“Rights” and Federalist 81 – 83
As we’ve seen before, Rakove profitably draws on period critics – the Anti-Federalist writers – to underscore salient points in the Founders’ treatment of rights, especially as political pressure mounted to draft a “Bill of Rights,” basically, a series of post-haste amendments to the still fresh Constitution, whose own ink was barely dry. Richard Henry Lee surfaces as a notable and articulate voice in the debate, willing as he was to detail specific rights “that needed explicit protection: freedom of religious conscience and the press; prohibitions on excessive bail, cruel and unusual punishment, and unreasonable searches and seizures; assurances of free elections, independent judges, and the right to petition; and restrictions on standing armies in peacetime” (319). The thematic thread binding these concerns together was a real worry that the Constitution’s expanded federal powers would gradually usurp the very entitlements for which the revolutionary generation had fought such a bitter campaign against the distant English crown. Lee also sought to affirm the primacy of “trial by jury in criminal and civil cases and other common-law protections in criminal prosecutions” (319). Hamilton responded to these latter requests at length in Federalist 83, which offers detailed philosophical, but predominantly pragmatic, reasons why trial by jury could not be mandated among the short list of protected rights included in the declared “bill” that, as we’ve seen, already embraced a highly idiosyncratic selection of issues.
James Wilson gave well-reasoned responses to some of the particulars as well as the basic premise of Anti-Federalist anxieties like Lee’s in his argument that “[t]here was no need to affirm the freedom of press, for example, because nothing in the Constitution could be plausibly read to give the federal government any ‘power to shackle or destroy that sacred palladium of national freedom.’” (320). Wilson also reprises a concern discussed in the previous entry, recalling the theoretical danger in stipulating rights so specifically: “The very insertion of a provision to protect a particular right might be falsely ‘construed to imply that some degree of power’ to regulate its exercise ‘was given, since we undertook to define its extent’” (323). But the Federal Farmer, who had so keenly observed other flaws in the Constitution, made the most robust reply: “A bill of rights did not create the rights it declared; a people were entitled to their rights ‘not because their ancestors once got together and enumerated them on paper, but because, by repeated negociations and declarations, all parties are brought to realize them, and of course to believe them to be sacred’” (324) A remark like this could be construed as an argument either for or against the necessity to have specific rights laid down “on paper,” however, and like many aspects of the rights debate, we can see the advantages of both scenarios. Unspecified rights and no document might well become more subject to government infringement, and yet, as we’ve seen, specified rights and a document can imply that other rights do not enjoy equal protection or attention. Danger lurks in both outcomes.
Despite the foregoing ambivalence regarding the method and formality of transmittal, however, there’s little to dispute in Rakove’s reference to the “educational” value of a bill of rights, which draws on John Locke’s thinking, so influential on Madison’s generation: “Bills of rights were educational documents; they provided the standards of certainty that enabled citizens to assess doubtful acts of government; and they worked best by inculcating the values they espoused among the people and their rulers” (324). When I was an undergraduate at the University of Michigan, a course taught by the then-president, Lee Bollinger, on the First Amendment, was consistently one of the most popular and oversubscribed courses in the catalogue. Certainly, his intellectual prominence and general likeability on campus were major factors in this draw, but I have to believe that a special thrill was also perceived in the chief executive of a major public university teaching a course to young people on protected speech and other rights that American children had been taught to honor and cite ad nauseam from the earliest grades of elementary school.
The stature of the Bill of Rights in today’s political discourse – the near-cliché of politicians who claim to carry around a copy in their pockets – is clear evidence that Locke was onto something. Even relatively unlettered Americans know these basic rights, whether it’s the initial ten or even just a handful of amendments out of order and context, and if they want to, and only because the rights are written down, they can carry around a copy in their pockets. The Anti-Federalists appeared to have understood that potential, and ultimately, even the framers – however reluctant they were at first – had to reckon with it as well. And the rest of us have to live with its mixed legacy, for better or worse.