From Parchment to Power. - book review

Public Interest, Fall, 1997 by William A. Galston

WILLIAM A. GALSTON

In From Parchment to Power,(*) the eminent constitutional scholar Robert Goldwin has given us the first full narrative of the creation and adoption of the Bill of Rights. I take Goldwin's full subject to be not only this specific historical episode (as obviously important as it is) but also the nature of statesmanship in a democracy - the artful conjoining of political wisdom and popular consent. "Lesser democratic politicians," Goldwin observes, "try to satisfy public opinion by following the lead of the crowd, seeking out and doing whatever is calculated to be popular." Madison's statesmanship consisted, in part, in the ability to discern the difference between what the public was demanding and what it could be persuaded to accept. What could be of more relevance to our current poll-obsessed politics, in which abject, misguided fear of the people induces our politicians to avoid issues of great moment for our future?

Madison understood not only the relation between the people and their leaders but also the distinction between majoritarian victory and true consent on the most fundamental questions. Skirting outright rejection, the Constitution was ratified by a slender majority in the three largest states. While no state attached formal conditions as the price of ratification, many had drafted extensive lists of amendments (some 200 in all), and some had gone so far as to call for a second constitutional convention. John Hancock's Massachusetts formula - that his state would accede to the draft constitution "in full confidence" that amendments would be adopted by the new Congress - expressed the understanding of the key swing voters of the day, the moderate opponents of what had been wrought in Philadelphia.

The immediate difficulty was that the First Congress contained an overwhelming majority of Federalists. Their view was that they had bested their adversaries and stood under no obligation to compromise with them on any matter of significance, including amendments. Moreover, they argued, wasn't it most important to get the machinery of the new government up and running? Wouldn't taking time to draft and debate amendments be diversionary? Wasn't it wiser to wait to determine through experience how the new institutions were working rather than rushing to alter them before the ink was dry on the Constitution? Besides, hadn't the issue been hashed out at Philadelphia and again during the ratification debate? Federalists had objected to a bill of rights on the grounds that it was unnecessary (the Constitution was itself a bill of rights, said Hamilton), that it was inappropriate to republican government, and that it would be ineffective - a mere paper barrier to usurpations not otherwise prevented. Plausible arguments all. Indeed, Madison himself had articulated many of them in 1787. By 1789, however, he was virtually alone among the Federalist members of Congress in taking a different view.

As Goldwin tells the story, Madison understood that great changes are not made on the basis of slender majorities, that the ratification struggle was enough to adopt the Constitution but not to establish it, that it was essential to keep faith with those who had stifled their doubts about the Philadelphia constitution on the basis of a promise to revise it. Unlike the rest of his Federalist brethren, Madison believed that the constitutional phase of the Founding was not yet complete. To be secured, the Constitution would have to move beyond its initial status as the victorious emblem of a majority faction to become the charter of "We the People" as a whole.

But was this possible? Hadn't the depth and bitterness of the ratification struggle revealed an unbridgeable chasm between the victors and the vanquished? Madison believed otherwise: The most relevant division was not between Federalists and Antifederalists but between the leaders of the Antifederalist cause and their supporters. Many notables were concerned about the diminution of their state-based political powers under the new Constitution. By contrast, the people cared most about possible threats to individual liberty. It was Madison's object to marginalize the former by addressing the concerns of the latter.

The actions of the Antifederalists during the ratification debate provided an entering wedge for this strategy. Many states had divided their proposed amendments into two lists, one dealing with protections for personal rights and the other with alterations in political institutions. To the dismay of the Antifederalists in the First Congress, Madison drew his draft amendments almost exclusively from the first category. As Goldwin puts it (citing the late and much-lamented Herbert Storing), what Madison kept out of the Bill of Rights was as important as what he put in. Through the tortuous legislative process of 1789, this basic choice was never seriously challenged. Even a more explicit division of powers between the national and state governments (in what eventually became the 10th Amendment) was diluted by the repeated exclusion of the word "expressly," permitting an expansive reading of the necessary and proper clause.