University of Wisconsin–Madison

The Debate over a Bill of Rights

Antifederalists argued that in a state of nature people were entirely free. In society some rights were yielded for the common good. But, there were some rights so fundamental that to give them up would be contrary to the common good. These rights, which should always be retained by the people, needed to be explicitly stated in a bill of rights that would clearly define the limits of government. A bill of rights would serve as a fire bell for the people, enabling them to immediately know when their rights were threatened.

Additionally, some Antifederalists argued that the protections of a bill of rights was especially important under the Constitution, which was an original compact with the people. State bills of rights offered no protection from oppressive acts of the federal government because the Constitution, treaties and laws made in pursuance of the Constitution were declared to be the supreme law of the land. Antifederalists argued that a bill of rights was necessary because, the supremacy clause in combination with the necessary and proper and general welfare clauses would allow implied powers that could endanger rights.

Federalists rejected the proposition that a bill of rights was needed. They made a clear distinction between the state constitutions and the U.S. Constitution. Using the language of social compact, Federalists asserted that when the people formed their state constitutions, they delegated to the state all rights and powers which were not explicitly reserved to the people. The state governments had broad authority to regulate even personal and private matters. But in the U.S. Constitution, the people or the states retained all rights and powers that were not positively granted to the federal government. In short, everything not given was reserved. The U.S. government only had strictly delegated powers, limited to the general interests of the nation. Consequently, a bill of rights was not necessary and was perhaps a dangerous proposition. It was unnecessary because the new federal government could in no way endanger the freedoms of the press or religion since it was not granted any authority to regulate either. It was dangerous because any listing of rights could potentially be interpreted as exhaustive. Rights omitted could be considered as not retained. Finally, Federalists believed that bills of rights in history had been nothing more than paper protections, useless when they were most needed. In times of crisis they had been and would continue to be overridden. The people’s rights are best secured not by bills of rights, but by auxiliary precautions: the division and separation of powers, bicameralism, and a representative form of government in which officeholders were responsible to the people, derive their power from the people, and would themselves suffer from the loss of basic rights.

(F) Federalist Essays/Speeches

(AF) Antifederalist Essays/Speeches

Dangerous to List Rights

(F) Publius: The Federalist 84, Book Edition II, 28 May 1788 (pdf)
(F) Edmund Pendleton to Richard Henry Lee, Richmond, 14 June 1788 (pdf)

Enumerated Powers Protects Rights

(F) James Wilson Speech in the State House Yard, Philadelphia, 6 October 1787 (pdf)
(F) Anti-Cincinnatus, Northampton Mass., Hampshire Gazette, 19 December 1787 (pdf)
(F) Aristides: Remarks on the Proposed Plan, 31 January 1788 (pdf)
(F) George Nicholas Speech in the Virginia Convention, 16 June 1788 (pdf)
(AF) An Old Whig III, Philadelphia Independent Gazetteer, 20 October 1787 (pdf)
(AF) Cincinnatus I: To James Wilson, Esquire, New York Journal, 1 November 1787 (pdf)
(AF) Federal Farmer, Letters to the Republican, 8 November 1787 (pdf)
(AF) Patrick Henry Speech in the Virginia Convention, 12 June 1788 (pdf)

Essential in an Original Contract

(AF) An Old Whig IV, Philadelphia Independent Gazetteer, 27 October 1787 (pdf)
(AF) ohn De Witt II, Boston American Herald, 29 October 1787 (pdf)
(AF) Brutus II, New York Journal, 1 November 1787 (pdf)
(AF) Federal Farmer, Letters to the Republican, 8 November 1787 (pdf)
(AF) Agrippa XV, Massachusetts Gazette, 29 January 1788 (pdf)
(AF) A Citizen of the State of Maryland, Remarks Relative to a Bill of Rights, 12 April 1788 (pdf)

General Arguments

(F) A Countryman II, New Haven Gazette, 22 November 1787 (pdf)
(F) Valerius, Massachusetts Centinel, 28 November 1787 (pdf)
(AF) A Federal Republican, A Review of the Constitution, 28 November 1787 (pdf)
(AF) Portius, Boston American Herald, 12 November 1787 (pdf)

Good Government Protects Rights

(F) A Native of Virginia: Observations upon the Proposed Plan of Federal Government, 2 April 1788 (pdf)
(F) Fabius IV, Pennsylvania Mercury, 19 April 1788 (pdf)
(F) Publius: The Federalist 84, Book Edition II, 28 May 1788 (pdf)

Ineffective to List Rights

(F) A Countryman II, New Haven Gazette, 23 November 1787 (pdf)
(F) Gazette of the State of Georgia, 20 March 1788 (pdf)

Jury Trials Need Protection

(AF) Cincinnatus II: To James Wilson, Esquire, New York Journal, 8 November 1787 (pdf)
(AF) The Dissent of the Minority of the Convention, Pennsylvania Packet, 18 December 1787 (pdf)

Limits Government

(F) Uncus, Maryland Journal, 9 November 1788 (pdf)
(AF) Richard Henry Lee to Edmund Randolph, 16 October 1787 (pdf)
(AF)  Patrick Henry Speech in the Virginia Convention, 16 June 1788 (pdf)

Limiting Powers More Important than Bill of Rights

(F) James Wilson Speech in the Pennsylvania Convention, 28 November 1787 (pdf)

Necessary to Check Government Power

(AF) Timoleon, New York Journal, 1 November 1787, Extraordinary (pdf)
(AF) Robert Whitehill Speech in the Pennsylvania Convention, 28 November 1787 (pdf)
(AF) Philadelphiensis III, Philadelphia Freeman’s Journal, 5 December 1787 (pdf)
(AF) Address to the Members of the New York and Virginia Conventions, Post-30 April 1788 (pdf)

Necessary to Prevent Tyranny

(F) Uncus, Maryland Journal, 9 November 1788 (pdf)
(F) A Native of Virginia: Observations upon the Proposed Plan of Federal Government, 2 April 1788 (pdf)
(AF) An Old Whig IV, Philadelphia Independent Gazetteer, 27 October 1787 (pdf)
(AF) John Smilie Speech in the Pennsylvania Convention, 28 November 1787 (pdf)
(AF) Luther Martin: A Citizen of the State of Maryland Remarks Relative to a Bill of Rights, 12 April 1788 (pdf)

Necessary Statement of First Principles

(AF) A True Friend, Richmond, 6 December 1787 (pdf)
(AF) A Delegate Who Has Catched Cold, Virginia Independent Chronicle, 25 June 1788 (pdf)

Not Necessary to List Rights

(F) James Wilson Speech in the Pennsylvania State House Yard, 6 October 1787 (pdf)
(F) One of the Middling-Interest, Massachusetts Centinel, 28 November 1787 (pdf)
(F) Valerius, Massachusetts Centinel, 28 November 1787 (pdf)
(F) Anti-Cincinnatus, Northampton Hampshire Gazette, 19 December 1787 (pdf)
(F) America, New York Daily Advertiser, 31 December 1787 (pdf)
(F) William Cushing: Undelivered Speech, c. 4 February 1788 (pdf)
(F) Gazette of the State of Georgia, 20 March 1788 (pdf)

Not Necessary to List Natural Rights

(F) Remarker, Boston Independent Chronicle, 27 December 1787 (pdf)
(F) Aristides: Remarks on the Proposed Plan, 31 January 1788 (pdf)

Only Needed in Monarchial Governments

(F) Marcus I, Norfolk and Portsmouth Journal, 20 February 1788 (pdf)
(F) A Native of Virginia: Observations upon the Proposed Plan of Federal Government, 2 April 1788 (pdf)
(F) A Citizen of New-York: An Address to the People of the State of New York, 15 April 1788 (pdf)
(AF) New York Journal, 23 January 1788 (pdf)

Partial List in the Constitution is Incomplete

(AF) Federal Farmer, Letters to the Republican, 8 November 1787 (pdf)
(AF) Thomas B. Wait to George Thatcher, Portland, 8 January 1788 (pdf)
(AF) Patrick Henry Speech in the Virginia Convention, 17 June 1788 (pdf)

Proposed/Recommended Bills of Rights

Richard Henry Lee’s Proposed Amendments in Cogeress, 27 September 1787 (pdf)
Robert Whitehill’s Proposals in the Pennsylvania Convention, 12 December 1787 (pdf)
The Dissent of the Minority of the Convention, Pennsylvania Packet, 18 December 1787 (pdf)
Massachusetts Convention Recommendatory Amendments, 6 February 1788 (pdf)
William Paca’s Proposals in the Maryland Convention, Maryland Journal, 29 April 1788 (pdf)
New Hampshire Convention Recommendatory Amendments, 21 June 1788 (pdf)
George Mason’s Proposals in the Virginia Convention, 27 June 1788 (pdf)
Virginia Convention Recommendatory Amendments, 27 June 1788 (pdf)
John R. Lansing’s Proposals in the New York Convention, 10 July 1788 (pdf)
Melancton Smith’s Proposals in the New York Convention, 17 July 1788 (pdf)
New York Convention Recommendatory Amendments and Bill of Rights, 25 July 1788 (pdf)
North Carolina Convention Recommendatory Amendments, 2 August 1788 (pdf)
Rhode Island Convention Recommendatory Amendments, 29 May 1790 (pdf)

Representation Protects Rights

(F) Letter from Roger Sherman, New Haven, 8 December 1787 (pdf)
(F) America, New York Daily Advertiser, 31 December 1787 (pdf)

Supremacy Clause a Threat to Individual Rights

(AF) The Impartial Examiner I, Virginia Independent Chronicle, 20 February 1788 (pdf)
(AF) Denatus, Virginia Independent Chronicle, 11 June 1788 (pdf)

Treaty Powers a Threat to Individual Rights

(F) James Madison Speech in the Virginia Convention, 19 June 1788 (pdf)
(AF) Patrick Henry Speech in the Virginia Convention, 19 June 1788 (pdf)