Happy Bill of Rights Day, America

William Grayson confided to Patrick Henry that amendments being considered in Congress "shall affect personal liberty alone, leaving the great points of the Jud[iciar]y and direct taxation etc. to stand as they are."...   Grayson's observation that the proposed amendments "are good for nothing, and I believe as many others do, that they will do more harm than benefit" reflected his concern that issues of taxation and the structure of the new federal judiciary could render all other amendments protecting personal liberty nugatory....   To Grayson, the threat that the new government would overstep its bounds and use the power of taxation arbitrarily and oppressively negated any paper check on governmental authority.   This threat was compounded by the nature of federal judicial power.   Where the only legal recourse to challenge federal authority would be through the federal courts, without structural change mere parchment barriers could not protect liberty.

The debate over the Tenth Amendment reflected the struggle of the Anti-Federalists to obtain specific language to limit the federal government's powers, and the Federalists' ability to prevail with broader, more ambiguous language.   According to Cornell,

No issue was more bitterly contested than the Anti-Federalist effort to limit the powers of the new government to those expressly delegated by the Constitution.   Madison's response was an amendment:   "The powers not delegated by this Constitution, nor prohibited by it to the states, are reserved to the states respectively."   Anti-Federalist Thomas Tudor Tucker moved to insert the word "expressly" between "not" and "delegated."...   Without the insertion of the word "expressly," many Anti-Federalists believed that amendments were of little consequence: the new government would eventually absorb all power within its orbit....   More than any other issue, the notion of restricting the powers of the government to those expressly delegated by the Constitution would define the core around which a distinctively Anti-Federalist interpretation of federalism would evolve into a dissenting constitutional discourse.

Another issue which divided Federalists and Anti-Federalists was control of the military.   As far back as England's Glorious Revolution, many writers (including the authors of Cato's Letters) had warned that standing armies were threats to the people's freedom.   The Articles of Confederation reflected this view, and it allowed state militias, but not a national army, during peacetime.   As described by Cornell,

Elbridge Gerry reminded members of Congress of the indispensable role that a militia played in a republican government.   "What, sir, is the use of a militia?   It is to prevent the establishment of a standing army, the bane of liberty."   The importance of this issue was difficult to overstate.   "Whenever government[s] mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins."   Gerry sought to define the role of the militia such that it would continue to be a creature of the states....   A sacred tenet of republican faith was that standing armies were dangerous to liberty, and Gerry feared that the language of the proposed amendment opened that door.

As with the ratification controversy, the Federalists prevailed over the Anti-Federalists in forming the Bill of Rights.   As one can imagine, the Anti-Federalists were pessimistic about the country's future:

A number of prominent Anti-Federalists, including Gerry, believed that the amendments adopted by the First Congress failed to achieve the structural changes necessary to protect the rights of individuals and the power of the states....

In the view of Aedanus Burke, those amendments... adopted were not "those solid and substantial amendments which the people expect; they are little better than whip-syllabub, and frothy and full of wind, formed only to lease the palate....

Richard Henry Lee, like other Anti-Federalists, assessed the amendments approved by Congress even less optimistically.   "The idea of subsequent amendments was delusion altogether, and so intended by the greater part of those who arrogated to themselves the name of Federalists."   He echoed the arguments of his fellow Virginians:   "The great points of free election, Jury trial in criminal cases much loosened, the unlimited right of Taxation, and Standing Armies in peace, remain as they were.   Some valuable Rights are indeed declared, but the powers that remain are very sufficient to render them nugatory at pleasure."

Even some Federalists were skeptical of the Bill of Rights:

Federalist George Clymer wrote to Tench Coxe, dewcribing "Madison's amendments" as a mere placebo:   "Like a sensible physician," Madison "has given his malades imaginaires bread pills powder of paste and neutral mixes to keep them in play."

With the Federalist victory in forming the content of the Bill of Right, the debate changed to interpretation of the Constitution, and the extent of powers it gave the federal government.   Cornell cites the experience of Pennsylvania Senator William Maclay as an example of a Federalist who was not altogether pleased with the results of his party's victory:

A supporter of the Constitution in 1787 - 1788 and a Democratic-Republican during the 1790s, Maclay's observations about politics provide important clues to the evolution of political discourse in this period....   He noted the emergence of a new group, which he described as the "Court party."   This group was committed to strengthening the executive branch and generally expanding the powers of the federal government.   Maclay even found himself in agreement with the "notorious Antifederalist" from Virginia, Lee.

The development of the "Court party" did not surprise many Anti-Federalists, who suspected the Federalist leaders of being power-hungry all along.   The fact that the Ali en and Sedition Acts were enacted by the Federalists, in obvious violation of the First Amendment, must have seemed to confirm their suspicions.   According to Cornell,

For many Anti-Federalists, the actions of the court faction vindicated their earlier stance during ratification; the most politically astute realized that it was vital to forge a working alliance with those members of the old Federalist coalition who were alarmed by the rise of a court-style political faction.

The fact that some Federalists were surprised by the emergence of the court faction indicates that they were, intentionally or not, mislead about the motives of some Federalist leaders.   Senator Maclay's experience illustrates this point:

Maclay... took exception to William Grayson's suggestion that the court party was merely carrying forward the designs of the original supporters of the Constitution....   He thought Grayson's reference to Patrick Henry's charge that "consolidation is the object of the New Government" was "remarkable."...

Maclay was especially puzzled by the newfound affection for British government expressed by members of the court party.   He was particularly confused by the "conduct of [William] Patterson," who had "been characterized to me as a Staunch Revolution man and Genuine Whig."   Despite this reputation, Patterson "has in every republican Question deserted and in some instanced betrayed Us."   A clear pattern had emerged in the First Congress, and Maclay sincerely believed that "the desi[gns] of a certain party" were to use "the General Power to carry the Constitution into effect by a constructive interpretation."   This strategy "wou[l]d extend to every Case That Congress may deem necessar[y] or expedient."

Thus, the First Congress validated the Anti-Federalists' warnings that adopting the Constitution would result in a government far more powerful than most Americans realized.   And, even if we give every benefit of the doubt to the Federalists, Cornell's next statement makes it clear that at least some of them intentionally his their true intentions from the public:

Maclay was astonished that politicians boasted that they had "cheated the People" and established "a form of Government over them which none of them expected."

Clearly, Maclay and many other well-intentioned Americans were fooled into ratifying a Constitution that gave away much of the freedom they had fought for during the American Revolution.   And in return, they received guarantees that their framers knew would be ineffective.   Is it any wonder that, more than 200 years later, we find our rights under assault?

Happy Bill of Rights Day, America.

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