Federalists and Anti-Federalists or Rats and anti-Rats? - How the winners write the history of the Constitution:

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.