The Battle Over a Bill of Rights

The question of a “bill of rights” in the Constitution had been raised at the Convention. There the idea had been rejected for two reasons: first, the delegates seemed to make every effort to avoid making profound, philosophical statements about rights and the nature of government in the Constitution. They were more concerned with the practical business of creating a workable government. During the long, hot Philadelphia summer, they were reluctant to spend time on matters that they considered secondary to that objective. Secondly, the delegates recognized that listing the rights of the people might imply that anything not listed was not a protected right. Moreover, most of the states already had bills of rights in their constitutions and listing them in the national constitution, many delegates believed, would be redundant.

Arguments in Favor of a Bill of Rights

The arguments against a bill of rights at the Convention notwithstanding, the Anti-federalists focused almost all of their energies on attacking the Constitution because it did not explicitly guarantee the rights of the people. Given the “supremacy” clause and the “necessary and proper” clause in the Constitution, the Anti-federalists argued that there were effectively no limits on the authority of the national government and, hence, no protections from it for individual citizens.

Turning one of the arguments against a bill of rights on its head, the Anti-federalists argued that if the state constitutions listed the rights of the people, why shouldn’t the national constitution? Thomas Jefferson, out of the country at the time as the U.S. ambassador to France, wrote to his Federalist friends that if they expected the people to pledge their allegiance to a new government, the people were “entitled” to a listing of their rights. To feel secure in their rights, they had to be documented.

Arguments Against a Bill of Rights

While the Anti-federalists’ arguments in favor of a bill of rights may seem reasonable as you read them today, the Federalists were strongly opposed to the idea. First, the Federalists feared that adding a bill of rights in the middle of the ratification process would tip the scales in favor of the Anti-federalists. Some states had ratified the Constitution quickly; would those ratifications remain in effect if the Constitution was changed in any way? The Anti-federalists would probably demand that the Constitution be ratified again in those states. Moreover, the Anti-federalists demanded that a new convention be called so they could add a bill of rights to the Constitution. At such a convention, the Federalists feared, the Anti-federalists would seek to undo the work of the original convention.

The Federalists were opposed to a bill of rights for philosophical reasons as well. As has been noted, they viewed the new government the Constitution would establish as a covenant between sovereign citizens. Given the limited grant of power from the people to the national government under the Constitution, an enumeration of the rights reserved by the people would be “superfluous and absurd.” The government did not have power simply because it was the government; it had power because the people granted it power. If a list of rights were included in the Constitution, the Federalists feared that the implication would be that any right not included on the list was not retained by the people.