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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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