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However, the
Anti-Federalists argued that the Federalists’ position was incorrect and perhaps even insincere. The Anti-Federalists believed provisions such as the elastic clause in Article I, Section 8, of the Constitution would allow Congress to legislate on matters well beyond the limited ones foreseen by the Constitution’s authors; thus, they held that a bill of rights was necessary. One of the Anti-Federalists,
Brutus , whom most scholars believe to be Robert
Yates , wrote: “The powers, rights, and authority, granted to the general government by this Constitution, are as complete, with respect to every object to which they extend, as that of any state government—It reaches to every thing which concerns human happiness—Life, liberty, and property, are under its controul [sic]. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments.”
Constitution Society, “To the Citizens of the State of New-York,” http://www.constitution.org/afp/brutus02.htm (March 4, 2016). The experience of the past two centuries has suggested that the Anti-Federalists may have been correct in this regard; while the states retain a great deal of importance, the scope and powers of the national government are much broader today than in 1787—likely beyond even the imaginings of the Federalists themselves.
The struggle to have rights clearly delineated and the decision of the framers to omit a bill of rights nearly derailed the ratification process. While some of the states were willing to ratify without any further guarantees, in some of the larger states—New York and Virginia in particular—the Constitution’s lack of specified rights became a serious point of contention. The Constitution could go into effect with the support of only nine states, but the Federalists knew it could not be effective without the participation of the largest states. To secure majorities in favor of ratification in New York and Virginia, as well as Massachusetts, they agreed to consider incorporating provisions suggested by the ratifying states as amendments to the Constitution.
Ultimately, James Madison delivered on this promise by proposing a package of amendments in the First Congress, drawing from the Declaration of Rights in the Virginia state constitution, suggestions from the ratification conventions, and other sources, which were extensively debated in both houses of Congress and ultimately proposed as twelve separate amendments for ratification by the states. Ten of the amendments were successfully ratified by the requisite 75 percent of the states and became known as the Bill of Rights ( [link] ).
| Rights and Liberties Protected by the First Ten Amendments | |
|---|---|
| First Amendment | Right to freedoms of religion and speech; right to assemble and to petition the government for redress of grievances |
| Second Amendment | Right to keep and bear arms to maintain a well-regulated militia |
| Third Amendment | Right to not house soldiers during time of war |
| Fourth Amendment | Right to be secure from unreasonable search and seizure |
| Fifth Amendment | Rights in criminal cases, including due process and indictment by grand jury for capital crimes, as well as the right not to testify against oneself |
| Sixth Amendment | Right to a speedy trial by an impartial jury |
| Seventh Amendment | Right to a jury trial in civil cases |
| Eighth Amendment | Right to not face excessive bail, excessive fines, or cruel and unusual punishment |
| Ninth Amendment | Rights retained by the people, even if they are not specifically enumerated by the Constitution |
| Tenth Amendment | States’ rights to powers not specifically delegated to the federal government |
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