The First Freedoms
The Privacy Amendments
The 5th Amendment
The 6th Amendment
Civil Trials
The Interpretive Rules

Demand for (and Resistance to) the United States Bill of Rights

The Pennsylvania Ratifying Convention

James Wilson Defends the Submitted Constitution

Pennsylvania was the second state (after Delaware) to ratify the Constitution, but it was the first to encounter any strenuous opposition to it. Several Antifederalists objected that the new Constitution lacked a bill of rights. In response, James Wilson launched into the ablest and most protracted justification yet for the Convention’s decision to omit one. Wilson urged his opponents to consider how much the American Constitution differed from the British Constitution.

In the first place, Wilson argued, the proposed Constitution was to be established by “the people of the United States.” In Magna Carta, it is the King who grants liberties to his subjects, but his powers are otherwise presumed to be without limit. In America, it is the people who grant power to the government, but their liberties are otherwise presumed to be without limit. Therefore, a bill of rights was unnecessary in a democratic government, one in which all powers remain in the hands of the people.

The Constitution and Enumerated and Implied Powers

In the second place, the United States Constitution differs from both the British Constitution and the various state constitutions in being a government of enumerated powers. And “in a government possessed of enumerated powers, [a bill of rights] would be not only unnecessary, but preposterous and dangerous.” The liberties named in a bill of rights (such as the freedom of speech, or the right to a jury trial, etc.) are meant to designate certain powers that government may not exercise (it is forbidden to regulate speech, or try a suspect without the benefit of a jury, etc.). But the brand new United States government would not be like its predecessors: its powers were already limited by being enumerated. A bill of rights, therefore, would explicitly deny to Congress powers it had never been granted in the first place. Such a proscription made no sense.