The Forefathers of Liberty: Antifederalism and the Origins of American Libertarianism

Even more troubling, scholars have been slow to connect Antifederalist political theory with libertarianism. Although Antifederalists are largely responsible for the ratification of the Bill of Rights, many still look to James Madison, one of the most prominent Federalists in U.S. history, as the primary architect of the Bill of Rights, and, accordingly, as the father of American liberty. Yet, Madison initially argued against the inclusion of a Bill of Rights in 1787. In doing so, Madison and his fellow Federalists suggested that the rule of law maintained by a powerful Constitutional framework was more important than any liberties guaranteed in a Bill of Rights. When Madison did draft a Bill of Rights after ratification in 1789 he borrowed heavily from George Mason, a prominent Antifederalist from Virginia who authored the Virginia Declaration of Rights in 1776.²

Antifederalists, on the other hand, offered an alternative form of government to the one proposed by their Federalist opponents. They envisioned a federal government restrained by a national Bill of Rights that emphasized the importance of individual liberties such as free speech, religious freedom and freedom of the press, the right to a trial by jury, protection from cruel and unusual punishment, and many more. Moreover, Antifederalists demanded that the power of the central government be restricted and that the state governments maintain political sovereignty. They argued, instead, in favor of a system of government legitimized through a democratic³ system of representation sustained by frequently held elections. Antifederalists, in other words, established a political tradition that emphasized the importance of limited government and individual liberty. The Antifederalist campaign for a national Bill of Rights and their insistence that the role of the central government be minimized as much as possible make Antifederalists the true forefathers of the American libertarian movement.

The Antifederalist emphasis on individual liberty and the importance of a Bill of Rights mirrors the modern-​day libertarian focus on liberty. In an effort to defeat the new Constitution, Antifederalists worked within the framework outlined by the Philadelphia Convention and participated in state ratification conventions. Once nine out of thirteen states voted in favor of ratification, the Constitution would become the official law of the land. Many Antifederalists were elected as delegates to state ratification conventions, and even more published anti-​Constitution propaganda. Individual rights and liberty were critical to Antifederalist political ideology. Often, governments will outline limitations to their power in a Bill of Rights attached to a national constitution. The new Constitution, however, did not include a Bill of Rights. Alexander Hamilton explained this omission in the Federalist 84, arguing that a Bill of Rights “would be dangerous” because it contained “various exceptions to powers not granted.” Hamilton argued that it was unnecessary to prevent the restriction of the liberty of the press, for instance, when “no power is given by which restrictions may be imposed.” ⁴ Antifederalists, on the other hand, insisted that the Constitution must provide a list of concrete rights applicable to all American citizens. Several well-​known and widely circulated Antifederalist documents, such as those written by George Mason, Robert Yates, Richard Henry Lee, Luther Martin, Samuel Bryan, the Federal Farmer, Agrippa, John de Witt, Cato, and Brutus, as well as impassioned speeches by Patrick Henry, showed that Antifederalists strongly objected to the absence of a Bill of Rights.

Often, despite being defeated, Antifederalists delegates who participated in conventions in Pennsylvania, Massachusetts, Virginia, New Hampshire, New York, and North Carolina submitted a list of suggested amendments to the Constitution for the First Congress to consider. These amendments offer an important glimpse into Antifederalist ideas of liberty and individual rights. Though Pennsylvania successfully ratified the Constitution in December 1787 with a vote of 46-23, Antifederalists submitted an “Address and Reasons of Dissent of the Minority of the Convention.” In this, they expressed concern that the Constitution did not include provisions protecting freedom of speech, freedom of the press, the right to bear arms, the promise of a trial by jury in civil and criminal matters, and protection from excessive bail.⁵ Moreover, Antifederalists were integral in getting the Massachusetts convention to submit proposed amendments after ratification. Massachusetts closely ratified the Constitution on February 6, 1788 with a margin of 187 to 168. Towards the end of the convention, several Antifederalists agreed to change their votes and approve of ratification on the condition that the convention submit a list of recommended amendments. Like the Pennsylvania minority, Antifederalists in Massachusetts highlighted the need for the Constitution to protect individual liberty, such as the guarantee that all citizens have access to a fair and impartial jury trial in civil and criminal matters. Similarly, New Hampshire proposed amendments almost identical to those submitted by Massachusetts.

Antifederalists in New York and North Carolina further emphasized the necessity of a Bill of Rights to the American government. In New York, Antifederalists objections to the Constitution led to the submission of potential amendments that protected freedom of speech, freedom of press, the right to bear arms, and the right to a jury trial, and that prohibited unwarranted searches and excessive bail. Importantly, the New York amendments highlighted a common theme in Antifederalist philosophy: that “enjoyment of life, liberty, and the pursuit of happiness are essential rights which every government ought to respect and preserve.” ⁶ Antifederalists in North Carolina, briefly, won the battle against ratification when the state initially rejected the Constitution in 1788 because it did not protect the “unalienable rights of the people.” ⁷ Ultimately, North Carolina ratified the Constitution after the First Congress proposed a Bill of Rights.

Like libertarians, Antifederalists feared a strong, powerful central government. To combat this, Antifederalists sought to limit government by advocating for more powers to be reserved for the state governments. The importance of state sovereignty is shown in several Antifederalist essays circulated during the ratification debates. The Federal Farmer essays, for instance, argued that the new Constitution consolidated state governments into one powerful central government, thus “exclud[ing] the agency of the respective states.” ⁸ State sovereignty, according to the Federal Farmer, was more than a method of government; it was a fundamental principle and guarantor of liberty that the Constitution trampled on. Similarly, essays published Centinel and Brutus further demonstrated the importance of state sovereignty to Antifederalist ideology. In essays one, two, five, and nine Centinel criticized what he considered to be a large and powerful government created by the Constitution that ignored the rights of the state. In letter one, he suggested that the new government under the Constitution meant the destruction of the “blessings of liberty and the dearest privileges of freemen.” ⁹ He saw liberty as dependent on a limited government that respected the rights of the states. Additionally, Brutus feared that the Constitution reduced the United States to “one great republic, governed by one legislature and under the direction of one executive and judicial,” thus superseding any and all power that the state may have had.¹⁰

Antifederalists objected to vague clauses in Article One, Section Eight of the Constitution, which not only gave Congress the power to regulate inter-​state commerce but also gave Congress the ability to “make all laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Antifederalists were, in particular, concerned that the government would broadly interpret the meaning of “inter-​state commerce” and “necessary and proper.” Several Supreme Court decisions confirmed the accuracy of Antifederalist predictions. Almost immediately after the Constitution went into effect, the Washington administration proposed the creation of a national bank, a power not enumerated in the Constitution. In 1819, when the landmark Supreme Court case McCullough versus Maryland questioned the constitutionality of the national bank and the state’s ability to tax the bank, the Court, led by Chief Justice John Marshall, determined that the necessary and proper clause gave the government the power to charter a bank and that Maryland was not constitutionally capable of taxing the bank. This undoubtedly confirmed Antifederalist fears that the central government would expand its dominance over state governments and use ambiguities in the Constitution to its own advantage. Today libertarians are at the forefront of challenging the broad ways in which Congress and the Supreme Court decide what is “necessary and proper” in government.

Most Antifederalists believed that the federal government’s power to tax under the new Constitution would impede state sovereignty. The Pennsylvania Antifederalist minority, for example, feared that because the Constitution did not reserve any taxation powers to the state government, Congress “may monopolise every source of revenue and thus indirectly abolish the state government.” ¹¹ They predicted that this might give Congress the power to liberally interpret many taxes “to be for the general welfare” and therefore part of federal, not state, jurisdiction.¹² In spite of the Tenth Amendment, which reflects the Antifederalist desire to restrain the authority of the central government by reserving power to the states, the government continues to expand the size and scope of its influence. For instance, Wickard vs. Filburn (1942) allowed Congress to use the commerce clause to regulate all commerce, even local trade. By using the Constitution to legitimize government interference in state and local matters, the Supreme Court confirmed Antifederalist fears that the Constitution would trample on state sovereignty. More recently, the commerce clause and the general welfare clause were used to justify the supposed constitutionality of the Affordable Health Care Act, a massive overreach of the government that would have appalled even the most moderate of Antifederalists. Libertarians have been among the most vocal opponents to President Obama’s healthcare legislation.

James Madison said in Federalist 10 that factions and political discord will benefit the United States. “Liberty is to faction what air is to fire,” Madison wrote, “an ailment without which it expires instantly.” The contest over the Constitution, one of the most significant political struggles in American history, tested Madison’s famous theory. Antifederalists participated in one of the earliest forms of factional, divisive politics in American history, and in the process established a tradition of dissent that had a great impact on American political history. Following the ratification of the Bill of Rights, new political divisions developed in Congress. Yet, at the core of these divisions were the Federalist notion that the central government ought to have more power over domestic affairs and the Antifederalist idea that the scope of government should be limited and, instead, sovereignty should primarily lie with the states. Thus, in arguing for limited government today, Libertarians are recycling Antifederalist ideas that, despite being over two-​centuries old, continue to be relevant.