Conclusiones parciales

The adoption of the novel federal constitution, unsurprisingly, resulted in significant political debates that led to further debates about fundamental constitutional ideas.

After the drafting of the Constitution, these emerged as two main political ideologies, which also influenced the ratification debates of the proposed Constitution.

III.2.1. The Federalists

As mentioned in Chapter 1, those supporting the adoption of the Constitution came to form the political group of The Federalists. Their main argument was for a powerful federal government to become the supervisor of state and local governments.⁴⁹⁷ However, the powers of the federal government could not become limitless in such a system. Moreover, they also had to consider that federal and state level regulations had to co-exist in this novel system.

Another key policy initially adopted by the Federalists was their opposition to the inclusion of a Bill of Rights in the Constitution.⁴⁹⁸ The reason for this viewpoint was manifold. Firstly, important members of the group, such as Hamilton and Madison, emphasised the non-existence of bill of rights in various states, and, therefore, claimed there was a lack of need for a federal bill of rights.⁴⁹⁹ They further argued that even the existence of these bills did not automatically guarantee adequate protection for the citizens.⁵⁰⁰ Madison even called the state bills of rights ‘parchment barriers.’⁵⁰¹ Thus,

496 Farrand (n 220), vol III 143; Rakove (n 420) 318.

497 Eileen Hunt Botting, ‘Protofeminist Responses to the Federalist-Antifederalist Debate’, The Federalist Papers (Yale University Press 2009) 533.

498 Levy (n 422) 20.

499 ibid 20–22; Hamilton and Madison (n 46) 432–433 No 84.

500 Levy (n 422) 20–22.

501 Rakove (n 420) 326; Levy (n 422) 22.

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it may be deduced that they argued that the adoption of a bill of rights in the Constitution, would not guarantee the protection of these rights by the federal government.

Secondly, some members of this group also seem to have adopted the natural law approach. Hamilton, for instance, contended that since people possess the sovereign power in the United States, a federal bill of rights would not grant any additional guarantees to them. ⁵⁰² By becoming sovereign, the people of the United States, Hamilton argued, retained all the power in cases where no ‘reservations’ were placed in the original Constitution. ⁵⁰³ They could, therefore, not be required to ‘surrender’

anything.⁵⁰⁴ They, thus, argued – based on the natural law approach – that the people already possess those rights that would be enumerated in the bill of rights in their natural state. Including these rights in a bill of rights would have required their surrender from this natural state, which did not follow the ideology of the natural law theory.

Thirdly, following from the above, Hamilton took this standpoint further and claimed that enumerating the fundamental rights of the people ‘would even be dangerous.’ ⁵⁰⁵ He reasoned that such enumeration could allow for claims to be made for rights that were not initially intended to be established by the Framers.⁵⁰⁶ For instance, he argued that the freedom of the press could not be adequately protected by such bill of rights.⁵⁰⁷ The reason he provided for this claim was that no definition of the concept could be provided, creating undesired uncertainty, which would lead to the ineffective protection of such right.⁵⁰⁸ It may, however, be highlighted that whilst he argued that the protection of a provision was not adequate in the federal constitution if no clear definition of it could be provided, many other provisions in the already accepted text of the Constitution at the Philadelphia Convention, such as commerce, remained

502 Hamilton and Madison (n 46) 432–433 No 84.

503 ibid No 84.

504 ibid No 84.

505 ibid 433.

506 ibid.

507 ibid 434.

508 ibid.

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undefined. Thus, his opposition to the inclusion of rights that are not clearly defined seems to be in contravention of other main provisions of the Constitution and thus cannot be held to be validly supported.

Fourthly, relying on the dual constitutional structure approach and addressing the constant conflict that emerged between the federal and state governments, the Federalists also claimed that the inclusion of a Bill of Rights was unnecessary and inadequate in the federal Constitution. They accordingly argued that under the dual constitutional structure, the states were more suited to protect the rights that would be included in a federal bill of rights, since state governments were the ones entrusted with the application of the rights excluded from the federal Constitution.⁵⁰⁹ Thus, the protection of these rights was seen as traditionally belonging to the states, the power over which could not be transferred to Congress.

However, one key element missing from such an argument is that if the individual was placed in the focus, it would only provide them with protection of their rights against their state, not the federal government. Unless, based on the above constitutional structure, the argument is for the states to be able to claim on behalf of the individual that their rights have been breached on federal level. However, such a position would have defeated one of the main aims of the Constitution of creating a uniform system whereby individuals would have been afforded different levels of protection depending on which states they were the citizens of.

Fifthly, Hamilton also suggested that, despite all the above, the Constitution itself could be considered a bill of rights of the federal system.⁵¹⁰ His claim was based on the position that, – similar to the Constitution of New York, – the federal Constitution possessed ‘various provisions in favour of particular privileges and rights’ in its original form.⁵¹¹ He asserted that the most important of these ‘privileges and rights’ were ‘the

509 ibid.

510 ibid 435; Levy (n 422) 17.

511 Hamilton and Madison (n 46) 431.

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privilege of the writ of habeas corpus’,⁵¹² the prohibition of ‘bills of attainder or ex-post-facto’ laws⁵¹³ and of granting titles of nobility.⁵¹⁴

Whilst it has become apparent from the above that the Federalists were fundamentally opposed to the idea of a federal bill of rights in the Constitution, some members had expressed support for certain rights not included in the Constitution to come under federal protection through the Constitution. Madison, for instance, highlighted these as the ‘individual and minority rights’ that he believed were not afforded adequate protection by the states.⁵¹⁵ This position, however, also indicates a firm belief and divide between state and federal rights, adopting a dual federalist approach with defined limits to each right.

Another political grouping, however, also emerged that placed the key policy of the non-inclusion of a federal Bill of Rights in the Constitution under substantial scrutiny.

III.2.2. The Anti-Federalists

The opposition political group that had an influence over the ratification debates of the Constitution was the Anti-Federalists, who were fundamentally opposed to the adoption of the Constitution and aimed to call a second convention.⁵¹⁶ One of their main criticisms of the proposed Constitution was that it created a federal government that possessed powers too great without allocating adequately wide powers to the states.

Their other crucial continuous request was the greater protection of ‘individual rights’

in the federal system.⁵¹⁷ DeWitt, however, argued that in order to attain this, a federal

512 Constitution of the United States, Article 1 section 9 clause 2.

513 Constitution of the United States, Article 1 section 9 clause 3.

514 Constitution of the United States, Article 1 section 9 clause 7; Hamilton and Madison (n 46) 431.

515 ibid 52 No 10; Hubert L Will, ‘Why the Bill of Rights Does Apply to the States’ (1987) 26 The Judges Journal 28, 32.

516 Irving Brant, The Bill of Rights: Its Origin and Meaning (Bobbs-Merril 1965) 39.

517 Botting (n 498) 533.

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Bill of Rights proved necessary. ⁵¹⁸ He claimed that in such a bill the people would be able to enumerate their natural rights that they are willing to ‘surrender’ to create the novel, federal, society.⁵¹⁹ This viewpoint, unsurprisingly, clearly contradicted the natural law approach of the Federalists. Whilst they claimed that a citizen should not have to surrender any of their rights under natural law in the novel federal system, the Anti-Federalists argued – seemingly in line with the social contract theory - that such surrender was necessary.

Furthermore, whilst Hamilton was opposed to the inclusion of terms with no clear definition due to the uncertainty they would create,⁵²⁰ the Anti-Federalists supported the inclusion of such terms. DeWitt, for instance, claimed that the rights to be included in such a bill should be provided by general terms and ‘not with too much precision and accuracy’.⁵²¹ Arguably, in favour of a non-originalist method of interpretation, he maintained that the advantage of this would be that rights could be implied to have been included in such bill of rights in the future.⁵²² This approach would, thus, allow for the advancements of society to be adopted as part of the Constitution. These would be allowed either through the enactment of federal regulation or the interpretation of the Constitution at the Supreme Court, representing the views adopted at the time.

As mentioned above, the two ideologies supported by the Federalists and the Anti-Federalists divided the opinions during the ratification debates. It may, therefore, be important to examine why the Constitution was ratified in its original form without a bill of rights. Based on the analysis of these, to those familiar with the Constitution, it may seem apparent that the Anti-Federalists had succeeded during the ratification debates, since a Bill of Rights now forms part of the Constitution of the United States.

III.2.3. The Ratification Debates

518 John Dewitt No II Morton Borden (ed), The Antifederalist Papers (Michigan State University Press 1965).

519 John Dewitt No II ibid.

520 Hamilton and Madison (n 46) 434 No 84.

521 John Dewitt No II Borden (n 519).

522 John Dewitt No II ibid.

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As expected from the dominance of the above two political groupings during the ratification debates, the adoption of the Constitution was often in jeopardy. This would mostly be due to the extensive discussions around the omission of the bill of rights from it. It was therefore essential for the adoption of the Constitution for this position to be clarified and remedied. After several states voted for the adoption of the Constitution with subsequent amendments to be made, the ratification of the Constitution mainly depended on the actions of two states, Pennsylvania and Virginia.⁵²³

III.2.3.1. The Pennsylvania Convention

In a state that adopted a bill of rights, it was hardly surprising that the delegates to the Federal Convention had to face a serious questioning for the reason why a bill of rights was not proposed as part of the new federal constitution.⁵²⁴ Wilson, one of the delegates to the Federal Convention, presented many of the arguments that were previously presented in the thesis. For instance, he claimed that the omission of a bill of rights was due to the proposals for it being submitted during the late stages of the Convention, which were therefore not taken into full consideration.⁵²⁵ He subsequently turned to the Federalist arguments to justify the lack of a federal bill of rights. He firstly claimed that a bill of rights was ‘neither an essential nor a necessary instrument in framing a system of government’.⁵²⁶ This was, on the other hand, a courageous position to support in Pennsylvania, where a bill of rights occupied an important role in the constitutional system. By stating the above, he, effectively, asserted that the ideal that originated from the late Proprietor of Pennsylvania were unnecessary in his own state.

Secondly, following the natural law theory adopted by the same late Proprietor, he argued that a bill of rights was unnecessary since the liberty of the citizens could be

523 Levy (n 422) 30-31 and 40-41.

524 McMaster and Stone, ‘James Wilson in the Pennsylvania Convention’ in Max Farrand (ed), The Records of the Federal Convention of 1787 (Yale University Press 1937) vol III 143.

525 ibid.

526 ibid.

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present and protected without such bill, since these rights were present in the natural state of the citizens.⁵²⁷ He, thirdly, claimed, supporting the natural law standpoint, that a Bill of Rights was omitted from the Constitution because a list of ‘all the rights of the people’ would not only have been ‘impracticable’, but an imperfect list would have resulted in the omitted rights not being afforded protection.⁵²⁸ It is therefore argued that Wilson advocated for a non-originalist method of interpretation of the Constitution by acknowledging that the Constitution would have to be able to adapt to changes in society.

Despite having been faced with strong opposition and having been presented debatable arguments, the Federalist majority voted for the ratification of the Constitution in this state. The Anti-Federalists, in response, published their proposed amendments nationwide, in which they argued for the protection of the fundamental rights of citizens.⁵²⁹ Moreover, supporting a dual federalist approach, they also called for an amendment to be adopted that all unenumerated rights in the Bill of Rights should be reserved to the states, thus ensuring that the powers of the newly created federal government would also become limited in this area.⁵³⁰ However, as for the Federalist arguments, the key one focusing on whether the federal government was to act contrary to the diverging state rights seemed to have gone unaddressed.

III.2.3.2.The Virginia Convention

After the ratification of the Constitution by the Pennsylvania ratifying convention, all eyes turned to Virginia. This was the state of Mason, who devised its Declaration of Rights, and joined the Anti-Federalists, as a key figure. On the other side stood James Madison, another delegate to the Federal Convention who joined the Federalists. In order to ensure the adoption of the Constitution and that the Anti-Federalists did not gain a political advantage that would result in the calling of a second convention, Madison devised a politically strategic move with Nicholas, which, in effect, resulted in

527 ibid.

528 ibid vol III 143 and 162.

529 Alexander (n 426) 328 – 329.

530 ibid.

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a complete change of the key policy of the Federalists on the omission of the Bill of Rights.⁵³¹ He declared that such a Bill of Rights should be included in the Constitution, although not in the original text but as amendments to it. In order to further ensure the ratification of the original Constitution, Madison also made a promise to the Virginia Convention that he would personally formulate the proposal for an amendment to the Constitution to include a Bill of Rights, and enumerated all the rights that the Virginia Convention requested him to include.⁵³²

With this fundamental change of position of Madison, who previously referred to bills of rights as ‘parchment barriers,’ ⁵³³ the Federalists subsequently won the debate, and the Constitution was ratified by the Virginia Ratifying Convention. On the other hand, Virginia joined the line of states that only voted for the ratification of the Constitution with proposed amendments.⁵³⁴ Rhode Island and New York, for instance, argued for the inclusion of certain fundamental rights, such as the freedom of religion in the new Constitution.⁵³⁵ North Carolina also argued for a Declaration of Rights to be added to the Constitution, that would have protected, for instance, the freedom of speech and the freedom of assembly.⁵³⁶