George Mason’s critique of the American Constitution

Not long ago someone tweeted this part:

The President of the United States has the unrestrained Power of granting Pardons for Treason; which may be sometimes exercised to screen from Punishment those whom he had secretly instigated to commit the Crime, & thereby prevent a Discovery of his own Guilt.

And that led me to wish to read the whole thing.  Mason of course was an anti-Federalist, and in his short piece he lays out why he opposes the proposed new constitution.  Here is what I found striking:

1. He feared that the President would become a tool of the Senate or of his own cabinet.

2. He feared the Senate would not be directly accountable to the people.  Of course, in due time we changed that through constitutional amendment.

3. He feared the federal judiciary would end up taking over state and local judiciaries.

4. The Senate can excessively legislate through the use of treaties — quite a contemporary objection by the way.

5. The individual states won’t be able to levy tariffs on trade across state borders.

6. Federal and state legislatures won’t be able to pass enough ex post facto laws (the strangest worry to me).

7. He made various claims that ended up being made obsolete by the adoption of a Bill of Rights.

8. The southern states would end up systematically outvoted.

9. The Vice President could end up becoming too powerful through his role in the Senate.

It is striking to me in these early writings how much people worry about the evolution of the Senate, and how little attention they pay to the Supreme Court, which at the time was viewed as not slated to be so powerful.

The problem of “Congress will toss away its legislative and war-making roles, and give up a lot of effective control of the budget” was also nowhere to be found in the words of the early critics, as far as I can tell.  Nor did they have much of a notion of the rise of the administrative state.

Mason was a forceful writer, but the broad lesson is simply that the future is very difficult to predict.


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