From Parchment to Power
Goldwin, Robert A.
the American Constitution. But they faced an awkward problem. The Continental Congress, which had established the Constitutional Convention, merely authorized the delegates to amend the Articles of...
...By supporting a bill of rights that upheld "the great rights of mankind" rather than the alleged rights of the states, Madison explained, the Federalists could divide their opponents...
...With it, the amendments were merely frosting on the cake, proposed by Madison, and passed by Congress, mainly as a sop to unenlightened public opinion...
...Conversely, the Anti-Federalists — who had long demanded a bill of (states') rights—correctly recognized Madison's proposal as a clever ploy aimed at blocking their more far-reaching changes...
...Yet having done just that, the Convention now had to report back to the Congress, and win its members' support for a new constitution that would abolish their positions...
...Madison also realized that a moderate bill of rights that did not actually amend the Constitution, but simply reaffirmed the freedoms Americans already enjoyed (religion, press, speech, assembly, petition), would undercut the Anti-Federalist demand for radical Constitutional overhaul...
...the Federalists called for unconditional ratification...
...What is most striking about the debate over the Bill of Rights is the modest, restrained way in which Madison made the case for his amendments...
...He never claimed that they would "guarantee" Americans their rights...
...Thus it happened that in the first weeks of the first session of the first Congress, Congressman James Madison of Virginia, The American Spectator - August 1997 75 political power to a "multiplicity of interests...
...They were able to do so because, while the delegates to the Convention included some of the most illustrious names in America, members of Congress were for the most part time-serving non-entities...
...They came to agree with him that the amendments he was proposing—now known as the Bill of Rights—might have a favorable impact on public opinion and take the wind out of Anti-Federalist sails...
...Madison's Federalist colleagues felt that they had far more pressing business to attend to and, writes Goldwin, "they told Madison so in terms that were caustic, scornful, and even derisive...
...He decided that a bill of rights might be useful after all in calming "the great mass of the people" and winning their allegiance to the Constitution by reassuring them that their rights would remain inviolate under the new regime...
...Just how rough became apparent in Massachusetts, whose ratifying convention was deadlocked between Federalists and Anti-Federalists...
...The Massachusetts formula — ratify now, amend later—was adopted by other state conventions as well and saved the Constitution from almost certain defeat...
...Without it, the first ten amendments were no more than "paper barriers" against majority oppression...
...As the new Constitution was making its tortuous way through the state ratifying conventions, James Madison, one of the leading Federalists, was busily corresponding with his dear friend, Thomas Jefferson, then serving as America's minister to France...
...In the face of such a majority, a bill of rights would prove totally unenforceable, a mere "paper barrier" against popular tyranny...
...From a Madisonian perspective, these high-minded treaties and agreements—all without effective means of enforcement—accomplish nothing at best, and are positively mischievous at worst...
...They did, however, trust their governor, John Hancock...
...heretofore known as a staunch opponent of a bill of rights, made a general nuisance of himself by demanding that the House immediately consider a series of constitutional amendments that he had recently crafted...
...But the historical James Madison has long been buried under an avalanche of liberal mushy-mindedness...
...And so Madison was led by this line of reasoning to ask an austere and direct question: "What use then...can a bill of rights serve in popular Governments...
...The Constitution also had to be ratified by at least nine out of thirteen states, and since it deprived the states of many of the powers they enjoyed underthe Articles, it was obviously in for some rough sledding...
...Consequently, despite their having long opposed amending the Constitution, they voted for Madison's amendments...
...The Anti-Federalists, fearful that the new, more powerful government created in Philadelphia posed a threat to liberty, demanded a "bill of rights" (the term was already widespread at the time), protecting states' powers and limiting congressional powers, as a condition for ratification...
...But as the ratification process proceeded and he saw how many ordinary Americans were (irrationally) afraid that the Constitution was just a gigantic ruse designed by an educated elite to enslave the multitude, Madison changed his mind...
...They simply ignored their mandate and steamrollered the Constitution through the Continental Congress...
...Jefferson had horrified Madison by declaring that the Constitution still needed amending—precisely what the Anti-Federalists were claimingt "A bill of rights is what people are entitled to against every government on earth," Jefferson insisted, and while Jefferson's proposed amendments did not stress states' rights as strongly as Anti-Federalist proposals did, both Why Madison Flip-Flopped 74 August 1997 The American Spectator Jefferson and the Anti-Federalists agreed that the document produced in Philadelphia was seriously flawed...
...To persuade Jefferson that the Constitution did not need to be amended, Madison drew a distinction between monarchies and democracies...
...The real American Bill of Rights, in other words, was the Constitution...
...Hence the seemingly unquenchable liberal enthusiasm for such dubious documents as the International Covenant on Economic, Social and Cultural Rights, the Genocide Convention and, most recently, the Chemical Weapons Convention...
...They therefore voted against the Bill of Rights...
...It certainly gave them no warrant to scrap the Articles altogether and devise a new structure of government...
...And if a simple compilation of rights can guarantee civil liberties here at home, why shouldn't an international bill of rights guarantee the rights, and secure the well-being, of every person on the planet...
...As Goldwin explains: Madison saw little chance that a bill of rights could be the remedy for the problem of restraining an oppressive majority once it had formed...
...And to do that he recommended not a bill of rights but rather structural constitutional arrangements that would encourage the growth of a multiplicity of interests, and devices such as a congressional veto over state legislation...
...In sharp contrast to Madison's views, Americans today tend to locate the source of their liberties not in the Constitution, but in the Bill of Rights...
...Elected to the convention as a "neutral" on the question of ratification, Hancock devised the breakthrough that broke the stalemate...
...In the end, Madison won the Federalists to his way of thinking...
...He agreed to the Federalist demand for unconditional ratification of the Constitution, but he simultaneously demanded that the first Congress to be elected under the newly ratified Constitution enact a series of radical amendments that would return power to the states, as demanded by the Anti-Federalists...
...Winning Congress's assent was only half the battle...
...Such guarantees, he believed, were woven into the fabric of the Constitution itself—in its federal structure, separation of powers, checks and balances, bicameral legislature and system of indirect representation that gave Madison's initial answer to his own question was, "No use whatsoever...
...According to Goldwin, what motivated most of the Massachusetts Anti-Federalists "was not an objection to this or that part of the text of the Constitution, but rather suspicion on the part of the poor, the debtors, the less well-educated that the campaign to impose this new plan of government was part of a plot against them....They did not trust a system produced by the educated, the rich, the successful, the powerful...
...The Continental Congress, which had established the Constitutional Convention, merely authorized the delegates to amend the Articles of Confederation under which the United States had been ineffectively governed since 1781...
...But Madison persisted...
...But the framers of the Constitution were up to the challenge...
...But since the Federalists enjoyed a substantial congressional majority, the Bill of Rights passed, and was easily ratified by the states as well...
...The best chance for justice and security for rights would be to prevent the formation of unjust majorities...
...The "chief factor" in the compliance of Congress, writes Goldwin, "was its profound weakness relative to the vigor of the Constitutional Convention...Congress [collapsed] under pressure from a superior force...
...could be won over as new and loyal supporters of the Constitution...
...A few of those opponents—the Anti-Federalist leaders in the Congress and in state legislatures—would be frustrated in their desires to make fundamental changes [to the Constitution], but the rest...
...By cutting through the mush, From Parchment to Power not only offers fresh insight into the mind of our most politically astute Founding Father, but also injects a healthy dose of realism into our current discourse...
...In a monarchy, he told Jefferson, the people need a bill of rights to protect them against the king, but in a democracy the real danger to individual liberty comes from an oppressive majority of the people themselves...
Vol. 30 • August 1997 • No. 8
