The Founders of the Bill of Rights: Triangulating To Meaning

[paul-finkelman at utulsa.edu]

Andy, let me try and help you out of your surprising situation. I am not sure exactly what Jim Henderson's point is, other than there is a "role" fo rthe A-Fs.  I don't disagree with that.  THey, after all, demanded a Bill of Rights; at the COnvention Mason said he would nto sign because there was no BofR, although one suspects he would not have signed even if there had been one -- Mason after all, did not want a stonger national gov. or federal regulation of commerce. 

So, what does the Mason story tell us?  First, that the A-F's asked for a BofR and that makes them part of the process; that some of the specific protections they asked for are in the BofR just like they were in similar state documents.

Jim H. seems to think there were "negotiations" of some kind in the writing fo the BofR between the Feds and the Anti-Feds.  But there were none; the antifeds really did not participate inthe process of writing the BofR and many of them them (Henry, Mason for example) opposed the BofR.

It is important to remember that in 1789 the Anti-feds had been thoroughy defeated; there were 2 (I believe -- I am writing from memory as I am out of town) in the Senate, both from Va. and only a handful in the House.  They hard core Anti-Feds  opposed the BofR, as a number of us have noted. 

So, where does this leave us?  That the Anti-Feds put the BofR on the table and some of their proposals were copied by Madison; for example, the Minority in Penn. (which was a small group of Anti-Feds)  proposed a series of amendments; some were adopted by Madison almost word-for-word; Madison ignored others (like their proposals on the right to hunt, fish, and have guns for their own protection; or their proposal to get rid of a standing army), although Madison took some of their ideas and worked with them; so rather than get rid of a standing army, which almost every anti-fed wanted, instead Madison declared the national government could not abolish the state militias ("A well regulated militia ...").  This illustrates that some antifed ideas (free press) were acceptable to the Feds and so Madison used them; and some (no standing army) were not acceptable and Madison either ignored them, or rsponded in a way that would be acceptable to the Feds while not perhaps really plea
 sing the antis (protect the militia).  

Perhaps the best lesson we can learn (or the only "originalist" analysis we can have) from looking at the Anti-Feds is to see what they DID NOT get and that helps us understand what Madison gave the whole nation.  

I hope this helps.

Paul Finkelman

Quoting Andy Siegel <siegel at law.law.sc.edu>:

> 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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Paul Finkelman
Chapman Distinguished Professor of Law
Univ. of Tulsa College of Law
2120 East 4th Place
Tulsa OK  74104-3189

Phone: 918-631-3706
Fax:    918-631-2194