The Founders of the Bill of Rights

[Calvin Johnson]

              The Anti-Federalists used Bill of Rights insincerely as only as one of the excuses to defeat the Constitution that they hated on other grounds.  The dispute in the ratification was not over rights but over power, that is, whether power would be taken from the states for failure to pay their requisitions and transferred over to the newly formed national government.   Federal power to lay direct or dry land taxes was the biggest dispute.  On their own the Anti-Federalists are not very good about rights.  They favor establishment of the Episcopalian church in Virginia, they are anti-Catholic, aniti-Semitic, anti-Presbyterian and anti-Quaker.  They oppose the prohibitions on ex post facto legislation because a state might need it and they stand in favor of stiffing creditors both public and private.   When the Bill of Rights was proposed, the Anti-Federalists voted against it because it only went to individual rights and had none of the meaty provisions to keep power in the states.  The Anti-Federalists considered the Bill of Rights to be a sop. George Mason, of the university fame, called the Bill of Rights a "Farce"    
              It is difficult to give credit for the Bill of Rights to a group who so vigorously opposed it.
              More generally, originalism is not properly an invitation to create historical myths -- Rhine-maidens and the like.   The facts on the ground sometimes get in the way.  

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of RJLipkin at aol.com
Sent: Tue 10/18/2005 6:39 AM
To: CONLAWPROF at lists.ucla.edu
Subject: The Founders of the Bill of Rights


        A quick question.  If, as we are told, Madison acceded to the demands of the Anti-Federalists for a Bill of Rights, why aren't the anti-federalists considered the founders of that document?
 
Bobby
 
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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