The Founders of the Bill of Rights

Wed Oct 19 15:08:43 PDT 2005

    In the end, the people ratified the Constituiton by almost two to
one, and at 60% level in every region of NE, MidAtlantic and South.
Anti-Federalism shrank to only 15% of hte first COngress and then were a
stigmatized minority and ceased to be a viable political banner around
which people could rally, so Anti-Federalism disappeared.   GW went on
tour and was astounded by the enthusiastic support of the crowds in
every city.  The people liked the Constitution once they got over its
strange newness.
        Ratification by states would have required ratification of  the
states in corporate capacity operating through legislature and governor.
The Framers did not think they could get ratification by states.  The
local barons controlled the state offices and would sabotage the C to
protect the power and emoluments of office.  So they went to the people,
meeting by state, to give them a revolutionary pwower greater than the
states.  The new Constitution had to be paramount to state legislation
in perpetuity, and adoption by the states as ordinary legislation would
not do it.  So the people had to ratify both as a matter of goal and
law, and of course as a matter of expediency.      
    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
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
<http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/> 

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
http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/

________________________________

From: Paul Finkelman [mailto:paul-finkelman at utulsa.edu] 
Sent: Wednesday, October 19, 2005 4:36 PM
To: RJLipkin at aol.com
Cc: Calvin Johnson; CONLAWPROF at lists.ucla.edu
Subject: Re: The Founders of the Bill of Rights

1: the people did not ratify; the conventions did.
2: the A-F's were crummy politicians; they believed in the politics of
delay, even when they had the votes
3: the Feds. were better politicisans and more persuasive eiher because
a) they were simply smarter or b) the had the better arguemtns about the
Constitution; or c) teh nations was in such crisis that even if you did
not love the constitution it was a better alternatived to the
"imbecility" (as Hamilton put it) of the Articles; d) a combination of
1-d
4:  The feds *were* a majority in some states (Ga; Del; SC; Pa; NJ;
Conn; Md); weak majority in NH; a-fs were in the majoirty in NC, RI, NY;
probably in Va; toss up in Mass.   
5.  whether a-fs were in the majority nationally is unknown; might have
been but since delegates were by district that might have worked against
them (the way Al gore could win a huge popular majority but lose the
electoral college).
In a few states the Feds persuaded moderated A-Fs to go along with the
new constitution in part because, I believe, the Feds had the better
argument; the A-Fs came off shrill and paranoid; scared of democracy;
scared of their own shadow; scared of a government that would work.  In
close stats like Va and Mass it only took a few swing votes to make the
difference.
The A-F strategy in VA and Mass was to go throught the whole document
clause by clause, but in doing so the Feds showed it wasnot all that
bad; that the checks and balances could work and the A-F fears were
often groundless; bottom line, is in MA and Va the A-Fs would probably
have won if they demanded an up or down vote without debate, or after
only a short debate; instead, they dragged it out; in VA they waiting so
long that NH ratified, giving the Feds their 9th state;  In NY the A-Fs
had a majority but refused to call an early convention or a quick vote;
and when 10 had ratified a number of NY A-Fs just gave in.

Imagine the alternatrive scenario:  NY, NC, VA, RI are the first four to
call a convention and all defeat it; Mass, where is close is next and
there the A-Fs win and the ball game is over before the feds have a
change to ratify; instead of course th opposite happens.

Paul Finkelmanl

RJLipkin at aol.com wrote:

	        I think I'm asking an elementary question, but if the
Anti-Federalists voted against ratification and they were a majority,
how did the Constitution receive enough votes for ratification?  I
suppose one answer is that many Anti-Federalists did not vote at all.
But is it the right answer? And if not, what is?

	Bobby

	Robert Justin Lipkin
	Professor of Law
	Widener University School of Law
	Delaware

-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

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

paul-finkelman at utulsa.edu

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