Criticisms of the Constitution

Introduction

After the Gathering of delegates from each state (except Rhode Island) that met in Philadelphia from May to September of 1787. Originally endorsed by Congress to propose amendments to the existing government under the Articles of Confederation, but instead drafted a new Constitution.Constitutional Convention adjourned and circulated the text of its proposed form of government, a spirited debate took place throughout the United States. Newspapers printed essays on the Constitution written by prominent politicians as well as less well-known citizens. Pamphlets were carried across state borders in the hopes of swaying public opinion. Considering the serious problems the states experienced under the Articles of Confederation, why did many citizens take a stand against the proposed Constitution?

Nearly every part of the Constitution came under attack at some point, but many of the criticisms fell under these three categories: the Constitution lacked a declaration of rights, it consolidated too much power at the national level, and it created insufficient or unfair representation in the House of Representatives and the Senate.

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Lack of a Bill of Rights

Most State Constitutions included some sort of Bill of Rights. For instance, the 1776 Pennsylvania State Constitution included a Declaration of Rights that contained many rights modern Americans would find familiar, such as freedom of religion and freedom of speech. Critics of the proposed federal Constitution felt that individual rights would be at risk if the Constitution were ratified without a bill of rights. In fact, two delegates at the Constitutional Convention, George Mason (pictured at right) and Elbridge Gerry sought to form a committee to draft a bill of rights, but the proposal was voted down.1

In the ratification debate in the newspapers and the state ratification conventions, the question of a bill of rights repeatedly arose. Those in favor of ratification without amendments argued that a federal bill of rights was unnecessary given the protections in existing state constitutions.2 Furthermore, adding a declaration of rights could be dangerous to liberty. Unlike the state constitutions that gave state governments all powers not reserved to the people, the proposed federal Constitution granted Congress only individually/specifically mentioned powersenumerated powers. Adding a bill of rights to restrict the power of the government would imply that Congress formerly had the power to control the press, or abolish freedom of speech.3

Supporters of adding a bill of rights rejected these arguments. They pointed out the vagueness of Congress’s powers as described in Article I, Section 8 of the Constitution: it had the power to tax the public to provide for the “general Welfare” of the U.S., and to pass all “necessary and proper” laws to fulfill its enumerated responsibilities. Additionally, Article 1, Section 9 contained specific restraints on the power of Congress, such as preventing it from outlawing the slave trade for twenty years or conferring a title of nobility. Since neither of these were among Congress’s enumerated powers, it followed that specific protections of individual rights were necessary as well.4

Consolidation of Power at the National Level

Another very common criticism of the proposed Constitution was that the federal government would have too much power over the states. The Constitution certainly marked a change from government under the Articles of Confederation, in which each state maintained its supreme power; authority of a state to govern itselfsovereignty. The Constitution gave Congress the power to levy taxes in order to “pay the debts and provide for the common Defense and general Welfare of the United States” (Article I, Section 8), which critics argued amounted to limitless taxing power. With the help of the federally controlled militia, Congress could enforce taxes so high that state governments were left unable to collect their own taxes.5

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In addition to criticizing Congress’s broad taxing power, those concerned with the consolidation of power in the federal government provided examples of other areas in which the state governments would be threatened. They argued that the federal judiciary had so broad a extent of the power to make legal decisions and judgmentsjurisdiction that it could diminish the powers of the state courts.6 Additionally, many were concerned with Article VI, which asserts that treaties between the U.S. and other nations “shall be the supreme Law of the Land.” Despite the difficulties caused by lack of enforcement of treaties under the Articles of Confederation lack of enforcement of treaties under the Articles of Confederation, some critics argued that treaties should only become valid if they did not conflict with existing state laws.7

Finally, critics of the Constitution argued that a democratic government could never govern an area as vast as the U.S. Dissenters at the Pennsylvania ratification convention believed that “it is the opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government.” A consolidated government would necessarily entail a sacrifice of personal liberty.8 Those in favor of ratification responded to these claims in Federalist 51.

Insufficient, Unfair Representation in Congress

The debate over how the people and the states should be represented in Congress was very divisive during the original Constitutional Convention, and this continued to be the case during the debate over ratification. Critics, particularly those from larger states, took exception to the fact that each state would have an equal number of representatives in the Senate. This compromise, painstakingly reached at the original Convention, artificially increased the legislative power of small states.

Many citizens who opposed ratification also felt that Congress—and the federal government in general—concentrated power in the hands of too few people. The House of Representatives, which would have sixty five members, was too small to truly represent the interests of the People. According to a newspaper article published in New York under the a fictitious name, a pen namepseudonym Brutus, “the very term, representative, implies that the person or body chosen for this purpose, should resemble those who appoint them…sixty-five men cannot be found in the United States, who hold the sentiments, possess the feelings, or are acquainted with the wants and interests of this vast country.” Instead of a cross-section of American society, the wealthy and influential—the “natural aristocracy of the country”—would be elected. This fear of a powerful national government controlled by the elite permeated many criticisms of the Constitution.9

Why did these criticisms matter?

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Critics of the Constitution had an important effect on the ratification process. In Pennsylvania, the dissenters published a document explaining their views and suggesting changes. The Massachusetts convention ratified the Constitution but also approved a list of recommended amendments. In both cases, the amendments were aimed at lessening federal power, increasing fair and responsive representation in Congress, and protecting individual rights. Although the Constitution was ultimately ratified, the critics of the document had an impact that stretched beyond the ratification debates. Some of the critics' suggestions were incorporated into the first ten amendments to the Constitution, commonly known as the Bill of Rights.


For an extensive collection of writings criticizing the Constitution, click here.

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