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Book Review
Turning Losers into Winners: What Can We Learn,
If Anything, From the Antifederalists?
THE
OTHER
FOUNDERS:
TRADrION IN AMERICA,
ANTI-FEDERALISM
AND
THE
DISSENTING
1788-1828. By Saul Cornell.1 Chapel Hill:
The University of North Carolina Press, 1999. Pp. x, 327. $55.00
(cloth); $19.95 (paper.)*
Reviewed by Paul Finkelman*
I.
Introduction
In 1955, during the age of "consensus history," Cecelia Kenyon
dubbed the antifederalists-the opponents of the Constitution-"men of
little faith." 2 Kenyon described such antifederalist leaders as Elbridge
Gerry of Massachusetts, George Clinton of New York, and Patrick Henry
of Virginia as local power-brokers, afraid of losing their influence and
tAssociate Professor of History, The Ohio State University.
t
Hereinafter cited by page number only.
* Chapman Distinguished Professor, University of Tulsa College of Law. I thank Julia Kerstyn
for her work as my research assistant on this article.
1. An explanation of capitalization and terminology may be useful. Throughout this article
"antifederalist," without capitalization, refers to those who opposed ratification in 1787-88 or favored
a second convention in 1789-92; "federalist," without capitalization, refers to those who supported
ratification and opposed a second convention; "Federalist," capitalized, refers to the political party, the
Federalist Party, led by Alexander Hamilton and John Adams. Other styles are used in various
quotations. I have chosen not to capitalize the supporters and opponents of the Constitution in 1787-88
because while called "federalists" and "antifederalists," these terms did not refer to any specific
political parties or organizations.
2. Cecelia M. Kenyon, Men of Little Faith:The Anti-Federalistson the Nature of Representative
Government, 12 W.M. & MARY Q. (3d. ser.) 3 (1955).
Texas Law Review
[Vol. 79:849
prestige to a strong national government. They were parochial in their
ideology and limited in their vision of the new American nation.
This remained the accepted view of the antifederalists until about
twenty years ago.' Since then, as Saul Cornell notes, the antifederalists
have been rehabilitated.4 Their importance as "founders" is now better
appreciated and Cornell argues that "the scholarly dismissal of the
antifederalists has been supplanted by more positive assessments of their
contributions to the American political tradition." 5 Cornell enthusiastically
endorses this trend, claiming that the antifederalists have come to be seen
as "spokesmen for an important alternative constitutional heritage." 6 In
response to critics like Kenyon, Cornell argues that the antifederalists did
not lack "the intellectual power to challenge their Federalist opponents. 7
On the contrary, he demonstrates that many were sophisticated authors8
who sometimes offered powerful critiques on the claims of the federalists.
Yet, despite the eloquence of some opponents of the Constitution, the
antifederalists were an inchoate, amorphous collection of politicians and
anti-politicians who agreed with each other on almost nothing, except that
they did not like the proposed Constitution. Even in their fundamental
opposition to the Constitution the antifederalists could not fully agree.
Most opposed ratification of the proposed Constitution, but some were
willing to accept it with amendments. 9 Generally, they feared the creation
of a strong national government, claimed to want explicit written limitations on the national government, and "continued to place their faith in
a federal system in which the states would be the primary units of political
organization and contain the bulk of political authority.""0 But on specific
3. I would date the beginning of the change with the publication of PAULINE MAIER, THE OLD
REVOLUTIONARIES: POLITICAL LivEs IN THE AGE OF SAMUEL ADAMS (1980) and THE COMPLETE
ANTI-FEDERALIST (Herbert J. Storing, ed., 1981) [hereinafter COMPLETE ANTI-FEDERALIST]. Maier
argues that many of the antifederalists were "Old Revolutionaries" who had opposed a distant national
government (Great Britain) in 1775 and did not want to see a similar sort of regime develop in the
1780s. MAIER, supra, at xvii-xviii. Sympathetically, she argued that the "Old Revolutionaries who
opposed the Constitution were nationalists-the United States, after all, had been their creation-and
they acknowledged a need to reform the Confederation, much as their Loyalist opponents of earlier
days had admitted all was not right in the empire. At most they argued, like Patrick Henry, that the
country's problems were less urgent than Federalists claimed." Id.at 283. Storing provided the first
comprehensive collection of antifederalist writings that took seriously their arguments about
constitutional politics.
4. For an early discussion of this rehabilitation, see Saul A. Cornell, The Changing Historical
Fortunes of the Anti-Federalists, 84 Nw. U. L. REV. 39, 49-57 (1989).
5. P. 2.
6.Id.
7. Id.
8. The best of the antifederalist writings can be found in Herbert J. Storing's seven volume
collection. See COMPLETE ANTI-FEDERALIST, supra note 3.
9. See pp. 26-34.
10. P. 11.
2001]
Turning Losers into Winners
issues, the antifederalists disagreed among themselves on which aspects of
the Constitution were dangerous to liberty.
Cornell understands that "[i f all Anti-Federalist texts are weighed
equally, the din of different voices does seem cacophonous."" To avoid
this problem, he has traced the most influential antifederalist authors,
studying who was most often quoted and reprinted, and trying to determine
which antifederalists commanded the respect of their comrades and opponents alike. Cornell admits that the various antifederalist writers"[p]lanter aristocrats, middling politicians and backcountry farmers"12_
often had little in common, because they travelled in different social
circles. Cornell argues that the texts they wrote and read provided the
3
common bond in their opposition to the Constitution.'
Despite the antifederalists' internal disagreements, Cornell has written
a coherent and complex analysis of antifederalist thought. He is clearly
sympathetic to their ideas and their vision. Cornell has added immeasurably to the debate over the place of the antifederalists in American
constitutional development. He may be the best advocate that the antifederalists have had since George Mason and Elbridge Gerry refused to
sign the Constitution in September 1787. Indeed, Cornell may be a better
advocate for the antifederalists than they were for themselves.
In Part I of his book, Cornell explores various types of antifederalist
texts and styles of antifederalist rhetoric, illuminating the class differences
among antifederalists that other scholars have ignored. This is an
important contribution to our understanding of the dynamics of the antifederalist argument, and it teaches us much about not only what they had
to say, but how to read their texts.
In the rest of his book Cornell attempts to place the antifederalists, and
antifederalist ideas, at the center of American constitutionalism. His thesis,
as the title of his book suggests, is threefold: first, that the antifederalists
must be seen as partners in the founding-they are the "other" founders;
second, that they are also the "founders" of a long and powerful dissenting
tradition in American politics; and third, that their legacy in the long run
was as successful, and maybe even more successful, than that of the
federalists.
Asserting a contemporary relevance for his thesis, Cornell argues that
the antifederalists are important to "the debates in contemporary American
jurisprudence about interpreting the Constitution according to the original
intent of either the framers or the ratifiers of the Constitution,' 4 noting
ii. P. 10
12. Id.
13. Id.
14. P. 3.
Texas Law Review
[Vol. 79:849
that judges and lawyers "routinely invoke the authority of the AntiFederalists, particularly with regard to the original understanding of the
Bill of Rights."" Both acknowledging and endorsing this trend, Cornell
further argues that the antifederalists created a dissenting tradition in
American politics that survives to this day.'6 Indeed, in what seems to
be an overly exuberant enthusiasm for his subject, Cornell sees the
antifederalists as the ultimate, long-term winners in the debate over the
Constitution. Praising, of all people, Martin Van Buren, as a deep political
thinker, 7 Cornell echoes Van Buren's assessment that the Constitution's
"spirit was shaped by Anti-Federalists."' 8
I am enormously impressed with the research and illumination of the
various styles of antifederalist argument set out in the book. Cornell also
has some very significant insights into the nature of argument in the 1790s
and beyond. Particularly useful for legal scholars is Cornell's discussion
of the use, or misuse, of arguments made in one debate by different parties
in a later and different debate. As Cornell smartly observes and
demonstrates, "once an author's words entered the public sphere, they
were set adrift on a vast sea of interpretive possibility. Authorship
conferred no special authority to interpret a text, once published."1 9 Thus,
in the battle over the Bank of the United States, former antifederalists who
opposed the Bank were shocked to discover their arguments deftly wielded
by Hamilton and his supporters.' Less successfully, opponents of the
Bank of the United States did the same. 2 Cornell notes that "Publius
[The Federalist Papers] was called on to testify for both DemocraticRepublicans and Federalists."' But this should really surprise no one,
since the two primary authors of The Federalist-AlexanderHamilton and
James Madison-were no longer allies: Hamilton was the leading proponent
of the Bank, and Madison its leading opponent. 3
One other aspect of the debate over the Bank, both in the 1790s and
1830s, illustrates the difficulty of determining what constituted the "spirit"
15. Id. He cites two cases, Garciav. San Antonio Metro. TransitAuth., 469 U.S. 528,570 (1985)
(Powell, J., dissenting), and McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 358 (1995) (Thomas,
J., concurring).
The Supreme Court has in fact rarely cited to antifederalist texts or used the
antifederalists in opinions. See infra note 169 for a list of all cases in which Justices have used the
antifederalists.
16. Ihave some doubts about Cornell's conclusions that the courts do in fact use the antifederalists
as authority. See infra text accompanying note 169.
17. See p. 307 ("No commentator was more insightful about the relevance of Anti-Federalism to
the American political tradition than Martin Van Buren.").
18. Id.
19. P. 222.
20. See infra text accompanying notes 204-210.
21. Id.
22. P. 222.
23. See STANLEY ELKINS & ERIc McKrriCK, THE AGE OF FEDERALISM 226-32 (1993).
2001]
Turning Losers into Winners
of antifederalism or antifederalist principles. Cornell argues that Madison
and Jefferson adopted antifederalist principles during the debate over the
first Bank of the United States.24 After Congress passed the Bank bill,
both Jefferson and Madison urged Washington to veto it.'
Similarly,
Andrew Jackson is remembered for his veto of the bill extending the
charter of the Second Bank of the United States. Presumably, Jackson's
bank veto is one of his most antifederalist acts, and it is an example, no
doubt, of what Martin Van Buren had in mind when he praised the antifederalists and what Cornell had in mind when he praised Van Buren's
political acumen.
Unfortunately for this theory, the veto was one of the powers in the
Constitution that antifederalists feared. The anonymous "William Penn"
considered the veto power "obsolete" and that it was in the Constitution on
account of "timid minds." 26 He believed it "a political error of the
greatest magnitude"'27 to give the president a veto power. In Virginia, the
"Impartial Examiner" charged that the veto power made the president into
an aristocrat, and that "as chief magistrateand generalissimoof the United
States" he would "continually acquire great accessions of weight."'
Benjamin Workman, a mathematics instructor at the University of
Pennsylvania, writing as "Philadelphiensis," 29 considered the veto power
one of the "substantial objections""0 to the Constitution. Luther Martin,
similarly opposed the veto, arguing that "the President was not likely to
have more wisdom or integrity than the senators, or any of them.""'
Thus we are faced with the problem of determining what the "spirit"
of antifederalism was and what the antifederalist "principles" were. I
would argue that the "spirit" of antifederalism was one of limited
government, a weak national leader, and the granting of great deference to
Congress as representing either "the people" through the House of
Representatives (in the case of the more democratic antifederalists) or
representing the "states" through the Senate (in the case of the more
24. Pp. 221-23.
25. Paul Finkelman, The Constitutionand the Intentions of the Framers:The Limits of Historical
Analysis, 50 U. PITt. L. REV. 349, 361-66 (1989); see also ELKINS & McKrrRICK, supra note 23, at
232.
26. "WILLIAM PENN," To THE CITIZENS OF THE UNITED STATES, II, (1788) reprinted in 3
COMPLETE ANTI-FEDERALIST, supra note 3, at 171, 174.
27. Id. at 173.
28. THE IMPARTIAL EXAMINER IV (1788), reprintedin 10 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION, 1611, 1611 (Merill Jensen et al. eds., 1993) (emphasis in
original).
29. 3 COMPLETE ANTI-FEDERALIST, supra note 3, at 99.
30. BENJAMIN WORKMAN, ESSAYS OF PHILADELPHIENSIS, IX, (1788), reprinted in 3 COMPLETE
ANTI-FEDERALIST, supra note 3, at 127, 129.
31. Luther Martin, Mr. Martin'sInformation to the GeneralAssembly of the State of Maryland,
reprintedin 2 COMPLETE ANTI-FEDERALIST, supra note 3, at 54 (emphasis in original).
Texas Law Review
[Vol. 79:849
aristocratic and state-centered antifederalists, like, Luther Martin). But,
either way, giving the president the power of the veto was, in their mind,
"a political error of the greatest magnitude." 32 The DemocraticRepublicans, like Madison and Jefferson, had no problem with the use of
the veto; nor did Andrew Jackson, who used it to stop programs he
disliked. Indeed, in general, the strong presidencies of Thomas Jefferson,
James Monroe, and Andrew Jackson represented exactly the sort of
national leadership that made most antifederalists shudder.
Thus, despite all that I find valuable in this book, in the end I remain
unpersuaded by Cornell of the influence of the antifederalists, both in their
own time and in ours. At one level my disagreement is one of degree.
The antifederalists are important to our understanding of constitutional
development, but not nearly as central as Cornell or Martin Van Buren
might think. At another level, however, my disagreement is more
pronounced. Indeed, reading Cornell's strong argument for the antifederalists leads me to conclude that Cecelia Kenyon may have had it right
all along-that, in the end, the antifederalists, while smarter and more
articulate than she thought, were in fact men and women with little faith,
not much vision, and a cramped sense of political democracy. Rather than
the "other founders," Americans are fortunate that the antifederalists were
the failed, defeated, would-be founders of what would have been a very
different kind of nation.
My disagreement with Cornell's thesis is based on four separate
aspects of antifederalism and American constitutional and political development. First, while I agree with Cornell that the antifederalists were
indeed the "loyal opposition"33 of the constitutional period, they believed
in so many mutually contradictory things that it is impossible to talk about
them as a coherent group. Some individual antifederalists were influential,
and their influence may still be felt. But, except for wanting to defeat the
Constitution-at which they failed miserably-and predicting that a stronger
national government would destroy all liberty in America-a prediction
which failed to materialize-there is not much that can be called an
antifederalist ideology to which all antifederalists subscribed.
Second, from the opening of the Constitutional Convention to the
Constitution's ratification, the antifederalists were the first great losers in
American political history. They can thus only be marginally useful for
understanding original intentions because for the most part, the nation as
a whole either ignored or rejected their intentions.
32. "WILLIAM PENN," supra note 3, at 173.
33. Cornell actually seems to credit me with coining this phrase. P. 1, n.1 (citing Paul Finkelman,
Antifederalists: The Loyal Opposition and the American Constitution, 70 CORNELL L. REV. 182, 182
(1984)).
2001]
Turning Losers into Winners
Third, even where the antifederalists are seen to have been most
successful-in gaining a Bill of Rights for the Constitution-their success
is largely illusory. They wanted structural amendments that would have,
in effect, rewritten the Constitution. Instead, the federalists who dominated
Congress gave the nation a bill of rights, which, for the most part, merely
reaffirmed the limitations on the national Congress already written into the
Constitution.' Only in a few areas, such as the Sixth Amendment, did
Madison and the members of the first Congress create new, positive rights
that went beyond the existing Constitution."
Fourth, what Cornell argues were coherent political expressions of
antifederalism-the policies and politics of the Jeffersonian DemocraticRepublicans and the Jacksonian Democrats-turned out to be simply a
different brand of federalism, with perhaps a flavoring of antifederalist
rhetoric. As president, Jefferson, Madison, and Monroe all followed
policies consistent with the arguments of the federalists of 1787-88.
Significantly, while in power they also behaved very much like the
Hamiltonian Federalists of the 1790s.36 For example, the federalists of
1787-88 and the Hamiltonian Federalists of the 1790s would have applauded (even if they disagreed on the substantive policies) Jefferson's use
of presidential power in the purchase of Louisiana and his embargoes
against Haiti and Europe, as well as Madison's war policies and support
of the Second Bank of the United States. Some of President Andrew
Jackson's policies also seemed to be warmed over versions of
antifederalism. But, on careful examination they were federalist in the
1787-88 use of the term and in some ways, in the Hamiltonian sense of the
1790s. For example, Jackson's Indian removal program and his powerfully nationalistic response to the South Carolina nullificationists were
impressive assertions of presidential power. His vetoes of the Bank Bill
and the Maysville Road Bill were too, as well as being rejections of the
wisdom and power of Congress. In other words, they were the actions of
precisely the kind of powerful president that veto-hating antifederalists
feared.
Thus, in the end, despite Cornell's learned, articulate, and wellresearched defense of the antifederalists, it strikes me that Kenyon's
analysis may have been right all along. The antifederalists had little faith
and not much vision.
34. See Paul Finkelman, The Ten Amendments as a Declarationof Rights, 16S. ILL. U. L.J. 351,
352 (1992) [hereinafter Finkelman, The Ten Amendments]; Paul Finkelman, James Madison and the
Bill ofRights: "A Reluctant Paternity", 1990 SUP. CT. REv. 301, 309 (1991) [hereinafter Finkelman,
A Reluctant Paternity].
35. See U.S. CONST. amend. VI (providing several procedural rights to those accused of crimes).
36. For an explanation of terms and capitalization, see supra note 1.
Texas Law Review
[Vol. 79:849
The Loyal Opposition and the Chaos of Antifederalists Ideas
Many scholars have called the antifederalists the "loyal opposition"37
of the American founding, and at one level they were certainly this. Their
opposition was peaceful and within the bounds of democratic
republicanism. But in the end, they were people with little faith, limited
vision, and to a great extent, horrifying notions of how society ought to
work and government ought to operate. As the "loyal opposition," when
they failed to defeat the Constitution, most accepted the result and moved
on. As Cornell notes, the antifederalists never developed a political party
and antifederalism pretty much died out shortly after ratification of the Bill
of Rights.3 Thus, the "loyal opposition" was rather short-lived, and after
1787-1788, the antifederalists as a collective body had little impact on
By 1792, as Cornell notes, the antifederalists had
American politics.
disappeared. 9 Why did this happen? It was due to a combination of
three factors. First, because in the end they lacked any coherent vision,
the antifederalists had no program to keep them going. Once the
Constitution was ratified and the new government was a success, they
could not continue to exist merely as the opponents of the Constitution.
The obvious success of the Constitution, the new Congress, and the
Washington administration made the antifederalists seem both foolish and
irrelevant. Lacking any coherent program beyond opposition to the
Constitution, they simply disappeared. Second, because as individuals they
were patriots, having been defeated, they gave up the fight and accepted
the new Constitution. Third, as politicians, many sought public office and
positions of honor and power under the new regime. In other words, the
antifederalists were not in favor of perpetual revolution, or even permanent
opposition to the Constitution. On the contrary, many of them had no
trouble supporting the Constitution once it was in place and they were able
to secure leadership roles in the new government. In this sense, then, they
were a short-lived, but truly "loyal," opposition.
II.
Confusion and Chaos: Will the Real Antifederalists Please Stand Up?
As Cornell impressively points out, it is impossible to clearly classify
the antifederalists. 0 Some were elitists, with wealth, power, and in the
South, a great many slaves. Others were what Cornell calls men of
"middling" or "plebeian" backgrounds. 4
A.
37. See, e.g., Finkelman, supra note 33, at 182.
38. Seep. 166.
39. Id.
40. Pp. 11-12.
41. P. 12.
Turning Losers into Winners
2001]
Cornell argues that the death of antifederalism as a movement set the
stage for "resurrecting the spirit of Anti-Federalism." '42 Indeed, this is
a major thrust of his book. He argues that this "spirit" continued to exist
as a "dissenting tradition" in American politics, at least through the 1830s,
and that in some ways it continues today, as "[w]riters on the political left
' while "the
have applauded its followers for their democratic ideals,"43
modern political right has praised their hostility to centralized government,
particularly their suspicion of a powerful federal judiciary."'
Cornell
points out that "[l]ibertarians have extolled their defense of individual
rights" while at the same time "comnmunitarians have commended their
emphasis on civic participation and community."45 Cornell notes that
Republican Party' Justices Lewis Powell and Clarence Thomas47 and
members of "self-styled citizen militia organizations"' invoke the
antifederalists, but so does the American Civil Liberties Union.49
I find all this fascinating, but in the end, not very convincing. If
Cornell is right, then the antifederalists have been resurrected as all things
to all people. This may be true. Because there was no unifying antifederalist spirit or philosophy, modern Americans of all political stripes can
find something that pleases them about the antifederalists. A good example
of this may be the presidencies of Ronald Reagan and George H.W. Bush.
Both considered big government to be one of the nation's greatest
problems, but both ran up the national debt to unprecedented levels,
expanded the military, aggressively sent troops overseas, and wielded the
veto pen with impunity. Reagan and Bush might have quoted the antifederalists on the need for smaller government, but it is hard to imagine
how their administrations can be seen as antifederalist in their programs or
policies or their massive expansion of federal debt and governmental
bureaucracy. Their military buildups, overseas deployment of troops, and
the Gulf War all ran counter to antifederalist opposition to a standing army,
an aggressive foreign policy, and a large national budget.50
42. P. 166.
43.
44.
45.
46.
P. 3.
Id.
Id.
P. 6.
47. P. 3, n.5.
48. P. 4.
49. P. 6.
50. Reagan and Bush may have imitated the antifederalists in the area of religious freedom. As
I note below, see infra subpart II(B), the antifederalists were generally hostile to free exercise claims
of members of dissenting churches and other religious minorities. Similarly, the Reagan and Bush
administrations (as well as most of the Supreme Court Justices appointed by them), were hostile to freeexercise claims of many non-traditional faiths. See Lyng v. Northwest Indian Cemetery Protective
Ass'n, 485 U.S. 439 (1988); Employment Div. of Oregon v. Smith, 494 U.S. 872 (1990).
Texas Law Review
[Vol. 79:849
While I am unconvinced by many of Cornell's larger points-either
about the era from 1792 to 1828 or about the modem period-I believe this
book has enormous merit. Much of what he teaches us about the antifederalists is worth learning.
He demonstrates, for example, the
importance of class distinctions among the antifederalists.
Elite
antifederalists, like Richard Henry Lee and George Mason, for example,
had a distinctly different response to the Constitution than the middling (as
Cornell calls them) and plebeian opponents of the new form of
government.5
Cornell talks about the "spirit" of antifederalism, and antifederalist
principles, but he is never able to fully define them, perhaps because it is
impossible to do so. Cornell illustrates the impossibility of telling us what
their "principles" were in a quote from the Virginia federalist Edward
Carrington, who noted that the objections to the Constitution made by
Richard Henry Lee and Elbridge Gerry were "'founded on very opposite
principles-the former thinks the Constitution too strong, the latter is of the
opinion that [it] is too weak."'5 A careful examination of the evidence
Cornell gives us demonstrates time and again why the "principles" of the
antifederalists are not susceptible to precise definition. Often, this evidence
also undermines the analysis and conclusions Cornell wants us to accept.
For example, Cornell argues that the opponents of the Sedition Act of 1798
were "ardent champions of Anti-Federalist ideas." 53 But earlier in the
book he notes that "most Anti-Federalists were not willing to reject the
doctrine of seditious libel."' It is thus hard to know what antifederalist
"ideas" or "principles" were on the freedom of the press. This difficulty
is exacerbated by Cornell's assertion that Thomas Jefferson adopted
antifederalist principles and was himself a closet antifederalist, or perhaps
an antifederalist fellow-traveller. Comell notes Jefferson's opposition to
the Sedition Act but does not discuss his support of seditious libel
prosecutions while president.'
Nor does Cornell discuss Alexander
Hamilton's defense of Harry Croswell in People v. Croswell.56 Because
Jefferson and his friends initiated the prosecution of Croswell and because
Hamilton defended him, we might conclude that by 1804 the Federalist
Party had adopted the views of the antifederalists, while the Democratic-
51. P. 26.
52. P. 27 (quoting Letter from Edward Carrington to William Short (Oct. 25, 1787), in 13 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 469, 470 (John P. Kaminski
& Gaspare J. Saladino, eds., 1981)).
53. P. 233.
54. P. 126.
55. See LEONARD W. LEVY, JEFFERSON AND CIVIL LIBERTIES: THE DARKER SIDE 58-61 (1963).
56. 3 Johns. Cas. 336 (N.Y., 1804). For a discussion of this case, see NORMAN L. ROSENBERG,
PROTECTING THE BEST MEN: AN INTERPRETIVE HISTORY OF THE LAW OF LIBEL 109-14 (1986).
2001]
Turning Losers into Winners
Republicans rejected them.
859
Or, we might more properly conclude that
neither the Jeffersonians nor the antifederalists had any strong claims on
virtue or political and legal consistency.
Even more complicating, some antifederalists could not even agree
among themselves about what they supported or opposed. George Mason,
for example, refused to sign the Constitution because it gave Congress too
much power over commerce, fearing the South would "be ruined" by commercial laws passed by a simple majority in Congress.57
At the same
time, however, he complained that the Constitution did not give Congress
sufficient power over commerce to immediately end the slave trade.-,
Mason wanted Congress to have the power to regulate commerce only with
a two-thirds majority,59 but of course, he did not admit that under such
a scheme the deep South could easily have blocked a bill ending the slave
trade.
Cornell notes that throughout American history various opponents of
particular policies, trends, and social institutions have been able to invoke
antifederalist threads to bolster their own causes.'
But as Cornell
demonstrates so ably and persuasively, there was almost no coherence to
57.
GEORGE MASON, OBJECTIONS TO THE CONSTITUTION OF GOVERNMENT FORMED BY THE
CONVENTION, reprintedin 2 COMPLETE ANTI-FEDERALIST supra note 3, at 11-12.
58. Id. at 13. Mason's position on slavery and the slave trade is sometimes confusing to modem
readers. Essentially, many Virginians opposed the African slave trade because it would decrease the
value of the slaves they already had, drain capital out of the South into the hands of northerners or
Europeans, and bring potentially violent Africans who might corrupt, in their mind, the more
acculturated American-born slaves they already owned. Similarly, Merrill Peterson noted that during
the Revolution, Jefferson and other Virginians opposed the trade for "selfish considerations, such as
protecting the value of their property in slaves and securing their communities from the dangers of an
ever-increasing slave population," especially when that population was made up of recent arrivals from
Africa, who tended to be more rebellious than other slaves. MERRILL D. PETERSON, THOMAS
JEFFERSON AND THE NEW NATION 91 (1970). Thus, at the constitutional convention Mason vigorously
attacked the "infernal traffic" in slaves, which he blamed on "the avarice of British Merchants."
Reflecting the sectional hostilities at the Convention, as well as trying to lay blame on anyone but
Virginians for the problem of slavery, Mason then "lamented" that his "Eastern brethren had from a
lust of gain embarked in this nefarious traffic." Somewhat carried away by his own rhetoric, Mason,
who owned hundreds of slaves, declared slavery an "evil" system which produced "the most pernicious
effect on manners." He warned that slavery would "bring the judgment of heaven on a Country" and
ultimately produce "national calamities." But despite the bombastic rhetoric, Mason ended his speech
by demanding only that the national government "have power to prevent the increase of slavery" by
prohibiting the African trade. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 369-70
(Max Farrand ed., 1966) [hereinafter FARRAND's RECORDS]. Mason did not want an end to slavery,
only an end to the importation of more slaves. As historian Peter Wallenstein has argued, "[w] hatever
his occasional rhetoric, George Mason was-if one must choose-proslavery, not antislavery. He acted
in behalf of Virginia slaveholders, not Virginia slaves," when he opposed a continuation of the African
trade. Peter Wallenstein, FlawedKeepers of the Flame: The Interpretersof George Mason, 102 VA.
MAG. HIST. & BIOGRAPHY 229, 253 (1994).
59. 2 FARRAND'S RECORDS, supra note 58, at 451 (noting Mason's support for two-thirds of the
commercial regulations proposed on page 449).
60. Pp. 303-07.
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[Vol. 79:849
the antifederalists, except in their opposition to the Constitution. Thus, if
the antifederalists are the great-grandparents of American dissenters, as
Cornell argues, the family tree has so many branches, and the roots are so
terribly twisted, that the connections between dissent and the antifederalists
may be meaningless. More importantly, a careful examination of the use
of the antifederalists suggests that they are not usually part of a general
dissenting tradition, but are more often used to bolster conservative,
reactionary, and discriminatory ideological viewpoints. This dovetails with
the ideology of most of the antifederalists themselves. 6' Localist,
parochial, and hostile to government that might interfere with their
personal and economic freedom, the antifederalists, with some exceptions,
were decidedly not libertarians for all seasons. Cornell notes, for example,
that "[i]t would be difficult to overstate the importance of trial by jury in
the minds of Anti-Federalists like Cincinnatus or [Luther] Martin."62 The
jury trial, in the minds of the antifederalists, was the embodiment of local,
parochial control. It also enabled local majorities to oppress minorities and
to suppress dissent. The obsession with jury trials, like George Mason's
inconsistent complaints about the commerce power, may illustrate the most
universal truth about the antifederalists: they wanted a constitution that
would let them do what they wanted and prevent their opponents from
doing what they wanted. The internal contradictions thus melt away, and
we are left with Cecelia Kenyon's selfish, narrow-minded, men and women
of little faith.
B.
Religious Freedom, the Antifederalists, and the Tyranny of the
Majority
Common knowledge tells us that the antifederalists pushed for a bill
of rights, and we know that the First Amendment protects religious freedom and requires a separation of church and state. Thus, at first glance we
might expect to find support for Cornell's thesis by examining the antifederalists and religious freedom. But the issue of religious freedom in
America actually illustrates the internal confusion among the antifederalists
and why they fail as a role model for minority dissenters.
While some antifederalists wanted a bill of rights to secure basic civil
liberties-what we associate with the First Amendment to the
Constitution- "they were primarily preoccupied with the failure of the
61. One exception to this was the handful of northern antifederalists who opposed the Constitution
because of its many compromises with slavery. On the proslavery constitution, see generally, PAUL
FINKELMAN, SLAVERY AND THE FOUNDERS: RACE AND LIBERTY IN THE AGE OF JEFFERSON 1-33
(1996) [hereinafter FINKELMAN, SLAVERY AND THE FOUNDERS]. On antislavery sentiments among
antifederalists, see infra text accompanying notes 112-15.
62. P. 60.
2001]
Turning Losers into Winners
Constitution to lay down the precious and venerable common-law rules of
criminal procedure." 63 The antifederalists have a rather grim record on
the freedom of conscience and the protection of dissenting religious
minorities. In Virginia, many antifederalists supported an established
church and opposed religious toleration for dissenters. The leading
antifederalist, Patrick Henry, was also among the strongest advocates in the
state for retaining the established church there. Not surprisingly, the
Baptists in Virginia, who helped convince young James Madison to support
amendments protecting religious liberty were not antifederalists. In
Virginia (as well as Massachusetts), dissenters supported the new
Constitution. In the end, the antifederalists in Virginia were not the voice
of the dissenting minority, but the supporters of religious bigotry and
oppression.
The same was true in New England, where antifederalists complained
that the Constitution lacked religious tests for officeholding, which meant
that Baptists, Jews, or even worse, Catholics, could hold office.' At the
Massachusetts Convention, for example, Thomas Lusk "shuddered at the
idea that Roman Catholics, Papists, and Pagans might be introduced into
office. "I
In Pennsylvania, the antifederalists defended laws that
persecuted and disfranchised Quakers for their pacifism.' At the North
Carolina ratifying convention, David Caldwell worried that the lack of a
religious test for officeholding would be "an invitation for Jews and pagans
of every kind to come among us."67
Another North Carolina
antifederalist worried about who might be elected President, noting: "This
is most certain, that Papists may occupy that chair, and Mahometans may
take it."' 6 In New York, "Curtiopolis" complained that the Constitution
allowed officeholders to be "Quakers," "Mahometans, who ridicule the
doctrine of the trinity," "Diests, abominable wretches," and "Jews."
"Curtiopolis" worried that if a Jew were president, and thus in "command
of the whole militia," then "our dear posterity may be ordered to rebuild
Jerusalem."69
Thus, when we look at the oldest and most enduring form of hostility
to dissenters in western society-religious persecution-we do not see the
antifederalists as supportive of a "dissenting tradition."
Religious
63. Kenyon, supra note 2, at 19.
64. See p. 57; JOHN FIsKE, THE CRITICAL PERIOD OF AMERICAN HISTORY, 1783-1789, at 322
(1888).
65. JONATHAN ELLIOT, 2 THE DEBATES INTHE SEVERAL STATE CONVENTIONS ON THE ADOPTION
OF THE FEDERAL CONSTITUTION 148 (1888 ed.) [hereinafter ELLIOT'S DEBATES].
66. Pp. 101-02.
67. 2 ELLIOT'S DEBATES, supra note 65, at 199.
68. Id. at 215.
69. Curtiopolis (Jan. 18, 1788), reprinted in 15 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION 399, 401 (John P. Kaminski, Gaspare J. Saladino eds., 1984).
Texas Law Review
[Vol. 79:849
minorities at the time-Baptists, Jews, and Catholics-tended to support the
Constitution. 7 After all, the U.S.. Constitution, unlike every state
constitution but two, 7' not only did not have a religious test for
officeholding, but it flatly prohibited one.' Cornell does not discuss
religion and ratification very much, but where he does touch on it, his own
evidence teaches us that the protection of religious minorities was not the
goal of most antifederalists.73 Indeed, more common was the religious
oppression the antifederalists advocated. Rather than a "dissenting
tradition," it seems that the antifederalist tradition in this area is that of the
majority persecuting the minority, be it by closing down parochial
schools,74 preventing Lutherans from praying in German,75 or imposing
prayers on members of minority faiths in public schools or at football
games.76 Indeed, the actions of the antifederalists mirror Cecelia
Kenyon's important analysis that the antifederalists attacked the
Constitution in part because they believed that "any people who were to
govern themselves must be relatively homogeneous in interest, opinion,
habits, and mores."' In other words, rather than a dissenting tradition,
the antifederalists form the core of the tyranny of the majority, so common
in American history.- The antifederalists disliked the Constitution, not
because it threatened the liberty of all the people, but because it threatened
their liberty to persecute their neighbors.
This issue illustrates the truth of Madison's arguments in Numbers 10
and 14 of The Federalistthat localism leads to persecution and that the
greater the size of the polity or jurisdiction, the more likely minorities
would be protected. 7' Even before Alexis de Tocqueville invented the
phrase, Madison understood the danger of the "tyranny of the
70. MORTON BORDEN, JEWS, TURKS AND INFIDELS 21 (1984).
71. See N.Y. CONST. of 1777, art. XXXVIII (protecting freedom of religion generally); art.
XXXIX (preventing ministers or other religious figures from holding public office). The New York
constitution also contained no other specific provisions requiring elective officeholders to maintain any
religious affiliation. See also VA. CONSr. of 1776 (containing no religious restrictions on elective
office).
72. U.S. CoNST. art. VI, cl.
3 ("[N]o religious test shall ever be required as a Qualification to any
Office or public Trust under the United States.").
73. Pp. 101-02.
74. See Pierce v. Soc. of Sisters, 268 U.S. 510, 535 (1925). For an excellent history of this and
related cases, see WILuAM G. Ross, FORGING NEW FREEDOMS: NATIVISM, EDUCATION, AND THE
CONSTITUTION, 1917-1927, at 185-200 (1994).
75. Meyer v. Nebraska, 262 U.S. 390, 402-03 (1923).
76. See, Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000); see also Pat Gordon, Texas
SchoolsDeal with Game PrayerBan,Boston Globe, Sept. 5, 1999, LEXIS, News Library, BGlobe file
(noting that some Texas school districts chose to continue prayer at football games despite a ban by the
5th Circuit).
77. Kenyon, supra note 2, at 7.
78. THE FEDERALIST No. 10, at 77-84 (James Madison) & No. 14, at 99-105 (James Madison)
(Clinton Rossiter ed., 1961).
2001]
Turning Losers into Winners
majority," 79 especially at the local level.
As Justice Robert Jackson
eloquently noted in West Virginia Board of Education
v. Barnette:'
81
"There are village tyrants as well as village Hampdens."
By and large, the antifederalists were the village tyrants, and the
federalists were the Hampdens.
Cornell notes that many antifederalists
truly believed state governments protected liberty. 8
But, at least with
respect to religious freedom, the reality in most states was quite the
opposite. State governments in Virginia, Massachusetts, and Connecticut,
for example, were notorious for oppressing the liberty of dissenters.A3 In
Massachusetts, the dissenting minister Isaac Backus was a firm federalist
because he understood all too well how much liberty he had under his state
government.' Most Baptists and other dissenting Protestants, as well as
Jews, were also firmly federalist.'
They looked to the national
Constitution to protect them from the oppressions of that state's
Congregational/Unitarian establishment.
The story in Virginia is similar and more important. By the spring of
1788 the leaders of the Baptists were firmly federalist, supporting James
Madison in his candidacy to the Virginia ratifying convention and later
when he ran for Congress.'
Initially, Reverend John Leland and other
79. ALEXIs DE TOCQUEVILLE, DEMOCRACY IN AMERICA 183 (Harvey C. Mansfield & Delba
Winthrop trans., Univ. of Chicago Press 2000) (1835).
80. 319 U.S. 624 (1943).
81. Id. at 638.
82. P. 59.
83. See, e.g., THOMAS E. BUCKLEY, S.J., CHURCH AND STATE IN REVOLUTIONARY VIRGINIA
181-82 (1977) (arguing that the enactment of a series of blue laws in Virginia, despite a 1786 bill
ensuring religious liberty, demonstrates the Episcopal Church's dominance of state government); Robert
R. Baugh, Applying the Bill of Rights to the States: A Response to William P. Gray, Jr., 49 ALA. L.
REV. 551, 557 (1998) (discussing a tax in Virginia, prior to the Declaration of Independence, that was
used to "support the Anglican church" (footnote omitted)); John Dinan, The State Constitutional
Traditionand the Formationof Virtuous Citizens, 72 TEMP. L. REv. 619, 632-33 (1999) (noting that
Virginia, Connecticut, and Massachusetts had "compulsory taxation for support of religious societies"
for the first several decades after the ratification of the Constitution).
84. See City of Boeme v. Flores, 521 U.S. 507, 563 (1997) (O'Connor, J., dissenting) (quoting
Backus's declaration that "every person has an unalienable right to act in all religious affairs according
to the full persuasion of his own mind, where others are not injured thereby"); Arlin M. Adams &
Charles J. Emmerich, A Heritage of Religious Liberty, 137 U. PA. L. REV. 1559, 1577-78 (1989)
(noting that Backus supported the Constitution because of its provision prohibiting religious oaths).
85. See, e.g., Timothy L. Hall, Religion, Equality, and Difference, 65 TEMP. L. REV. 1, 32-33
(1992) (noting that evangelicals "argued the case for freedom of conscience" and that Madison deemed
religious liberty to be "an inalienable right"); Laura Underkuffler-Freund, The Separation of the
Religious and the Secular:A FoundationalChallenge to FirstAmendment Theory, 36 WM.& MARY
L. REv. 837, 926-27 (1995) (explaining that Reverends Payson and Shute "forcefully expressed their
views" that the Constitution should be adopted because of its ban on religious oaths).
86. See Randy Lee, When a King Speaks of God; When God Speaks to a King:Faith, Politics,Tax
Exempt Status, and the Constitution in the Clinton Administration, 63 LAw & CONTEMP. PROBS. 391,
422-23 (2000) (noting that "Madison invited Baptist clergy members to rally their followers to vote for
him" for Congress); John T. Noonan, Jr., Remarks ofthe HonorableJohn T. Noonan, Jr., 14 ME. B.J.
Texas Law Review
[Vol. 79:849
Baptists feared that the Constitution would undermine religious freedom in
the nation. The Baptists in Virginia had suffered grievously in the
preceding decades. They were a dissenting minority in 1787, living under
a government where the Episcopal (formerly Anglican) Church was still the
established Church in the state.' They initially opposed the Constitution
because they were worried that it would bring them more of the same on
a national level. However, Madison's long record of supporting religious
liberty and his sincere empathy for Leland's concerns, convinced the
minister to support Madison for the Virginia Convention.88 Madison later
backed a bill of rights, to secure in writing that the national government
could not oppress religious minorities. But he did this fully believing that
the Constitution did not in fact need such an amendment. 89 The Baptists'
sincere fears of religious intolerance led James Madison to at least begin
to rethink his opposition to a bill of rights. They, in turn, supported
Madison in his quest to be a delegate to the Virginia ratifying
convention.' The Baptists wanted the federal constitution to protect their
religious liberty, and they pushed Madison in the direction of supporting
a bill of rights that would do just that. But this was not an "antifederalist"
cause. Indeed, when the Bill of Rights was added to the Constitution, it
came from a Congress dominated by federalists and was ratified by state
legislatures dominated by federalists. The strongest opposition to the Bill
of Rights in Congress came from the few antifederalists in that body. 91
69, 69 (1999) (noting that Madison was elected to the first Congress "on a pledge to secure religious
freedom in the Constitution"); Charles J. Reid, Jr., The FundamentalFreedom:JudgeJohn T. Noonan
Jr.'s Historiographyof Religious Liberty, 83 MARQ. L. REv. 367, 415 (1999) (describing Madison's
"alliance with local Baptist leaders" during his bid for Congress).
87. See BUCKLEY, supra note 83, at 170-71 (noting that the established status of the Episcopal
Church in Virginia was not revoked until 1787); THOMAS J. CURRY, THE FIRST FREEDOMS: CHURCH
AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 134-5 (1986) (noting that
Baptists had good cause to complain of religious persecution during the period surrounding the
Revolution); ANSON PHELPS STOKES, CHURCH AND STATE IN THE UNITED STATES 368-75 (1950)
(detailing the efforts of the Baptist Church to gain religious freedom in Virginia).
88. See L.H. Butterfield, Elder John Leland, Jeffersonian Itinerant, 62 PROC. OF THE AM.
ANTIQUARIAN SoC'Y 155, 189-96 (1952).
89. See Am B. Gershengom, PrivateParty Standing to Raise Tenth Amendment Commandeering
Challenges, 100 COLUM. L. REV. 1065, 1084 (2000) (noting that though he thought it unnecessary,
Madison recognized the need for a compromise and suggested that the newly constituted Congress
consider adopting an amendment incorporating a bill of rights to the Constitution); Alexander
Hanebeck, Democracy Within Federalism:An Attempt to Reestablish Middle Ground, 37 SAN DIEGO
L. REV. 347, 381-82 (2000) (discussing Madison's attempts to maintain the structural integrity of the
Constitution while still balancing the "state-centered" antifederalists against the federalists who, like
himself, thought a bill of rights unnecessary).
90. See Finkelman, A Reluctant Paternity, supra note 34, at 313-33. Thus, in the process, the
"antifederalists" ended up voting "federalist."
91. Pp. 162-63.
20011
Turning Losers into Winners
C. Antifederalists as Hamiltonian Nationalists
Jefferson and Madison are, of course, famous for their support of
religious freedom. They are also famous, especially Madison, for supporting the Constitution in 1787-88. Nevertheless, Cornell argues that
antifederalist ideas re-emerged as "Democratic-Republicanism"' in the
party of Thomas Jefferson and James Madison. He argues that Jefferson
and Madison "recast those Anti-Federalist ideas" of 1788-89 and that
Madison "used them as part of his own effort to formulate a coherent
alternative to Federalist constitutional theory."'
Thus, Cornell argues
that the antifederalists re-emerged as the dissenters of the 1790s and later,
as the victors in the "Revolution of 1800."
Yet, this is only partially true. Some antifederalists ended up
opposing Jefferson and supporting the Federalist Party. Robert Yates of
New York left the Constitutional Convention in disgust because of its
nationalizing tendencies, and then unsuccessfully fought Hamilton and the
New York federalists in the New York ratifying convention. Nonetheless,
he later became a Federalist. 4 In Maryland, "[o]f the four most prominent anti-Federalists," gs three, including Luther Martin and Samuel
Chase, became Federalists. In Massachusetts, at least some antifederalists
joined the Federalist Party.96 In North Carolina, "the Federalist regions
of 1800 had been 'anti-Federalist' ten years earlier."'
The most
prominent Virginian opposed to the Constitution, and perhaps the most
prominent antifederalist in the nation, Patrick Henry, became a staunch
Federalist a decade later. 98 A slightly different example is William Henry
Harrison, the future Whig President. Harrison, who became a Federalist
in the late 1790s, 9 was too young to be active in the struggle against the
Constitution. But his father, Benjamin Harrison, was an antifederalist
leader in Virginia.'"
92. P. 13.
93. Id.
94. DAVID HACKEIT FISCHER, THE REVOLUTION OF AMERICAN CONSERVATISM: THE FEDERALIST
PARTY IN THE ERA OF JEFFERSONIAN DEMOCRACY 222 n.53 (1965).
95. Id.
96. We know that the antifederalists joining the Federalist Party in Massachusetts include, among
others: John Hulbert, Benjamin Adams, and Stephen Longfellow. See id. at 260, 262, 268; 2 ELLIOT'S
DEBATES, supra note 65, at 178-81 (showing these men voted against ratification in 1788).
97. FISCHER, supra note 94, at 222.
98. RICHARD R. BEEMAN, THE OLD DOMINION & THE NEW NATION, 1788-1801, at 114 (1972).
99. See Andrew R.L. Cayton, Radicalsin the "Western World": The FederalistConquestof TransAppalachia,in FEDERALISTS RECONSIDERED 77, 92 (Doron Ben-Atar & Barbara B. Oberg eds., 1998).
100. See BEEMAN, supra note 98, at 15. Cornell also cites James Callender as an example of a
Jeffersonian Republican in the post-ratification period who used antifederalist rhetoric during the
Sedition Act crisis. See pp. 235-36. But, after Thomas Jefferson became president, Callender switched
allegiances, becoming a Federalist.
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[Vol. 79:849
Unfortunately, Cornell fails to explore, much less explain, why some
of the very top echelon of the antifederalist movement, such as Henry and
Chase, later became Federalists. The answer, I suspect, comes from the
fundamental lack of ideology among the antifederalists. Many antifederalists, like Patrick Henry, were politicians with a local orientationKenyon's "men of little faith"-who feared a loss of office or power under
the new Constitution. Thus, when the Constitution went into effect, they
supported it and became Federalists because they were more interested in
holding office than in remaining true to any ideological position. Some
antifederalists were, in effect, opportunists who believed the wind was
blowing against the Constitution in 1787-1788, and when the wind changed
direction, they did too, joining their erstwhile opponents in the new
Federalist Party.
D. Antifederalism, Sectionalism, and Slavery
Cornell hints at, but fails to explore, the meaning of the sectional
divisions of those antifederalists who had become Democratic-Republicans
and thus gained some political power in 1801 when Thomas Jefferson
became president. Cornell notes that "[tihe southern wing of the
[Jeffersonian] coalition continued to be dominated by conservative
agrarians"' 01 who hoped to "radically restructure the [federal]
government" and "restrict federal power."'" But what drove these
southern agrarians such as "John Taylor and other Old Republicans within
the Jeffersonian coalition" to be so hostile to the national government? 3
The answer is slavery. Cornell argues that the diversity among
antifederalists was attributable to class differences between what he calls
elite, middling, and plebeian speakers and writers. Much of the complexity of antifederalist thought may not, however, be tied to class, but
rather to regional differences and slavery.
Because Cornell completely ignores slavery in his book, he makes no
attempt to explore why some antifederalists condemned the Constitution for
threatening slavery, while others attacked it for protecting slavery.""'
The differences between these antifederalists illustrate once again the
101. P. 275.
102. Id.
103. Id.
104. Early in the book Comell compares the objections of Elbridge Gerry of Massachusetts to
those of George Mason of Virginia. See pp. 29-30. He specifically notes points where Mason differed
from Gerry, but significantly, Comell ignores Mason's sectional complaint, that the "eight Northern
and Eastern States" will be able to pass "commercial and navigation laws" and the "five Southern
States ... will be ruined." Id. (citing GEORGE MASON, OBJECTIONS TO THE CONSTITUTION OF
GOVERNMENT FORMED BY THE CONVENTION (1787)), reprintedin 2 COMPLETE ANTI-FEDERALIST,
supra note 3, at 12). Cornell also ignores Mason's complaint about the continuation of the African
slave trade, which also differentiated him from Gerry.
20011
'
Turning Losers into Winners
complexity, diversity, and contradictory nature of antifederalist arguments.
George Mason, for example, complained that under the Constitution,
Congress "might totally annihilate that kind of property [slaves],"15
while others, such as "Philadelphiensis" bitterly opposed the adoption of
"a Constitution whose very basis is despotism and slavery," and would
require the free people of the North to assist in the suppression of slave
rebellions." 6 Similarly, in South Carolina, Rawlins Lowndes complained
that the Constitution would destroy southern prosperity by leading to an
end to the slave trade and then slavery itself. He thought the "trade could
be justified on the principles of religion, humanity, and justice," but argued
that Northerners "don't like our slaves, because they have none
themselves, and therefore want to exclude us for this great advantage." 7
Meanwhile, a New Yorker complained that the Constitution condoned
"drenching the bowels of Africa in gore, for the sake of enslaving its freeborn innocent inhabitants." 10 8
Cornell's utter refusal to consider, much less acknowledge, the
problem of slavery in the Constitution and in the ratification debate 1"9
undermines the effectiveness of his argument. Had Cornell considered the
importance of slavery, he would have presented a more complex picture of
the antifederalists and the debate over the Constitution, albeit one that did
not so neatly fit into his argument. He would also have placed the issues
of localism, local control, and anti-nationalism in their proper historical
(and to some extent, current) context. Cornell rightly sees localism as one
of the great issues of American history."0
States rights and state
sovereignty have been at the center of many of America's greatest debates,
including the central event of our national history, the Civil War. But
underneath this debate over local and federal control has been the issue of
slavery and race. By ignoring this issue, Cornell has undermined much of
the value of his fine scholarship.
105. 3 ELLIOT'S DEBATES, supra note 65, at 458; 10 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION, supra note 28, at 1243.
106. Philadelphiensis II (28 Nov. 1787), reprinted in 14 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION 251,254 (John P. Kaminski & Gaspare J. Saladino eds., 1983).
107. Speech of Rawlins Lowndes in the South Carolina Legislature (Jan. 16, 1788), in 5
COMPLETE ANTI-FEDERALIST, supra note 3, at 150.
108. LETrERS FROM A COUNTRYMAN FROM DUTCHESS COUNTY (Jan. 22, 1788), reprintedin 6
COMPLETE ANTI-FEDERALIST, supra note 3, at 60, 62.
109. The literature on slavery's impact on the development of the Constitution is huge. See, e.g.,
DAVID BRION DAVIS, THE PROBLEM OF SLAVERY INTHE AGE OF REVOLUTION (1975); FINKELMAN,
SLAVERY AND THE FOUNDERS, supra note 61; RONALD HOFFMAN & IRA BERLIN, SLAVERY AND
FREEDOM INTHE AGE OF REVOLUTION (1983); DONALD ROBINSON, SLAVERY INTHE STRUCTURE OF
AMERICAN POLITICS, 1765-1820 (1971); WILLIAM M. WIECEK, THE SOURCES OF ANTISLAVERY
CONSTITUTIONALISM, 1760-1848 (1977); Paul Finkelman, The Problem of Slavery in the Age of
Federalism, in FEDERALISTS RECONSIDERED, supra note 99, at 135 [hereinafter Finkelman, The
Problem of Slavery].
110. Seepp. 62-67.
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Similarly, Cornell fails to explore the importance of sectionalism in
antifederalist debate. A major thrust behind Cornell's thesis is the
coherence of antifederalist arguments. He asserts, over and over again,
that the antifederalists were united in their ideas and their complaints about
the Constitution. To make this argument, however, Cornell ignores the
sectionalism of antifederalism. He points out in a footnote"' that one of
George Mason's major objections to the Constitution was the Commerce
Clause, which Mason believed Congress would use to support northern
commercial interests to the detriment of southern agricultural and economic
interests. In this note Cornell mentions, in passing, that when northern
antifederalists reprinted Mason's essay, they omitted this argument. Like
the northern antifederalists, Cornell too has omitted the argument, perhaps
because it contradicts his thesis that there was a coherent antifederalist
argument.
Similarly, some northern antifederalists raised a profound moral
challenge to the proslavery Constitution, what abolitionist William Lloyd
Garrison correctly called a "Covenant with Death, and an Agreement in
Hell.""' This critique was an important precursor of the antislavery
movement, although it had very little direct impact on the constitutional,
legal, political, or even social developments until the antebellum period.
In the North, some opponents of the Constitution bitterly attacked the
immorality of protecting the African slave trade and counting slaves for
purposes of representation." 3 In Massachusetts, three antifederalists
condemned the Constitution because it bound the states together as a
"whole" and "the states" were "under obligation
. . .
reciprocally to aid
each other in defense and support of every thing to which they are entitled
thereby, right or wrong."" 4 Thus, these antifederalists complained that
they might be called to suppress a slave revolt or in some other way defend
the institution. They could not predict how slavery might entangle them
in the future, but they did know that "this lust for slavery, [was] portentous
of much evil in America, for the cry of innocent blood, .
.
. hath
undoubtedly reached to the Heavens, to which that cry is always directed,
and will draw down upon them vengeance adequate to the enormity of the
crime. "115
111. P. 30, n.18.
112. On the nature of the proslavery Constitution, see FINKELMAN, SLAVERY AND THE FOUNDERS,
supranote 61, at 1. For a detailed discussion of the Garrisonian critique of the Constitution, see Paul
Finkelman, The Founders and Slavery: Little Ventured, Nothing Gained, 13 YALE J.L. & HUMAN.
(forthcoming 2001).
113. See 2 ELLIOT'S DEBATES, supra note 65, at 203.
114. CONSIDER ARMS, MALICHI MAYNARD & SAMUEL FIELD, REASONS FOR DISSENT, reprinted
in4 COMPLETE ANTI-FEDERALIST, supra note 3, at 263.
115. Id.
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Turning Losers into Winners
Equally important, of course, is the antifederalist tradition of
proslavery opponents of the Constitution, like Patrick Henry, who wondered why the framers had not inserted a clause "to secure us that property
in slaves which we held now."" 6 Henry feared that "[a]mong ten
thousand implied powers which they may assume, they may, if we be
' 17
engaged in war, liberate every one of your slaves if they please.
Even without a war, Henry feared that the national government would use
its taxing powers to "compel the Southern States to liberate their
118
negroes."
The handful or two of northern antifederalists who focused on the
immorality of human bondage were essentially right on the issue of the
Constitution and slavery. The Constitution was clearly proslavery-a
"covenant with death" that bound the free states to protect and preserve the
power of the slave states. Furthermore, through the Three-Fifths Clause
and the electoral college, it gave the South extra-and undemocraticpower in the national legislature and in choosing the president because of
its slaves. Thus, ironically, the antifederalists in the South who claimed
that the Constitution was not democratic enough, should in fact have been
praising it because its fundamental denial of democracy actually gave the
slave states greater political power on account of their slaves.
Yet, for different-and ironic-reasons, Henry was also right. It was
the war powers of the national government, implemented by a nationalist
president, that led to the Emancipation Proclamation and the Thirteenth
Amendment. However, and here is the irony, this was only possible because southern proslavery politicians abandoned the Constitution and set up
their own putative nation. In effect, in seceding, the South in 1861
adopted the strategy and ideology of the antifederalists. But had southern
leaders in 1861 heeded the legacy of the proslavery federalists, like Charles
Cotesworth Pinckney of South Carolina, who argued that the Constitution
thoroughly protected slavery, 9 they would have remained in the Union
where the Constitution protected their interests. Only by leaving the Union
was the nation able to implement Henry's fear of national emancipation.
Significantly, however, Cornell ignores the issue of slavery. He has
ignored the moral indignation against slavery by some northern anti-
116.
117.
118.
119.
3 ELLIOT'S DEBATES, supra note 65, at 455.
Id. at 589.
Id. at 456.
Pinckney told his legislature:
We have a security that the general government can never emancipate them, for no such
authority is granted; and it is admitted, on all hands, that the general government has no
powers but what are expressly granted by the Constitution, and that all rights not
expressed were reserved by the several states.
4 ELLIOT'S DEBATES, supra note 65, at 286.
870
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federalists like "Philadelphiensis" and ignored the fears of southern
antifederalists like Henry. Amazingly, he has managed to write a book
about the adoption of a constitution for a nation of eight slave states and
five free states without ever discussing slavery.
III. The Antifederalists as Losers: Or, How the Loyal Opposition Just
Disappeared
Cornell sees the antifederalists as co-founders in 1787-88 and as
significant players later on, shaping not only the administrations of
Jefferson and Madison, but also creating a dissenting tradition. He does
not explain how they could simultaneously be winners (in the Jefferson,
Madison, and Monroe administrations) and also "dissenters," even while
they (presumably) shared power from 1801 until John Quincy Adams
became president in 1825.
The answer, I believe, is that the antifederalists, in the end, are not
co-founders, but the failed founders. Those antifederalists who ended up
in political office, whether as Federalists, like Samuel Chase, or more
commonly as Jeffersonian Republicans, like James Monroe, achieved their
position by abandoning their antifederalism. As I have suggested above,
where it really mattered, on the articulation of national power, Jefferson,
Madison, and Monroe were thoroughly "federalist," in the 1787-88 use of
the term, and at times Federalist, in the 1790s use of the term.
The antifederalists were forced to become "federalist" in one sense of
the term or the other because in 1787-88, the antifederalists were
overwhelmingly defeated.
Initially, they lost the battle over the
Constitution in eleven out of thirteen states.'
With the subsequent
ratifications in North Carolina and Rhode Island, the defeat was
complete.' 2' The coup de grace of the antifederalists, as I will set out in
Part IV below, was the drafting and ratification of the Bill of Rights.
In the struggle over the Constitution, the antifederalists were triple
losers. At the Convention they lost on most of the important issues, and
the document that emerged from the Convention truly displeased them. In
1787-88 they lost the debate over ratification and saw the nation adopt a
Constitution they sorely wanted to defeat. Then, in the first Congress in
1789, they lost the debate over the amendments. Throughout the ratification process the antifederalists had asserted that if the Constitution must
be ratified, it should come with amendments. The antifederalists are
remembered for demanding a bill of rights and other explicit protections
of liberty. But, in fact, they did not really care much about these
120. See FIsKE, supra note 64, at 306-44.
121. See id. at 345.
2001]
Turning Losers into Winners
Fortunately for the United States, the antifederalists were poor
strategists. With their heads buried in the sand, they either declined to
show up for the debate, or failed to stick it out until the end. Thus, the
federalists had a double victory in round one of the debate over the
Constitution: they got to write the document they wanted, without the
meddlesome interference of Patrick Henry, Richard Henry Lee, Willie
Jones, or a group of malcontents from New York and Rhode Island. They
were also able to declare that the delegations present supported it
unanimously, allowing them to present a united front to the nation and
ignore the last minute dissents by George Mason, Edmund Randolph, and
Elbridge Gerry. 3
B.
How the Antifederalists Snatched Defeat from the Jaws of Victory in
the Ratification Struggle
The political ineptitude of the antifederalists continued after the
Constitution was written. Just as in the drafting process, the localists of
little faith were looking backwards and employing political tactics that were
outdated and irrelevant. From the beginning of the ratification process the
antifederalists continued with their ostrich-like strategy.
The federalists, by contrast, remained forward-thinking, dynamic, and
politically shrewd. They moved energetically to ratify the Constitution,
just as the antifederalists languidly opposed it. Led by John Jay, James
Wilson, Oliver Ellsworth, Alexander Hamilton, Charles Cotesworth
Pinckney, and James Madison, the federalists of 1787-88 ran circles around
the antifederalists.
Most scholars agree that at the beginning of the struggle over
ratification, the antifederalists clearly had the political clout, and the votes,
to defeat the Constitution in three of the five biggest states: Virginia, New
York, and North Carolina (as well as in tiny Rhode Island).' 36 In
Massachusetts the issues were closer, but the antifederalists were probably
in the majority there as well. 37 Only in Pennsylvania were the
antifederalists in the minority from the beginning.'38
Had the antifederalist politicians been as energetic and politically
sophisticated as their opponents, they would have immediately called
135. For the views of the last minute dissenters, see Letter from James Madison to Thomas
Jefferson (Oct. 24, 1787), in 1 THE DEBATE ON THE CONSTITUTION 193, 203 (Bernard Bailyn ed.,
1993) (Mason); Letter from Edmund Randolph (Oct. 10, 1787), id. at 596-611 (Randolph); Letter from
Elbridge Gerry to the Massachusetts General Court (Oct. 18, 1787), id. at 231-33 (Gerry).
136. See Paul Finkelman, Intentionalism, the Founders, and ConstitutionalInterpretation,75
TEXAS L. RE,. 435, 475 (1996) (book review).
137. See WILuAM PETERS, A MORE PERFECT UNION 230-32 (1987) (noting the slight numerical
majority of the antifederalists when the Massachusetts convention opened).
138. See FISKE, supra note 64, at 313.
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conventions in those states where they were strongest before the federalists
could organize.
James Madison would have returned home from
Philadelphia to find that Richard Henry Lee, Patrick Henry, and George
Mason had already called for a convention and arranged for the election of
their allies to defeat the Constitution. Similarly, Alexander Hamilton,
fresh from signing the Constitution, would have discovered that Governor
Clinton and his friends had already set in motion the election of a
convention that was sure to defeat the new Constitution.
The result would have been dramatic. With the exception of
Pennsylvania, the friends of the Constitution were initially strong only in
the few tiny states of Delaware, New Jersey, Georgia, and
Connecticut.' 39 But even before the ratifying conventions had finished
their business in those states, Virginia and New York could have rejected
the Constitution and probably killed it there. Without these two critical
states, the new system of government could not have worked. North
Carolina and Rhode Island might have jumped in as well, giving the anti's
four of the five states they needed to block the Constitution. The
momentum would then have been in the hands of the antifederalists in
Massachusetts and New Hampshire. In such a scenario New Hampshire
might very well have offered the deciding ballot-against ratification-just
as in the real play of events New Hampshire provided the margin of
victory for the Constitution.'40
Of course, we know that this did not happen. Immediately after the
Constitutional Convention, the antifederalists did little to further their cause
except write letters to each other and publish a few attacks on the
Constitution. Meanwhile, the federalists, full of energy, quickly called
conventions and gained ratifications where they were strongest, in
Delaware (December 7, 1787), Pennsylvania (December 12, 1787), New
Jersey (December 18, 1787), Georgia (January 2, 1788), and Connecticut
(January 9, 1788)."'
In three of these states ratification was
unanimous, 42 while in Pennsylvania the vote was two-to-one (46 to
23) 4" in favor of ratification and in Connecticut it was more than threeto-one (128-40).'"
139.
140.
141.
142.
143.
144.
Id. at 316.
Id. at 338.
Id. at 360.
The three unanimous states were Delaware, New Jersey, and Georgia. Id. at 314-16.
Id. at 315.
Id. at 316.
2001]
Turning Losers into Winners
amendments."2 Their real goal was to secure structural amendments that
would totally revamp the government created in Philadelphia. And, on this
point, they failed miserably."z
The willingness of the antifederalists to accept and work under the
Constitution showed, in the end, the fundamental weakness of their ideology and political goals. We think of the antifederalists as proponents of
states' rights, localism, decentralized power, and isolationism. They
opposed the Constitution because it centralized power, undermined the
authority and autonomy of the states, and replaced the weak government
under the Articles of Confederation with a stronger national regime.
Cornell argues that antifederalism as a movement died with ratification
of the Constitution and the passage of the Bill of Rights but that the spirit
of antifederalism re-emerged in the party created by Thomas Jefferson and
James Madison. 24
However, it seems more likely that the
antifederalists, defeated and partyless, accepted the reality of their immense
defeat and individually gravitated to one party or the other in the 1790s.
Given their political ineptness in 1787-88, there was little else they could
do to remain active in public life. Their only options were to either
abandon politics or remain on the margins of American political culture.
In modern terminology, the crushing defeat of 1787-88 set the stage for the
antifederalists to be co-opted into the two emerging parties after 1792. To
understand this, we must understand the enormity of their defeat in 178788.
A.
FirstDefeat: Summer 1787, or The Politics of the Ostrich
The first defeat for the antifederalists came at the Philadelphia
Convention. Even before the Convention began it was clear that national
and local issues would be in conflict. Leaders of the convention movement
included well-known nationalists like Alexander Hamilton and James
Madison."z Their opponents-Governor George Clinton in New York
and Patrick Henry in Virginia-understood the dangers of a convention
dominated by such men. But these proto-antifederalists and their allies
took few steps to fight this nationalizing trend.
Patrick Henry was offered a seat in the Philadelphia Convention, but
he declined, later saying: "I smelt a rat." 1" Richard Henry Lee, another
122. See generally Kenneth R. Bowling, "A Tub to the Whale": The FoundingFathers and the
Adoption of the Federal Bill of Rights, 8 J. EARLY REPUBLIC 223 (1988); Finkelman, A Reluctant
Paternity,supra note 34, at 301.
123. Finkelman, The Ten Amendments, supra note 34, at 394-96.
124. Seep. 166.
125. See ELKINS & McKrrmCK, supra note 23, at 44.
126. HUGH BLAIR GRIGSBY, THE HISTORY OF THE VIRGINIA FEDERAL CONVENTION OF 1788, at
32 & n.36 (1969); 3 FARRAND'S RECORDS, supra note 58, at 558 n.2.
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future antifederalist, also refused to attend the Convention."2 So too did
Willie Jones of North Carolina who would lead the opposition in that
state."~ Rhode Island, which would be the last of the first thirteen states
to ratify the Constitution, fiat out refused to send a delegation at all. 129
Governor Clinton of New York sent two of his trusted allies, Robert Yates
and John Lansing, knowing they could outvote Alexander Hamilton and
thus make sure that the New York delegation did nothing to support a
nationalization of power.13
However, in early July these New York
antifederalists left the Convention, leaving Alexander Hamilton as the sole
representative of the state.13' Luther Martin and John Francis Mercer
from Maryland also lacked the energy or commitment to stick it out at the
Convention. 132
Had all the elected opponents of the Constitution showed up and
remained at the Convention, the process and the outcome would have been
different. The Constitution might have been more antifederalist, as the
Convention tried to placate the demands of the New York, Virginia, North
Carolina, and Rhode Island antifederalists. Shrewd opponents of the
Constitution, like Willie Jones and Richard Henry Lee, would have added
their voices and ideas to the process. Even in a convention of
"demigods," 33 as Jefferson called the delegates, Patrick Henry might
have used his well-known oratorical skills to sway a vote or two. The end
product might very well have been different.
Even if the end product did not change, the voting would have. At
the end of the Convention, the Virginia delegation voted three-to-two in
support of the Constitution. But add Henry and Lee to the delegation, and
Virginia would have been on record as opposing the Constitution. New
York and Rhode Island would also have voted no. In September of 1787,
the Constitution went to the states with the signing statement: "DONE in
convention by the unanimous consent of the states present."" 34 Had the
antifederalists been a little shrewder, the document would have read
something like this: "Endorsed by the votes of the state delegations, by a
vote of ten aye and three nay."
127. Id. at 558.
128. See id. at 559.
129. Id. at 557.
130. Id.
131. Under the rules of the Convention a state needed two delegates to vote, and with only
Hamilton present New York could not vote. However this rule did not prevent Hamilton from speaking
at the Convention or from signing the Constitution. Indeed, the instrument of the signing was phrased
in such a way that Hamilton could sign it, even though he could not vote for it on the floor of the
Convention.
132. See 3 FARRAND'S RECORDS, supra note 58, at 589 (noting the departures of Mercer on
August 17, and of Luther on September 4, because they were "opposed to [the] Constitution").
133. DAViD N. MAYER, THE CONSTTUnONAL THOUGHT OF THOMAS JEFFERSON 94 (1994)
(quoting Jefferson).
134. U.S. CONSr. art. VII, ci.2.
2001]
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C. Antifederalist Tactics: The Failureof the Politics of Obstruction
By the time Massachusetts met, the score was 5-0 in favor of
ratification.145 The antifederalists in Massachusetts might have stopped
the federalist steamroller, but they did not. The country bumpkins from
western Massachusetts who opposed the Constitution were no match for the
lawyers and commercial leaders, many trained at Harvard, who overawed
and out-debated the opponents of the Constitution."4 The vote, 187-168,
was close, and had the Massachusetts antifederalists pushed for a convention earlier, or even pushed for a quick vote when the convention met,
they might have been successful.147 But the antifederalist politicians,
unable to understand the nature of politics, delayed, foolishly demanding
a line-by-line discussion of the Constitution. Such an approach, which the
Virginia and New York antifederalists would also pursue, played into the
hands of the federalists. In each state the line-by-line analysis allowed the
federalists to undercut antifederalist fears.
Samuel Adams, the most powerful politician in Massachusetts, came
to his state's ratifying convention leaning against the Constitution.8
However, the explanations he heard, day-by-day, convinced him that the
Constitution did not threaten liberty. 49 For example,, antifederalists
considered the two-year term for members of Congress too long. 5 0
Samuel Adams probably agreed, but in the Massachusetts ratifying convention the process of reading the Constitution led him to change his mind.
After Caleb Strong, who had been a delegate in Philadelphia, explained the
reasoning of the Convention on this issue, Adams declared: "I am
satisfied.""' Many historians agree with John Fiske's assessment of a
century ago, that the Massachusetts "convention was so evenly divided that
there could be no doubt that his [Samuel Adams's] single voice would
decide the result."'5
Clearly the antifederalist demand for a close, lineby-line discussion of the Constitution backfired. The more Adams learned
about the Constitution the less concerned he was with it. He ultimately
voted for it, and it passed in Massachusetts. 53
Cornell rejects the notion that "the Anti-Federalists lost because they
had the weaker argument." 54
Instead, he asserts that "[flew
145. Id. at 317-20.
146. Id. at 324.
147. Id. at 330-31.
148. Id. at 318.
149. Id. at 327.
150.
151.
152.
153.
154.
Id.
Id.
Id.
Id. at 330-31.
P. 8.
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commentators have recognized that Anti-Federalists might have had the
more difficult argument to make." 55 However, when looking at the
politics of 1787-88, we might turn this argument inside out.
Almost all commentators agree that the antifederalists, at least at the
beginning, had the advantage in four key states: Virginia, North Carolina,
New York, and Massachusetts, and one minor state, Rhode Island.'56
The Constitution required the assent of nine states for ratification.5 7 But
in reality, without Virginia and at least Massachusetts or New York, the
ratification would have been meaningless. Thus, it was the federalists of
1787-88 who had the harder argument. They had the uphill struggle to
convince skeptics that the Constitution deserved their support. In Virginia,
New York, and probably Massachusetts, the antifederalists had a majority
when their ratifying conventions began.'58 In Massachusetts the line-byline analysis, combined with heavy lobbying and political organizing, led
to a federalist victory. 15 9 In Virginia, antifederalists were led by the
greatest orator of the state, Patrick Henry, who had a formidable political
machine behind him. But, when the federalists finished making their
arguments, Henry could not hold his votes. It was his convention to lose,
and he lost it. The same is true for the powerful antifederalist governor of
New York, George Clinton. Even in North Carolina, where the antifederalists controlled the convention, they could not muster the votes to defeat
the Constitution." 6 The best the North Carolina antifederalists could do
was adjourn without deciding the issue, opening the door for a subsequent
ratification. 6
The antifederalists lost in Massachusetts and Virginia because the
swing voters, and even some committed opponents of the Constitution,
were persuaded that the Constitution was not a threat to liberty. 62 This
was the harder argument to make, especially in the face of delegates
committed to defeat the Constitution. But the federalists successfully made
the argument, and carried the day.
155. Id.
156. See p. 23, map 1 (showing areas where antifederalist sentiments were strong); FISKE, supra
note 64, at 344-45.
157. U.S. CoNsr. art. VII.
158. See Akhil Reed Amar, The Bill of Rights andthe FourteenthAmendment, 101 YALE L. J.
1193, 1252 (1992).
159. FISKE, supra note 64, at 345.
160. Id. at 345.
161. Id.
162. Id. at 329-39.
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Turning Losers into Winners
D. Antifederalists and Originalism
Cornell argues that we must listen to the antifederalists because they
were the "other founders" and that their voices are especially important for
a modern originalist interpretation of the Constitution. 63
I find
originalism intriguing, and as historians, I suppose both Cornell and I have
a vested interest in it. But ultimately, as a tool for interpretation, it is
problematic. " If one were to adopt an originalist jurisprudence,
however, using the antifederalists to divine the intentions of the framers is
fraught with immense problems and is fundamentally misconceived. The
antifederalists were, after all, the losers - in all of the debates over
ratification of the Constitution. Their take on the Constitution-their
interpretation of the intent-was clearly repudiated by the American people
in 1787-88. Moreover, they were emphatically not the ratifiers. The
ratifying conventions, in state after state, thoroughly rejected their
interpretations of the Constitution.
The antifederalists painted the Constitution as a dangerous instrument
that would bring tyranny and oppression to the American people."6 Had
their argument been persuasive-had the American people and the ratifiers
they elected accepted the antifederalists' interpretation of the intentions of
the framers-it is unlikely that the Constitution would have been ratified.
Thus, if there is any "original intent" to be gleaned from the
antifederalists, it is that the framers or ratifiers did not believe that the
Constitution meant what the antifederalists said it meant and that the
framers dismissed the fears of the antifederalists. The position of Oliver
Ellsworth, who would later be Chief Justice of the United States, illustrates
the disdain the federalists had for the antifederalist fears of tyranny and for
their complaints about the lack of a bill of rights. Ellsworth thought the
antifederalist position was at best just plain silly. He answered the
complaint that "ft]here is no declarationof any kind to preserve the liberty
of the press, etc." by noting: "[n]or is liberty of conscience, or of
matrimony, or of burial of the dead; it is enough that Congress have no
power to prohibit either, and can have no temptation. This objection is
answered in that the states have all the power originally, and Congress
have only what the states grant them."" 6 Thus, when people like
163. P. 1.
164. See generally, Finkelman, supra note 25, at 349 (discussing the problems with using
originalism as a tool for historical analysis).
165. See Paul Finkelman, Between Scylla and Charybdis:Anarchy, Tyranny and the Debate over
a Bill of Rights, in THE BILL OF RIGHTS: GOVERNMENT PROSCRIBED 103, 111 (Ronald Hoffman &
Peter J. Albert eds., 1997).
166. "A LANDHOLDER VI"
[Oliver Ellsworth] (Dec. 10, 1787), reprinted in 3 THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 490 (Merrill Jensen ed.,
1978).
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Ellsworth interpreted the Constitution, they did so, not with the complaints
of the antifederalists in mind, but with the view that the antifederalists had
been wrong all along.
Similarly, if the antifederalists are central to our constitutional
development, it is ultimately as foils for full-throttled nationalists like John
Marshall and Joseph Story and for less ambitious nationalists like Roger B.
Taney and Warren Burger. If an occasional modem Supreme Court justice
like Clarence Thomas cites the antifederalists, 67 it is at best a crude sort
of law-office history and not a sophisticated understanding and development
of antifederalist thought, such as Cornell presents. Supreme Court Justices
imposing the "new federalism" may find an antifederalist text here and
there to support a particular point, but the driving force behind this
jurisprudence is a function of late-twentieth-century conservative policy
goals and a reaction against the liberating jurisprudence of Earl Warren,
William 0. Douglas, Hugo Black, and William J. Brennan. Ironically, if
the "new federalism" Justices cite to the antifederalists, they are in the end
undermining their professed belief in originalism, 68 because their originalism is then predicated on the losers' vision, which the authors and the
ratifiers of the Constitution and the Bill of Rights clearly rejected.,69
IV. The Bill of Rights as Antifederalist Defeat: Or, Be Careful What You
Wish For, You May Get It.
Just as the antifederalists were losers in the writing and ratification of
the Constitution, so too were they losers in the writing and ratification of
the Bill of Rights. Although the antifederalists have some claim as
"founders" in the creation of the Bill of Rights, in the end, it is only a
167. McIntyre v. Ohio Elections Comm'n, 514U.S. 334,364-68 (1995) (Thomas, J., concurring).
168. See, e.g., Antonin Scalia, Originalism:The Lesser Evil, 57 U. CIN. L. REV. 849, 862 (1989).
169. Almost all references I have found to the antifederalists have been by conservative justices
in dissent. See Camps, Newfound/Owamonna, Inc. v. Town of Harrison, 520 U.S. 564, 631-32 (1997)
(Thomas, J., dissenting); U.S. Term Limits v. Thornton, 514 U.S. 779, 906-07 (1995) (Thomas, J.,
dissenting); City of Boerne v. Flores, 521 U.S. 507, 549-50 (1995) (Thomas, J., dissenting);
McIntyre, 514 U.S. at 373 (Scalia, J., dissenting); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 34243 (1979) (Rehnquist, J., dissenting); Elrod v. Bums, 427 U.S. 347, 378 (1976) (Powell, J.,
dissenting). Less commonly, the conservative justices have referenced the antifederalists in
concurrences or majority opinions. See U.S. v. Lopez, 514 U.S. 549, 586-88 (1995) (Thomas, J.,
concurring); Welch v. Texas Dep't of Highways & Pub. Transp., 483 U.S. 468, 482 (1987) (Powell,
J., concurring); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575,
584-85 (1983) (O'Connor, J., writing for the majority).
I have found only two instances where Justices who are not conservatives have used the
antifederalists.
In his dissent in United States v. Verdugo-Urquidez, 494 U.S. 259, 288 (1990)
(Brennan, J., dissenting) Justice Brennan has a single reference to Storing's THE COMPLEE ANTI-
FEDERALIST, but does not rely on antifederalist arguments. Justice Brennan has a more substantive
discussion of antifederalist thought in his dissent in Atascadero State Hosp. v. Scanlon, 473 U.S. 234,
247 (1985) (Brennan, J., dissenting).
2001]
Turning Losers into Winners
minor claim. They were neither the authors of the Bill of Rights, nor the
ratifiers. Many of the leading antifederalists actually opposed the adoption
of the amendments that Congress sent to the states in 1789. The antifederalist politicians understood that if Madison's amendments were passed,
their movement would be destroyed.
In 1789, a Congress dominated by federalists wrote a series of
amendments that were federalist in nature and consistent with the goals of
the federalists of 1787-88. As Cornell notes, the first Congress had only
two antifederalists in the Senate and fourteen in the House."17 By 1791,
the nation had ratified these amendments over the objections of most of the
leading antifederalists. Despite his overfondness of the antifederalists,
Cornell and I are not in disagreement on this point. He writes:
Interestingly, the amendments that were most widely proposed were,
not those that sought explicit safeguards for individual rights, but
those that attempted to shift the balance of power within the federal
system: prohibitions of federal oversight of elections and direct
taxation and explicit restriction of the power of the federal
government to those powers expressly delegated by the
Constitution. 171
Unfortunately, Cornell fails to explore this important insight. Had he
done so, Cornell might have reached the conclusion that the main thrust of
the antifederalists was neither democratic nor libertarian; rather, it was
local, particularistic, and selfish. This may indeed be a long-term thread
of some American dissenters,"7 as Cornell argues, but it is hardly one
that deserves the praise he heaps upon it.
A.
The Bill of Rights: Not What the Antifederalist Leaders Really Wnted
This position, of course, challenges the conventional wisdom that the
antifederalists were the ones who made the Bill of Rights happen. 7 3 An
understanding of how the conventional wisdom departs from the historical
reality begins by making a clear distinction between two kinds of
antifederalists-those who were opposed to the Constitution at all costs, and
170. P. 157.
171. P. 34.
172. The Ku Klux Klan and the White Citizens Councils come to mind.
173. See generally Bowling, supra note 122, at 223 (arguing that the political skill of James
Madison was more responsible for making the Bill of Rights happen than the philosophies of either the
federalists or antifederalists); Paul Finkelman, "A Well Regulated Militia":The Second Amendment in
HistoricalPerspective, 76 CHI.-KENT L. REv. 195 (2000); Finkelman, The Ten Amendments, supra
note 34, at 353 (explaining that the antifederalists advocated a bill of rights in ratification debates but
opposed the amendments introduced in the first Congress); Finkelman, A Reluctant Paternity, supra
note 34, at 301 (suggesting a diversity of cross-purposes among those favoring the Bill of Rights, all
of which were subordinated to Madison's desire to lessen opposition to the Constitution).
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those who were fearful of a constitution without a bill of rights. The
antifederalist leadership generally fell in the first group while much of the
rank-and-file were more likely in the second group.1
Madison and
other federalists divided the groups, pejoratively but nevertheless
accurately, into "honest" 75 and dishonest antifederalists. The "honest"
antifederalists feared for their liberty unless a bill of rights was added to
the Constitution. According to Madison: "These [men] do not object to the
substance of the Governt. but contend for a few additional Guards in favor
of the Rights of the States and of the people."' 76
'7
Most of the antifederalist leaders, however, were not "honest." 1
They did not want the Constitution ratified. The Constitution undermined
their political position and threatened their power base. In addition, it
created a strong national government that some of them genuinely feared.
Many believed that central government, especially in a large nation, must
inevitably become a tyranny.
In order to convince the rank-and-file that their fears were justified,
the antifederalist leadership often focused on the lack of a bill of rights in
the Constitution. It was an easy target. Americans were used to setting
out their rights and liberties in written documents. This habit can be traced
to the Magna Carta in England. By 1787, most of the state constitutions
had some form of a bill of rights or declaration of rights.178 Thus, it was
an easy argument that a constitution without such an explicit preservation
of liberty was dangerous.
But the demand for amendments was merely a stalking horse for the
real goal of the hardcore antifederalist leadership, which was to "strike at
the essence of the System," and either return to the government of the old
Confederation "or to a partition of the Union into several
Confederacies."' 79 They hoped that their scare tactics about the lack of
a bill of rights would succeed in defeating the Constitution. Indeed, the
174. Cornell argues in part for a more class-based analysis, asserting that "plebeian radicalism"
in Pennsylvania was the driving force behind the demand for a second convention. Pp. 140-41.
However, the rank-and-file would also include what Cornell calls "middling" antifederalists, who were
concerned about liberty, but also wanted stability. Id.
175. Letter from Tench Coxe to James Madison (June 18, 1789), in 12 PAPERS OF JAMES
MADISON 239 (Robert A. Rutland, et al., eds., 1977) [hereinafter MADISON PAPERS].
176. Letter from James Madison to Thomas Jefferson (Dec. 9, 1787), in 10 MADISON PAPERS,
supra note 175, at 312.
177. See supra note 175.
178. See Donald S. Lutz, The Pedigree of the Bill of Rights, in THE BILL OF RIGHTS:
GOVERNMENT PROSCRIBED 42, 56-59 (Ronald Hoffman & Peter J. Albert eds., 1997) (citing THE
FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS (Francis
Newton Thorpe, comp., 1909)).
179. Letter from James Madison to Thomas Jefferson (Dec. 9, 1787), in 10 MADISON PAPERS
supra note 175, at 312.
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very nature of their argument once again undercuts Cornell's view that the
"Anti-Federalists might have had the more difficult argument to
make.""180
On the contrary, it was the federalists who had to make the
harder argument-that the Constitution did not threaten liberty even though
it lacked a bill of rights.
But the federalists successfully made the
argument, and the ratifying conventions accepted the Constitution as
written.
As a sop to the thoroughly defeated antifederalists, some of the state
conventions appended proposed amendments to their ratifications. 8'
These proposed amendments tell us what was most important to the
antifederalists. In the state ratifying conventions, the antifederalists
proposed about 210 separate amendments, most of which called for substantial structural changes in the Constitution."l
Illustrative of the
structural demands of the antifederalists were the amendments proposed by
the Virginia convention. Virginia wanted to require a two-thirds majority
of the Senate for the adoption of all commercial treaties and a three-fourths
majority of both houses for all other treaties."
The Virginia anti-
federalists would have: required a two-thirds majority for all regulations
of commerce, mandated rotation in office for the president, prohibited a
standing army in times of peace without a two-thirds majority in Congress,
severely limited federal jurisdiction over what became the District of
Columbia, reduced the federal court system to "one supreme Court" and
admiralty courts, allowed for impeachment trials of Senators by "some
Tribunal other than the Senate," and limited the power of the national
government to collect taxes in the states.'1 4
180. P. 8.
181. See Richard E. Ellis, The Persistence of Antifederalism After 1789, in BEYOND
CONFEDERATION: ORIGINS OF THE CONSTITUTION AND AMERICAN NATIONAL IDENTITY 295, 297
(Richard Beeman et al. eds., 1987). Pennsylvania did not propose amendments, and thus losing
antifederalists there had to publish their demands for amendments in a separate pamphlet. See THE
ADDRESS AND REASONS OF DISSENT OF THE MINORITY OF THE CONVENTION OF THE STATE OF
PENNSYLVANIA TO THEIR CONSTITUENTS (Dec. 18, 1787), reprintedin 2 THE DOCUMENTARY HISTORY
OF THE RATIFICATION OF THE CONSTITUTION 617, 623 (Merrill Jensen, ed., 1976). Curiously, this
document places greater emphasis on individual liberty than most of the lists of proposed amendments
coming out of the subsequent state conventions. Herbert Storing notes that the Maryland antifederalists
tried to get the Convention to endorse their amendments in return for a promise that the antifederalists
would support the Constitution. But having just ratified the Constitution, the Maryland federalists
"brushed aside" the deal. 5 COMPErE ANTI-FEDERALIST, supra note 3, at 92 (headnote by Storing).
182. See Bowling, supra note 122, at 228. See also Ellis, supra note 181, at 297 ("The
amendments proposed by the states fall into two categories. The first limited the authority of the
central government over individuals.... The amendments of the second group were both substantive
and structural.").
183. CREATING THE BILL OF RIGHTS: THE DOCUMENTARY RECORD FROM THE FIRST FEDERAL
CONGRESS 3, 20 (Helen E. Veit et al. eds., 1991) [hereinafter CREATING THE BILL OF RIGHTS].
184. Id. at 19-21.
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The same sort of amendments were offered by antifederalists in other
states. Virtually all of the antifederalists wanted to revamp the judiciary
article and prohibit the creation of federal trial courts."5 Some accepted
the need for a national supreme court, others did not.186 New York's
ratifying convention, which was completely dominated by antifederalists,
proposed many of the same structural amendments that Virginia wanted.
In addition to what their counterparts in Virginia wanted, the New Yorkers
also hoped to amend the Constitution to: limit federal jurisdiction along the
lines that became the Eleventh Amendment, limit federal jurisdiction in
controversies between states only to cases involving land grants, prohibit
any federal treaty from operating against a state constitution (thus
undermining the Supremacy Clause), prohibit Congress from granting
monopolies, require a two-thirds majority in both houses of Congress to
borrow money or to declare war, provide strict temporal limitations on the
suspension of habeas corpus, require rotation in office for United States
Senators, prohibit federal capitation taxes, limit the president's power to
grant pardons, limit federal power to adopt bankruptcy laws, limit federal
diversity jurisdiction in cases involving land, and prohibit the creation of
intermediate appellate federal courts. 1"T Antifederalists in Massachusetts
and New Hampshire would have limited federal court jurisdiction,
prohibited the federal government from granting monopolies, and cut back
on the federal government's power to tax.' 8
The Pennsylvania antifederalists, in a document entitled "Reasons for
Dissent," offered more amendments that went to individual liberties than
the opponents of the Constitution did in any other state. Some of these
proposals-those dealing with the protection of individual rights and legal
due process-were later incorporated, almost word-for-word, in the Bill of
Rights. The essence, and in some places the exact language, of the Free
Exercise Clause 89 and the Free Press and Speech Clause"9 of the First
Amendment are found here, as is the essence and sometimes the exact
185. See 4 ELLIOr's DEBATES, supra note 65, at 246.
186. JACKSON T. MAIN, THE ANTIFEDERALISTS: CRITICS OF THE CONSTITUTION, 1781-1788, at
158 (1961).
187. See CREATING THE BILL OF RIGHTS, supra note 183, at 21-28.
188. Id. at 14-17.
189. Proposition I of the "Reasons of Dissent" declared that "[tihe right of conscience shall be
held inviolable." The Address and Reasons of Dissent of the Minority of the Convention of the State of
Pennsylvaniato their Constituents (Dec. 18, 1787), reprintedin 2 THE DOCUMENTARY HISTORY OF
THE RATIFICATION OF THE CONSTITUTION 617, 623 (Merrill Jensen, ed., 1976).
190. Proposition 6 of the "Reasons of Dissent" declared "[t]hat the people have a right to the
freedom of speech, of writing and publishing their sentiments, therefore, the freedom of the press shall
not be restrained by any law of the United States."
Id. Curiously, this is one of the very few
antifederalist documents to use the term "freedom of speech." The fact that Madison included
"speech" in the First Amendment may indicate his use of the "Reasons for Dissent."
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language of the Fourth, 191 Fifth, 92 Sixth, 9 ' Seventh, 9 4 and
Eighth'95 Amendments. Elements of the Tenth amendment are also
found here.'96 To the extent that elements of the "Reasons for Dissent"
were directly incorporated into the Bill of Rights, this document may be an
example of an antifederalist success and serve as a useful basis for an
originalist argument. But, in addition to their demands for the protection
of personal liberty, the antifederalists from Pennsylvania also struck at the
very structure of the government.
These Pennsylvania antifederalists would have limited the national
government's taxing, treaty, and judicial power and they would have
eviscerated the nation's ability to have a credible military defense. The
Pennsylvania minority declared that "as standing armies in the time of
peace are dangerous to liberty, they ought not to be kept up: and that the
military shall be kept under strict subordination to and be governed by the
civil powers."" 9
Beyond that, however, they wanted to prevent the
federal government from interfering with the state militias.
They
proposed:
That the power of organizing, arming, and disciplining the militia
(the manner of disciplining the militia to be prescribed by Congress)
remain with the individual states, and that Congress shall not have
authority to call or march any of the militia out of their own state,
without the consent of such state, and for such length of time only
as such state shall agree[.] 198
The antifederalists knew they had no chance of getting these structural
amendments through Congress. Their hope was to generate enough dis191. Proposition 5 of the "Reasons of Dissent" declared "[t]hat warrants unsupported by evidence,
whereby any officer or messenger may be commanded or required to search suspected places or to seize
any person or persons, his or their property, not particularly described, are grievous and oppressive,
and shall not be granted either by the magistrates of the federal government or others." Id.
192. Proposition 3 of the "Reasons of Dissent" declared "[t]hat... no man be deprived of his
liberty, except by the law of the land or the judgment of his peers." Id.
193. Proposition 3 of the "Reasons of Dissent" declared "[t]hat in all capital and criminal
prosecutions, a man has a right to demand the cause and nature of his accusation ... to be heard by
himself and his counsel; to be confronted with the accusers and witnesses; to call for evidence in his
favor, and a speedy trial by an impartial jury of his vicinage." Id.
194. Proposition 2 of the "Reasons of Dissent" declared "[t]hat in controversies respecting
property, and in suits between man and man, trial by jury shall remain as heretofore, as well in the
federal courts, as in those of the several states." Id.
195. Proposition 4 of the "Reasons of Dissent" declared "[t]hat excessive bail ought not to be
required, nor cruel and unusual punishments inflicted." Id. Except for changing "ought not to" to
"shall not," this is the exact wording of what became the Eighth Amendment.
196. The second paragraph of Proposition 11 asserted: "[tihat the sovereignty, freedom, and
independency of the several states shall be retained, and every power, jurisdiction, and right which is
not by this constitution expressly delegated to the United States in Congress assembled." Id. at 624.
197. Id.
198. Id. at 151-52.
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satisfaction with the new system of government to create demand for a
second convention to rewrite the Constitution." The stalking horse for
the second convention movement was the call for a bill of rights. If the
people did not have their liberties protected, then they would demand a
new convention to do so.
Madison shrewdly undermined this movement by giving the people
what they wanted-a bill of rights-but not giving the antifederalist leaders
what they wanted-either a new convention or structural amendments. The
antifederalist leadership was thus angry and frustrated when it saw
Madison's amendments. Aedanus Burke, one of the few antifederalists in
the House of Representatives, complained that the amendments Madison
wrote were "frothy and full of wind, formed only to please the palate; or
they are like a tub thrown out to a whale, to secure the freight of the ship
and its peaceable voyage."' His ally in the Senate, Richard Henry Lee,
dismissed them as "not similar" to the amendments proposed by the
Virginia ratifying conventions."'
George Mason, who is generally
viewed as a champion of individual liberty, considered Madison's support
for amendments a "[flarce," and believed his proposals were "[m]ilk &
[w]ater [p]ropositions. "2 When he saw the final amendments proposed
by the House he was somewhat happier, because Mason, unlike some other
antifederalists, was committed to protecting fundamental liberties for white
people; nevertheless, Mason was not entirely pleased with the result. He
told Congressman Samuel Griffen what would make him an enthusiastic
backer of the new form of government:
With two or three further Amendments-Such as confining the
federal Judiciary to Admiralty & Maritime Jurisdiction, and to
Subjects merely federal-fixing the Mode of Elections either in the
Constitution itself (which I think wou'd be preferable) or securing the
Regulation of them to the respective States-Requiring more than a
bare Majority to make Navigation & Commercial Laws, and
appointing a constitutional amenable Council to the President, &
lodging with them most of the Executive Powers now vested in the
Senate-I cou'd chearfully put my Hand & Heart to the new
Government. 203
199. Cornell has an excellent discussion of this movement at pp. 13643.
200. 1 ANNALS OF CONG. 745 (Joseph Gales ed., 1834) (quoting Burke).
On this issue, see
generally Bowling, supra note 122, at 223-51 (discussing the political motivations for the adoption of
the Bill of Rights).
201. Id. at 233 (quoting Lee).
202. Letter from George Mason to John Mason (July 31, 1789), in 3 THE PAPERS OF GEORGE
MASON, 1725-1792, at 1164 (Robert A. Rutland, ed., 1970) [hereinafter MASON PAPERS].
203. Letter from George Mason to Samuel Griffin (Sept. 8, 1789), in 3 MASON PAPERS, supra
note 202, at 1172.
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Lee and Mason wanted structural amendments, not simply declarations
of liberties and rights for the people. As aristocratic planters, their goal
was not to further democracy, or protect dissent, but to cripple the new
national government that might somehow, in some way, threaten their
autonomy, limit their ability to own slaves, or tax them. As the Senate
debated the amendments, Mason remained skeptical of "our present newfangled Government" that he feared would threaten "the Cause of
The ratification of the Bill of Rights did not mollify him.
Liberty. 2
He continued to complain about the structure of government and the power
of the president. 5 Mason's views illustrate, once again, how the
antifederalists were more concerned with amending the Constitution to redo
the structure of the government than to protect fundamental liberties.
B.
The Adoption of the Bill of Rights and the End of Antifederalism
The adoption of the Bill of Rights was at one level the crowning
Some antifederalists-those the
achievement of the antifederalists.
federalist Tench Coxe called "honest"2-were deeply sincere about the
need for explicit protections for personal liberty. Almost all federalists
believed their concerns were groundless,2' 7 but Madison and other federalists listened to this critique, and responded in the end with the first ten
amendments to the Constitution. Thus, we have the antifederalists to thank
for putting a Bill of Rights on the national political agenda. However, it
is crucial to remember that we have the federalists to thank for actually
writing the amendments, passing them in Congress, and ratifying them in
the states.
Cornell rightly understands that the antifederalists died as a political
force shortly after the adoption of the Bill of Rights. 2°8 The reason is
clear when we listen to the complaints of the antifederalists about
Madison's amendments. Burke, Mason, Lee, and other antifederalist
leaders understood that the ratification of the Bill of Rights would destroy
their movement because the majority of moderate antifederalists, especially
by 1791, had become convinced that the Constitution, if amended along
Madison's lines, would not threaten their liberty.
Indicative of the antifederalists' hostility to the Bill of Rights was the
reception they gave it in Virginia, where Patrick Henry managed to prevent
204.
note 202,
205.
note 202,
206.
note 175,
207.
208.
Letter from George Mason to Thomas Marshall (Oct. 16, 1789), in 3 MASON PAPERS, supra
at 1175.
Letter from George Mason to James Monroe (Jan. 30, 1792), in 3 MASON PAPERS, supra
at 1255.
Letter from Tench Coxe to James Madison (June 18, 1789), in 12 MADISON PAPERS, supra
at 239.
See Finkelman, supra note 33, at 195.
P. 166.
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ratification until late 1791. Henry understood that once again he had been
defeated by Madison and the federalists. The Bill of Rights was the final
nail in the antifederalist coffin that Henry himself had started to build when
he refused to participate in the process of creating a new government
because he "smelt a rat."
V. Beyond Ratification: The Jeffersonians, Jacksonians, and Confederates
and the Rejection of Antifederalism
After the demise of the antifederalist movement, the supporters of the
Constitution-the federalists of 1787-88-gravitated towards different
political coalitions led by two of the leaders of the ratification movement:
Alexander Hamilton and James Madison. By 1792 the outlines of two distinct political parties had emerged: the Federalists, led by Hamilton,
Washington, Timothy Pickering, and John Adams, and the DemocraticRepublicans, led by Thomas Jefferson and James Madison. These
coalitions, which grew into political parties by 1794, developed in response
to Alexander Hamilton's program of debt assumption, taxation, and
economic development.
At the center of this debate was Hamilton's proposal for a national
bank. The emerging Federalists supported the bank, the emerging
Democratic-Republicans opposed it. In arguing for the constitutionality of
a federal charter for the Bank of the United States in the early 1790s,
Hamilton offered an expansive and liberal interpretation of the
Constitution. Hamilton's program resembled an antifederalist nightmare,
with a strong central government using taxing, spending, and a flexible
interpretation of the Necessary and Proper Clause of the Constitution2°9
tocreate a truly national economy and a national system of laws.
Madison and Jefferson opposed some of Hamilton's programs,
especially the Bank of the United States, on policy grounds."' But they
often stated their arguments in constitutional terms.2 ' The debates of
1790-94 over the Bank, taxation, and economic development, were essentially debates among the federalists of 1787-88 over which direction the
nation should go and what they had intended when they wrote and ratified
the new Constitution.
The debate between the forces of Hamilton and Madison is well
known, and needs no exploration here. Cornell's discussion of these
events adds new twists to our understanding of these debates, pointing out
that the Hamiltonians would sometimes use antifederalist arguments to
support their positions, just as Madison and his cohorts used federalist
209. U.S. CONST. art. I, § 8, cl. 18.
210. See ELKINS & McKTRIzcK, supra note 23, at 229.
211. Id. at 229-33.
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arguments to oppose the bank.212 Cornell notes that the Federalists
adopted a "strategy of reading Anti-Federalist texts as proof that
Democratic-Republican concerns had been given a fair hearing at
ratification, ' 21 3 thus using the antifederalists to attack the Jeffersonians.
Participants in these debates learned that once "texts became part of the
public record, they could be read in ways that their authors would have
found shocking. Authorship of a particular text conferred no intellectual
ownership."2" 4 Cornell notes that the use of antifederalist arguments by
Federalists in Congress was particularly troublesome for those former
antifederalists who were now part of the Madison-Jefferson coalition.
They were forced to "distance themselves from the claims they had made
21 5
in 1788" or argue that their claims were being taken out of context.
Cornell's contribution here is important for understanding what
happened to antifederalism after 1791 and why it ceased to be significant
in American politics. Cornell's analysis and evidence supports the conclusion that the antifederalists of 1787-88 had been so concerned with
defeating the Constitution that they made any argument they thought would
get them a vote. In the heat of political battle, they did not care if their
arguments were inconsistent, wrong, or might be turned against them in the
future.
A.
Antifederalists as Jeffersonians
With the demise of the antifederalist movement, some opponents of
the Constitution-the "loyal opposition" of 1787-88-became followers of
Hamilton, Washington, and John Adams.216
Most antifederalists,
however, followed one of the leading federalists of 1787, James Madison,
217
and ended up in what became the Democratic-Republican Party.
The choice could not have been easy for many antifederalists. The
Federalists were led by Alexander Hamilton, the arch-nationalist who many
antifederalists believed was a monarchist. The Democratic-Republicans
were led by Thomas Jefferson, who seemed sympathetic to some antifederalist ideas. But the political genius behind this party was James
212. Pp. 221-23.
213. P. 224.
214. Id.
215. P. 225.
216. See supra subpart 11(C).
217. This party is known by various names: the Democratic-Republicans, the Republicans, the
Jeffersonian Democrats, and the Jeffersonian Republicans. In the 1820s members of this party, led by
James Monroe, called themselves National Republicans. In the late 1820s most members of this party
who supported Andrew Jackson began calling themselves Democrats. The Jeffersonian party is
generally seen as the father, or perhaps the grandfather, of the modem Democratic Party. See
generally, RALPH M. GOLDMAN, SEARCH FOR CONSENSUS: THE STORY OF THE DEMOCRATIC PARTY
(1979).
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Madison, the co-author of the FederalistPapers who was hardly less of a
nationalist than Hamilton. Moreover, if any single individual was responsible for the defeat of the antifederalists, it was Madison. His shrewd
political maneuvering at the Virginia ratification convention and in drafting
the Bill of Rights had defeated the antifederalists in Virginia and nationally.
The fact that almost all antifederalists became either Federalists or
Democratic-Republicans is both a tribute to their status as the truly "loyal"
opposition and reflective of the weakness of their own ideology and
movement. Illustrative of the "loyal opposition" of 1787-88 was James
Monroe, who voted against ratification in the Virginia convention but
eventually became President of the United States under the very
Constitution he opposed.2"' Significantly, as president, Monroe looked
far more like a federalist of 1787-88 than an antifederalist. In many ways
he also looked more like a Hamiltonian Federalist of the 1790s than a
Jeffersonian of 1801. As president, Monroe supported the Second Bank
of the United States, the nationalist jurisprudence of John Marshall, an
aggressive foreign policy shaped by Secretary of State John Quincy Adams,
and the internal improvements219 advocated by Henry Clay."
The
Monroe Doctrine itself smacked of precisely the kind of aggressive foreign
policy the antifederalists feared." Indeed, the administration of James
Monroe was about as nationalist, federalist (in both ratification and
Federalist party terms) as any in the nation's first half-century.
In order to accept Cornell's thesis-that the antifederalists were the
dissenters of the 1790s and beyond-we would have to recast Jefferson and
Madison as antifederalists. Cornell argues precisely this, but his argument
does not hold up particularly well. In the 1790s, the Jeffersonians opposed
particular policies of the Hamiltonian Federalists, but this opposition was
based on a position that was emphatically not antifederalist. The
Jeffersonians either opposed Hamilton on grounds of public policy-that is,
they did not like his ideas-or on the grounds that his policies violated the
Constitution as written. In either case, they did not endorse antifederalist
claims.
The antifederalists claimed the Constitution was dangerous precisely
because it allowed certain policies. Thus, when the Federalists pushed
through such policies, it would have been impossible for the antifederalists
to argue against their constitutionality. Indeed, the position of the
antifederalists was that the kind of policies they opposed were
218. NOBLE E. CUNNINGHAM, JR., THE PRESIDENCY OF JAMES MONROE 3, 15-26 (1996).
219. Id. at 185-90.
220. Id. at 189.
221. See id. at 156.
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Turning Losers into Winners
constitutional, which is why they wanted to defeat the Constitution. Only
the federalists of 1787-88, like Madison and Jefferson, were in a position
to argue against the policies of.Washington, Hamilton, and Adams on
constitutional grounds.
From Jefferson to James Monroe, the Democratic-Republicans held
the presidency and Congress. During this twenty-four year period they
expanded the national government and the military, and created an
aggressive foreign policy that led to war with England, attacks on Native
Americans, and economic embargoes, first against Haiti and then
Europe.'m They abandoned any pretense of strict constructionism when
it suited their needs, as reflected in the Barbary Wars, the acquisition of
Louisiana,'
or the chartering of the Second Bank of the United
States.2 4 Monroe successfully asserted American hegemony in the
Western Hemisphere, setting the nation's foreign policy agenda that still
holds currency today. These accomplishments can hardly be considered the
work of either dissenters or antifederalists. Jefferson's unilateral war
against the Barbary States, without a congressional declaration, is just one
example of the rejection of antifederalist ideas by the DemocraticRepublicans.
The antifederalists complained that the president, as
"generalissimo," would lead the nation into foreign wars. Jefferson and
Madison proved their fears correct.
Jefferson even abandoned whatever ideological or philosophical
objections he had to the suppression of the opposition press. He urged his
friends in the states to bring libel prosecutions against his opponents, which
was consistent with the notion of limited government that Madison had
articulated in 1787-88.'
But Jefferson also allowed his own federal
prosecutors to reject the ideology of the Virginia and Kentucky Resolutions
and the spirit of the antifederalists-by initiating federal common law
prosecutions against Federalist printers.'m When Jefferson declared in
his inaugural address: "We are all Republicans, We are all
Federalists," 7 he was even more correct than he realized.
A comparison of the Jeffersonians with the antifederalists reveals why,
in fact, the antifederalists were not the "founders" of the DemocraticRepublican party. The antifederalists asserted that the Necessary and
Proper Clause gave Congress virtually unlimited power.' 2 That is why
222. See Abraham D. Sofaer, The Power over War, 50 U. MIAMI L. REv. 33, 43-51 (1995).
223. For a discussion of Jefferson's qualms about the constitutionality of the Louisiana Purchase,
see PETERSON, supra note 58, at 770-76.
224. See Finkelman, supra note 25, at 367-86.
225. See People v. Croswell, 3 Johns. Cas. 336 (N.Y. Sup. Ct. 1804).
226. See United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).
227. THOMAS JEFFERSON, INAUGURATION ADDRESS (March 4, 1801), reprintedin THE LIFE AND
SELECTED WRIINGS OF THOMAS JEFFERSON 321, 322 (Adrienne Koch & William Peden eds., 1944).
228. 1 COMPLETE ANTI-FEDERALISt, supra note 3, at 28.
890
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they opposed the Constitution. Madison denied this in the Federalist
Papers and clearly articulated it in his opposition to the Bank of the United
States. 29 Similarly, Jefferson took the same stand in urging Washington
not to sign the Bank Bill." ° In effect, Madison and Jefferson rejected the
antifederalist claim that the Necessary and Proper Clause, properly
construed, was dangerous.
Similarly, the antifederalists claimed that under the Constitution the
Congress could threaten a free press." 3 Madison denied this in 1787-88,
and in fact said that a bill of rights was unnecessary to protect a free press
22
because Congress lacked any power to interfere with the press. 1
Madison and Jefferson made the same argument in 1798 over the Sedition
Act. Their point was not that the Constitution allowed such laws-which
is what the antifederalists said-but rather that Congress had exceeded its
authority in passing such a law.
Similarly, Andrew Jackson sounded more like a federalist of 1787-88,
or a Federalist of the 1790s, than like an antifederalist. His antinullification policy mirrors the response to the Whiskey Rebellion by
Washington and Alexander Hamilton. 3 It was as nationalist a position
as one could imagine. Jackson acted exactly how the antifederalists feared
the national executive would act: when faced with state opposition to
national policy, he responded by threatening to lead the army into a state
to suppress an insurrection. 34 Similarly, his Indian removal was as
impressive a use of national power as any federalist could have wanted,
and as high-handed a use of such power as any antifederalist could have
feared. Jackson's veto of the bill rechartering the Bank of the United
States was likewise an assertion of presidential power over the will of the
legislature that would have made the antifederalists shudder. They predicted the president would become a dictator, and "King Andrew," as his
opponents called him, surely was the personification of antifederalist fears.
He was also the personification of a national executive who could bring
"energy" to the national government, just as the federalists of 1787-88
wanted. 5
229. THE FEDERALIST No.44, at283-86 (JamesMadison) (Clinton Rossiter ed., 1961); 2 ANNALS
OF CONG. 1898 (Joseph Gales ed., 1791).
230. See ELKINS & McKITRICK, supra note 23, at 232-33.
231. 1 COMPLETE ANTI-FEDERALIST, supra note 3, at 65-66.
232. See Finkelman, A Reluctant Paternity, supra note 34, at 319.
233. For an extended discussion of the Whiskey Rebellion, see ELKINS & MCKRICK, supra note
23, at 461-74.
234. See ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON 95-96 (1945) (stating that
Jackson's actions during the nullification controversy "committed himl to doctrines on the nature of
the Union which frightened the States-rights fundamentalists among his supporters").
235. See Steven G. Calabresi & Christopher S.Yoo, The Unitary Executive During the First Half-
Century, 47 CASE W.L. REV. 1451, 1529-1530, 1552 (1997). It is worth noting that although Cornell
praises Van Buren and Jackson, he stops his book the year before Jackson became president.
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Since what I am saying here is somewhat of a radical notion, that goes
against conventional wisdom, let me restate it: the 1790s debate between
Hamilton and Adams on one side and Jefferson and Madison on the other,
was a debate between two groups of federalists. It was a debate over the
meaning of the Constitution among those who supported the document.
Similarly, the debates between Jackson and Chief Justice Marshall over
Indian removal, or Jackson and Clay over the Bank of the United States,
were fully within the context of the understanding of the Constitution as the
federalists saw it in 1787. Equally as important, the assertions of
presidential power in all of these cases were thoroughly and completely
"federalist" as the supporters of the Constitution understood it in 1787-88.
It is true that in response to the Sedition Act, Jefferson and Madison,
in the Virginia and Kentucky resolutions, offered up a states' rights
analysis of the Constitution. But, this was hardly an antifederalist critique.
These resolutions were in fact fully grounded in the federalist ideology of
1787-88. During the debate over ratification Madison had argued that the
national Congress had no power to regulate the press because no such
power was given in the Constitution." An antifederalist response to the
Sedition Act would have been "see, we told you so." The antifederalists
predicted tyranny, and they would have pointed to the prosecution of a
handful of Jeffersonian editors as exactly that. For the antifederalists, the
solution would have been a constitutional amendment, a new Convention,
or perhaps nullification. But, the response of Madison and Jefferson to the
Sedition Act was purely federalist. Throughout the ratification process
Madison had argued that the national government did not have the power
to pass such a law in the first place. Thus, Madison and Jefferson thought
that the Constitution was fine, but they argued that the party in power was
acting in an unconstitutional manner. A change in administration, not a
change in the constitutional structure, was all that was needed to fix the
problem.
If we are looking for an "antifederalist" tradition in this period, we
find it in the Hartford Convention in New England during the War of
1812," and the nullification movement in South Carolina in 1831-
236. See Finkelman, A Reluctant Paternity, supra note 34, at 319.
237. Andrew Siegel, "Steady Habits" Under Siege: The Defense of Federalismin Jeffersonian
Connecticut, in FEDERALISTS RECONSIDERED, supra note 99, at 207 (1998) (discussing the strong
republicanism of the Connecticut Federalists on the eve of the Convention). Siegel notes that the New
England delegates' final product at the "infamous" Hartford Convention was much more innocuous than
the convention's secessionist reputation merits. Id. The convention denounced the War of 1812,
.requested that New England be allowed to coordinate their own defense," and also proposed "a series
of constitutional amendments to protect New England's interests within" the federal order. Id. at 212.
Emphasizing the advancement of local interests over formal secession, a senior Federalist wrote his son
that "the object [of the convention] is not to dismantle the union, but to obtain relief from the pressures
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33.11 In both cases, however, this dissenting tradition was thoroughly
vanquished. The Hartford Convention was so disgraced that the Federalist
Party was never again a credible force at the national level in American
politics. 9 The nullificationists went into hibernation for almost thirty
years, emerging two political generations later as secessionists, who
ultimately replaced the antifederalists as the greatest political losers in
American political history.
Despite the fact that most antifederalists became partners in the new
regime, on reflection, it seems that Kenyon's characterization was in many
ways fundamentally on target. To be sure, Kenyon overstated the
argument, as Saul Cornell correctly demonstrates. But ultimately, the antifederalists were men and women of "little faith." They lacked faith in the
ability of their fellow citizens to create and to govern a great nation. They
feared almost everything, but mostly the future. And because of this, they
are the first identifiable class of losers in American political history.
B. A Final Thought: The Confederacy as an AntifederalistNation
Even if we consider the smallest common denominator of the
antifederalists-opposition to the U.S. Constitution-it is hard to find many
examples of the legacy of the antifederalists. From conservative to liberal,
most Americans have accepted the legitimacy of the Constitution and used
it, rather than arguments against it, to seek change and social justice.
Dissenting minorities-like the I.W.W. or birth control advocates,"'
abolitionists,24' civil rights advocates like Martin Luther King,242 and
of intolerable burdens." Id. (quoting Letter from Simeon Baldwin to Ebenezer Baldwin, Oct. 27, 1814,
Baldwin Family Papers, Sterling Memorial Library, Yale University).
238. RICHARD E. ELLIS, THE UNION AT RISK: JACKSONIAN DEMOCRACY, STATES' RIGHTS, AND
THE NULLIFICATION CRISIS 183 (1987) (noting that the nullifiers claimed an antifederalist heritage
rooted in Jeffersonian republicanism and manifested in the Kentucky and Virginia Resolutions);
WILLIAM W. FREEHLING, PRELUDE TO CIVIL WAR: THE NULLIFICATION CONTROVERSY IN SOUTH
CAROLINA 1816-1839, at52 (1965) (noting that Jeffersons's liberal philosophy was still dogma in South
Carolina during the Nullification controversy").
239. Richard Jensen, FederalistParty, in 1 ENCYCLOPEDIA OF THE UNITED STATES IN THE
NINETEENTH CENTURY, 457-58 (Paul Finkelman, ed., 2001). The only possible exception to this
demise of the Federalist Party at the national level was its brief resurgence during the debate over the
Missouri Compromise. Finkelnan, The Problem of Slavery, supra note 109, at 137-38.
240. DAVID M. RABBAN, FREE SPEECH INITS FORGOTTEN YEARS 67-69, 77-88 (1997) (noting
the Industrial Workers of the World's and birth control advocates' use of the First Amendment to
advance their policy agendas); see also Paul Finkelman, Cultural Speech and Political Speech in
HistoricalPerspective, 79 B.U.L. REV. 717, 734 (1999) (book review).
241. MICHAEL K. CURTIS, FREE SPEECH, "THE PEOPLE'S DARLING PRIVILEGE": STRUGGLES FOR
FREEDOM OF EXPRESSION IN AMERICAN HISTORY 231-38 (2000) (discussing abolitionist arguments
noting that the First Amendment protects minority speech); Finkelman, supra note 240, at 722.
242. "Letter from Birmingham Jail," letter from Martin Luther King, Jr. to his fellow clergymen
in Alabama (Apr. 16, 1963), in MARTIN L. ING, JR., WHY WE CAN'T WAIT 94 (1964) (presenting
2001]
Turning Losers into Winners
persecuted religious minorities,243 have turned to the Constitution for
protection. They have looked to the Federalists of 1789-1791, and their
political descendants, the Republicans of 1865-1870, for protection of their
rights. Rather than denouncing the Constitution, the most oppressed
minorities in America have embraced it.
The most obvious example of true antifederalist opposition to the U.S.
Constitution was the four-year experiment in high treason known as the
Confederate States of America. The southern secessionists might be seen
as the best example of a group that carried out the "dissenting tradition"
of the antifederalists.
The Confederacy certainly adopted much of the spirit and philosophy
of the antifederalists. It was a state-centered nation that stressed limited
national powers. The Confederate Constitution mandated rotation in office
as many antifederalists demanded. 2' It explicitly protected slavery from
national emancipation (as Patrick Henry and others had wanted), 5 but
at the same time gave the states a green light to develop their own local
rules on this, and many other aspects of public policy.
Some secessionists of 1861 may have seen themselves as creating a
government based on antifederalist principles, but a careful look at their
constitution suggests that this self-conception does not fully comport with
reality. On the contrary, the Confederate Constitution resembled, in many
of its important details, the Constitution of 1787, as amended by the Bill
of Rights. With the exception of some mostly propagandistic clauses on
slavery, 2' the Confederate Constitution looks pretty much like the U.S.
Constitution. While the antifederalists of 1787 complained bitterly about
the Necessary and Proper Clause of Article I of the Constitution, the
Confederate Constitution-makers adopted it word-for-word. While the
antifederalists howled at the idea that the national government might
suspend the writ of habeas corpus, the Confederates kept the same clause,
civil disobedience as a vehicle for resurrecting the Founders' conception of democracy as embodied in
the Constitution).
243. See, e.g., West Virginia State Bd. of Educ. v. Bamette, 319 U.S. 624, 642 (1943) (finding
that a state mandated flag statute that applied to all, even religious groups forbidden to salute flags,
transcended the free "sphere of intellect and spirit" guaranteed to those minorities by the First
Amendment); Cantwell v. Conn., 310 U.S. 296, 307 (1940) (striking down a Connecticut law
forbidding solicitation of funds or distribution of literature by religious groups unless approved by a
state official); and, in losing causes, Employment Div. of Oregon v. Smith, 494 U.S. 872, 890 (1990)
(holding that Oregon could deny unemployment benefits to a former employee discharged for ingesting
peyote for sacramental purposes because criminalization of peyote was not targeted at a particular
religious group); Reynolds v. U.S., 98 U.S. 145, 166-67 (1879) (upholding a conviction for bigamy
despite the defendant's membership and belief in the Mormon church).
244. C.S.A. CONsr. art. I, § 3, c.3; see also Finkelman, supra note 33, at 188.
245. See supra text accompanying notes 116-118.
246. See Paul Finkelman, "Let Justice Be Done, Though the Heavens May Fall": The Law of
Freedom, 70 CHI.-KENT L. REV. 325, 347-48 (1994).
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and vigorously used it. 247 The antifederalists feared a standing army,
while the secessionists of 1861 barely touched the military clauses of the
U.S. Constitution of 1787.
Thus, the Confederacy can be seen as embodying antifederalist ideas
and principles, such as rotation in office, limited government, and states'
rights, while simultaneously, and inconsistently, attempting to create a
modem national state. Ironically, the ultimate failure of the Confederacy
to survive was in part caused by the residual antifederalism among many
Confederate state governors and officials, who did not accept what might
be called "Confederate federalism."
Thus, infighting within the
Confederacy, as evidenced by the well-known refusal of governors in
Georgia and North Carolina to send food to "foreign troops" from Virginia
or South Carolina, critically undermined the Confederate war effort." s
VI. The Antifederalist Tradition and Dissent
Despite my criticisms of what Cornell has written, and of what he has
not covered, The OtherFounders is an important addition to our knowledge
and understanding of American history and constitutional law. I think
Cornell is wrong about the utility of antifederalist arguments for those who
wish to apply a jurisprudence of original intent. I also do not find the
antifederalists to be much of a role model for modem dissenters.
However, I agree with Cornell completely that "the ideas of the AntiFederalists . . . continue to provoke, inspire, and complicate our un-
derstanding of what the Constitution means."249 Cornell has greatly
enhanced our ability to read and understand the antifederalists. That is an
enormous achievement and a significant contribution to those of us who
take seriously the Constitution, and the arguments that helped shape it.
247. See Eric M. Freedman, The Suspension Clausein the RatificationDebates, 44 BUFF. L. REV.
451 (1996).
248. See EMORY M. THOMAS, THE CONFEDERATE NATION: 1861-1865, at 190 (1979) (discussing
Confederate governors' refusal to cooperate with the Confederate national government); JAMES M.
MCPHERSON, BATrLE CRY OF FREEDOM: THE CIVIL WAR ERA 855 (1998) (noting historians'
tendencies to attribute Southern defeat to internal divisions between states).
249. P. 307.