Inverting the First Amendment

[Mark Graber]

A small criticism for Doug's otherwise excellent post.  Doug makes
the following claim.

>         4.  Marci Hamilton weighed in with the false claim that Madison
> believed a bill of rights to be unnecessary because the Article I powers
> could not reach speech, religion, or other rights.  This is a statement of
> fact, and it is demonstrably false.  Madison was unambiguous on the point in
> his speech of June 8, 1789, introducing the bill of rights.  He set up the
> argument that the federal government had only limited powers, and then he
> refuted it, showing how rights could be violated without exceeding powers.
>
>         Of course the Federalists made that argument preratification,
> because they had no choice, having made the mistake of proposing a
> Constitution without a bill of rights.  But they lost that argument, which
> is why we get a bill of rights in the First Congress.  Federalist 84, on why
> a bill of rights was unnecessary, is one of the weakest in the whole volume.
> Madison probably knew better at the time; certainly he had learned better by
> the time of the First Congress.

This strikes me as mistaken.  During the ratification debates
virtually every Federalist in virtually every state made the claim
that the Bill of Rights was unnecessary.  James Wilson without much
provocation anticipated Federalist 84 in a much cited speech before
the Pennsylvania state house and variations on his themes get
repeated over and over again without any public or private confession
of error.  Indeed, Federalists repeat ad naseam the weaknesses of
"parchment barriers" compared to institutional protections for
liberty, claims Madison repeated at the Virginia Constitutional
Convention of 1829.  None of this influences our debate over the
precise legal meaning of the 1st Amendment other than to note that
the Federalists were suspicious of purely legal limits on government
(Phil Hamburger's piece on the Constitution's Accommodation of Social
Change is good on this).

Mark A. Graber
mgraber at bss2.umd.edu

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