In 1788, Patrick Henry, America’s best-known Antifederalist, commandeered the proceedings at the Virginia ratifying convention, and warned that the Constitution put America’s hard-won liberties at risk. The “consequent happiness or misery of mankind. . .will depend on what we now decide,” he proclaimed. James Madison, seething at Henry’s audacity, patched together a narrow Federalist majority at the convention, partly due to his promise to pass a Bill of Rights in the first Congress.Antifederalist pressure was largely to thank for the Bill of Rights, the section of the Constitution Americans now revere most highly. But we may also get the impression that the Bill of Rights was all the Antifederalists wanted. This is a myth.
It is true that some Americans who initially balked at the Constitution were reassured by the promise of a Bill of Rights. Baptists in Virginia, for example, were concerned about the absence of provisions guaranteeing religious freedom and banning a national establishment of religion. When Madison promised them that he would deliver these, Baptist Antifederalism in Virginia largely evaporated.
But many other Antifederalists, including Patrick Henry, doubted the efficacy of a Bill of Rights. What good would it do to assure Americans that the new government would not violate widely-accepted fundamental rights, while simultaneously giving it the power to do so? More critically, what would ever constrain the size and power of this government? Words alone could not suffice.
Even James Madison scoffed at the value of listing rights, calling such measures “parchment barriers.” Madison and many Federalists did not originally wish to include a Bill of Rights, believing that trying to enumerate all essential rights was a fool’s game. The Constitution did not give the government the power to violate the freedom of speech or religion, Madison thought, so we should assume that it was prohibited from doing so.
Madison also believed that the Constitution’s checks and balances would restrain its power. Henry disagreed, and wanted to see major structural amendments adopted that would reduce the national government’s authority. But the Antifederalists failed to get these amendments considered outside of the ratification debates.
When Madison shepherded the Bill of Rights to approval, Henry was not impressed. Because they did not address issues such as the ominous executive authority of the President, Henry thought the amendments “will tend to injure rather than to serve the cause of liberty.” Virginia’s Antifederalist senator William Grayson said the Bill of Rights was “good for nothing.”
I doubt that most Americans today would agree that the Bill of Rights injured the cause of American liberty. However, as we struggle to reduce the mind-boggling size of the American government, one is reminded that the Antifederalists had more fundamental criticisms of the Constitution than its lack of a Bill of Rights. They worried that once set in motion, the government would eventually grow to heights of nearly uncontrollable scope. This would leave us in a situation strongly reminiscent of the situation that has paralyzed American politics today.Thomas S. Kidd teaches history at Baylor University and is Senior Fellow at Baylor’s Institute for Studies of Religion. He is the author of Patrick Henry: First Among Patriots.