Why the Federalists Hated the Bill of Rights

Why the Federalist hated the Bill of Rights

by Murray and Rothbard?

The Constitution had been ratified

and was going into effect.

And the next great question before the country

was the spate of amendments which the Federalist

had reluctantly agreed to recommend

at the state conventions.

Would they, as Madison and the other Federalists wanted,

be quietly forgotten?

The anti-federalists, particularly in Virginia and New York,

would not permit that to happen.

And the second convention movement, led by Patrick Henry

and George Mason in Virginia, and proposed

by the New York Convention Circular Letter,

was the anti-federal goal.

Already, the circular letter had won approval

from Virginia and North Carolina and Rhode Island.

A second convention would reopen the whole question

of the Constitution and allow restrictive amendments

and alterations which could severely weaken

the rampant nationalism of the new government

of the United States.

For the same reason, a second convention

was precisely what the victorious Federalists had

to prevent at all costs.

The Federalists, of course, wanted no part of any amendments

or reminders of their promises.

And Senator Ralph Izard, wealthy Federalist

planter of South Carolina, expressed their sentiments

at the first session of Congress when he urged his colleagues

to forget about their amendments and get down

to problems of finance.

James Madison, who defeated James Monroe

in the Virginia elections to the House of Representatives

and assumed a leadership of the Federalist in Congress,

aboard the concept of a bill of rights.

But as a shrewd political tactician,

he realized that the second convention movement could

swell to formidable proportions.

To avoid a potential crippling of the essentials

of American nationalism, Madison decided

that it was better to make some concessions right away

and thus pull the teeth out of the drive

for an overhaul of the Constitution

before it really got underway.

Madison also had a powerful political motive

for making such concessions.

Anti-Federalism was powerful in Virginia,

as had been demonstrated in Henry's almost successful attempt

to keep the hated Madison out of Congress altogether.

If he was to save his political hide in his home state,

Madison had to act quickly.

And in his hard-fought election campaign,

he had pledged to work for such amendments in Congress.

The approximately 210 amendments proposed by the states

were of two basic kinds.

A bill of rights for individuals and statehood reform

to battle federal power.

Typical of the former was trial by jury.

Of the latter was two-thirds requirement

for passing a navigation law.

The former did not alarm the Federalist nearly as much

as the latter, for the former would leave intact

a supreme national power banned only in specific instances

from making certain incursions on the perceived liberty

of the individual.

But the statehood amendments could cut aggressively

into the very political and economic vitals

of the National Juggernaut and battle it effectively

from within that power structure itself.

The structural amendments would have expanded

the libertarian scope of the bill of rights

from personal liberties alone to the political and economic.

This was too much for the Federalist to swallow.

Madison therefore decided to pass a bill of rights quickly

and thus nip in the bud any drive for structural reform

and a second convention.

He informed Congress that the anti-federal states

and a bill of rights was fortunate in that it would be possible

to end this threat by granting such a bill

without endangering any part of the Constitution.

If Congress refused to act, the public would be aroused.

A second convention would be called

and the opposition could then force a reconsideration

of the whole structure of government.

On the other hand, as he wrote to Thomas Jefferson,

submission of a bill of rights would weaken the opposition

by splitting the moderates away from the radicals,

that is, the well-meaning from the designing opponents,

fix on the latter their true character

and give to the government its due popularity and stability.

After Washington's inaugural speech, brusquely warned

that amendments must not really weaken

the power of national government.

Madison introduced amendments that proposed a bill of rights

based on the proposed Virginia amendments

and the Virginia Declaration of Rights.

Indeed, he hastened to assure his intention

of submitting the Bill of Rights amendments well in advance

in order to forestall the next motion

of Virginia's anti-federal congressman, Dr. Theodoric Blan.

From introducing a resolution for a new constitutional convention,

Madison's centrist action was, predictably,

opposed from left and right.

On the left, the anti-federal leadership

understood Madison's tactic all too well.

Senator William Grayson of Virginia

wrote to Patrick Henry that Madison's amendments

greatly overstressed personal liberty

at the expense of reform of such matters

as the direct tax power and the judiciary.

The whole aspect of Madison's maneuver,

Grayson, was unquestionably to break the spirit

of the anti-federalist party by divisions.

The maneuver succeeded all too well as many in the anti-federal block

were ready to settle for a small part of the loaf

and then give in to the new constitution.

Even George Mason was almost willing to reconcile himself

to the new government.

In North Carolina, Madison's introduction

of the Bill of Rights proved instrumental

in changing enough anti-federal support

to ratify the constitution.

On the other side, many federalists were unconvinced

of the necessity for this maneuver.

In the house, Roger Sherman attacked

the idea of amendments and upheld stability

of government above all else.

And the ultra-federalist Fisher Ames

sneered at Madison's amendment effort

as based on research into personal trivia

and designed to advance Madison's personal popularity.

George's James Jackson was already divinizing

a constitution not quite a year old.

The constitution he argued must be left intact,

otherwise a patchwork flood of amendments might follow.

The fact that the constitution itself was a patchwork

seemed to be lost on the Georgia congressman.

Perhaps the most extreme expression in the house

came from former judge Samuel Livermore,

who had pledged a key vote in ratifying the constitution

in New Hampshire.

The judge was outraged about the restraints involved

in prohibiting cruel and unusual punishments

in the Bill of Rights.

Livermore couldn't understand why necessary

and salutary punishments should be prohibited

merely because they were cruel.

A gallant anti-federal stand in the house was led

by Adanis Burke and Thomas Tucker of South Carolina.

Burke and Tucker urged the inclusion

of libertarian structural amendments

such as the prohibition of federal direct taxes,

but their efforts were in vain.

Tucker also tried in vain to include expressly

before delegated in the 10th amendment

thus greatly limiting the power granted to Congress.

Finally, after long and reluctant delay,

the house passed 17 restrictive amendments on August 24,

1789.

In the Senate, the libertarian anti-federalist fights

was led by the two Virginia senators,

Richard Henry Lee and William Grayson.

Lee and Grayson followed the Tucker Burke path

by introducing structural amendments.

Indeed, they introduced a mixture of the amendments

proposed by the Virginia Convention.

They also added a proposal to prohibit federal direct taxes.

All of these were rejected by the Senate.

The most creative and daringly democratic amendment

was to bind representatives to follow

the instructions of their constituents.

But in all the Senate, only Lee and Grayson

had the vision to support it.

However, while Lee well understood

the Machiavellian political reasons for the amendments,

he concluded at the end that half a loaf was better than none.

Lee, however, remained highly critical of the way

in which his colleagues had inhibited

and infeebled the amendments.

The hardline federalists who scorned any concessions

were led in the Senate by Ralph Isard of South Carolina,

John Langdon of New Hampshire,

and the ineffable Robert Morris of Pennsylvania.

The Senate condensed the House amendments into 12

and a joint conference committee

submitted final revisions of the 12 amendments,

which were approved by the Congress on September 25th.

The hardcore anti-federalists were chagrinned.

Lee was critical, Grayson bitterly concluded

that the submitted Bill of Rights amendments

would do more harm than good.

Patrick Henry agreed lamenting the lack

of a prohibition of direct taxes

and tried to postpone the ratification of the amendments

by the Virginia House.

Even the moderate federalist, Thomas Jefferson,

though favoring the Bill of Rights,

was disgruntled at the lack of a prohibition

on government grants of monopoly and a standing army.

Patrick Henry's gallant fight against the overly soft amendments

and the shrewd Madisonian strategy

was able to delay Virginia's ratification

until it became the last of the 11 states needed to approve.

New Jersey was the first state to ratify in late November,

1789, but while nine states moved to ratify by June, 1790,

Virginia, the last state, took over two years after submission.

In Virginia, the struggle was waged between the lower house,

now controlled by the federalists

and the anti-federalist controlled Senate,

which was finally pressured into ratifying

on December 15, 1791.

Massachusetts, Connecticut, and Georgia never did ratify.

Georgia on the high federalist belief

that they were unnecessary and Connecticut

on the equally ultra-federalist view

that any concession would imply that the Constitution

was not unflawed perfection

and would therefore give aid and comfort to anti-federalism.

In Massachusetts, too, the federalists

wanted no amendments while the anti-federals

held out for stronger amendments.

Between the two forces, Massachusetts never ratified.

Of the 12 amendments submitted to the states,

the first two were not ratified.

These were minor provisions dealing

with the organization of Congress.

The remaining 10 amendments composed

nine highly significant articles,

guaranteeing various personal liberties

against the federal government,

as well as one complimentary structural amendment.

None of the political and economic liberties

desired by the anti-federalists,

prohibition of direct taxes, standing army,

two-thirds requirement for laws regulating commerce,

et cetera, were included.

But the adopted bill of rights was significant enough,

and all of their provisions were intensely libertarian.

The first amendment provided that Congress shall make no law

establishing religion or prohibiting its free exercise,

a bridging freedom of speech, press,

or right of peaceful assembly,

or to petition the government for redress of grievances.

The second amendment guaranteed that the right of the people

to keep and bear arms shall not be infringed.

While the courts have enumerated the clause

to apply only to Congress, leaving the states free

to invade this right, the wording makes it clear

that the right shall not be infringed, period.

Since states are mentioned in the body of the Constitution,

and restrictions placed upon them there as well,

this clause evidently also applies to the states.

Indeed, the subsequent amendments, three to nine,

apply to the states as well as to the federal government.

Only the first amendment specifically

restricts Congress alone, and yet the courts

have emasculated the amendments in the same way,

counting them as not applying to the invasions

of personal liberty by the states.

The third amendment prohibits the quartering of troops

in peacetime in a private house without the owner's consent.

The fourth guarantees the rights of the people

to be secure in their persons, houses, papers,

and effects against unreasonable searches and seizures

and only specific warrants, not general ones, can be issued.

The fifth amendment ensures grand jury indictments

for major crimes and prohibits double jeopardy,

compelling any defendant to testify against himself,

depriving anyone of life, liberty, or property

without due process of law, or confiscating private property

without just compensation.

The sixth amendment ensures the right of a defendant

to a quick and public trial by an impartial jury

of the locality of the crime and to have various other rights

in his trial.

The seventh guarantees the right of trial

by jury in civil cases and the eighth prohibits excessive bail,

excessive fines, and cruel and unusual punishments.

The ninth and tenth amendments were signed

to give the stark rebuttal to the cynical Wilson Madison

Hamilton argument that a bill of rights

impairs people's rights by permitting encroachment

in unannumerated rights that would supposedly

belong to the people.

The tenth amendment specifies that the powers not delegated

to the United States by the Constitution

nor prohibited by it to the states are reserved

to the states respectively or to the people.

This amendment specifies that the national government

is one of strictly delegated powers

and that powers not so delegated

belong to the states or to the people.

In other words, the power not specifically delegated

or prohibited to the federal government

cannot be assumed by that government

and are reserved to the states.

For many years, the tenth amendment was the great weapon

of the states' rightists and other anti-nationalists

in their argument that the states or the people of the states

are really sovereign rather than the national government.

This amendment did in truth transform the Constitution

from one of supreme national power to a partially mixed

polity where the liberal anti-nationalist had

a constitutional argument with at least a fighting chance

of acceptance.

However, Madison had cunningly left out

the word expressly before the word delegated.

So the nationalist judges were able to claim

that because the word expressly was not there,

the delegated can vaguely accrue through judges' elastic

interpretation of the Constitution.

This loophole for vague delegated power

allowed the national courts to use such open-ended claims

as general welfare, commerce, national supremacy,

and necessary and proper to argue for almost any delegation

of power that is not specifically prohibited

to the federal government.

In short, to return the Constitution basically

to what it was before the tenth amendment was passed.

The tenth amendment has been intensely reduced

by conventional judiciary construction

to a meaningless totology.

Ironically, the most potentially explosive weapon

of the anti-nationalists was ignored then

and for the next 175 years by the public and the courts.

This was the ninth amendment which states,

the enumeration in the Constitution of certain rights

shall not be construed to deny or disparage others

retained by the people.

With its stress on the rights of the people,

rather than on state or federal power

as in the tenth amendment, the ninth amendment

is even more acutely the answer to the Wilsonian argument

than the tenth.

The enumeration of rights may not be so construed

as to deny other enumerated rights retained

by the people.

The ninth amendment has, unfortunately,

A, erroneously been held to apply only to the federal government

and not also to the states and B has been reduced

to a simple paraphrase of the tenth amendment by the courts.

But then why have a ninth amendment

that simply repeats the tenth?

In truth, the ninth amendment is very different

and no construction can reduce it to a totology.

Unlike the formulaic tenth amendment,

the ninth emphatically asserts that there are rights

which are retained by the people

and therefore may not be infringed upon

by any area of government.

But if there are unenumerated rights,

this means that it is the constitutional obligation

of the courts to find, proclaim, and protect them.

Moreover, it means that it is unconstitutional

for the courts to allow a government infringement

on any right of the individual on the grounds

that no express prohibition of that act

can be found in the Constitution.

The ninth amendment is an open invitation,

nay, a command, to the people to discover

and protect the unenumerated rights

and never to allow governmental invasion of rights

on the ground that no express prohibition can be found.

In short, the ninth amendment expressly commands

the judge to be activist and not literal

and the construction of rights retained by the people

against government encroachment.

Moreover, if it is asked what other rights were intended,

the context of the time dictates but one answer,

they meant the natural rights held by every human being.

But a commandment that the courts are duty-bound

to protect all of man's natural rights,

enumerated or retained would reduce the powerful scope

of government action to such a degree

as to give the last laugh to Herbert Spencer

over Justice Oliver Wendell Holmes,

who was in the early 20th century

to twist the strict constitutional judges of their day

from holding that the Constitution

endowed the individualist libertarian social philosophy

of Spencer's social statics, 1851.

While the taunt was directed against enabling

the judge's personal preferences into fundamental law,

the spelling out of the implications of the ninth amendment

might well reinstate social statics

and on a far firmer legal and constitutional basis.

Misconstrued as it was, the ninth amendment lay forgotten

and made no impact whatever on American history

until the year 1965.

Then suddenly, the Supreme Court in a landmark

of constitutional law rediscovered the lost amendment

and relied on it in Griswald versus Connecticut, 1965

to prohibit the states from interfering with the individuals

basic and fundamental right to marital privacy

in outlawing birth control devices.

The enormous implications of the decision

for a constitutional law and for wider liberty in the US

were a dumb rated in the concurring opinion

of the Justice Arthur Goldberg agreed to

by the Justice William Brennan and Chief Justice Earl Warren.

The concept of liberty protects those personal rights

that are fundamental and is not confined

to the specific terms of the Bill of Rights.

My conclusion that the concept of liberty is not so restricted

and that it embraces the right of marital privacy

though that right is not mentioned explicitly

in the Constitution is supported both by numerous decisions

of this court referred to in the court's opinion

and by the language and history of the ninth amendment.

The ninth amendment to the Constitution

may be regarded by some as a recent discovery

and may be forgotten by others, but since 1791

it has been a basic part of the Constitution

which we are sworn to uphold.

To hold that a right so basic and fundamental

and so deep rooted in our society as the right of privacy

and marriage may be infringed because that right

is not guaranteed in so many words

by the first aid amendments to the Constitution

is to ignore the ninth amendment

and to give it no effect whatsoever.

Moreover, a judicial construction that this fundamental right

is not protected by the Constitution

because it is not mentioned in explicit terms

by one of the first eight amendments

or elsewhere in the Constitution

would violate the ninth amendment.

Rather as the ninth amendment expressly recognizes

there are fundamental personal rights such as this one

which are protected from abridgment by the government

though not specifically mentioned in the Constitution.

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