The Founders of the Bill of Rights

[Paul Finkelman]

I thnk everything Calvin says is dead on right; for some more details on 
this see (self-servingly) these two (of my own) articles:

James Madison and the Adoption of the Bill of Rights:  A Reluctant 
Paternity,  1990 Sup. Ct. Rev. 301-47 (1991).

Turning Losers into Winners: What Can We Learn, If Anything, From the 
Antifederalists? 79 Tex. L. Rev. 849-894 (2001).

Calvin Johnson wrote:

>               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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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK  74105

918-631-3706 (voice)		
918-631-2194 (fax)

Paul-Finkelman at utulsa.edu


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