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Summary & Analysis

The Constitutional Precedent: Life Under the Articles of Confederation

After achieving independence, the country under the Confederation government was saddled with heavy war debt and no effective means of collecting taxes to pay it off. The tobacco planters of the Chesapeake Bay region had renounced their debts in declaring independence from Britain, but now they were left without any source of credit. Fishermen had no British Caribbean market for their catches. Settlers could migrate beyond the Appalachian mountains (the previous limit of settlement, as decreed by the British), but once there they no longer had a well-trained and equipped army to guarantee protection. Citizen rebellions in western Massachusetts, Virginia, and Pennsylvania epitomized the widespread restlessness and discontent stirred by post-revolution expectations and economic troubles.

Federalists and Anti-Federalists

American adherents of the republican ideology that had unified the Revolutionary patriots split into opposing factions over the Constitution. Federalist, who supported the Constitution and the strong central government it created, tended to be elitist; they thought of political representation in terms of deference, they were preoccupied with the need to maintain order, and they believed that the Constitution would allow America to achieve its grand economic and political destiny.

Anti-Federalists, who feared that the Constitution would destroy civil liberties and true democracy by concentrating too much power in the new government, argued that the Constitution would deprive the country of its revolutionary heritage. Lacking the connections and influence of their opponents, the Anti-Federalists were the earliest and most vocal proponents of pure democracy and a version of republicanism that granted ordinary citizens unprecedented levels of direct political power.

Patrick Henry, Samuel Adams, George Clinton, Luther Martin, and Richard Henry Lee, all heroes of the American Revolution, boycotted the Convention in Philadelphia because they objected to its purpose. They believed that it betrayed the "core principles" of the revolution, and as historian Joseph Ellis has argued, "Strictly speaking, they were and are historically correct." The government under the new Constitution was not the kind of direct democracy that could flourish in small towns; people would not vote directly for their senators or their president, and radical egalitarianism was not going to flourish under the strengthened central state. Anti-Federalists actually exhibited a broad spectrum of beliefs and ideologies; some wanted to weaken federal authority, while others wanted only for the parameters of that authority to be more clearly delineated.

Three prominent delegates to the Constitutional Convention ended up refusing to sign the document. Edmund Randolph, who had proposed the Virginia Plan, could not support the Constitution as drafted because he felt it delegated excessive power to Congress. He was pained by this decision and asked the delegates to submit the Constitution to state governments so that they might propose amendments and revisions. George Mason, Randolph's fellow Virginian and one of the richest men in the state, was frustrated with the Convention's refusal to prohibit the slave trade immediately and—paradoxically—its failure to pass safeguards that would protect slaveowners against future government actions towards manumission. He wanted to end the slave trade but to protect slavery as it then existed in the country. Mason was also alarmed by the Convention's rejection of a bill of rights. He denounced the plan in much harsher terms, arguing that the new government would result in tyrannical aristocracy or monarchy. Lastly, Elbridge Gerry had a number of objections, from the long term of office for senators to congressmen's ability to determine their own salaries.

The Constitution's defenders countered Anti-Federalist criticisms by arguing that the new system of government was, in Joseph Ellis's words, a necessary and "sensible accommodation of liberty to power and a realistic compromise with the requirements of a national domain."9 Time seems to have vindicated them in this belief, but no one could have been sure of this outcome in 1787. While Anti-Federalists are sometimes dismissed, in retrospect, for having been on the wrong side of history, in fact Anti-Federalist critiques were responsible for a critical piece of our constitutional heritage—the Bill of Rights, which Federalists like James Madison initially believed to be unnecessary.

The Bill of Rights

Anti-Federalists focused on the lack of a safeguard for specific individual rights and liberties in their argument against the Constitution. During the Philadelphia convention, the delegates did not substantively discuss the issue, for they believed that such safeguards were provided in the state constitutions. Yet it became increasingly clear, even to figures sympathetic to the Constitution like Thomas Jefferson, that a bill of rights was "what the people are entitled to against every government on earth." By the autumn of 1788, James Madison was convinced that such a measure would help assure ratification of the Constitution and would also prove beneficial to the people. As the individual most responsible for the development of the Constitution itself, Madison wielded considerable influence; his support facilitated the passage of seventeen amendments in the early months of the Congress. The Senate later passed twelve. On 2 October 1789, President Washington sent to each of the states a copy of the twelve amendments adopted by the Congress in September. Three-fourths of the states ratified ten of those amendments by 15 December 1791, and these ten came to be known as the "Bill of Rights." When he first proposed them, Madison thought that the rights could take the form of several changes worked into the text of the Constitution itself, rather than specific amendments added on at the end. He was afraid that such a presentation (which was the form the Bill of Rights ultimately took) would give people the impression that the amendments "superseded" the original document. The Senate also rejected the proposed amendment that Madison cared about most: it would have limited the power of the states to infringe on freedom of expression, due process of law, or freedom of religion. Such a proposal, as legal scholar Paul Finkelman has argued, "would have radically altered the federal structure of the new government."10

A major factor in the states' decision to ratify was not so much the question of individual liberties as the protection of state rights against the new federal power. The Tenth Amendment reassured the states that any powers not delegated to the national government or prohibited to the states would reside with the states. The other nine Amendments concerned the liberties of citizens, from freedom of speech and worship and the press to protecting Americans against unlawful search and seizure and requiring a warrant prior to an arrest. In a sense, they detailed Jefferson's concept of "unalienable rights" in the Declaration of Independence by defining certain freedoms and guarding against the violation of others. Though the concept of individual rights and liberties was rooted in the tradition of British common law, the Americans went further in protecting freedom of expression and of religious worship.

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