Every schoolchild knows the names, George Washington, Benjamin Franklin and James Madison but few would recognize the names Arthur Fenner, Peleg Arnold or Aedanus Burke. Yet, it is more to the latter than the former to whom we own a debt of gratitude for the remaining liberties we enjoy today.
The foundation of our liberties rest on three documents; the Declaration of Independence that proclaims our status as a free and independent nation; the Constitution that established and empowered a new government; and the Bill of Rights that protects certain unalienable rights and sets the bounds of government beyond which it is not allowed to go.
Most of us erroneously assume that it is the Constitution that limits the scope of government and protects our rights. It does not. The Constitution empowers the government and enumerates the powers delegated to it by the people in Article 1, Section 8. However, it does not specifically state the intent of the Framers that the government is limited to those powers. History has shown that without that specificity, there is no limit to the powers government will assume for itself.
At the time the Constitution was written the federalists who crafted it assumed that the mere fact that the powers being delegated to the central government were listed would limit the government to those named and future governments would adhere to the wishes of the Founders. This assumption on the part of the Framers became the number one obstacle to its quick ratification by the states.
Citizens, in the aftermath of the Revolutionary War were suspicious of a central government removed by distance from their close oversight. Believing the Constitution, as written, did not adequately protect them from the expansive powers of government, they demanded a “Bill of Rights”. Others feared that the new government would eventually become a “consolidated” government relegating the individual states to the status of provinces subject to the will of the central government instead of sovereign states.
The demand for a Bill of Rights by many of the states became the focus of contention between the federalists who supported the Constitution as written and the anti-federalist who opposed it. Federalist No. 84 by Alexander Hamilton was written in opposition to a Bill of Rights. In it he argues,
“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. … For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”
The debate between the federalists and the anti-federalists took place publicly in letters and essays published in newspapers throughout the states. The writings of the federalists are preserved in the Federalist Papers and have enjoyed widespread circulation throughout our history. The writings of the anti-federalists, which are just a numerous, have been neglected for the most part, except by historians and scholars. Only recently, have they begun to be available to the general public on a widespread basis.
The most well-known anti-federalist was perhaps Patrick Henry who refused to attend the Constitutional Convention because he “smelt a rat in Philadelphia, tending toward a monarchy.” Henry is considered to be one of the leaders of the anti-federalists. Melancton Smith, Richard Henry Lee, George Mason and George Clinton are also well-known anti-federalists.
One of the most vocal was Arthur Fenner of Rhode Island. Rhode Island was so opposed to the Constitution it refused to send delegates. Fenner’s opposition to the Constitution was so popular with Rhode Islanders they elected him to the office of Governor in 1790 where he served until his death in 1805. Rhode Island was the last of the thirteen states to ratify the Constitution. The final vote was 34 to 32 in favor of ratification and came just three weeks after Fenner was named Governor.
Fenner and the other anti-federalist did not succeed in getting a Bill of Rights before the Constitution was ratified, but they did succeed in getting a promise that a Bill of Rights would be added by the first Congress. True to its word, a Bill of Rights was introduced in the First Congress in 1789 by James Madison and ratified by the states in 1791. Thomas Jefferson was one of the strongest supporters of a Bill of Rights although he was out of the country during the Philadelphia Convention and for much of the following debate concerning ratification.
It is to the Tenth Amendment in the Bill of Rights that we owe whatever restraints we have over the federal government. Without the Tenth Amendment which says, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”, we would, no doubt, have lapsed into tyranny generations ago. It is this amendment that gives legal authority to the “enumerated powers” doctrine.
History and current events have shown that the forgotten patriots, known as the anti-federalists, who gave us the Bill of Rights, were well justified in their fears and reveals their wisdom and judgment to be equal to, if not superior to the federalist who gave us the Constitution. Even today, the statists who are, in many ways the philosophical descendents of the early federalist, continue to struggle against the Tenth Amendment.