Original Posting At http://beguineagain.com/parchment-protections-and-people/
As this column is written (23 July), the Republican National Convention – the GOP’s answer to Leni Riefenstahl’s The Triumph of the Will – has just concluded. Coincidentally, as I watched the Convention in 10- and 15-minute increments, interspersed with commentary by Trevor Noah and Bill Maher for the sake of mental hygiene, in my real life, I was reading the collected correspondence of James Madison, with special attention to the letters Madison wrote to Thomas Jefferson from the autumn of 1787 through the autumn of 1788, when the US Constitution was being considered by the State ratification conventions. When I got to that part of Madison’s correspondence dealing with the widespread demands on the part of Anti-Federalists for the addition of an explicit Bill of Rights to the nascent Constitution, I felt a chill down my spine as I read the context behind Madison’s celebrated deprecation of a Bill of Rights as a “parchment barrier” to government despotism. Madison’s text was an eerily prescient diagnosis of the political and social pathology currently gestating in the otherwise-sterile womb of today’s Republican Party, and that of what more generally goes under the name of “conservatism” today. I hope I am wrong. If I am, I will drink the most champagne and celebrate the loudest. But as I read those letters, especially the ones from 1788, I kept asking myself if I were possibly reading future history.
This is certainly not the place to comprehensively rehearse the case against the Constitution made, very often eloquently and often with searching insight, by people like George Mason, who never voted for any version of the US Constitution, the anonymous “Federal Farmer,” whose identity is still unknown, and – with rather more hysteria about the possible fate of slavery than insight – by Patrick Henry. But virtually all Anti-Federalists, even those who eventually ended up voting to ratify the Document, almost unanimously demanded as a condition for ratification, the addition of a Bill of Rights enumerating the specific fundamental rights the Constitution would safeguard. Now, just so there is no misunderstanding, I agree with Prof. Akhil Reed Amar of Yale Law, writing in his The Constitution: A Biography and in The Bill of Rights: Creation and Reconstruction, that (a) the entire Bill of Rights is implicitly contained in the explicit text of the Constitution, but that (b), at least as a matter of practical fact, it is highly useful to have these specific rights spelled out separately, if for no other reason than for convenience of reference and as a matter of historical record. (E.g. Article IV, section 4, explicitly guarantees to every State “a republican form of government,” and thereby implicitly guarantees freedom of speech, press, and assembly, without which such a form of government would be impossible.) However, Mason, “Federal Farmer,” and their Anti-Federalist compatriots were concerned about matters far more serious than mere convenience and ease of reference. They were after iron-clad guarantees, incorporating the force of fundamental law beyond the reach of even State legislatures, that such fundamental rights would be jealously secured for all time.
The Federalists usually replied to such demands with two sets of arguments: (1) some cognate of Prof. Amar’s argument that the Bill of Rights is implicit already in the Constitution, and (2) some form of James Wilson’s more ingenious and compelling argument that explicitly enumerating what fundamental rights are guaranteed could be interpreted as implying that other rights, equally fundamental but not enumerated, would be subject to government restriction. E.g., all the proposed phrasings of (what we today call) the First Amendment guaranteed the right to write and to speak … but not the right to publish – which might someday be interpreted to mean that, while the government could not legitimately restrict your right to speak and to write, it could someday or other restrict your right to disseminate what you say and write. (Actually, considerations much like this led to the Ninth and Tenth Amendments. Long story … .) At times, Anti-Federalist objections to the Constitution at least bordered on the tendentious. (E.g., one persistent objection was that, yes, Article IV, section 4, did guarantee to the States “a republican form of government” [emphasis added] … but not that the States would have governments substantively and actually republican in nature, only formally so.) As so often happened during the ratification debates, James Madison could be relied on to reflect on constitutional issues in a manner that went both above and below the arguments of Anti-Federalists – and often both above and below even the counter-arguments of his Federalist colleagues – and that penetrated to what had so far been the unacknowledged core of the entire issue. The Bill of Rights matter was a case in point.
In a letter to his good friend, Mr. Jefferson, in late October of 1788, Madison describes the core of his objection to attaching a Bill of Rights to the Constitution. He is not opposed to the inclusion of a Bill of Rights as a matter of principle. In fact, at one point in this and other letters to Jefferson, Madison concedes that a Bill of Rights could be valuable as a “teaching tool” and aid to civic virtue. Rather, Madison goes on, he is opposed to a Bill of Rights because – as we might express it today – a Bill of Rights might lull many, especially among Anti-Federalists, into “a false sense of security” whereby people would rely on a Bill of Rights to provide security for a set of fundamental rights that no Bill of Rights could ever provide. No doubt harking back to his experience with what he always regarded as the chaos prevailing in the Virginia State legislature, Madison wrote to Jefferson (emphasis added):
Experience proves the inefficacy of a bill of rights on those occasions when its [control] is most needed. Repeated violations of these parchment barriers have been committed in every State. Wherever the real danger of Government lies, there is the danger of oppression. In our Governments, the real power lies in the majority of the Community, and the invasion of private rights is [chiefly] to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents. This is a truth of great importance, but not yet fully attended to: and is probably more strongly impressed on my mind … than on yours, which has contemplated abuses of power issuing from a very different quarter.
That concluding phrase about danger to liberty emanating “from a very different quarter” no doubt refers to Mr. Jefferson’s time as the American minister to France in Paris, when he was a first-hand witness to the abuses, not of the power of a republican polity, but of those issuing from an overweening monarchy. In other words, Madison is at pains to argue that the danger to the United States originates from a majority with too much power rather than too little, was in the case of pre-Revolutionary France.
What does all this have to do with the just-concluded Republican National Convention and its embrace of the candidacy of Donald J. Trump? Everything. Until I read Madison’s reservations about the advisability of appending a Bill of Rights to the Constitution, I was warily optimistic that, even if the electorate did succeed in installing in the White House the first overtly fascist President in its history, there were robust institutional and constitutional safeguards in place that would act as an effective firebreak that would prevent any conflagration, even one ignited by the likes of Trump and Pence, at their most floridly autocratic, from consuming constitutional, latitudinarian, rights-centric government. But then I read the Madison letters. I watched the comments of Trump / Pence supporters slavering for the blood — not necessarily metaphorically — of Hillary Clinton. I read the Platform of the Republican Party, especially the part that calls for the reinstatement of Bible-reading in public schools. I reviewed Trump’s statements about curtailing First Amendment liberties and basically reverting back to the jurisprudence of “seditious libel” as in the late 1790s; his “due-process-free” advocacy of the repatriation of 11 million illegal immigrants; of mandating that Muslims, even Muslim Americans, carry religious i.d. cards … and Pence’s advocacy of “praying away the gay” through religiously centered “gay therapy” … etc., etc., etc. There was also Newt Gingrich participating in this exuberant “Constitution Shred-O-Rama” by bloviating about Muslims, again including American citizens, being required to abjure shari’a law or face deportation. The point is not that any of these specific policy proposals actually comes to pass. Political parties’ platforms always partake of the nature of “if-money-were-no-object” Christmas lists. Rather, each of these items in aggregate, afford us an insight into the overall governing psychology — the Zeitgeist, if you will — of contemporary conservatism, and of the contemporary Republican Party in particular.
If a majority of people vote for the Trump / Pence ticket in November of this year, and especially if the Trump / Pence coattails are long enough to include the Congress, we will see Mr. Madison’s unintended prophecy beginning to come true. The Bill of Rights — in fact, the entire Constitution — will end up being just one more of the “parchment barriers” Madison spoke of in that memorable phrase.
In 1821 Chief Justice John Marshall wrote in the Court’s Cohens v. Virginia decision “The People made the Constitution and the People can unmake it. It is a creature of their own Will and lives only by their Will.” Which of Mr. Chief Justice Marshall’s two alternatives will be realized will be determined by this election.
James R. Cowles
Portrait of James Madison … Gilbert Stuart … public domain
Portrait of Thomas Jefferson … Rembrandt Peale … public domain
“Federalist Papers” … Project Gutenberg … public domain