Role of the Anti-Federalists
SLevinson at law.utexas.edu
Tue Oct 18 14:07:20 PDT 2005
Again, the fact that some AF leaders were smart enough to know they were being had does not entail that thousands of more ordinary AF's who were genuinely on the fence weren't sufficiently mollified to feel a commitment to the new political order. Again, see the recent fragmentation among the Sunnis in Iraq, some of whom publicly supported the constitution, some of whom did not--and in both cases, it's an open question to what extent they speak for ordinary Sunnis who desperately wish for some measure of (reasonably just) stability.
From: conlawprof-bounces at lists.ucla.edu on behalf of Calvin Johnson
Sent: Tue 10/18/2005 3:43 PM
To: Siegel at law.law.sc.edu
Cc: conlawprof at lists.ucla.edu
Subject: RE: Role of the Anti-Federalists
I don't buy it, although there is nothing wrong in the abstract
with your argument. When Madison put his amendments together, the only
states that had not ratified were North Carolina and RI. RI was hated,
the despicable little corner of the Continent that had done more damage
to the Union than the whole state was worth. Not much would be given to
RI. NC needed something called a BR, but it did not need to be much,
because it was not. Both NC and RI would be brought in with the stick,
threatening to treat goods from RI and NC as alien source and subject to
the new federal 5% tariff. They were not going to get much of a carrot.
The BR is such trivia, in the perceptions of the time, such a sop. Mason
is right that it is a FARCE. The important one is criminal jury, which
the C already protected without any amendment. The things added by the
BR to the criminal jury are peripheral, as if somebody was making up
something that had not already been stated. The civil jury just said
whatever is the status quo (and we do not have the foggiest what is the
status quo given equity/law distinction and maritime no jury rules)
shall remain the status quo forever -- a terrible idea.
It is also plausible that Madison wrote the BR to please Mason,
who had been a friend and ally . They tried to buy him in again by
buying his land to make the DC. Mason was not convinced and he remained
an enemy of the Constituion until Madison turned against Hamilton.
The Anti-Fedrealists take the position that the BR is a sop, a
tub thrown out to distract a whale, a farce, with none of the meaty
provisions protecting state power that the Afs demand.
If you are going to treat AF interpretations as illuminating, at
least read what they say about the BR.
Calvin H. Johnson
Andrews & Kurth Centennial Professor of Law
The University of Texas School of Law
727 E. Dean Keeton (26th) St.
Austin, TX 78705
(512) 232-1306 (voice)
FAX: (512) 232-2399
For reviews, chapters, discounts and news on Johnson, Righteous Anger at
the Wicked States: The Meaning of the Founders Constitution (Cambridge
University Press 2005) see
From: Andy Siegel [mailto:siegel at law.law.sc.edu]
Sent: Tuesday, October 18, 2005 3:07 PM
To: Calvin Johnson
Subject: Re: Role of the Anti-Federalists
I agree with everything in your first paragraph and nothing in my post
suggests either disagreement with those facts or lack of knowledge of
them. I still don't understand, however, why it is not useful in
unpacking the meaning of the Bill of Rights to understand the context in
which arguments for a Bill of Rights emerged, the overarching ideology
of those who first voiced those arguments, the reasons why those
arguments (even if disingenous) obtained traction, the ways in which
those arguments (and their popularity) were viewed by the drafters of
the eventual Amendments, the ways in which the drafters acceded to,
differed from, or attempted to co-opt anti-federalist ideology and
support, etc. Perhaps if one has a very intentionalist, author-focused
theory of constitutional interpretation the anti- Federalists only
confuse the story. Even then, however, I think it helps us explain what
was going on in the heads of the Federalists. Moreover, I don't think
most historically-driven constitutional interpretation limits itself to
a search for authorial intent.
Perhaps there is some common ground here, or maybe we just have
different underlying baselines as for what is relevant to constitutional
In any case, thank you for responding so directly and helpfully.
On 18 Oct 2005 at 13:29, Calvin Johnson wrote:
> Anti-Federalists did not draft the Constitution, nor influence its
> drafting, and they opposed the fixed written document when they got to
> see it. The Bill of Rights was drafted in the first Congress where 85%
> of the power was held by Federalists. The Anti-Federalists, at 15%,
> never had much influence on the Bill of Rights and as a party they
> opposed the Bill of Rights when it was completed.
> Pope Urban VIII, who prosecuted Galileo for heresy, participated in
> dialogue at the time of the founding of the scientific method, but he
> was opposed to the method and its conclusion that the Earth revolved
> around the Sun. Pope Urban's role in the dialog was to confine
> Galileo to house arrest for the duration of his life and tell him he
> would be burned at the stake if he ever argued again that the sun was
> central. Given their stance, the Anti-Federalists can be said to be
> the "Other Founders" of the Constitution in the same sense that Pope
> Urban can be described as an "other founder" of the scientific method.
> Calvin H. Johnson
> Andrews & Kurth Centennial Professor of Law The University of Texas
> School of Law
> 727 E. Dean Keeton (26th) St.
> Austin, TX 78705
> (512) 232-1306 (voice)
> FAX: (512) 232-2399
> Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
> For reviews, chapters, discounts and news on Johnson, Righteous Anger
> at the Wicked States: The Meaning of the Founders Constitution
> (Cambridge University Press 2005) see
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Andy Siegel
> Sent: Tuesday, October 18, 2005 12:50 PM To: JMHACLJ at aol.com;
> conlawprof-bounces at lists.ucla.edu; CONLAWPROF at lists.ucla.edu Subject:
> Re: The Founders of the Bill of Rights: Triangulating To Meaning
> 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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