American Will 1

INDIVIDUAL LIBERTYThe Antifederalists and the Fight for a Bill of Rights
Americans will elect a new president in 2016. We will choose from candidates with different backgrounds, records, and ideologies. But there’s one thing you can bet they’ll all have in common: Every single one of them will praise, with great feeling and fervor, American freedom.

We hear the word “freedom” tossed about so frequently by politicians that it rarely means what it once meant to the patriots who declared the right to it inalienable in 1776 and who secured it on bloody battlefields from Lexington to Yorktown. The next time you hear politicians invoking American freedom, ask yourself: Do they mean what our founding fathers meant? Do they even understand what the founders meant? Do they care? Leaders cannot be expected to defend principles they do not understand.

It is the job of each of us, particularly those of us in public office, to remember, first, where our freedoms come from, and, second, how and why the most sacred of those freedoms were written into the Bill of Rights of our Constitution. For a story of the former—where our freedoms come from—I would recommend the Bible, because we were endowed with our inalienable rights “by our Creator.” But for a look back at the latter—how and why those freedoms found protection in our Bill of Rights—read on. It’s the topic of this chapter.

There’s an old saying: Winners write the history books. And because the men who wrote and advocated for the Constitution succeeded in securing its ratification, history tends to remember them as white knights, and their opponents, dubbed the “antifederalists,” as the villains. But that is an oversimplification. Many antifederalists wanted to ratify the Constitution, but only if it included a Bill of Rights to provide explicit protection for liberties such as free speech, the free exercise of religion, the right to keep and bear arms, and the enduring role of states and state governments.1 Arrayed against the antifederalists’ demand for a Bill of Rights were such federalists as George Washington, James Madison, and Alexander Hamilton.

I have great respect for the federalists. In a way, they were the more idealistic of the two groups. I wish they had been correct in their belief that the structural protections of the Constitution would prevent the excessive growth of federal government at the expense of individual liberty and states’ rights. But I have a soft spot in my heart for the antifederalists. In the end, they were the side that was right. From a modern-day perspective—with the EPA threatening the economies of Louisiana and most other states by imposing job-killing regulations on our industries, with the Justice Department suing Louisiana to block school choice, and with the Obama administration waging a war on the free exercise rights of religious Americans—anyone can see that the federal government has grown beyond what anyone in the founding generation could have imagined. It is the realization of the antifederalists’ worst fears.

The antifederalists’ concerns about government remain our concerns. Does the federal government have too much power? Will leaders hundreds and thousands of miles away from constituents truly represent their interests? How secure are our God-given civil liberties?

What follows is the unlikely story of how a band of largely forgotten Americans fought for a Bill of Rights; how they won far more than they lost in the struggle over the Constitution’s ratification; and how they are responsible for the protection of the rights that have defined the American experience for more than two centuries.

This is their story.
July 17, 1788—State Ratifying Convention, Poughkeepsie, New York
One month into the state of New York’s convention to consider the ratification of the United States Constitution, Alexander Hamilton rose to deliver the most important speech of a life that had begun on a distant island in the Caribbean. There, he had seen the cruelty of slavery, and he had in turn developed a hatred of oppression. But it was also on the island of St. Croix that young Hamilton had been orphaned, and he had, perhaps as a result, learned to long for order, the kind of order children take for granted when their loving parents protect them. So, when Hamilton rose to address New York’s ratifying convention, he brought with him a love for freedom from slavery and from chaos; for liberty and order; for independence and union.

Union was very much on his mind this day. With so many states having already ratified the Constitution, Hamilton was sure that if his home state of New York voted not to ratify, it would be voting itself out of the Union. But could one of the most forceful advocates for a new, stronger federal government and an architect of the Constitution persuade his colleagues? In the first month of the convention, all evidence suggested that his opponents at the convention outnumbered him by more than two to one.

Hamilton began his speech by blasting the Constitution’s opponents for claiming to represent “our spirit of ’76.” He reminded them of the dark days that preceded America’s independence, when it was ruled by a king “three thousand miles off,” when Americans “had no share in the representation,” and when the British “claimed absolute power over us.” How could anyone compare that tyranny to the government proposed by the Constitution, which was “built on all the principles of free government”? His opponents were looking at the Constitution “only to find out the defects and not to discover its securities—and beauties.”2

This, however, was familiar ground. Hamilton had been tirelessly defending the Constitution’s “beauties” at the convention and in New York’s editorial pages (under his Federalist Papers’ pseudonym, Publius). Thus far, at least in upstate New York, those arguments had largely fallen on deaf ears.

Hamilton knew he needed to play his ace in the hole. Rather than defending the Constitution’s merits, he would paint a vivid picture of the chaos and disorder that would follow a vote against ratification. New York would be “out of the Union.” The state would be alone, with the nation’s “power of government” and “the wealth of the whole country against us.” New York City, whose inhabitants supported the Constitution and the trade that would come with it, would “warmly attach” to the federal government, depriving the state of “our port—the chief source of wealth.” Upstate New York’s isolation would require, ironically in light of opponents’ invocation of the “spirit of ’76,” an “alliance with Britain.” But even if Britain agreed to an alliance, “Who would wish again to come under her dominion?” New York could bid “adieu to liberty.” Only “despotism will follow.”

There was, though, an alternative, and supporting it were “distinguished patriots” who commanded far more admiration than the controversial Hamilton could ever hope to. “Hancock,” for example. The first man to sign the Declaration of Independence. And “Adams,” who “first conceived the bold idea of independence. He is for it.” So was “Franklin—this old grey-headed patriot looking into the grave.” These surnames—there was no need for first names, not with men as famous as Hancock, Adams, and Franklin—carried with them the history of an infant nation’s audacious defiance of taxes and tyranny. To oppose the Constitution was to oppose them—and that history.

But Hamilton saved the best for last. There was another advocate for the Constitution. A man whom “all parties . . . admired and put confidence in.” A man who “at the close of the war” was “at the head of a discontented Army” that would have made him a dictator if he had only said the word. But “did he take advantage of the situation of the army or country? No. He proved himself a patriot” by retiring to Mount Vernon. And last year, “This man came forward again and hazarded his harvest of glory,” because “he saw the work he had been engaged in was but half finished.” His name, of course, was “Washington.”

Having invoked the names of America’s most treasured patriots, as one might invoke saints in prayer, Hamilton asked, “Is it in human nature to suppose that these good men should loose [sic] their virtue and acquiesce in a government that is substanically [sic] defective to the liberties of their country?” To consider the question was to answer it.3

When Hamilton finished, according to The Daily Advertiser, “tears” filled the eyes of “most of the audience.”4 That audience included spectators who had, for a month, hung on Hamilton’s every word. But it also included antifederalist delegates, and The Daily Advertiser did not report on the tears—or absence of tears—in their eyes. They were still as opposed to Hamilton and the Constitution as they had been when he began. Or at least, they appeared to be.

There was, however, at least one opponent, the most prominent antifederalist, in fact, who was having second thoughts. This delegate may well have found Hamilton’s words as moving as did the teary-eyed spectators in the galleries. It was now clear they could no longer stand in the way of a new Constitution to govern a new nation. But it looked as if they would get a Bill of Rights that would alleviate their concerns about the need to preserve individual and state rights. The delegate was the leader of the opposition: a simple man with a funny name, largely unsung by history, with a crucial role to play in the destiny of the American republic.

With Hamilton’s eloquence still ringing in his ears, Melancton Smith rose, looked out across the convention floor, and spoke words as critical to the fate of the American union as any in the next seventy-three years, until a prairie lawyer from Illinois delivered his first Inaugural Address. If the man looked tired, his eyes rimmed with dark circles and his long hair unruly, it was understandable. The fight for liberty had taken its toll on Smith and his fellow antifederalists.
Ten Months Earlier, September 29, 1787—Philadelphia, Pennsylvania
The nation’s ratification debate began ignominiously, when four men burst through the doors of Major Alexander Boyd’s boardinghouse. The targets of their pursuit were two men—James M’Calmont and Jacob Miley. They were dragged from the house by force and taken through the Philadelphia streets. Their clothes were torn and their temperatures boiling.

These men were not petty criminals, but Pennsylvania legislators. And their pursuers weren’t police officers, but with the legislature’s sergeant-at-arms, who was ordered to apprehend M’Calmont and Miley at any cost. Both men were skeptics of the proposed U.S. Constitution—part of a group derisively named the “antifederalists” by their opponents. Their absence from the proceedings of Pennsylvania’s legislature was intentional; the men hoped that there would not be a sufficient number of legislators present—a quorum—to allow a vote to go forward on creating a state convention for the Constitution’s ratification.

Two weeks earlier, in this very city, delegates to the Constitutional Convention had finished their work. After a summer of debate and division, they had signed their names to a Constitution that replaced the Articles of Confederation, a governing structure put in place after the Revolutionary War that had proven disastrous.

Under the Articles of Confederation, state governments had wrecked the American economy with policies that caused inflation (by printing their own paper currencies) and frightened investors (by refusing to require debtors to abide by the conditions of their contracts). With no president, no federal courts, and no power to pass laws directly binding on the American people, the national government had no ability to correct these catastrophic policies or to quiet violent rebellions by desperate and destitute farmers ruined by the anemic economy.5

What had happened at the Constitutional Convention that summer promised salvation from the chaos and near-anarchy of the Articles of Confederation—but only if the required nine of thirteen states agreed to ratify the draft Constitution. And largely because many liberty-loving citizens were hesitant to adopt a Constitution whose framers had failed to include explicit guarantees of Americans’ most sacred civil liberties to protect them from an all-powerful central government, ratification was far from certain. This was what motivated M’Calmont and Miley—they feared approval of a document that might very well bring another George III to power in America.

When they arrived at the State House, M’Calmont demanded to “be dismissed from the house.”6 But the other forty-four legislators gathered there wouldn’t hear of it. They needed forty-six legislators to make the quorum. These two men weren’t going anywhere.

Suddenly, M’Calmont made a bolt for the exit. “Stop him!” spectators in the legislature’s gallery called out.7 After the crowd at the door physically blocked M’Calmont’s attempted escape, the majority voted to hold elections for the state’s ratifying convention as soon as possible—on the first Tuesday in November—with the convention itself to begin two weeks later. And with that, the final action on the final day of the Pennsylvania legislature, the fight to ratify the United States Constitution had begun.

It had not been pretty.

It had not been fair.

But it was a harbinger of things to come.