1.3 - Government Power and Individual Rights

Historical Context

• Naming: supporters of the Constitution took the name Federalists during the 1787 to 1788 ratification debate and labeled their opponents Anti-Federalists. Many opponents disliked the label, since they saw themselves as the real defenders of a federal system that kept most power with the states.

• State sovereignty: the states existed before the United States did. Many people saw their state as their "country" and wanted states to keep control over local policy.

Anti-Federalist Arguments

Their main fears

1. A powerful federal government would restrict personal freedom.

2. Federal authority would trample states' rights and take over state responsibilities.

3. The federal government would tax people too heavily.

4. The new Supreme Court would weaken state courts.

5. The president having a standing army, even in peacetime, threatened individual rights and limited government.

What they demanded (only one succeeded)

1. Adding a Bill of Rights to limit federal power and protect liberty.

2. More explicit limits on government power, since vague language could let the federal government grab more power over time.

3. Getting rid of Congress's power to tax.

• Date and author: published October 18, 1787, in the New-York Journal under the pen name "Brutus." The real author isn't certain. It was probably Robert Yates, a New York judge who walked out of the Constitutional Convention (some historians credit Melancton Smith).

• Main argument: a free republic can't work over a country as large and varied as the United States. Brutus wrote that in a republic, "the manners, sentiments, and interests of the people should be similar," or there will be "a constant clashing of opinions."

• Representation: in a huge country, there would be too few representatives, too far away, to know and share what ordinary people think. Government would drift away from the people, and they would stop trusting it.

• Too much power: thanks to the Necessary and Proper Clause and the Supremacy Clause, the national government would have "absolute and uncontrollable power," and its powers to tax and keep a standing army could slowly swallow up the states and threaten personal liberty.

• Why it matters: Brutus No. 1 is the main source for popular democratic theory, the idea that a small, decentralized republic protects liberty and lets ordinary people take part. Use it to argue for states' rights, participatory democracy, or limits on national power. His fear of the Necessary and Proper Clause also previews the fight in McCulloch v. Maryland (1819, see 1.8).

The Bill of Rights

• Function: they don't grant freedoms, they guarantee personal liberties by restricting what the federal government is allowed to do (like preventing unreasonable searches or limiting restrictions on free speech).

• Why it wasn't included at first:
• The delegates were simply exhausted by the end of the Convention.
• Some thought it was unnecessary since Congress only had the powers listed in Article 1, Section 8 anyway.
• Some pointed out that state bills of rights already existed.
• Hamilton (in Federalist No. 84) argued a bill of rights could even be dangerous. Why say Congress can't restrict the press when the Constitution never gave Congress power over the press? Listing it might suggest that power existed, giving ambitious officials an excuse to claim powers the Constitution never granted. Others worried any list would leave some rights out, making unlisted rights look unprotected (the Ninth Amendment was later added to answer that).

• How it got added: Federalists promised amendments to win over doubters. Several key states, including Massachusetts, Virginia, and New York, ratified while sending lists of recommended amendments, and North Carolina refused to ratify until amendments were on the way. Madison introduced the amendments in the First Congress in 1789, and the states ratified ten of them in 1791.

Federalist Arguments

• Date and author: James Madison, published November 22, 1787, under the pen name "Publius."

• The problem: a faction is a group, majority or minority, united by an interest that goes against the rights of others or the good of the whole community. Factions come from human nature ("The latent causes of faction are thus sown in the nature of man"), and the most common source is the unequal distribution of property.

• Why not remove the causes? That would mean destroying liberty, and "Liberty is to faction what air is to fire." Getting rid of liberty to stop factions would be as foolish as getting rid of air to stop fires. So the only answer is controlling the effects, which Madison calls curing the "mischiefs of faction."

• The solution, a large republic: elected representatives "refine and enlarge the public views" by filtering public opinion, and a large country has so many competing interests that it's hard for any one faction to become a majority and oppress others. Power is also split between the national government and the states, so a faction that takes over one state can't easily spread across the country.

• Why it matters: Federalist No. 10 is the main source for the Federalist side and for pluralism. Use it to argue for a strong national government, representative rather than direct democracy, or the benefits of many competing groups.

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