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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.

liberty (mail) (www):
I don't know about that. I think the argument for only ratifying with the bill of rights is the one that has won out, in fact. Very few people remember the argument that the Bill of Rights might lead to withering of all rights not spelled out clearly enough in the Bill of Rights -- really a very libertarian critique, and one which withstands the test of history. I think the anti-Rats were the real "winners" of the debate, in fact.
11.30.2006 11:24pm
Ragerz (mail):
Unlike, say George Washington, neither George Mason nor Patrick Henry were great men.

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.
11.30.2006 11:39pm
omarbradley:
I can certainly respect that opinion, but if you want to hold slavery out as something worthy of criticism, then there's many more "founding fathers" and early American leaders besides Mason and Henry that owned/supported slavery.

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.
11.30.2006 11:56pm
Dan Simon (mail) (www):
Well, if it bothered Gerry so much to be associated with an unflattering label, maybe he should have thought twice before drawing such an obviously skewed electoral district boundary.
12.1.2006 12:19am
Ilya Somin:
George Mason did indeed own slaves, and he deserves criticism for that. On the other hand, he also denounced the Constitution for being, in his view, too proslavery and he promoted the causes of manumission and banning the slave trade.

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.
12.1.2006 12:34am
JB:
Was he involved in banning the transatlantic slave trade only, or all slave sales?

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.
12.1.2006 12:39am
Dave Hardy (mail) (www):
We tend to forget that in so many area, the Federalists were dead wrong. A bill of rights is unnecessary because the national government has only limited powers. Wrong. It will have no power to limit the press, speech, etc., because nothing in the Constitution refers to that. Wrong. Even down to details--the prediction in the Federalist Papers that federal courts could never have jurisdiction over state governments -- a prediction so quickly proven false that it required the 11th Amendment to change. (Not that I consider that lack of jurisdiction a good idea, mind you, but still an incorrect call). The federalists generated some brilliant systematic theory, some even more brilliant writing, but so often they wound up dead wrong.
12.1.2006 12:55am
Perseus (mail):
Speaking of Patrick Henry, I presume that you mean his views as an Anti-Federalist, not his views a decade later when he became a staunch Federalist (who, for example, denounced the Virginia and Kentucky Resolutions).
12.1.2006 2:48am
Ilya Somin:
Speaking of Patrick Henry, I presume that you mean his views as an Anti-Federalist, not his views a decade later when he became a staunch Federalist (who, for example, denounced the Virginia and Kentucky Resolutions).

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.
12.1.2006 2:56am
Ilya Somin:
Was he involved in banning the transatlantic slave trade only, or all slave sales?

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.
12.1.2006 2:58am
Ragerz (mail):
Mason should be condemned. We should judge him by his actions, not his mere rhetoric.

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.
12.1.2006 5:01am
John Burgess (mail) (www):
Ex post facto condemnation of historic figures, based on contemporary moral standards may be a comforting experience, but it does serious damage to our ability to appreciate history and its meaning.

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....
12.1.2006 6:42am
Ragerz (mail):
Mr. Burgess,

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.
12.1.2006 6:55am
Spartacus (www):
I agree with the quote provided to the extent that the labels Federalist and Anti-federalist should have been reversed, and that the supporters of the Constitution hijacked the term "federalist" for propoganda purposes. The Articles of Confederation, for all their faults, were clearly more federalistic than the new Constitution. While it maybe true that they were all, in spirir, federalists, the opponents of ratification were in no way anti-federalist, except to the extent that hey were opposed to those who had appropriated the term.

This is much like the modern appropriation of the term "liberal" by the left.
12.1.2006 9:46am
Spartacus (www):
QAlso recall that Calabresi originally thought of namign the Federalist Society the Anti-Federalist Society, but apparently changed his mind for reasons complimentary to those of the historical Federalists.
12.1.2006 9:47am
jmm2093 (mail):
Also recall that the anti-federalists (or the Democratic-Republicans), after winning the election of 1800, began implementing many federalist policies regarding the 'national' government (e.g., the 2nd Bank of the United States, the Louisiana Purchase, etc.)

Perhaps Calabresi might have named the Federalist Society "The Anti-Federalist Who Really Kind Of Act Like Federalists Society."
12.1.2006 10:28am
Ming the Merciless Siamese Cat (mail):
George Mason University is named after George Mason? Gee, who'da thunk it.

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.
12.1.2006 10:41am
Mark Field (mail):

Ex post facto condemnation of historic figures, based on contemporary moral standards may be a comforting experience, but it does serious damage to our ability to appreciate history and its meaning.


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.


However, Mason denounced slavery as an institution on many occasions, not just the transatlantic slave trade.


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.
12.1.2006 12:24pm
Syd (mail):
A correction: Washington did not free his slaves upon his death, but arranged for them to become free upon his wife's death, which was two and a half years after his own. His wife owned slaves when he married her and some of his slaves were survivors and descendants of those she brought into the marriage.
12.1.2006 12:31pm
CJColucci:
Let's not sprain our shoulders patting ourselves on the back for condemning slavery. None of us ever rejected slavery or did anything to end it. It was abolished long before we were born. None of us ever had to decide whether, or to what extent, to sacrifice our personal wealth and comfort in the name of antislavery? Many decent people found themselves embroiled in a way of life largely depending on slavery. Few of them were heroes, martyrs, or saints. Unless human nature has changed greatly since then, the proportion of heroes, martyrs, and saints in the general population is probably about the same now as it was then. How sure are any of us that we are heroes, martyrs, or saints?
12.1.2006 2:18pm