On this day in 1789, Congress approves twelve amendments to the United States Constitution. Ultimately, ten of those amendments would be ratified by the states and would become our Bill of Rights. They provide protections for things such as freedom of speech and the right to a trial by jury.
Most modern Americans consider the Bill of Rights to be a bit of a no-brainer, but the founding generation did not agree.
To the contrary, a big debate ensued over the matter when the delegates to the Constitutional Convention completed their work. They had not considered it necessary to include a bill of rights in the new national charter.
So-called anti-Federalists immediately pounced on the omission. They were ready to reject the Constitution altogether!
“There are certain rights which we have always held sacred in the United States,” an anti-Federalist writing under the pseudonym “Federal Farmer” wrote, “and recognized in all our constitutions, and which, by the adoption of the new constitution in its present form, will be left unsecured.”
The state constitutions contained bills of rights. Why not the new federal Constitution? Anti-Federalists thought the omission was dangerous, particularly since laws passed by Congress would be “supreme laws.” Would federal laws end up violating the rights so carefully preserved in state constitutions?
The situation could become especially precarious because of the provision in the Constitution granting Congress power to “make all laws which shall be necessary and proper for carrying into execution” the powers that had been delegated to it.
How would the words “necessary and proper” be construed? Likewise, how would Congress’s power to lay taxes in provision “for the common Defence and general Welfare” be construed?
On the other side of the aisle, those who advocated for the Constitution, the so-called Federalists, did not believe a bill of rights was necessary. To the contrary, they thought it would do more harm than good.
The national government created by the Constitution is one of limited powers. It has ONLY the power specifically given to it by the Constitution. Why create a list of things that it cannot do? Creating such a list might cause confusion about the limited nature of the new national government.
One delegate to the Constitutional Convention, James Wilson, explained to the Pennsylvania ratifying convention that “when it is said that Congress shall have power to make all laws which shall be necessary and proper . . . . It is saying no more than that the powers we have already particularly given, shall be effectually carried into execution.”
Alexander Hamilton took a similar position, noting that the Constitution, by design, gives limited power to the federal government. Adding a bill of rights, he thought, would be “not only unnecessary” but also “dangerous.” Why say that the “liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed” in the first place? A bill of rights mostly serve to offer a “colorable pretext to claim more [powers] than were granted.”
In other words, federal officials would cease looking for an affirmative grant of power and instead claim the ability to do anything not expressly prohibited.
The anti-Federalists ultimately got the bill of rights they wanted, of course.
By September 1789, Congress would approve 12 amendments and propose them to the states. By the end of 1791, ten of these would be approved as our Bill of Rights.
What do you think? Were the anti-Federalists right all along? Or did the Bill of Rights create confusion about the scope of the federal government’s power?
Primary Sources:
An Old Whig IV (Anti-Federalist Papers) (reprinted HERE)
Brutus II (Anti-Federalist Papers) (reprinted HERE)
Federal Farmer IV (Anti-Federalist Papers) (reprinted HERE)
Federalist No. 84 (Alexander Hamilton) (reprinted HERE)
James Wilson, Remarks to the Pennsylvania Ratifying Convention (Dec. 4, 1787) (reprinted HERE)
James Wilson, Speech in the State House Yard (Oct. 6, 1787) (reprinted HERE)
John De Witt II (Anti-Federalist Papers) (reprinted HERE)