Once the proposed 1787 Constitution had been drafted, it was now up to each state to decide whether it should be ratified or rejected. It must have been shocking to some that in less than a decade since the last constitution was ratified, an entirely new document dramatically shifting the balance of power from the states to a national government was being considered again.
These debates played out most dramatically in the writings that became known as the Antifederalist and Federalist Papers. The Federalists supported the new constitution, the Antifederalists opposed it, although some insisted on modifications before ratification.
The standard American history textbook makes a big deal out of the Federalist/Antifederalist debates, but curiously tends to only focus on the Federalist side of the argument, while portraying the Antifederalists in a negative light. At best, the Antifederalist arguments are simply ignored.
But the Antifederalists had many valid reasons for opposing the proposed new Constitution. One of the main reasons for their opposition was the fear that the Constitution would allow for an overreaching, centralized government to impose itself on the daily lives of Americans.
The Federalists believed it was important to respond to this Antifederalist accusation. Certainly, this was an important issue for many Americans as they only recently revolted against Great Britain for imposing taxes and regulations from afar. Opponents of the new Constitution did not want to end up with another distant government obstructing their ability to govern their own lives. The Federalists appeared to understand this concern and argued forcefully that the new Constitution would do no such thing.
To understand how Antifederalist concerns ultimately led to the inclusion of the Tenth Amendment in the Bill of Rights, it is necessary to review the arguments of the Antifederalists and how the Federalists attempted to respond to those arguments. Moreover, and perhaps more importantly, understanding the arguments among Antifederalists and Federalists leads the modern reader to a greater understanding of what those who voted to ratify the Constitution thought the Tenth Amendment was intended to accomplish.
The Antifederalists
The Antifederalists are generally known in history as those who opposed the ratification of the 1787 Constitution. To this day, those who advocate for smaller government tend to refer to the Federalists more than the Antifederalists, which is unfortunate because a great deal could be learned from Antifederalist thought. Although the Constitution was eventually ratified, the Antifederalists forced the hands of the Federalists and were successful in ensuring that a Bill of Rights was ultimately included in the Constitution as the first ten amendments.
One well-known Antifederalist, who some believe may have been Richard Henry Lee, wrote under the pseudonym “The Federal Farmer” and was published in numerous pamphlets after the Philadelphia convention completed its draft of the Constitution. The Farmer insists that the supreme power (or sovereign power) rests with the People and that “they reserve all powers not expressly delegated by them to those who govern[.]” He points out that this is true whether the People are forming a state government or a federal government. But, in the case of state government, where an unlimited number of unexpected issues may arise in a community, the People delegate a general legislative power.[*]
On the other hand, where state governments have already been instituted for the betterment of the People, the powers delegated to the federal government, which is entrusted to handle only a few areas of national concern, should be specifically enumerated.[1]
The Federal Farmer arms his readers with persuasive, rational arguments as to why a decentralized government is superior to a centralized national government. He was profoundly prophetic. The Federal Farmer argued that the preservation of state authority was essential to freedom and prosperity. He contended that a consolidated national government was not possible in a country so vast as the United States where the seat of government would be hundreds of miles away from its citizens.
In state government, the People were represented in their respective state legislatures by representatives and senators numbering in the hundreds. The same individuals in the federal government would only be represented by a small number of representatives, diluting their influence on government. The administration of justice (i.e. police officers, justices of the peace, and courthouses) would likewise be spread thin and more difficult for the people to access under a large centralized system.
The Federal Farmer also worried about power and influence consolidating in the more populous states. With only a few centers of power, likely located in populous areas for convenience, those living in populous areas would have an advantage over their rural counterparts and unfair access to government centers of power and justice.
Finally, the Farmer argued that despite a common English heritage, the people of the several states had come to differing views on the best way to preserve their rights and therefore there could be no agreement among the people to form one social compact consolidating the states.[2]
The Federal Farmer was very concerned with the extent of powers the proposed federal government would have under the Constitution, and how those powers would be executed. He noted that the powers given the federal government “must intimately effect the internal police of the states, as well as external concerns[.]” Moreover,
“the general government, far removed from the people, and none of its members elected oftener other than once in two years, will be forgot or neglected, and its laws in many cases disregarded, unless a multitude of officers and military force be continually kept in view, and employed to enforce the execution of the laws, and to make the government feared and respected.”[3]
A Bill of Rights, Federal Farmer argued, would not only enumerate rights that have been preserved, but restrain the federal government with “fixed known boundaries”.[4]
Melancton Smith, a delegate to the New York state ratification convention, would reiterate Federal Farmer’s concerns. Smith argued, “I contemplate the abolition of state constitutions as an event fatal to the liberties of America. These liberties will not be violently rested from the people; they will be undermined and gradually consumed.”
Smith wondered how a national government over such an extensive land could possibly hope to enforce its edicts. He asks, “Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance?” He further noted, “People will be subject to impositions, which they cannot support, and of which their complaints can never reach government.”[5]
Like Smith, fellow New Yorker Robert Yates, writing as “Brutus” in December 1787, feared the extent and intrusion of a federal government without defined limitations. Yates was also perhaps the most prophetic of the Antifederalists. Yates articulated and imagined what a United States would look like if limitations were not placed on the authority and reach of the federal government. Yates writes about the power of a national government and his lengthy quote is worthy of repeating here:
“This power, exercised without limitation, will introduce itself into every corner of the city, and country-it will wait upon the ladies at their toilet, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlor, preside over the table, and note down all he eats or drinks; it will attend him to his bedchamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labor, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!”[6]
Yates argued that such a power extending into every conceivable aspect of the lives of the people, “must necessarily, from its very nature, swallow up all the power of the state governments.”[7]
While many Antifederalists adamantly warned against an overreaching central authority, other Antifederalists were more focused on the lack of any language in the Constitution protecting the states and the People from such power. These Antifederalists were not arguing against the need for a federal government, they argued that a very clear line must be established between the authority of the federal government and that of the states and People.
For example, another “Farmer”, writing in the Philadelphia Freeman’s Journal, insisted that a line, or rule, be drawn between the authority of the federal government, which was instituted to address issues of a general nature, and the states that are more properly suited for governing issues of a local nature. This rule according to the writer must be clear
“that all that portion of sovereignty which involve the common interest of all the confederating states, and which cannot be exercised by the states in their individual capacity without endangering the liberty and welfare of the whole, ought be vested in the general government, reserving such a portion of sovereignty in the state governments as would enable them to exist alone, if the general government should fail either by violence or with common consent of the confederates[.]”[8]
“Centinel,” another anonymous Antifederalist and frequent contributor to the Philadelphia Freeman’s Journal, attacked the proposed Constitution for its lack of any provision securing the authority of state governments. He remarked that “there is no reservation made in the whole of this plan in favor of the rights of the separate states.”
Centinel reminded his readers that such a reservation was made in the Articles of Confederation (Article II), and that the lack of such reservation in the new Constitution “manifests the design of consolidating the states.”[9]
John Francis Mercer, a delegate to the Constitutional convention from Maryland, addressed the role of the states under the proposed Constitution and his fear that it failed to protect state governments. Mercer was concerned about a federal government that could rule over such a large geographical area as the United States, which he believed encouraged representatives to compromise the interests of their own constituents with representatives of other districts with completely different interests and needs.
For this and other reasons, Mercer insisted that the prerogative of state governments must be preserved for the betterment of the People. But under the Constitution as proposed by the Philadelphia convention, the states, he remarked,
“would seem to be at the mercy of General Government—for it is remarkable that the clause securing to them those rights not expressly relinquished in the old Confoederation [referring to Article II], is left out in the new Constitution; And we conceive that there is not Power which Congress may think necessary to exercise for the general welfare, which they may not assume under this Constitution[.]”[10]
Thus, Mercer warned that future Congresses would be able to expand its own authority by simply declaring its power grabs as necessary for the general welfare of the people. For Mercer, the lack of a provision similar to that of Article II of the Articles of Confederation, which preserved the rights of the states, was a disturbing omission that needed to be corrected.
A lesser-known Antifederalist, writing to the Philadelphia Independent Gazetter under the pseudonym “An Old Whig”, also regretted the lack of any specific limitations on Congressional power. Old Whig responded to Federalist James Wilson’s argument that powers not delegated to the federal government in the Constitution were reserved to the states, and consequently “Congress cannot exercise any power or authority that is not in express words delegated to them.”
Old Whig recalled the Confederation’s Article II that stated “each state retains its sovereignty, freedom and independence and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled.” Old Whig logically wonders why Wilson “meant insidiously to argue from an article in the old confederation in favor of the new constitution, unless the same thing was also in the new constitution.”[11]
Old Whig laments that “[t]here is nothing in the new constitution which either in form or substance bears the least resemblance to the second article of the confederation.” He continues,
“so far from the reservation of all powers that are not expressly given, the future Congress will be fully authorised [sic] to assume all such powers as they in their wisdom or wickedness, according as the one or the other may happen to prevail, shall from time to time think proper to assume…My object is to consider that undefined, unbounded, and immense power which is comprised in the following clause; — 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 vested in the government of the United States; or in any department or offices thereof.”[12]
For Old Whig, the necessary and proper clause was a source of unbridled and unlimited authority given to Congress without any restraint that existed in the Articles of Confederation. Old Whig realistically added that “in such cases it is not of a farthing consequence whether they are of the opinion that the law is necessary and proper, or only pretend to think so[.]”[13]
Synthesizing Old Whig’s writings, it appears that an acceptable solution to this problem would be to include language in the Constitution that mirrored Article II of the Articles of Confederation.
The warnings concerning federal government overreach under the new Constitution as drafted continued. “A Federal Republican” seemed to bring the thoughts of Old Whig to a logical conclusion. In an October 1787 political pamphlet, Federal Republican opined that “a Bill of Rights should either be inserted, or a declaration made, that whatever is not decreed to Congress, is reserved to the several states for their own disposal.”
Again, referring to Article II of the Articles of Confederation, Federal Republican argues the Articles of Confederation had an “evident advantage” over the new Constitution.
“This will appear more proper, if we consider that these are rights in which all states are concerned. It is thought proper to delegate to Congress supreme power on all occasions where the natural [mutual?] interests of the states are concerned, and why not for the same reason grant and declare to the states a bill of those rights which are also mutual?”[14]
Read together, Antifederalist opinion projected the need for a clear statement, along the lines of the statement found in Article II of the Articles of Confederation, which imposed a specific limit on federal government authority in the new Constitution. They wanted a decisive statement, something beyond just an implied inference, that the power and scope of the new government would be limited only to those areas where the people of the several states had a mutual interest and would not intrude upon the liberties of the people in any other manner.
The Federalist Response
Considering the Antifederalist arguments, the Federalists understood that if a necessary number of states were going to ratify the Constitution, the people of the several states must be convinced that the federal government under the proposed Constitution was limited in nature and would only extend its authority to areas enumerated in the Constitution itself.
Significantly, Alexander Hamilton, who supported the establishment of a fully national government during the Constitutional convention in Philadelphia, recognized the reserved sovereignty of the states and “the People” while arguing in favor of ratifying the Constitution.
Hamilton, certainly, was in favor of replacing the Articles of Confederation and spent much of his time explaining why a new government was needed. But Hamilton also had to respond to the Antifederalist arguments that were gaining traction in his home state of New York and across America. Hamilton needed to respond to the allegations that the Constitution, as written, essentially destroyed the state governments and subjected the people of the states to a national tyranny not answerable to the populace.
Both Hamilton and James Madison, along with John Jay, worked tirelessly on this issue using the print media available at the time. Their writings became collectively known as the Federalist Papers.
Madison dedicated a significant portion of his essays to the subject of the extent of federal power and state sovereignty. In Federalist Paper 39, Madison responds to the Antifederalist argument that the Constitution resulted in a consolidation of the states into one national government. Although Madison conceded there were parts of the Constitution that had characteristics of a national (as opposed to federal) government, he highlighted those attributes that were more of a federal nature. Such attributes included the fact that the Constitution was to be ratified by the people of each state, rather than the People as a whole; and that the Senate was to be elected by state legislatures, rather than the People as a whole.[15]
Significantly, Madison also pointed to the limited extent of the federal power to emphasize that the new Constitution was not a consolidation of the states into one national government. Madison argued that “the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”[16]
Thus, Madison is arguing that the Constitution, as originally drafted, was not intended to give the federal government unlimited authority as the Antifederalists suggested. Rather, the federal government was limited in its jurisdiction, leaving all remaining, “inviolable” sovereign authority to the state governments and ultimately to the People of those states.
Madison went on to dedicate an entire essay, Federalist Paper 45, to the preservation of that inviolable sovereign state authority referred to in Federalist 39. Madison began by noting that the purpose of the American Revolution was to attain “peace, liberty, and safety” for the people of America; not to ensure each state retained all attributes of sovereignty. After all Madison noted, “the real welfare of the great body of the people, is the supreme object to be pursued[.]”
With this object in mind, the Constitution required the states to cede some aspects of their sovereignty for the welfare of the American people as a whole. The necessity of this “sacrifice” of authority from the states to the federal government had been addressed in other papers. In Federalist 45, Madison sought to address “[h]ow far the unsacrificed residue [of state authority] will be endangered” under the new Constitution.[17]
Madison insisted that state authority endangered the federal government, not the other way around. This was because in Madison’s view, “the States will retain under the proposed Constitution a very extensive portion of active sovereignty[.]” Madison rejected the Antifederalist argument that the federal government would gradually erode state authority. He reasoned that because “the number of individuals employed under the Constitution of the United States will be much smaller than the number employed under the particular states[,]” the federal government would have less personal influence.
With regard to tax collection, Madison envisioned federal collectors mainly on the seacoast collecting taxes in the form of tariffs on international trade shipments. Should the federal government find it necessary to collect internal, direct taxes, Madison suggested that the “influence of those whole number [of tax collectors] would not bear a comparison with multitude of State officers in the opposite scale.”[18] For Madison, a massive federal administrative state employing millions of bureaucrats to enforce tax laws on a vulnerable population was simply not conceivable.
Again, Madison emphasized that the powers of the federal government were “few and defined”. Consequently, those remaining with the state governments were “numerous and indefinite.” Madison explained that the objects of federal power would “be exercised principally on external objects as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.” Madison then explained that “[t]he powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”[19]
Madison believed that “if the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union than in the invigoration of its ORIGINAL POWERS.” Interestingly, Madison noted here that “[t]he regulation of commerce, it is true, is a new power; but that seems to be an addition which few oppose and from which no apprehensions are entertained.”[†]
Thus, Madison denied that the new Constitution would be a radical departure from the prior Articles of Confederation with regard to the extent of federal power. For Madison, the value of the new Constitution rested in the new mechanisms enabling the federal government to enforce those powers that already existed.[20]
Hamilton also worked tirelessly to secure ratification of the new Constitution. In his speech during the Constitutional Convention, Hamilton favored the establishment of a national government, the very type Antifederalists feared most. When it came time to promote the new Constitution as drafted, Hamilton assured the Antifederalists that the new Constitution did not result in a national government. Considering Hamilton’s prior statements (unknown to many who were reading his essays at the time), his opinions on the limited nature of federal authority are interesting and somewhat dishonest.
In Federalist Paper 17, Hamilton responds to the Antifederalist argument that the proposed Constitution would allow the federal government to become too powerful and ultimately absorb the authority of the states. Hamilton’s first reaction to this argument is to ask why the federal government would even want to involve itself in local issues in the first place? Hamilton states,
“[t]he administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.”[21][‡]
But for the sake of argument, Hamilton assumes that for “mere wantonness” and “lust of domination”, the federal government does impose itself in such local affairs. If this were to happen, Hamilton insists that the national representatives, or “the people of the several States, would control the indulgence of so extravagant an appetite.” Like Madison, Hamilton argues that it would be far easier for the states to invade the authority of the federal government given the influence and connection with their own people:
“The superiority of influence in favor of the particular [state] governments would result partly from the diffusive construction of the national government, but chiefly from the nature of the objects to which the attention of the State administrations would be directed.”
Just as a man is more attached to his family than his outside community, Hamilton argues, the people will be more attached to their state leaders and government than a distant federal government.[22]
But Hamilton takes care to go beyond theoretical circumstances and goes back to explaining what he claimed the proposed Constitution accomplishes. In Federalist Paper 32, Hamilton explains that the federal government under the proposed Constitution was only a partial union or consolidation, and that “the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States.”[23]
Hamilton also addressed concerns over the Necessary and Proper clause. Hamilton reassured his readers that
“it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if these clauses were entirely obliterated as if they were repeated in every article. They are only declaratory of the truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers.”
Hamilton reiterates that the necessary and proper clause is simply intended as a cautionary clause to allow the federal government to execute its enumerated powers and is “perfectly harmless.”[24]
Hamilton dismissed concerns over the Supremacy Clause. He explained that the purpose of a law is to be supreme and binding on those over whom the law is intended to apply. However, just because federal laws will be considered supreme, it does not follow that laws
“which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These are merely acts of usurpation, and will deserved to be treated as such.”[25]
In other words, the fact that federal laws are superior to state laws in the areas where the federal government has been delegated authority, does not mean federal laws that invade the sphere of state sovereign authority are supreme.
Hamilton and Madison are clear that except for those limited and enumerated areas in the Constitution, the Federalists claimed to have no intention of increasing federal authority at the expense of the state sovereignty. The Federalists stated a desire to retain state sovereign authority, and perhaps more importantly, restrict the authority of the federal government to those enumerated powers in the Constitution.
The Federalists and Antifederalists, therefore on the surface, appeared to agree that the authority of the federal government should be limited to enumerated powers specified in the Constitution itself. Where the Federalists and Antifederalists disagreed was the method by which this generally agreed upon principle should be implemented.
The Federalists insisted that there was no reason to fear the extent of federal authority because not only do the states have an inherent advantage over the federal government, but the Constitution itself limits the power of the federal government to enumerated areas. The Antifederalists, on the other hand, were distrustful of the desire to accumulate and seize power and demanded reassurances that the federal government would be limited to those enumerated powers, rather than rely upon theoretical protections and implied textual constructions.
If the Antifederalists were to be appeased, they needed more than Madison’s and Hamilton’s personal reassurances—they needed a legal guarantee that the new national authority would remain limited. This topic was a key one once the state ratifying conventions undertook their work in considering the proposed Constitution of 1787.
[*] This general, undefined legislative power is commonly referred to as the police power.
[†] It was this commerce clause that Madison is referring to that the Supreme Court relied on to uphold many of the massive entitlement, and administrative programs that would come to dominate in the twentieth century.
[‡] In other words, Hamilton wonders why the federal government would even want to involve itself with minutiae such as how many plants an individual farmer grows in his own field? Yet, this is exactly the federal power the Supreme Court upheld under the commerce clause in the 1942 case of Wickard v. Filburn.
[1] Herbert J. Storing, Ed. The Complete Antifederalist, vol. 2, Objections of Non-Signers of the Constitution and Major Series of Essays at the Outset (Chicago and London: The University of Chicago Press, 1981), 323.
[2] Ibid, 230-32.
[3] Ibid, 233-34.
[4] Ibid, 325.
[5] Herbert J. Storing, The Complete Antifederalist, vol. 6, 171.
[6] Herbert J. Storing, The Complete Antifederalist, vol. 2, 396-97.
[7] Ibid, 397.
[8] Herbert J. Storing, The Complete Antifederalist, vol. 3, 184.
[9] Herbert J. Storing, The Complete Antifederalist, vol. 2, 169.
[10] Herbert J. Storing, The Complete Antifederalist, vol. 5, 104-05.
[11] Herbert J. Storing, The Complete Antifederalist, vol. 3, 22-23.
[12] Ibid, 23-24.
[13] Ibid, 25.
[14] Ibid, 85.
[15] James Madison, Alexander Hamilton, and John Jay, The Federalist Papers (New York and Toronto: The New American Library, 1961), 243-45.
[16] Ibid, 245.
[17] Ibid, 288-89.
[18] Ibid, 291-92.
[19] Ibid, 292-93.
[20] Ibid, 293.
[21] Ibid, 118.
[22] Ibid, 119.
[23] Ibid, 198.
[24] Ibid, 201-03.
[25] Ibid, 204.
