balances will prevent it from becoming tyrannical.

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  • Anti-Federalists:

There is no list of rights held by the people and states in the Constitution.  Such a list is necessary to protect the people from abuses by the federal government.

  • Federalists:

There is no need for a list of rights guaranteed to the individual and the states.  The powers of the federal government are limited, and to include such a listing would suggest that the individual can only expect to have those rights listed protected.

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Federalists versus Anti-Federalists – Part I

As explained in a previous post, the Constitutional Convention was convened in Philadelphia, Pennsylvania in May 1787.  The purpose of the Constitution was to replace the Articles of Confederation with a more effective form of governance – a Constitutional Republic.  The Constitution was completed in September, 1787.

James Madison, the “father of the Constitution,” developed the plan for having the states ratify (approve) the new governing document.  Instead of having the legislature of each state vote to ratify the Constitution, Madison had each state set up a special convention to allow the voters to elect delegates to attend their state’s ratifying convention.  This followed along with the ideal set forth in the Preamble – “We the People…do ordain and establish this Constitution for the United States of America.”  Per Article VII, only nine states were required to approve the Constitution.  The Framers were unsure that all thirteen would unanimously agree. 

It not ratified immediately upon completion, however.  Why?  There were many disagreements over what was NOT in the Constitution.  The seven articles established the branches of government and specified the powers given to each branch, set the rules for the relationships among the states, the process for admitting new states, detailed the process for amending the Constitution, made the Constitution the supreme law, and explained how the Constitution was to be ratified by at least nine of the states.  So, what was missing, that caused several American citizens to question the new governing document?  There was no listing of guaranteed individual rights, and many believed that the federal government could grow too large and too powerful.

The Declaration of Independence eloquently phrased the beliefs and values of our Founding Fathers: that life, liberty, and the pursuit of happiness are the fundamental rights of all people from birth.  These basic rights are not given by the government, and good government may not deprive the people of those rights.  In fact, the role of government is to protect the people’s free exercise of their rights:

  •           That to secure these rights, Governments are instituted among Men – Thomas Jefferson

The American colonists had learned to distrust a strong, centralized government under British rule.  The various Acts, Writs, and excessive punitive taxes passed by Parliament after the French and Indian War took liberties and freedom away from the colonists.  Their loss of liberty, combined with having their grievances to Parliament ignored, spurred the American movement for Independence.

The Framers of the Constitution established the three branches of federal government with specifically enumerated powers.  The purpose for this was that if it was not in the Constitution, then the government does not have that power.  The Constitution was not written to give people rights, but to establish a limited central government that had clearly defined and limited powers; thus, protecting the people by keeping out government interference with individual liberties.

However, many Americans still distrusted the document and the centralized government it created.  These Anti-Federalists included George Mason, Patrick Henry, Richard Henry Lee, John Hancock, Samuel Adams, and Edmund Randolph.  All of these men were leaders in the War for Independence, and were (with the exception of Randolph) signers of the Declaration of Independence.  They held that the new federal government would grow and take more powers than were expressly given to it.  The absence of a list of the rights of the individual was viewed as an open-door for the federal government to suppress the rights to life, liberty, and property.

The Federalists - those in support of the new government – anticipated the objections of the Anti-Federalists, and had a head start in the campaign to gain public support for states’ ratification of the Constitution.  The Federalists wrote a series of 85 articles that were published in New York newspapers.  These Federalist Papers, written under the pen-name Publius (a Roman leader and supporter of the Roman Republic) by Alexander Hamilton, James Madison, and John Jay, explained how the new government was specifically limited in its powers and contained checks and balances between the three branches.

The Anti-Federalists also produced articles (using pen-names such as Brutus and Cato – defenders of the Roman Republic against Julius Caesar), expressing the reasons for opposition to ratification of the Constitution.  One such argument by Brutus (Judge Robert Yates of New York) stressed that the Supreme Court could easily abuse its powers, since the justices were outside the control “both of the people and the legislature” and were not subject to being “corrected by any power above them.” It was not only conceivable, but highly likely, that Supreme Court justices could interpret clauses of the Constitution however they saw fit.  Brutus objected to the fact that the justification for removing judges did not include their giving judgment that exceeded their constitutional authority – which would pave the way to judicial tyranny.

Anti-Federalists opposed ratification the Constitution because the checks and balances on federal power would be overridden by unrestrained interpretations of the government’s role in promoting the “general welfare” and other clauses, creating a federal government that would abuse the specifically listed powers, and claim more power than it was originally given.  They warned that the government that would evolve under the Constitution would infringe on the individual’s rights.

The debates for and against ratification of the Constitution lasted ten months.

Article VII – Ratification

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Only nine out of the original thirteen colonies had to ratify the new Constitution in order for it to take effect.

 

Upcoming…the fight for ratification…Federalists versus Anti-Federalists

Article VI – Supremacy of the Constitution and Federal Laws

This Article states that the newly formed United States, under the new Constitution, assumes all debts incurred by the several states under the Articles of Confederation. 

 

Sentence 2 states that the Constitution is the supreme law of the nation.   This is the Supremacy Clause

  • 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

A law passed by Congress must be within its Constitutional powers.  If the Congress puts into a law that it intends to control a specific thing – and the thing to be controlled is indeed authorized to the federal by the enumerated powers listed in the Constitution – states must defer to the federal (preemption).  Congress may also provide in legislation a sharing of federal and state jurisdiction.

 

Sentence 3 of Article VI states that both elected and appointed officials of both state and federal offices in all three branches of government ”shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.”

Article V – Amendment Procedures

This Article explains the ways our Constitution may be changed, or amended. 

One method of amending the Constitution is for 2/3 of BOTH houses (currently 287 of the 435-member House of Representatives, and 66 of the 100 Senators) to pass a proposed amendment and send it to the states’ legislatures.  The states then have up to seven years to vote on the proposal.  It takes 3/4 (38) states’ approval of the amendment in order for it to be added to the Constitution 

We the People do not directly vote on new amendments, and the President does not have the power to veto an amendment.

Another method for amending the Constitution is a Constitutional Convention to be called for by 2/3 (33) of the states’ legislatures.  At such a convention, one or more amendments can be proposed and then sent to the states’ legislatures (or states’ conventions) for approval – again, 3/4 of the states’ legislatures must approve.  (This method has not been used).

The Framers intentionally made the amending process difficult.

Article IV – Relations Among the States

Section 1 -

The Full Faith and Credit clause holds that each state must recognize and honor the public acts, records, and judicial finidngs of the other states.

 

Section 2 -

This section has three parts as originally written: 1) that citizens of each state have the same rights in all states; 2) a person who has broken / charged with breaking the laws of one state shall be returned to that state (extradition) to stand trial and / or be punished; and 3) a person who is held in “Service or Labour” under the laws of one state must be returned to the “Party to whom such Service or Labour may be due.”

(The last part of Section 2 was rescinded by the 13th Amendment)

 

Section 3 – Admission of New States

The two parts of this section detail how new states will be added to our nation.  No state may be created within the boundaries of an existing state; nor may two existing states join together.  Congress has the power to admit territories as new states.  Additionally, Congress has the power to “make all needful rules and regulations” for territory / property belonging to the nation – federal lands within our borders, and our territories such as Puerto Rico.

 

Section 4 – Republican Government Guaranteed

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.”

This means that We the People are to be guaranteed a system of government that possesses only limited powers, thus protecting the unalienable rights of each individual.  The definition of a Republic is a constitutionally limited government of the representative type, created by a written Constitution–adopted by the people and changeable (from its original meaning) by them only by its amendment–with its powers divided between separate branches of government.

Article Three – the Judicial Branch

Article III  - the Judicial Branch

This Article establishes the third branch of federal government, the Judiciary.  

Section 1 -

The Supreme Court is the highest court in the United States.  Judges of the SCOTUS and federal courts are appointed by the President, confirmed by the Senate, and serve for life. 

 

Section 2 -

This section establishes what types of cases the federal courts will hear, which cases the SCOTUS will hear first (original jurisdiction), and gives the SCOTUS appellate jurisdiction over any cases it chooses which have already been heard in a lower court.  Original Jurisdiction of the SCOTUS covers cases involving state governments, and ambassadors, / public ‘ministers and consuls.’  This section also guarantees trial by jury, except in the case of an impeachment.

Originally, Section 2 contained clauses regarding federal courts presiding over cases involving a citizen of one state against another state, or a citizen / state against a foreign entity.  The 11th Amendment changed this.

 

Section 3 -

The definitions of treason:  “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”

Article Two – the Executive Branch

 

Article Two – the Executive Branch

Section One – The President

This Article establishes the office of the Presidency.

“The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice-President chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector”

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

 

Section 2 

The powers given to the President include:

  • enforcement of laws made by Congress
  • veto of laws made by Congress
  • making of treaties with foreign nations -which must be ratified by the Senate
  • nomination of cabinet members and judicial appointments – which must be approved by the Senate
  • conduction of war as Commander-in-Chief – though only Congress can declare war
  • grant pardons and reprieves

 

Section 3

This section established the duties of the President:

  • to give a State of the Union address
  • to make recommendations to Congress
  • to act  as the Head of State
  • to ensure that the laws are executed

Section 4

The House of Representatives has the power to impeach (bring formal charges against) the President in the case of serious crimes – such as treason or bribery - or abuse of power.  The Senate holds the power to conduct the trial of an impeached President.

Originally, the President was selected by the Electoral College – each state would have the same number of electors as it had Senators and Representatives in Congress.  The person with the most votes by the E.C., would become President, and the runner-up would be Vice-President.  The Electoral College is still in use today, but candidates now campaign for the popular vote.  Technically, a person can win the popular vote, but lose the E.C. vote.

When the Constitution was written, term limits for the office of the President were not included.  However, no President chose to run for more than two terms until the third election of Franklin D. Roosevelt.  The 22nd Amendment, setting tem limits for the Presidency, was proposed in March, 1947, and ratified February, 1951.  The Presidency is the only office of Federal government that has term limits.

Preamble to the United States Constitution

 We the People, of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

 

This opening statement to the Constitution explains the reasons our Framers crafted our Republican form of government, to replace the Articles of Confederation.  The Constitution was drafted over a period of about six weeks, and then was eloquently phrased by the Committee of Style – headed by Gouverneur Morris of Pennsylvania.  The Preamble is the explanantion, but it is not law.  The powers of each branch of the Federal government, and the states, are clearly detailed in Articles I – VII.

 

  • We the People, of the United States

This means the citizens of the USA.  The new form of government may have been drawn up by some of the best- educated men of the new nation, but the rights of Republican government belonged to all.

 

  • in Order to form a more perfect Union

 The Articles of Confederation had many limitations on governing the new nation.  In this phrase, the Framers were not stating they were crafting a government and nation that were without flaw; they meant that the new Constitution would produce and uphold a better form of governance than the Articles.

 

  • establish Justice

The reasons for Revolution against England were still very much in the minds of American citizens.  Fair trade and fair trial were paramount.

 

  • insure domestic Tranquility

Shays’ Rebellion – an uprising of Massachusetts farmers against the state for repayment of war debts- was one reason the Constitutional Convention was held.  Citizens were very concerned with the keeping of peace within our borders.

 

  • provide for the common defence

The possibilities of attacks by other countries was very real.  No one state by itself had the military might to defend itself against a large-scale attack.  The Framers knew it was necessary for the states to work together to defend the nation.

 

  • promote the general Welfare

This clause means the “well-being” of all.  It relates back to the previous three clauses:  by establishing justice, keeping the peace, and defending the nation, the citizens’ well-being would be taken care of to the best extent possible by a Federal government.

 

  • and secure the Blessings of Liberty to ourselves and our Posterity

America had fought long and hard for liberty…freedom from a tyrannical government that imposed unjust laws, and placed the goals of the English Crown above the individual.  The purpose of the new Constitution was to protect and maintain those hard-won rights, for our Framers’ generation and all that followed.

 

  • do ordain and establish this Constitution for the United States of America

This ending clause makes a powerful statement…We the People have made this governing document for Our nation, and it is We the People who give it the power.

Article One – the Legislative Branch

ARTICLE I – the Legislative Branch

 The legislative branch of government is the branch that makes the laws for our nation.  On the federal level, it is comprised of the House of Representatives and the Senate – a bicameral legislature.  This Article has ten sections, specifically defining the requirements for holding office, and the limited powers of the Congress.

Section One – the Legislature

“All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

Section Two – the House

Representatives from each state are chosen every two years, must be at least 25 years old, and have been a US citizen for at least seven years.    The House holds the power of impeachment – the leveling of charges of misconduct against an official.  Representatives are chosen by popular vote of the electorate – legal citizens eligible to vote.  State representation in Congress is based upon states’ population.  There are currently 435 in the US Congress.

Section Three – the Senate

Two senators are chosen to represent each state, every six years.  The elections are staggered, so only one-third of the Senate seats are up for election every two years.  Senators must be at least 30 years old, and a US citizen for a minimum of nine years.  The Vice President of the United States serves as President of the Senate, but has no vote unless there is a tie.  The Senate holds the power to try impeachments leveled by the House.  Originally, senators were chosen by the state legislatures.  The 17th Amendment changed that clause – senators are now elected by popular vote.

Sections Four and Five – Elections, Meetings; Membership, Rules, Journals, Adjournment

These two sections set forth the time and place that both houses of Congress shall meet.  Each House may make its own rules and penalties for meetings amongst members, but must keep records.

Section Six – Compensation

Representatives and Senators are paid, and are exempt from arrest when the Houses are meeting – except in the cases of Treason and Felony Breach of Peace.

Section Seven – Revenue Bills, Legislative Process, Presidential Veto

Bills that pass the House and / or Senate are sent to the President to be signed into law.  The President may veto a bill, in which case it returns to the House or Senate.  A veto may be overridden by two-thirds of the house which wrote the bill.  If the President does not veto or sign a bill within ten days, it still is passed.

Section Eight – Powers of Congress

The powers given to Congress are specifically detailed in this section of Article I.  This section is given as 18 clauses “The Congress shall have Power

  • To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
  • To borrow money on the credit of the United States;
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  • To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  • To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  • To establish Post Offices and Post Roads;
  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  • To constitute Tribunals inferior to the Supreme Court;
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
  • 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 Officer thereof.

(This last clause [18] is known as the Elastic Clause.  Different congresses have interpreted it in different ways)

 

Section Nine – Limits on Congress

This clause prohibits Congress from suspending habeas corpus – a right protecting citizens from being held against their will without reason – except if necessary during Rebellion or invasion.  During the Civil War, President Lincoln suspended habeas corpus for several Maryland residents in favor of secession.  Supreme Court Justice Taney declared it unconstitutional, but was ignored.  President Franklin Roosevelt also suspended habeas corpus during World War II – many American citizens of Japanese ethnicity were placed in internment camps.

Section Nine also prohibits Congress from passing bills of attainder – a bill which has a negative effect on a single person or group – and ex post facto laws – laws which affect actions that took place before the law was passed.  Additionally, money cannot be taken from the Treasury except by a properly passed law, and all records and receipts of money must be made public; titles of nobility will not be granted by the United States, and no office-holding US citizen may accept a foreign title of nobility or emolument (pay) without the consent of Congress.

Section Ten – Powers prohibited of States

This section says that the states may not enter into treaties with other nations, may not coin money, may not pass bills of attainder or ex post facto laws, and may not pass laws that interfere with contractual obligations, may not raise navies, and may not tax interstate commerce.

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