FEDERALISTS V ANTI-FEDERALISTS PART NINE: Miscellaneous Worries Of The Anti-Federalists

we-the-people

In Federalist #85, Hamilton listed some of the objections to the Constitution that the Anti-Federalists had been making. He lists them because he thinks he and his colleagues have more than answered all of them during the run of their pro-Constitution public letters collectively known as “The Federalists Papers.” Yet, history has proven that nearly all of the major objections of the Anti-Federalists, including those listed by Hamilton in #85, were completely VALID…  

Hamilton wrote in Federalist 85 that… “Among the pretended defects [of the Constitution] are

the re-eligibility of the Executive [later limited by Amendment to two terms],

the want of a council [supplied almost immediately in the form of the extra-Constitutional “Cabinet”],

the omission of a formal Bill Of Rights [also rectified immediately], [and]

the omission of a provision respecting liberty of the press [corrected by the Bill Of Rights].”

Before the Federalists had at last conceded to the addition of a Bill Of Rights, and unconvinced by the arguments of the Federalists, Virginia’s Convention of 27 June 1788 proposed to amend the Constitution by inserting as a fundamental law of the new nation that… “The People have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”

Among numerous other Amendments called-for, the Virginia Convention also felt that the Constitution should guarantee that… “all men having sufficient evidence of permanent common interest with, and attachment to, the community, ought to have the right of suffrage.”

Voting Rights were also a bone of contention for Patrick Henry, who was apprehensive of the proposed General Government’s power to regulate the Time, Place, and Manner of ELECTIONS. “What can be more defective than the clause concerning elections?” he asked in a speech given 7 June 1788. “The control given to Congress over the time, place, and manner of holding elections will totally destroy the end of suffrage.”

Later that month, the Virginia Convention was worried enough over the Federal government’s power to control elections to propose as its 16th Amendment-suggestion that… Congress shall not alter, modify, or interfere in the times, places, or manner of holding elections for senators and representatives or either of them, except when the legislature of any State shall neglect, refuse, or be disabled, by invasion or rebellion, to prescribe the same.”

In “Essay Four” (29 November 1787), Brutus also railed against the election controls to be ceded to the Federal Government…

He declared that, “by this clause the right of election itself is, in great measure, transferred from the people to their rulers. One would think that if anything was necessary to be made a fundamental article of the original compact, it would be that of fixing the Branches of the Legislature so as to put it out of its power to alter itself by modifying the election of its own members at will and pleasure.” […] “It is clear that, under this article, the Federal Legislature may institute such rules respecting elections as to lead to choice of one description of men” [rich, well-born, and those of elevated rank, according to Brutus]“Provision should have been made for marking out the States into districts, and for choosing, by a majority of votes, a person out of each of them of permanent property and residence in the district which he was to represent.”

“If the people of America will submit to a Constitution that will vest in the hands of any body of men a right to deprive them by law of the privilege of a fair election, they will submit to almost anything,” Brutus continued, shifting his attack to those who found nothing pernicious about the Constitutional clause regulating Elections. “Reasoning with them will be in vain; they must be left until they are brought to reflection by feeling oppression– they will then have to wrest from their oppressors, by a strong hand, that which they now possess.”

Responding to such attacks in Federalist #60, Hamilton attempted the not-all-together convincing rejoinder that unscrupulous, ambitious types would not deign to seize power through such a mundane avenue as the tinkering with election rules. He implies that merely having control over “the times, the places, and the manner of elections” is not really all that big of a deal.

Brutus, in Essay Sixteen (10 April 1788) wrote against the lack of term-limits or rotations for elected Representatives… A proper rotation of Representatives in office, he wrote, “would give opportunity to bring forward a greater number of men to serve their country, and would return those who had served to their state and afford them the advantage of becoming better acquainted with the condition and politics of their constituents”

Some Anti-Federalists did not like the fact that the Constitution called for State officials to swear an oath to support the Federal Constitution, without requiring a reciprocal oath of Federal officials swearing to support the State Constitutions.

Answering this objection in Federalist #44, Madison explained that… “the members of the Federal Government will have no agency in carrying State Constitutions into effect. The members and officers of the State governments, on the contrary, will have an essential agency in giving effect to the Federal Constitution.”

Besides the important right to Trial By Jury, which numerous Anti-Federalists felt the Constitution did not enough protect, Anti-Federalists also complained that there was no protection offered against Unreasonable Searches And Seizures.

The Virginia Convention proclaimed on 27 June 1788 that… “Every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, and property; all warrants, therefore, to search suspected places, or seize any freeman, his papers, or property, without information on oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous and ought not to be granted.”

The same Convention also invoked a limited version of the Freedom Of Assembly, stating that… “the people have a right peaceably to assemble together to consult for the common good, or to instruct their representatives; and that every freeman has a right to petition or apply to the legislature for redress of grievances.”

Seeing that the original Constitution had no provision for Freedom Of Religion, the Virginia Convention also proposed an addition to the Constitution declaring that… “Religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men have an equal, natural, and unalienable right to the free exercise of religion, according the dictates of conscience, and that no particular religious sect or society ought to be favored or established, by law, in preference to others.”

Lastly –and striking at the heart of what makes a Central Government a Central Government– the Virginia Convention of 27 June 1788 seems to have believed that the people of Virginia could not be bound by any law for which their Representatives did not vote. Thus, their sixth proposed addition to the Constitution, basically an early statement of the Nullification Doctrine, declared that… “no aid, charge, tax, or fee can be set, rated, or levied upon the people without their own consent, or that of their Representatives” […] “Nor can they be bound by any law to which they have not, in like manner, assented, for the public good.”

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