The Founders of the Bill of Rights: Triangulating To Meaning

Andy Siegel siegel at law.law.sc.edu
Tue Oct 18 10:49:48 PDT 2005


I'm a bit surprised to find myself agreeing with Jim Henderson in a dispute with Paul 
Finkleman but I find the attempt to write the ideas of the anti-Federalists out of the 
story entirely somewhat dispiriting.  A substantial percentage of the public rejected 
the Constitution, motivated by a complex set of ideas, fears, prejudices, and 
aspirations.  Those committed to the Constitution engaged the anti-Federalists and 
ultimately, albeit barely, prevailed.  Both the existence of the Bill of Rights and its 
terms emerged from that engagement.  One need not embrace the substantive 
vision of the anti-Federalists or treat them as authentically concerned with protecting 
liberty to find their motivating concerns relevant when unpacking the original meaning 
of the Amendments.  At the very least, I would think that those who put great stock 
on understanding what the Bill of Rights meant in its original context would want to 
make themselves substantially familiar with the motivating concerns of the Anti-
Federalists so as to understand the intellectual mileiu in which the federalist framers 
operated (and the strategic considerations they might have been harboring). To that 
end, I have always been surprised that works like those cited in the last few emails or 
Saul Cornell's The Other Founders are not more widely read, discussed, and cited in 
originalist constitutional debates.

On 18 Oct 2005 at 11:55, JMHACLJ at aol.com wrote:

> I am left to wonder a bit by this discussion.  Specifically, I am left
>  to wonder whether why there should be an outright rejection of any
> search for  meaning for the text of Bill of Right in the arguments of
> the  Antifederalists.
> 
> In law school, and in CLEs thereafter, I have peeked at the "Getting
> to  Yes" book, and taken a course or two on negotiations.  And I have
> spoken  with my share of clients and with some negotiators too.
> 
> Ultimately, I have concluded that the negotiators whose efforts
> produced  the most stable and satisfying outcomes over the long run
> are those who, while  taking care that their own bottom lines were
> protected, also looked to the  interests of the opposing or opposite
> side.  Maybe that meant that a wallet  was not as fully padded as it
> otherwise might have been, or maybe it meant that  a client agency
> agreed to a term of settlement that would not have been imposed 
>  by a court order.
> 
> I wonder whether, no matter how strongly it is felt that the AFs
> excised  themselves from the process and are not entitled to be
> consulted on the meaning  of the documents and terms, my crude lessons
> in negotiation and agreement  suggest, as they certainly do to me,
> that rejecting that role for the AFs is  about as considered a
> judgment as rejecting the influential role of gravity on a  space
> vehicle launch just because the earth does not deliberately
> participate in  holding things closely against its "sweet flowing
> breast."  Not, of course,  because the AFs were spectacular
> negotiators, but because Madison and others  might be viewed as having
> played that role.
> 
> In other words, why is it inaccurate to conclude that the meaning of
> the  text of the first ten amendments, and of the most recent one, be
> derived by a  kind of triangulation that involves casting about in the
> minds of principal  architects, such as Madison, for lines of meaning
> that would placate those AF  concerns about the new Constitution?
> 
> Jim Henderson
> Senior Counsel
> ACLJ
> 




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