After reading The U.S. Constitution, The Federalist Papers, and the collected Anti-Federalist Papers, the number one realization I came away with– out of a lot interesting realizations– was that our nation’s Founding Fathers– brilliant as they were– largely got it WRONG.
Almost all of the Anti-Federalists’s main arguments against the Constitution were sooner or later VINDICATED. And some of the arguments put forward by Hamilton, Madison, and Jay in defense of the proposed Constitution were, in retrospect– and with all due respect to their formidable minds– quite short-sighted, even ridiculous.
The standard Federalist line was that the traditional rights of the Englishman and the so-called Natural Rights of humanity would NOT be harmed by the proposed Constitution because they were not expressly taken away, but Federalist John Jay argued that it was just a fact of life that SOME Natural Rights had to be given up for the sake of the general society.
The Anti-Federalists begged to differ with both the standard line, and with Jay’s opinion.
In Federalist #2, Jay wrote that Government is an “indispensable necessity,” and because of this, “the People must cede to it some of their Natural Rights ir order to vest it with requisite powers.”
Anti-Federalists arguing that opinions such as Jay’s were just flat wrong included such luminaries as: Patrick Henry, George Mason, Robert Yates (who used the nom de plume of “Brutus”), Elbridge Gerry, and George Clinton (writing under the pseudonym of “Cato”).
The Anti-Federalists contended that there are certain rights, so-called Natural Rights, which are “unalienable.” By un- (or in-) -alienable rights, the Anti-Federalists were referencing a category of rights which they felt no government could take away or ignore because no government BESTOWS them in the first place. Every human being is born with a set of Natural Rights and can never be alienated, or separated, from them. Every member of the human race– no matter what their circumstance or behavior– is always and everywhere deserving of a minimum level or dignity, respect, and freedom.
The Anti-Federalists thought it appropriate– indeed, essential– that any government established by the People of America should state– upfront, at the outset, and in writing– that these Natural Rights exist, and that they will be respected by the Government thoughout time, no matter the individual Administrations nor the periodic tribulations of the country.
What are some specific examples of Natural Rights? To start with, there is Life, Liberty, and the Pursuit Of Happiness. But the Anti-Federalists went farther. They also included in these “Natural Rights” the traditional privileges and immunities come to be expected by the subjects of the British crown by the late 1700s. These would include such things as the “right” to a trial by jury and the freedom to worship as one’s conscience dictates without retribution from the government.
Without the objections and agitations of the Anti-Federalists, the Federalists would not have been forced to promise to propose a Bill Of Rights to the States as one of the first objectives of the first Congress. The method chosen for adding a Bill Of Rights to the new nation’s Constitution was to treat each main point as a separate amendment to be added to the Constitution as approved by the States. The total of amendments proposed by Congress to the nation was, I believe, twelve, of which, ten passed, and become known collectively and immediately as the American “Bill Of Rights.”
The Bill Of Rights insisted upon by the Anti-Federalists included rights which all Americans take, on most days, for granted, but for which we owe an immense debt of gratitude to the Anti-Federalists — who had not only the foresight, but the courage, to fight against the imposition of a faulty and dangerous government being pushed –and pushed hard– by some of the most influential men in the country– men made even more powerful by the recruitment to their cause of the two most hero-worshipped titans of the Age– Ben Franklin and George Washington.
The first eight statements of the Bill Of Rights secured by the Anti-Federalists contain guarantees of the following personal rights and freedoms which have proven so vital to the development of the American democracy…
the right to trial by jury
freedom of speech and of the press
freedom of religion
freedom of assembly (and by a fairly easy extension, of association)
the right to petition the government
the right to bear arms
prohibition of the quartering of troops in private homes
prohibition of unreasonable searches and seizures of property
prohibition of double jeopardy (can’t be tried for the same crime twice)
prohibition of forced self-incrimination (to protect from torture-elicted confessions)
no public taking of private property without just compensation
prohibition of secret tribunals and purposely delayed or drawn-out trials
right of the accused to know the charges against him
right of the accused to confront witnesses against him
right to call witnesses on one’s own behalf
the right of the accused to legal counsel to aid in his defense
prohibition of excessive bails or fines
prohibition of cruel and unusual punishment
Many of the freedoms, rights, and prohibitions listed in the Bill Of Rights were the very ones demanded by the Anti-Federalists and argued against by Federalists such as Hamilton and Madison. The Federalists contended that such explicit guarantees were unnecessary, since, according to their argument, the Constitution granted the proposed Federal Government only the specific powers listed in the document.
James Wilson, an undersung hero of both the Constitutional Convention and the Ratification Debates, declared in an October 1787 speech that “it would have been superfluous and absurd” to add a Bill Of Rights to protect State-rights which we have never been given up.
Alexander Hamilton, writing in Federalist #84, stated that Bills Of Rights… “are not only unnecessary in proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
Hamilton felt that “the Constitution is itself, in every rational sense and to every useful purpose, a Bill Of Rights.” And he goes on to note some of the rights listed in the main body of the Constitution, which include…
the right of habeas corpus except in rebellion or invasion;
prohibition of bills of attainder (basically, the taking away of one’s property and citizenship rights as a form of punishment)
prohibition of ex post facto laws (one cannot be guilty of violating a law which did not exist until AFTER they committed the act)
prohibition of titles of nobility
prohibition of the acceptance by government officials of presents from foreigners
the right to trial by jury in the state in which the crime committed (the Anti-Federalists felt the language in the Constitution concerning the right to trial by jury did not go far enough)
the crime of “treason” could only be successfully leveled at someone if they were caught providing aid and comfort to the enemy or committing acts of war against the nation– AND any treasonable act must be an OVERT act witnessed by two people
AMENDMENTS WERE THE CONSTITUTION’S SAVIOR, AND THE NATION’S
Looking back on the U.S. Constitution from this vantage point, it seems obvious to me that its greatest, most worthy clause or characteristic was not the rules it laid-out or even the freedoms it guaranteed, but the fact that it was realistically and not impractically amendable.
Anti-Federalist Patrick Henry, thankfully, was wrong when he declared on 5 June 1788 that actual Amendments were highly unlikely to occur… “To suppose that so large a number as three-fourths of the States will concur, is to suppose that they will possess genius, intelligence, and integrity, approaching to miraculous. It would indeed be miraculous that they should concur in the same Amendments, or even in such as would bear some likeness to one another.”
Federalist James Wilson was more correct on 6 October 1787 when he remarked… “if there are errors, it should be remembered that the seeds of reformation are sown in the work itself, and the concurrence of two-thirds of the Congress may at any time introduce alterations and amendments”
Hamilton knew that the Constitutional Framers had not cobbled together a perfect document. But he was also confident that the document could be tinkered with as experience educated the whole nation on this brave new experiment in Government. “Tis time only that can mature and perfect so compound a system,” he wrote in Federalist #82. Only time… “can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent whole.”
As John Jay sagely observed in Federalist #64, with the passage of time and the gaining of wisdom… “new errors as well as new truths often appear.”
After reading for this blog the three great works mentioned at this post, I’ve come to believe that the greatness of America (and yes, by any objective standards, America achieved greatness during its first two hundred years or so), lay not in some miraculously composed legal code handed down by a group of wise men as if it were the Holy Scripture, itself– but in the Spirit of the Nation.
The American nation, because of the character of its People, was able to start with a flawed document and iffy institutional base, and to MOLD it, gradually and as needed, into an ever more perfect national Constitution.
As other emulating nations have learned the hard way over the last two hundred years or so, it is not enough to have a wonderfully written foundational law or constitution. Instead, what is most important– what is vital— is that the country possess the proper Spirit. Any community, no matter how great their leaders or their laws, is doomed if the proper community Spirit is absent.