Confusion arises today with
some of the language used in the early years of the republic. For example, one of the prominent political
groups of the time was known as the Anti-Federalists. This moniker was the product of historical
happenstance, an unfortunate development that had more to do with political strategy
than an accurate use of the term. In the
traditional meaning of this term, the Anti-federalists were more “federalist”
than the Federalists.
One of
the areas in which this confusion manifests itself is over the issue of adding a
bill of rights to the US Constitution. This is seen by many as a historical turn
toward individualism or individual liberty.
Despite the increasing popularity of Lockean ideas during the years of
the founding, a look at this development from another perspective is useful.
In a
lecture, Daniel N. Robinson states the following:
We tend to think of the American
founding as being the bedrock of what we are pleased to call American
individualism, often referring to it as rugged individualism, and the spectacle
that I think we’re inclined to picture here …would be maybe John Wayne on the
horizon, alone with his horse, and perhaps a shotgun over his shoulder, taking
arms against any and all comers. That just isn’t the America of the founding…
[S]urely in America at the time of
the founding, the proposition that the idea behind a just form of government is
that somebody is to be left alone would have been regarded as pathological.[1]
(emphasis added)
The
history of the Bill of Rights is
telling. During the ratification
process, a call for a bill of rights was part and parcel of the
Anti-Federalists,' Whigs,’ demands of the proposed constitution. In the debates that arose in the separate
state ratification conventions, opponents to the new constitution, as proposed,
argued that the document would be the death of individual and state rights. Their
support was to be contingent on the addition of a bill of rights.
The
Anti-Federalists wanted the more traditional view of federalism with provisions
to protect local control of governance. The
Federalists, on the other hand, argued that a bill of rights was unnecessary
because, unlike state governments, the new central government would not have
unlimited power.
In Article I of the new constitution, there
was a list of delegated powers and those powers, except for a few other powers
listed elsewhere in the document, would limit the central government. The new
Congress could not legislate beyond those powers. But this did not placate the
Anti-Federalists.
With
their more heightened concern over individual rights, – the effect of Locke’s
influence among the Jeffersonian types – along
with the rights of their local communities, – a Whig concern – they
insisted that the new constitution needed a bill of rights. The bargain was reached; the Federalists
promised that as soon as the new government was set up, the first order of
business would be to submit to the states proposed amendments to the
constitution that would in effect serve as a bill of rights.[2]
And so,
it happened with the ratification of the first ten amendments to our national
constitution. But a subtle difference
exists between state and national constitutions. In the states, the bills of rights appear
first in the respective documents and serve as a list of guiding principles. In the national constitution, the Bill of Rights appears after the main body of the document;
it's an add-on. As such, the national Bill of Rights takes on more of a legal
mandated set of provisions instead of a list of guiding principles.
But this
did not usher in a governance that heightened individualism or individual
rights. For example, the listing of individual
rights did not practically affect jurisprudence until the beginning of the twentieth
century with protections of property rights, and during the sixties and
seventies of that century when, starting with the Warren Court, the courts
identified constitutional rights regarding arrests, civil rights, public
employment rights, and reproduction rights.
So, to
be clear, the founding generation was almost unified in supporting integral
federalism. Considering the relationship
between the central government and liberty, Donald Lutz provides a revealing
description:
The preamble to the U. S.
Constitution “secured the blessings of liberty to “our-selves and our
posterity,” echoing that long-term communitarian
commitment. The Constitution sets forth
a decision-making process designed to produce, as Madison says in Federalist 10, “the permanent and
aggregate interests of the community.”
There must be values, attitudes, and commitments – a mental stance, if
you will – that lead people to frame their discourse, approach problems, and
justify solutions in terms of the long-term community interests.[3]
(emphasis added).
Here, to
be honest, within the discussions concerning liberty and community interests,
there were genuine disagreements regarding the appropriate level of individual
versus community rights. One should
remember, this is a matter of degrees. Yes,
the overall bias was toward community rights, but the shifting toward
individualism had begun.
There
was the initial appeal among Jeffersonians of John Locke, and his version of
natural rights thinking (this was reviewed in a previous posting). James Madison, even with his concern over
factions (described further in the next posting) and how they are difficult to control in smaller
polities, voiced a more communal bias, as indicated in the above quotation.[4] Each side had its spokespeople.
While
origins of this debate can be traced to the years surrounding the writing of
the Constitution, one can safely say
that the founding generation and many generations later had a significantly
different view of rights from what exists currently. This belies what many libertarians claim today.
[1] Daniel N. Robinson, American
Ideals: Founding a “Republic of Virtue,” (Chantilly,
VA: The Teaching Company/The Great
Courses, 2004), 15.
[2] Considering the Whigs’ concern, a reader of the Constitution should read Amendments II, IX, and X as protections
not of individuals but of states.
[4] Lester J. Cappon (editor), Adams-Jefferson Letters, (Chapel Hill, NC: The University of North
Carolina Press, 1959).
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