4.4 America Was Founded On Two Rivers part 4

For multiple reasons the Articles of Confederation were inadequate, and Shay’s Rebellion was a catalyst for change. The weakness Shay’s Rebellion revealed was that a successful revolution in one state might spread to other states unless a centralized government with ample resources had the authority to intervene. Accordingly, the Constitution’s Supremacy Clause (Article VI clause 2), made federal statutes the law of the land. It subordinated states’ rights to federal authority: states could not make changes that threatened the nation.¹

In the movie “My Cousin Vinny”, Vinny (Joe Pesci) talked with his cousin who was a prisoner in an Alabama jail charged with murder. Vinny held up a playing card showing the face. He explained it has a height and length like a brick and prosecutors stacked one atop the other to build an imposing wall. Vinny turned the card sideways. When you saw it from a different angle you saw how thin the case was. How persuasive people found the “1776 Project” depended on how they held their cards and whether they let people look at them from a different angle. By controlling the history the country teaches, the

The Constitution has surprisingly little to say about individual rights^.2 Its three slavery provisions gave disproportionate proslavery representation in congress, compromised on bringing in new slaves, and established owners’ slave property rights. There are important procedural issues, but the three major individual rights issues are habeas corpus, trial by jury, and no religious tests for office or public trust.³

Both habeas corpus and trial by jury trace back to the Magna Carta. That origin, however, did not determine how the new government would apply them, but when the Magna Carta was sealed its articles protected Freemen, not peasants, serfs, or slaves. Banning religious tests deliberately secularized the federal government. Centuries of religious wars in Britain and Europe, along with religious intolerance in the colonies made the separation of religion from government essential. The founders understood that the wars between different Christian sects were as dangerous as war between different religions. Contrary to the current conservative Supreme Court Justice whose dissent argued the government could favor one religion, the danger of a state supporting one religion is no less for favoring one form of Christianity, than for supporting one form of religion.

Those are the Constitutional rights the Founders sent to the sates for ratification in 1787. Shay’s Rebellion hinted at the dangers leaving individual rights unstated: small farmers’ lost farms and voting rights to merchants’s legislation.

Saying the Founders did not care about individual rights is too simplistic. Equally simplistic and potentially more dangerous is “The 1776 Project” that the Patriots protected individual freedom. Its glorification of the past serves a specific political purpose. If the 1788 Constitution was perfect, then every change proves the moral decay of the country (myth of decay). That includes subsequent amendments.

Just as the support for the Revolutionary War split between the Patriots and Paine’s common folk, the fight to add individual rights to the Constitution divided between the Federalists (Massachusetts businessmen) and the Anti-Federalists (Shay’s Rebellion). The arguments within these approaches to rights took different forms and made different assumptions about the experimental government the Founders were creating.

The Bill of Rights⁴

In 1787 congress sent the proposed Constitution to the states for ratification. The first states ratified easily, then opposition grew as the state votes narrowed. Despite gaining the nine state ratifications required to adopt the Constitution, the founders realized the new government would fail unless New York and Virginia also ratified. Central to the resistance was the Anti-Federalist concern about protecting state and individual rights.

The federalists were younger, wealthier, perhaps better educated. “The Federalist Papers”⁵ galvanized their argument favoring a powerful central government. They anticipated the coming issues of war, land, trade, and expansion that required a strong government to manage. History would support their vision. They assumed the constitutional separation of powers and the limitations on government authority would protect individuals’ rights.

The anti-federalists were Jefferson’s citizen farmers: older men with small farmers connected by small communities. The “Letters of a Federal Farmer”⁶ were the anti-federalists’ response to “Federalist Papers”. One concern was that a central government would overpower their state’s authority. A second concern was finding a balance of authority that protected individual rights. Without a declaration of individual rights the Federal government could do whatever it wished. Alternately, a federal declaration of individual rights states would prevent states from enacting their own oppressive laws.

The Federalist position on omitting individual rights from the Constitution was short sighted and self serving. Like Dr. Frankenstein creating his monster with no idea what it would do when it came to life, the Federalists were creating a novel government.

The Federalists shared an implicit, unjustified assumption about individual rights. When asked whether unwritten laws could be enforced, King John’s tutor Ranulf de Glanville answered “Yes”. That was the foundation of English Common Law that the colonies adopted. It recognized rights “of nature and of Nature’s God” that are not created, granted, nor can they be limited by government. Historically these were recognized in U.S. law as “Higher Laws” protecting individual’s rights.

When Federalists argued individual rights did not need to be listed and protected, they assumed the government would always recognize Higher Law. Men enshrining slavery, disenfranchising women, slaughtering indigenous Americans argued individual rights did not need to be protected. They were prescient on one point. They warned that if they listed some rights, a future court might look at the list and hold that the list in the Constitution was exhaustive (listed every right the framer’s intended to protect – Dobb v. Jackson).

The Massachusetts’ compromise was the agreement to create a Bill of Rights identifying specific, essential rights to be protected. When ratified they would be amended to the Constitution.

Next: the bill or rights and the value of people.

 ¹ The Constitutional priority of National interest over state’s rights precluded states’ right to secede. Similarly, after seceding the Confederacy barred its member state from seceding.

² Article 1, Section the 3/5ths compromise. 2 Article I, Section 9: ends importation slaves in 1808. Article IV, Section 2 return of escaped slaves who reach other states. Article 1, Section 9, clause 2 habeas corpus. Article III, Section 2 right to trial by jury. Article VI no religious test for office or public trust

 ³ The Founders’ greater concern was to find ways to limit and control the power of the government through a system of checks and balances.

 ⁴ For this discussion the Bill of Rights refers to the first ten amendments passed as an addendum to the Constitution, the promised completion of the Constitution. Subsequent amendments stand alone.

 ⁵ James Madison, John Jay, and Alexander Hamilton

 6 Authorship is uncertain, but attributed to Elbridge Gerry.