Today was the last day of class for my section of Constitutional Law I; So I thought I would take this opportunity to mention a little-known historical fact that I always make sure to emphasize to my Con Law Students:
We today are so inured to to the idea that the Constitution is a good thing that we forget that many great Americans opposed its ratification, including Patrick Henry and George Mason, after whom George Mason University is named. Others, such as Thomas Jefferson, had serious doubts about it, though they didn't actively oppose it.
History is written by the winners, and rarely is this more true than in the field of Constitutional law, where most of us have forgotten the views of Henry and Mason. Indeed, even the very names by which we call the supporters and opponents of the Constitution ("Federalists" and "anti-Federalists") are the products of winners' history. As Elbridge Gerry - who joined Mason as one of three members of the Constitutional Convention who refused to sign the final document pointed out - these terms were propagandistic labels invented by the supporters of ratification:
MR. GERRY did not like the term National .... It brought to his mind some observations that had taken place in the Conventions at the time they were considering the present constitution. It had been insisted upon by those who were called anti-federalists, that this form of government consolidated the union; .... Those who were called anti-federalists at that time, complained that they were in favor of a federal government, and the others were in favor of a National one; the federalists were for ratifying the constitution as it stood, and the others did not until amendments were made [the Bill of Rights]. Their names then ought not to have been distinguished by federalists and anti-federalists, but rats and anti-rats.
If Gerry's view had prevailed and we came to think of the Federalists and anti-Federalists as Rats and anti-Rats, I suspect that we might have a very different view of constitutional history today! I do not believe that the ratification of the Constitution was a mistake. But the anti-Federalist/anti-rat critique of the Constitution (including George Mason's criticism linked above) is much more compelling than we realize and some of it is relevant even today.
There are, unfortunately, many other issues in constitutional law where the historical winners' propaganda has distorted our viewpoint. Co-blogger David Bernstein has documented an important example in his scholarship on Lochner v. New York, and there is no shortage of other examples.
Unlike George Washington, George Mason did not free his slaves upon his death. You should be ashamed that Virginia saw fit to name the university you have the misfortune of working for after him.
Patrick Henry argued against the Constitution and the Bill of Rights on the ground that it gave the Federal government the power to free slaves. His logic was that freeing of the slaves could be seen as necessary and proper for the national defence.
Sorry. Neither George Mason nor Patrick Henry should be thought of us good, much less great.
Among them were Presidents Washington, Jefferson, Madison, Monroe, Jackson. Framers and Founders like Pinckney of SC and Jackson of GA. Many members of the antebellum Congresses. Early SC Justices and even many SC Justices up until the 1860s.
Even the framers that didn't own slaves and were against it ultimately compromised with the slave owners and embedded many protections and recognitions of slavery within the Constitution itself.
That said, I think slavery is just something that was a part of US History and there's plenty of ammo on that score, along with US treatment of Indians, women, and post civil war blacks and Jim Crow.
The fact is that a lot of Americans from the founding were heavily invested and involved in slavery. But I don't think it changes the relevance of anti-federalist views on ratification or what we can learn from it.
If you want to say that Henry and Mason weren't great, you certainly can. They certainly had not great aspects to them. As did many others.
James Madison, Thomas Jefferson, and many other prominent Founders also owned slaves, and though most of them (like Mason) also denounced slavery, the majority were not as involved in anti-slavery causes as Mason was.
In a foreshadowing of today's professional licensing rules, many American slaveowners were strongly against the transatlantic slave trade, because without it their "breeding stock" would be a lot more valuable.
Yes, it's true that he eventually became a member of the Federalist Party. However, the Federalist-Republican division of the late 1790s was different in various ways from the Federalist-Anti-Federalist conflict a decade earlier.
In a foreshadowing of today's professional licensing rules, many American slaveowners were strongly against the transatlantic slave trade, because without it their "breeding stock" would be a lot more valuable.
Yes, it's true that many slaveowners opposed the slave trade for selfish reasons. However, Mason denounced slavery as an institution on many occasions, not just the transatlantic slave trade.
We may be able to forgive those Founders who were caught up in a "peculiar institution" bigger than themselves. At least George Washington freed his slaves after his death. That is, he took action. He was a man of more than mere rhetoric. If other slave owners had followed his example, we wouldn't have needed to endure nearly a century of slavery and a Civil War leading to over half a million deaths.
George Mason neither freed his slaves during his lifetime, nor after his death. Any of his words against slavery mean nothing in the face of that.
George Washington was a great man. George Mason was a mere slavocrat. Not only does George Mason deserve criticism, he deserves condemnation.
Let's reserve the phrase "great American" for those to whom it belongs. People like George Washington.
If applied uniformly and universally, however, it supports the argument that no one living before the present time was morally supportable; all behaved, in some manner, in ways worthy of condemnation. Not only can we get rid of the burden of 'heroes', but even the saints will fail to pass the grade based on today's standards.
But even today, there are so few who conduct their lives with complete moral consistency that we can justly argue that no one is worthy of any approbation.
Are we to praise Washington that he freed his slaves upon his death, when they wouldn't be of much good to him anyway? Sounds to me like he made a last transaction with their bodies in an attempt to curry divine favor.
Conclusion? We're sinners all. Consequence? Not a whole lot beyond being able to stoke the warm and fuzzies about ourselves, and being able to discard history because it was, you know, just so wrong....
First of all, note Mr. Somin's use of the term "great American" to describe George Mason and Patrick Henry. This is not a nihilistic or relativistic statement that denies, as you seem to do, the concept of holding someone to some basic standards of decency. Mr. Somin is making a judgment concerning these men that presupposes some sort of standard to which they are held such that they can be called "great."
George Washington's freeing of his slaves upon his death enables him to be considered still a great man, even if he would have been greater still if he would have freed his slaves in his life, and would not have even deserved to be considered great if he acted otherwise. If others had followed Washington's lead, we would not have needed a Civil War and the institution of slavery would have ended in due course. The significance of Washington's freeing his slaves should not be slighted.
Of course, we could take your morally relativistic/nihilistic approach and say were all sinners. Hitler was a sinner. And that little kid who stole the lollipop from the grocery store was a sinner. I, for one, think there is a difference.
But at the very least, if you are going to say that we cannot have standards of decency, spare me the praise directed at the Founders. Nihilism may shield the Founders from criticism, but it also eliminates the rationale for praise.
This is much like the modern appropriation of the term "liberal" by the left.
Perhaps Calabresi might have named the Federalist Society "The Anti-Federalist Who Really Kind Of Act Like Federalists Society."
As for Washington and slavery, after becomming President, Washington brought slaves with him to the then capitol in Philadelphia. Under Pennsylvania law, slaves living within in that state for six months automatically became freemen. Washington therefore shuffled slaves between his home in Virginia and Philadelphia in order to avoid the application of the law, despite the fact that such rotations were illegal under Pennsylvania law.
That's not what's happening here. Mason, Jefferson, et al. knew that slavery was wrong -- we honor their expressions of that sentiment -- but didn't do much in their personal lives to eliminate it. That inaction deserves criticism because they failed to live up to their OWN moral standards, not ours.
True, but his opposition to the Constitution was, at least in part, based on opposition to the international slave trade rather than to slavery in general. For this reason and others (e.g., he didn't free any of his slaves), Mason is subject to the criticism that he had his economic interests at heart more than moral purity.
That still makes Mason a better person than someone like Henry, who despite his occasional anti-slavery statements, demagogued the slavery issue in the VA convention ("they'll free your niggers") as part of his opposition to the Constitution.