George Mason’s Anti-Federalist Arguments Against the Constitution
“A monarchy, or a corrupt tyrannical aristocracy.”
That’s what George Mason predicted the Constitution would produce. And his objections to ratification were some of the most influential anti-federalist writings during the debates.
Mason didn’t initially oppose the Constitution. As a delegate to the Philadelphia Convention representing Virginia, he spoke regularly, and his views mostly fit in within the mainstream of the other delegates.
But as the convention wore on, he became increasingly unhappy with how things were shaping up.
A compromise that gave rise to the temporary accommodation of the international slave trade under the Constitution was Mason’s big turning point. James Madison recorded his protest speech on the convention floor.
Mason noted that “this infernal traffic” was incentivized by “the avarice of British merchants,” pointing out that the British government “constantly checked the attempts of Virginia to put a stop to it.” Even so, Virginia and Maryland had expressly prohibited the importation of slaves, and North Carolina had done so in substance.
Mason warned, “All this would be in vain if S. Carolina & Georgia be at liberty to import.”
Madison specifically noted that Mason “held it essential in every point of view, that the Genl. Govt. should have power to prevent the increase of slavery.”
Later, in a May 1788 letter to Thomas Jefferson, Mason summarized his objections, writing that “a Compromise between the Eastern, and the two Southern States, to permit the latter to continue the Importation of Slaves for twenty odd Years” was the key to establishing a majority in favor of the Constitution at the Philadelphia Convention. He called the importation of slaves “a more favourite Object with them than the Liberty and Happiness of the People.”
OBJECTIONS
As the Convention neared its conclusion, Mason wrote a summary of his objections on the back of a Committee of Style report hoping to solicit the help of the Maryland delegation in pushing through some changes.
He told Jefferson that he intended to formally offer the objections, “but was discouraged from doing so, by the precipitate, and intemperate, not to say indecent Manner, in which the Business was conducted, during the last Week of the Convention, after the Patrons of this new plan found they had a decided Majority in their Favour.”
When it was all said and done, Mason refused to sign the Constitution. As the convention drew to a close, Mason asserted that “he would rather chop off his right hand than put it to the Constitution as it now stands.” [emphasis added]
In the waning days of the Philadelphia Convention and the weeks following, Mason shared his objections with others. He even sent a copy to George Washington in a letter dated Oct. 7, 1787, about three weeks after the convention ended. He said that his objections, while they were not “numerous … tho’ in my mind, some of them are capital ones.”
Much to Mason’s chagrin, his list of objections quickly became public. In his letter to Jefferson, Mason lamented, “These Objections of mine were first printed very incorrectly, without my Approbation, or Privity.”
Once in the public sphere, Mason’s objections circulated widely. He lamented to Jefferson that this, “laid me under some kind of Necessity of publishing them afterwards, myself.”
Historian Pauline Maier called Mason’s objections “something of a platform for critics of the Constitution.” They were echoed by many other Anti-Federalists as the ratification process progressed, and they provide an excellent overview of the arguments presented by the opponents of ratification.
When the Constitution came up for debate in his home state the following June, he elaborated on his initial list of objections and was one of the principal opponents.
NO BILL OF RIGHTS
Mason’s first objection was perhaps the most well-known.
“There is no Declaration of Rights”
Mason continued, citing the supremacy clause along with a lack of a bill of rights as a dangerous combination.
“And the laws of the general government being paramount to the laws and constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are the people secured even in the enjoyment of the benefit of the common law.”
He returned to this later in his initial list of objections, bemoaning, “There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes; nor against the danger of standing armies in time of peace.”
The lack of a bill or rights quickly became one of the leading points of anti-federalists.
During the Virginia ratifying convention, Mason brought up the issue, specifically saying there should be “some express declaration in the constitution, asserting that rights not given to the general government, were retained by the states.”
He went on to point out that “The government of Virginia was drawn from the people; yet there were certain great and important rights, which the people by their bill of rights declared to be paramount to the power of the legislature. Why should it not be so in this constitution?” and he warned, “Unless there were a bill of rights, implication might swallow up all our rights.”
Near the end of the convention, Mason drafted a Bill of Rights and brought it before the assembly. It garnered significant support but failed by a vote of 80-88.
CONGRESS
Mason also listed objections to each branch of government under the proposed Constitution.
Starting with the House of Representatives, he said it wasn’t truly representative and would provide “the shadow only of representation.” Due to this fact, he warned, the lower chamber would “never produce proper information in the legislature, or inspire confidence in the people; the laws will therefore be generally made by men little concerned in, and unacquainted with their effects and consequences.”
Mason also included some criticisms of the makeup of the Senate in his original list. He objected to its power to alter money bills, and originate appropriations of money and the salaries of the officers of their own appointment, even though senators are “not the representatives of the people or amenable to them.”
Mason worried that these along with its “other great powers” including the appointment of ambassadors, its role in making treaties, and the power to try impeachments would “destroy any balance in the government, and enable them to accomplish what usurpations they please upon the rights and liberties of the people.”
Fundamentally, this objection was rooted in Mason’s belief that the proposed operation of the Senate violated the principle of separation of powers. This “mixing” of powers between the branches became another common anti-federalist argument.
During the Virginia ratifying convention, he expanded on this opposition to the Senate, focusing on the longer 6-year terms compared to one-year terms under the Articles of Confederation. He also lamented that they cannot be recalled in all that time for any misconduct,” a provision expressly included in Article V of the Articles of Confederation, “and at the end of that long term may again be elected.”
He continued his objection to long terms for the Senate, warning that it was probable “those Gentlemen who will be elected Senators will fix themselves in the federal town, and become citizens of that town more than of our State, and that “they will purchase a good seat in or near the town, and become inhabitants of that place.”
He summed up the problem with a prediction.
“Will it not be then in the power of the Senate to worry the House of Representatives into any thing? They will be a continually existing body. They will exercise those machinations and contrivances, which the many have always to fear from the few.”
JUDICIARY
Turning his attention to the judiciary, Mason said that it was “so constructed and extended, as to absorb and destroy the judiciaries of the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable.” Ultimately, he said, it would enable “the rich to oppress the poor.”
He expounded on this during the Virginia ratifying convention, pointing out that even if a poor man could get a judgment in an inferior court, it would be difficult for him to pursue the case if appealed.
“Can he go 400 or 500 miles? Can he stand the expence attending it? On this occasion they are to judge of fact as well as law. He must bring his witnesses where he is not known, where a new evidence may be brought against him, of which he never heard before, and which he cannot contradict.”
Mason also pointed out that the federal courts would have jurisdiction in “all cases affecting revenue, excise and custom-house officers.”
And he warned that it would be difficult for people to hold government officials legally accountable for their actions because the federal judicial system would be stacked in favor of the government.
“In what predicament will our citizens then be? We know the difficulty we are put in by our own Courts, and how hard it is to bring officers to justice even in them. If any of the Federal officers should be guilty of the greatest oppressions, or behave with the most insolent and wanton brutality to a man’s wife or daughter, where is this man to get relief?”
EXECUTIVE
Mason also had serious concerns about a single executive, arguing that without a “Constitutional Council,” the president would “be unsupported by proper information and advice, and will generally be directed by minions and favorites; or he will become a tool to the Senate.”
Addressing various powers delegated to the executive branch, he argued that they gave a single individual far too much power.
For example, he said the unrestrained power to pardon for treason “may be sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime, and thereby prevent a discovery of his own guilt.”
In the Virginia ratifying convention, Mason outlined other concerns about the structure of the executive branch. He noted that “the president is elected without rotation.”
He argued that although a subsequent election could remove him, “If we judge from the experience of all other countries, and even our own, we may conclude, that as the President of the United States may be re-elected, so he will. How is it in every Government where rotation is not required? Is there a single instance of a great man not being re-elected?”
Mason said this would make the president a de facto king, “elected time after time – He will be continued in office for life.”
As he noted in his objections to the Senate, he was also wary of blending executive and legislative powers. He argued that making treaties the supreme law of the land empowered the president and the Senate, giving them “exclusive power of legislation, and it would marry the president and Senate a “man and wife.”
“I believe the consequence that generally results from marriage, will happen here. They will be continually supporting and aiding each other: They will always consider their interests as united.”
Mason warned that based on this common interest, “They can with facility act in concert, and on a uniform system: they may join, scheme, and plot, against the people without any chance of detection. The Senate and President will form a combination that cannot be prevented by the representatives. The executive and legislative powers, thus connected, will destroy all balances.”
GENERAL CONCERNS
Mason didn’t limit his objections to the powers delegated to the various branches, he also voiced more general concerns.
He worried that the power of a simple majority to make navigational laws could “ruin” the Southern states given that the “produce and circumstances are totally different” in the Northern and Eastern states.
Mason also warned that by using the necessary and proper clause, the federal government could expand its authority and swallow up state powers.
“Under their own construction of the general clause, at the end of the enumerated powers, the Congress may grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and extend their powers as far as they shall think proper; so that the State legislatures have no security for the powers now presumed to remain to them, or the people for their rights.”
In summary, Mason predicted that the government would begin as “a moderate aristocracy.”
“It is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
CONSOLIDATION
Consolidation was a fear expressed by virtually every opponent of ratification. In a June 4, 1788, speech at the Virginia ratifying convention, Mason lamented, “The very idea of converting what was formerly a confederation, to a consolidated Government, is totally subversive of every principle which has hitherto governed us.”
And he warned that the clause delegating power to the federal government to lay direct taxes would lead to this kind of consolidation, turning a confederation into a “national government.”
“The assumption of this power of laying direct taxes, does of itself, entirely change the confederation of the States into one consolidated Government. This power being at discretion, unconfined, and without any kind of controul, must carry every thing before it.”
Mason asserted that the taxing power was “calculated to annihilate totally the State Governments.”
“Will the people of this great community submit to be individually taxed by two different and distinct powers? Will they suffer themselves to be doubly harrassed? These two concurrent powers cannot exist long together; the one will destroy the other: The General Government being paramount to, and in every respect more powerful than, the State governments, the latter must give way to the former.”
Mason also argued that the necessary and proper clause coupled with the general welfare clause would give the federal government massive, unchecked power. He framed his objection as a question: “Is there any thing in this Constitution which secures to the States the powers which are said to be retained? Will powers remain to the States which are not expressly guarded and reserved?”
He then proposed a hypothetical scenario illustrating the potential government expansion through those two clauses.
“Now suppose oppressions should arise under this Government, and any writer should dare to stand forth and expose to the community large, the abuses of those powers. Could not Congress, under the idea of providing for the general welfare, and under their own construction, say, that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction on the press?”
Mason’s fix was “a clause in the Constitution with respect to all powers which are not granted, that they are retained by the States,” similar to Article II of the Articles of Confederation:
“Each state retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
He said without such a provision, “the power of providing for the general welfare may be perverted to its destruction.”
MILITIA
Among the objections in his letter to Jefferson, Mason pointed out “the almost unlimited Authority over the Militia of the several States; whereby, under Colour of regulating they may disarm, or render useless the Militia, the more easily to govern by a standing Army; or they may harrass the Militia, by such rigid Regulations and intollerable Burdens, as to make the People themselves desire it’s Abolition.”
Federal power over the militia was a big deal to Mason. He took up this argument during the Virginia ratifying convention, arguing that the federal government could use its power to destroy the militia and create a standing army.
“If ever they attempt to harass and abuse the militia, they may easily abolish them, and raise a standing army in their stead. There are various ways of destroying the militia. A standing army may be perpetually established in their stead. I abominate and detest the idea of a Government, where there is a standing army.”
More specifically, Mason warned, “Unless there be some restrictions on the power of calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions, we may very easily see that it will produce dreadful oppressions.”
Additionally, Mason worried that the federal government could someday organize and train only part of the militia (as is the case with the National Guard today) and that it would lead to significant problems.
“I ask who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected.”
CONCLUSION
George Mason believed that the Constitution would create a powerful national government with no safeguards to protect liberty. He lamented the lack of a bill of rights to prohibit the new government from infringing on basic liberties, with a primary emphasis on a line in the sand between delegated and reserved powers.
He worried about the lack of a clear separation of powers, particularly between the executive and the legislature. And he believed the federal power over the militia would end with a standing army.
All of these issues lead to one destination – consolidation – the centralization of power in one national government. Mason was not alone in believing that consolidation was “totally subversive of every principle which has hitherto governed us.”
This became an overarching theme of Anti-Federalist opposition to the Constitution.
Ultimately, he thought the system created by the Constitution would swallow up the states, leading to a monarchy or a corrupt aristocracy.
“This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”
Mason’s influence on the Anti-Federalist strategy tends to be downplayed today, but given his prominent role in the Philadelphia Convention, and the fact that he was one of the first to formally articulate objections, his contributions to the Anti-Federalist cause can’t be overstated.
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