Anti-Federalists

The Anti-Federalists were the primary instigators of the Bill of Rights—the first ten amendments to the U.S. Constitution, which include the Fourth Amendment—arguing that the Bill of Rights was necessary to negate the governmental powers implied in the more open-ended clauses of the Constitution, such as the necessary and proper clause. The Anti-Federalists argued that the absence of a bill of rights opened the way for governmental abuse of individual liberties such as the right to be protected from unreasonable search and seizure and warrants issued without probable cause. This absence ended up being a key bargaining point between Federalists and Anti-Federalists. The Federalists were able to secure agreement on the new Constitution by pledging to amend it with a bill of rights once the original Constitution was ratified and the new federal government established. Moreover, the Anti-Federalist opposition to the Constitution, led by such persons as Patrick Henry from Virginia, inspired the writing of the Federalist Papers, one of the great treatises on the American constitutional system.

The proponents of the original Constitution argued that the Anti-Federalists were fundamentally mistaken about the nature of that Constitution, ignoring the fact that Congress was not a legislature of general powers but was limited to the powers specified in the Constitution. To the Federalists, the structural design of the Constitution protected liberty by granting only limited powers to the new federal government. The Anti-Federalist opponents of the Constitution, although agreeing that the conveyance of limited powers to the federal government would help the cause of individual liberty, claimed that the Constitution's enumerated powers were not clearly enough defined to prevent any overreaching of those powers. Because the Anti-Federalists did not trust that the structural provisions in the original Constitution would sufficiently limit the power of government and thus protect liberty, they wanted even more direct assurances of limited government—assurances provided by a bill of rights. The Anti-Federalists were well aware of historical instances in which limited power had turned into unlimited power, and they argued that the original Constitution did not adequately guard against such an occurrence.

The Anti-Federalists also did not trust that, under the Constitution, those powers not delegated to the federal government were in fact reserved to the states, and they feared that the new government would erode the sovereignty of the states. During the debate over ratification, for instance, Thomas Jefferson argued that there was no specific assurance in the proposed Constitution that in all cases where specific powers had not been granted to the federal government, those powers had been retained by the states. Thus, a bill of rights was needed not only to keep the national government from exerting its power in certain areas concerning individual liberty but also to reserve to the states all powers not granted to the federal government. Thus, the Bill of Rights supplemented the enumerated powers limitation by further requiring that, even if the national government were engaged in an activity authorized by Articles I, II, or III of the Constitution, it could only do so within the boundaries set up by the Bill of Rights.

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