Constitution Day – Thank the Anti-Federalists

Although the original Constitution is a remarkable achievement, it is the Bill of Rights added to the Constitution that so many cherish most about the document.  And for that they have the Anti-Federalists – especially George Mason – to thank given that these men pushed hard for specific enumeration of protected rights despite opposition by Federalists such as Alexander Hamilton.

Institutions can be mechanisms for a particular political culture to become “sticky.”  In the case of the Bill of Rights, ideals that existed at one time became embedded in the state’s core document, thus making them and laws rooted in those ideals difficult (but not impossible) to excise through the political process even when the political culture that supported those ideals and laws had withered.  Institutions such as these also have a feedback effect on our political culture.  In short, culture can be self-replicating by generating institutions that are educative of a certain vision of the good and that create interested constituencies to defend and propagate that vision.

Given some of the enduring features of America’s political culture*, the country wouldn’t be a completely different place minus the Bill of Rights.  However, the Bill of Rights almost certainly provided a bulwark that has helped defend that older vision of the good (in favor of protecting individual rights) against state encroachment at the behest of interested minorities or tyrannical majorities.  We have a long way to go to reclaim the so-called “Constitution in Exile” or “Lost Constitution” but things like the Bill of Rights have meant we have a lot less far to travel to do so.  On this Constitution Day, thanks to George Mason and so many others of the Founding generation that resisted the powerful arguments of Hamilton et al.

* One could argue that they might not have been so enduring without the educative effects of the Bill of Rights, but I think this gives institutions too much independent power despite what I’ve noted.

3 thoughts on “Constitution Day – Thank the Anti-Federalists

  1. Interesting thoughts; although, I have to admit, I’m not as particularly convinced of any benefits a Bill of Rights may have afforded us, on net, in the long run. I have great respect for the limitations its supporters intended to provide to subsequent generations. But, in light of how so many people (including those involved in creation, execution, and interpretation of law) actually view the functional nature of the Constitution at this point, it’s very difficult to not wonder if maybe Hamilton had a point.

    I’m not really a huge fan of Hamilton, relatively speaking. But, if I understood him correctly, he felt that not only would a Bill of Rights be redundant (because, after all, the government’s limited powers are already positively defined – that was the purpose of the Constitution); he felt that an enumeration of restrictions would lead to a public that would come to confuse the Constitution as defining the powers of that government negatively – that government would start, prima facie, with all the power, and that the Bill of Rights (and, more generally, the entire Constitution itself) would simply illuminate what is not in its purview.

    Today – where people too often do seem to view the government and the Bill of Rights this way – it does seem that the Bill of Rights does afford us additional protection from government over-reach. I certainly wouldn’t argue against that notion. But one must wonder (and, of course, we’ll never really know) if we had simply adhered, conceptually, to the idea of the Constitution as a document that positively defines government power; would people view government power and the limitations thereof in a fundamentally different way?

    As much as libertarians and conservatives tend to not favor many of Hamilton’s ideas in retrospect, and as much as we now seem to cherish those first ten amendments to that beloved document, maybe we should give more thought to Hamilton’s criticisms of such.

    1. I have some sympathies with this argument, but for certain specific freedoms, such as gun rights, it’s hard to imagine that courts would be enforcing them today without an explicit constitutional guarantee. After all, when was the last time a federal court cited the 9th Amendment to uphold some freedom not specified in the Bill of Rights?

      1. Jason,

        I largely agree. Given the way that the Constitution seems to be viewed today (and that’s the pertinent point), the Bill of Rights most certainly acts to protect various freedoms. Of course, the only history we have access to is a history in which we _did_ have a Bill of Rights though. So I can’t help but wonder if negative definitions of power (however redundant they may be) somehow contributed to our currently warped understanding of the nature of government.

        Of course, professional or otherwise, I don’t have nearly the same leg to stand on as contributors here when it comes of the realm of academic political science. But at what point does hearing people say, “Where in the Constitution does it say that the government can’t do that? (obviously in reference to the Bill of Rights” before the public’s general conception of the framework of the federal government come into question. It started getting a little unsettling to me back when I could count the personal anecdotal examples on two hands…and that was a while ago.

        Who knows – maybe the public still would have drifted towards that understanding in either case, and we’d be right where we are now….sans the protections afforded by the Bill of Rights. But I have to say that I think it might have turned out quite differently.

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