Mercy Otis Warren, the Founding Mother Who Opposed the Constitution

Remembering an important voice from the founding era.

Among the many yellowing paperbacks on my shelves is a copy of The Anti-Federalist Papers and the Constitutional Convention Debates. It's a sort of greatest hits collection of contemporaneous arguments for and against the new U.S. Constitution, all written circa 1787–1788. It includes portions of James Madison's Notes from the Philadelphia Constitutional Convention, selections from various numbers of the Federalist Papers, and excerpts from the writings and speeches of leading anti-federalists, such as Patrick Henry, who denounced the Constitution for cloaking the president with "the powers of a King."

I picked up this trusty old book the other day, as I have been wont to do since I first acquired the already used copy back in college, yet I failed to find the name within its pages that I was looking for. The book's otherwise commendable editor, historian Ralph Ketcham, had failed to include anything written by Mercy Otis Warren (1728–1814), a playwright, poet, pamphleteer, and historian who championed American independence and later opposed the ratification of the Constitution. In the words of scholar Lester Cohen, Warren was "the most formidable female intellectual in eighteenth-century America."

I went looking for this formidable figure because I recalled her 1788 pamphlet, "Observations on the New Constitution, and on the Federal and State Conventions," to be an especially venomous attack on the document, and I wanted to reread it as part of some broader research I'm doing.

I recalled correctly. First published in Boston under the pseudonym "a Columbian patriot"—and originally falsely attributed to the pen of male anti-federalist politician Elbridge Gerry—Warren's "Observations on the Constitution" took aim at "the fraudulent usurpation at Philadelphia" and only got harsher from there. Like Patrick Henry and other anti-federalists, she was deeply troubled by the "monarchical" powers she thought the Constitution would lodge in the new national government.

She was also horrified by the absence of "a bill of rights to guard against the dangerous encroachments of power in too many instances to be named." The proposed federal system offered "no security" for either "the rights of conscience, or the liberty of the press," she complained; she also pointed in dismay at "the insecurity in which we are left with regard to warrants unsupported by evidence."

Alert readers will no doubt recognize certain elements of the future First and Fourth Amendments in Warren's critique. The fact that such additional checks on government were soon added to the Constitution was due in no small part to the efforts of outspoken anti-federalists, Warren included.

Warren's pamphlet also raised a notable objection to Article III, which vested "the judicial Power of the United States" in "one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish." According to Warren's complaint, "there are no well defined limits of the judiciary powers, they seem to be left as a boundless ocean."

The framers and ratifiers of the Constitution, as I've previously noted, understood the phrase, "the judicial Power," to "include the authority of the federal courts to nullify those legislative and executive actions that violated the Constitution, which is the same power that we now call judicial review."

Warren's 1788 pamphlet may thus be added to the list of historical evidence showing what the founding generation thought about judicial review. She agreed that the Constitution empowered the federal courts, yet disagreed that such an empowerment was a good idea. "It would be an Herculean labour," she declared, "to attempt to describe the dangers with which [the powers of the judiciary] are replete."

To be clear, my own sympathies here lie with Madison and the other proponents of the Constitution. But I have always found the arguments of the anti-federalists to be worth a close examination. Indeed, to fully understand the text and history of the Constitution, you simply must study both sides of the ratification debate.

Mercy Otis Warren lost that debate. But her ideas still left a mark, and for that reason, she is worth remembering and rereading today.