Understanding the Constitution #23 – The Arguments at the Founding Continue Today
In recent weeks, Texas enacted a law allowing it to arrest and return to Mexico immigrants who try to cross into the state illegally. The federal government went to court arguing Texas was usurping the federal government’s right to set and enforce immigration policy. Such a political battle between the powers of states vs. the national government has deep roots in the Constitutional Convention of 1787.
Calling it the Constitutional Convention is a misnomer. The convention was not supposed to constitute a new form of government. The Continental Congress authorized it “for the sole and express purpose of revising the Articles of Confederation,” the nation’s first constitution. The instructions also stipulated that any “alterations and provisions” the Convention devised would have to be “agreed to in [the Confederation] Congress and confirmed by [all of] the States [legislatures].”
Yet the Constitution that emerged ignored those instructions. The bulk of the delegates were frustrated with government under the Articles. States had often ignored Congress’s pleas to support the Revolution, withholding funds and troops. They erected trade barriers against each other and tried to set their own foreign policy. In short, the national government was weak, so the delegates proposed a stronger one.
Many people were displeased. Patrick Henry was incensed that the proposed new constitution called not for approval by state legislatures but by conventions of the people in each state. Contrary to the Articles, only nine states (rather than all) would need to ratify it to establish the new government. Opponents charged the Constitution would weaken state sovereignty in favor of a consolidated national government. Jumping on the Preamble’s opening words “We, the People” he launched his attack on June 5, 1788:
“Have they said, We, the states? Have they made a proposal of a compact between states? If they had, this would be a confederation. It is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America. I need not take much pains to show that the principles of this system are extremely pernicious, impolitic, and dangerous.”
This was not the only objection of opponents, called Anti-Federalists, who saw themselves as upholding “the spirit of ‘76”. Nor was ratification certain for Federalists. Two states eventually ratified only by slim margins (Massachusetts by 3 votes and Virginia by10). Rhode Island didn’t ratify, by just 2 votes, until 1790.
We don’t talk about Anti-Federalists and Federalists today. Yet as in Texas the arguments about the distribution of governmental power and the defense of liberty still animate our politics.
The Anti-Federalists argued liberty is secure only in small, homogeneous republics - the states. The believed a far-away Congress would pass laws that would ignore or act contrary to local concerns. The power of the national government to lay and collect taxes, they reminded citizens, a power that didn’t exist under the Articles, had sparked rebellion against another distant power in 1776. In contrast, Federalists argued that states could not always be counted on to protect the liberties of their people, especially in matters such as religion (some states had “recognized” religions) and slavery.
Because the Constitution didn’t guarantee freedom of religion, speech, press, assembly and petition, Anti-Federalists charged, the national government could deny these rights. They also feared Articles I and VI. Article 1 gives Congress the right to enact all laws “necessary and proper” to carrying out its provisions, a vague and they believed unchecked power. Article VI makes national laws the “Supreme law of the land,” which they feared would render state legislatures powerless.
Modern-day Federalists and Anti-Federalists exist in the conflict between the national and state governments on topics as diverse as abortion, guns, taxes, the environment, gender identity, election laws, health care, education and of course immigration.
This give-and-take is inherent in our diverse country and was wisely built into the design of the Constitution, which divides power to prevent the dangerous concentration of it. It can be healthy for democracy when it remains civil. (In the Civil War, of course, it did not.) It pumps energy into politics, facilitates consideration of a wide range of ideas and the search for workable solutions.
James Madison demonstrated how this can happen. While Anti-Federalists lost the Constitutional ratification debate, their fears led Madison, a Federalist, to propose amendments, which we call the Bill of Rights. Introducing them in the First Congress on June 8, 1789, he said:
“I wish . . . that those who have been friendly to the adoption of this constitution, may have the opportunity of proving to those who were opposed to it, that they were as sincerely devoted to liberty and a republican government, as those who charged them with wishing the adoption of this constitution in order to lay the foundation of an aristocracy or despotism.”
Total victory of either side over what seemed irreconcilable positions in 1787 didn’t happen. It shouldn’t be the goal now. What Abraham Lincoln called “the last best hope of earth” can succeed with citizens who think like Federalists and others who think like Anti-Federalists. Yet it also requires both to be willing to navigate across their differences.
Photo Credit: havefunwithhistory.com
