by Ray Raphael
In a like manner, both the Declaration of Independence and the Constitution, often compared to The Federalist, were produced by full bodies of delegates, chosen by other public bodies that in turn were elected by the people. The Federalist, by contrast, is the work of three men acting on their own, sanctioned by no one, and without official standing.54
Accepting The Federalist as a definitive guide to the Constitution fosters three ancillary mythologies. First, it assumes that the various provisions within the Constitution fit together seamlessly, and Publius can tell us exactly how. Second, it masks the real-life drama of the nation’s founding. The Constitution was forged through horse trading. Hamilton, Madison, and Jay could not fully acknowledge this blunt truth, particularly with respect to issues surrounding slavery.55
Finally, it mimics biblical exegesis. Citing The Federalist can be “the secular equivalent to citing the Bible,” writes constitutional scholar Melvyn R. Durchslag. Appealing “to a higher and more revered authority” establishes both “an ethos of objectivity” and “the perception of infallibility.” In fact, there is no objective and infallible authority on the Constitution, and the very act of pretending there is limits inquiry and distorts results. Veneration encourages a cheap form of reasoning: take a preconceived stance, then find quotations from a supreme authority that appear to support it. Anybody from a Supreme Court justice to a partisan blogger can mine the approximately 200,000 words of The Federalist for what seem like supporting quotations and let the matter rest there.56
People do this. By studying over three hundred Supreme Court cases in which justices cited The Federalist in their decisions, Professor Durchslag has shown that “it is hard to come up with more than a small handful of cases where The Federalist even arguably played a decisive role in the Court’s decision.” From this research Durchslag concludes that “it is difficult to assert that the apparent influence of The Federalist Papers has matched their rhetorical use.” Publius did not change minds but reinforced opinions that were already formed.57
This process is replicated outside the judicial system, although not always with the finesse displayed by Supreme Court justices and their talented clerks. The pregnant prose and extensive reasoning in The Federalist provide fertile ground for those who wish to enlist the founders in the service of a political agenda but who find the nation’s actual founding documents lacking. One partisan website, to justify its various positions, cites The Federalist Papers thirty-one times but the Constitution not once.58
In 2010 Joshua Charles, a college senior, “translated” The Federalist to make it more accessible to the modern reader. Charles presented his project to radio and TV host Glenn Beck, who added some commentary, and the two teamed up to create a runaway bestseller, The Original Argument: The Federalists’ Case for the Constitution, Adapted for the 21st Century. The “Original Quote” these translators selected for The Federalist No. 1 says: “The subject speaks its own importance; comprehending in its consequences nothing less than the existence of the UNION, the safety and welfare of the parts of which it is composed, the fate of an empire in many respects the most interesting in the world.” The takeaway “message” from this passage, according to Beck and Charles, is: “America is special because our rights come from God, but those rights must be protected by a central government that serves the people.” In fact, God made no appearance in The Federalist No. 1, and in the same essay Hamilton actually warned against taking the issue of “rights” too far. “The specious mask of zeal for the rights of the people,” he wrote, was “dangerous” and “a much more certain road to the introduction of despotism” than a “zeal for the firmness and efficiency in government.” What counts for Beck and Charles is not what Publius actually said but the mere fact that they cite him.59
Proponents of strict construction and states’ rights commonly cite passages from The Federalist that were intended to alleviate fears of federal power, and these account in no small measure for Publius’s political popularity today. On “Publius-Huldah’s Blog: Understanding the Constitution,” in a section titled “Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, and Jefferson,” the blogger turns to citations from Publius. If “the States have the Right and the Duty to nullify unconstitutional acts of Congress,” they can nullify President Obama’s Affordable Care Act. “Since the Federalist Papers are the most authoritative commentary on the true meaning of the Constitution,” writes the blogger, “let us see what those Papers say about the extent of Congress’ legislative powers.” Then come the phrases so often repeated from Madison’s The Federalist Nos. 39 and 45 and Hamilton’s The Federalist No. 83: “national … jurisdiction extends to certain enumerated objects only”; “the powers delegated by the proposed Constitution to the federal government are few and defined”; “an affirmative grant of special powers would be absurd as well as useless if a general authority was intended.” Not mentioned are Madison’s sponsorship of sweeping federal powers or Hamilton’s radically nationalist position at the Federal Convention, nor Hamilton’s endorsement of a loose construction of the Constitution through the 1790s, a philosophy now labeled “Hamiltonian.”60
When we play “The Federalist Papers” game—extracting the essays from their historical context, mining short passages and treating them as gospel—we inadvertently echo Publius. Like him, we do not explore in a disinterested fashion the textual subtleties of the United States Constitution; rather, we argue a case, as he did, and as we do, we compound his politicization of our founding document.
Instead of adopting a deferential posture that only masks self-interest, perhaps we should follow the lead of Chief Justice Marshall, certainly a great admirer of Publius, as noted above. His majority opinion in McCulloch v. Maryland sported fine praise, but it was tempered by an essential caveat:
In the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the cases which may arise in the progress of our government, a right to judge of their correctness must be retained.61
7
“BILL OF RIGHTS”
Myth: The Founding Fathers gave us the Bill of Rights.
“God gave us the Bill of Rights”—2 votes
“The founding fathers gave us the Bill of Rights”—59 votes
—Internet poll from sodahead.com1
“Who was the author of the Bill of Rights?”
“Answer: James Madison was the author of the Bill of Rights.”
—WikiAnswers2
The Bill of Rights … comes as close to a libertarian founding legal charter as any in the world…. In an America with a full respect for the Bill of Rights, there would be … no Food and Drug Administration harassment of pharmaceutical and wine producers … no laws disarming Americans, prohibiting airlines from allowing pilots or passengers to carry guns on planes, or limiting how much ammo or what kind of firearms people can buy and own … no federal programs not authorized by the Constitution … no Departments of Energy or Education, no Medicare or Social Security.
—Anthony Gregory, writing for LewRockwell.com3
Kernel of Truth
Revolutionary-era Americans were proud inheritors of a British legal tradition that guarded against governmental abuse. In 1689, almost a century before the Federal Convention, the English Bill of Rights, “vindicating and asserting their ancient rights and liberties,” placed precise limits on monarchical power. The Crown, it declared, could not suspend laws, tax the people, or “raise and keep a standing army within the kingdom in times of peace” without the consent of representatives in Parliament. Further, it affirmed English subjects’ rights to free elections, to petition, and to jury trials, while it prohibited “excessive bail” and “cruel and unusual punishment.”4
In the 1760s and ’7
0s, British colonists on the North American mainland believed that not just the Crown but Parliament threatened some of these rights. In 1776, invoking the “social contract” theory of government developed by such philosophers of the European Enlightenment as John Locke, they dissolved the bond between themselves and Great Britain. Because men form governments to secure their “unalienable rights,” the Declaration of Independence stated, the people had a right “to alter or abolish” their government when it became “destructive of these ends.”
Americans expected their new state constitutions, which supplanted their old colonial charters, to secure the people’s rights. Seven of the eleven states that drafted new constitutions prefaced them with detailed declarations of rights, and the remaining four embedded various rights within the bodies of their governing rules. Americans of that era cherished their rights dearly and protected them closely, as we do today.5
But …
The Constitution of the United States, drafted in 1787 and ratified in 1788, did not follow the precedent set by these state constitutions. Despite spending almost four months drafting their new plan, the framers did not include within it a thoughtful listing of rights but only a scattering of guarantees. On September 12, just five days before the end of the Convention, George Mason finally suggested that delegates add a “Bill of Rights” similar to the state declarations of rights, but his motion failed to garner the support of a single state delegation.
Although state conventions ratified the Constitution, several included a caveat: the new plan should be amended as soon as possible. In fact, they proposed scores of amendments, some resembling provisions of what we now know as the Bill of Rights, but many others altering or even deleting structural features of the Constitution. New York’s convention coupled its list of proposed amendments with a demand for a second federal convention to consider these various proposals. The profusion of proposed amendments, plus the prospect of a second convention, frightened supporters of the Constitution, who feared that a new convention, if it met, would revise the fledgling Constitution before it could be put into effect and gut some of its major provisions.
Most leading Federalists hunkered down. In arguing against a second federal convention, they insisted that a bill of rights was not necessary and could even jeopardize rights that were not included. The job of the Constitution, they said, was to state what government could do, not what it couldn’t do. Rights already were secured because the government possessed no power that allowed it to impinge upon them. In fact, any catalog of specified rights would imply that rights were limited to those in the catalog, and not others.
James Madison and George Washington agreed with this argument, but they also took an accurate measure of people’s displeasure. It was strong and it was widespread. Rather than fight a rearguard action against the wave of discontent, they preferred to channel and control it. Article V of the Constitution stipulated that either Congress or state conventions might propose amendments. If Congress acted first, Madison and Washington reasoned, it could take charge of the issue and protect the substantive features of the new plan—congressional taxation, for instance—while giving ground elsewhere. Madison, meanwhile, pledged to his Virginia constituents that he would work to add a bill of rights if they elected him to represent them in Congress.
Once elected, in the First Federal Congress, Madison whittled down the large list of amendments suggested by the states’ ratifying conventions. With President Washington’s blessing, he proposed nineteen that did not endanger key constitutional components. After considerable debate and some revision, Congress pared Madison’s list down to twelve amendments, which it sent to the states for approval. Ten of these, which we call today the Bill of Rights, were ratified by three-quarters of the states, as required by the new Constitution. The genesis of the Bill of Rights, like the origins of the Constitution, was political as well as theoretical.
The short-term effect of the framing and ratification of the Bill of Rights was to put a Federalist stamp on the amendments and to doom the attempts by the Constitution’s opponents to modify the substantive or structural features of the new plan. The long-term effect was to reinforce America’s culture of rights and to infuse specific rights into American jurisprudence. After more than two centuries, the Bill of Rights, which had been so casually dismissed by the framers, figures so prominently in our minds that it often eclipses the Constitution itself. In an era when the word “government” has a bad name, the ten amendments that circumscribe the federal government’s authority over individuals are often viewed more favorably than the Constitution the framers created in 1787.
The Full Story
Anglo Americans have always embraced a culture of rights. The first colonial charter, granted to the founders of Virginia in 1606, promised that people who immigrated to America would “have and enjoy all liberties, franchises, and immunities … as if they had been abiding and born, within this our realm of England.” In several other colonies, either the Crown or the colonial proprietors specified liberties that the government was duty bound to respect. In Maryland, Massachusetts, and New York, the people, acting through their representatives in the legislatures, passed laws foreshadowing the Bill of Rights.6
In 1641, in the Massachusetts Body of Liberties, the people of that colony listed ninety-eight specific rights they were entitled to enjoy. Number 45, for example, stated: “No man shall be forced by Torture to confesse any Crime against himselfe nor any other unlesse it be in some Capitall case where he is first fullie convicted by cleare and suffitient evidence to be guilty.” Other protections were afforded to those accused of crimes, including bail, legal representation, presentation of evidence, a speedy trial by jury, appeal to a higher court, security against double jeopardy, and a prohibition against “bodilie punishments” that are “inhumane Barbarous or cruel.” (This limitation meant no more than forty lashes, “unles his crime be very shamefull.”)
The guarantees did not end there. Foreigners escaping persecution were to be welcomed. Monopolies were prohibited. No man could be pressed into fighting an offensive war without his consent. A man could not beat his wife, except in his own defense. Parents could not “wilfullie and unreasonably deny any childe timely or convenient mariage.” Servants could flee from cruel masters, and if a master “smite out” an eye or a tooth, the servant could go free. Witches, on the other hand, were to be put to death, as were blasphemers, adulterers, and homosexuals. The secured rights are all the more striking because they were protected by a Puritanical society we remember more for its witch hunts than for its attention to individual liberties.7
After independence, new constitutions adopted in eleven states guaranteed trial by jury in criminal cases and protected the freedom of worship. All but two guaranteed a free press. Most states prohibited excessive fines or bail, forced self-incrimination, and general search warrants; some included freedom of assembly, the right to legal counsel, and trial by jury in civil cases; a few banned ex post facto laws, bills of attainder, and double jeopardy. Not all of these were constitutional commands protecting individual liberties enforceable in courts of law, as we think of rights today; many were phrased as codifications of right principles that would guide government and politics. Most Revolutionary-era declarations of rights were written in “ought not” language rather than “shall not” language.8
Such was the constitutional heritage of the fifty-five men who drew up a new plan of government in 1787. Realizing that the government they were creating had a broader and deeper reach than the old Confederation did, the framers might naturally be expected to go to some lengths to guarantee that the government authorized by the Constitution would not trample on people’s time-honored rights.
Except they did not.
The first draft of what would become the Constitution, the Virginia Plan, merely laid out the outlines for a new federal government. Understandably, at this embryonic stage, the draft did not consider protections against governmental abuse
, nor did its chief alternative, the New Jersey Plan. During the first two months of debates, delegates did address the fundamental right of representation and the right not to be taxed without that representation, but they did not concern themselves with the kinds of protections against governmental abuse we see in the Bill of Rights.
Not until the August 6 Committee of Detail report, issued in the third month of the Convention’s proceedings, did other safeguards appear. “The trial of all criminal offences (except in cases of impeachments) shall be in the State where they shall be committed; and shall be by Jury,” the committee stated. But beyond that there was nothing.
Two weeks later, on August 20, Charles Pinckney recommended the protection of writs of habeas corpus and liberty of the press, as well as prohibitions against religious oaths for public office and forced quartering of soldiers. His suggestions were sent to committee but never reported out.
Two days after that, Elbridge Gerry and James McHenry moved to prohibit bills of attainder (legislations imposing penalties on specified individuals or groups) and ex post facto (retrospective) laws. Their motion passed, although some delegates thought that ex post facto laws were so scorned that judges would treat them as “void of themselves” even without a specific prohibition. On August 28, Gouverneur Morris formally moved to protect writs of habeas corpus except in cases of rebellion. The Convention assented without debate. The new government would not be allowed to hold prisoners secretly or without showing cause, a protection guaranteed by British law for over a century. Two days later, Charles Pinckney brought to the floor one of his earlier suggestions, moving to outlaw the use of any religious test as a qualification for holding public office. This proposal also passed without serious dissent. Slowly, piece by piece, protections of individual rights were mounting.