Thursday, June 20, 2013

Secret History of the Bill of Rights

This Salon article reveals the messiness of early American constitutional history:

An excerpt:

Ironically, it is to the pressure of the slave-holding oligarchy on Virginia’s federal representatives that we owe the Bill of Rights. To be specific, in running for the first Congress in 1788 James Madison beat his rival James Monroe by only 336 votes out of 2,280. This near-death experience led Madison to do a classic political flip-flop, trying to co-opt his opponents by embracing their cause, the addition of a bill of rights to the Constitution. Pennsylvania’s Sen. Robert Morris sneered that Madison “got frightened in Virginia and wrote a book” — the amendments that became the Bill of Rights.
In introducing his proposed amendments to Congress, Madison acknowledged that his bill of rights was an incoherent philosophical and legal mess:
Madison’s bill of rights was a hodgepodge slapped together hastily to try to conciliate former opponents of the newly ratified federal Constitution.  This was a typical case of damage control by a reluctant politician trying to head off a more radical alternative by enacting a watered-down substitute. Madison would have been proud to be remembered as “the Father of the Constitution.” But he would have been appalled to be told that without his Bill of Rights the U.S. would be a tyranny. That was the rhetoric of the Anti-Federalists whom he reluctantly sought to appease.
History has vindicated the skepticism about bills of rights shared by Hamilton and Madison and a majority of the drafters and ratifiers of the U.S. Constitution. Mere paper guarantees of rights have never been enough to secure liberty, in periods when the public is panicked — think of Lincoln’s excessive suspension of habeas corpus during the Civil War, or FDR’s wartime internment of Japanese-Americans. And the American system of checks and balances has repeatedly, if belatedly, worked to check imbalances of power, as it did when Congress reined in “the imperial presidency” in the 1970s.
In the contemporary debate about civil liberties and government surveillance, absolutist civil libertarians routinely claim that “the Founders” viewed the Bill of Rights as essential to American liberty. But paranoid rhetoric about our allegedly tyrannical government is closer to the rhetoric of the Anti-Federalists who denounced the U.S. Constitution than to the thinking of the Constitution’s drafters, ratifiers and supporters. The real Founders thought little of lists of abstract rights, putting their faith instead in checks and balances and accountability through elections. In the spirit of the real Founders, we should be debating what kind of system of congressional and judicial oversight of executive intelligence activity can best balance individual liberty with national security — and we should leave anti-government paranoia to today’s Anti-Federalists.
Years ago when I was reading on the revolutionary movements in the late 18th-century, I also noticed that practically the only Americans to use the word democracy in a positive sense during the constitutional debates of the 1780s were white South Carolinans who saw their brand of local autonomy as a laudable democracy. These people were a tiny minority of slavers who controlled a large slave population.

Given the world's experience of political democracy up to that date – think the Greek polis – you can see why they thought that was a reasonable label.

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