Date: Thu, 14 May 2009 02:19:49 -0400 (EDT) From: Mitch Golden Subject: Regarding "Federalists and Anti-Federalists" Dear Prof. Sunstein: I am a bit behind on my subscription to the New York Review of Books, and since I am rather late to write, I will direct to your e-mail box rather than the editors' my comments on your interesting NY Review of Books article "The Enlarged Republic - Then and Now". My concern is that your article's description of the ratification controversy is that commonly taken by lawyers, which is at significant odds to that pursued by historians of the period. The legal approach takes all parties' words at face value, and portrays the battle as a "clash of ideas". Though the historians are also interested in the ideas expressed, the material situation - including the economic position of the various contending interests - is given far more weight. I believe that in many ways, the "legal" approach misses the deeper meaning of what was going on. In general, it overemphasizes the arguments of the Federalists (especially the Federalist Papers) and gives short shrift to their opponents. Often, removing arguments from their particular context will cause confusion regarding their true meanings. As an example, consider Federalist 10, which you discuss at some length. This is conventionally taken as an argument for minority rights, for example religious, and how they are protected in a large republic. It is likely to be understood somewhat differently when one reads it in conjunction with the virtually universal Antifederalist position that the Constitution would empower the wealthy Few to oppress the Many. If one looks more carefully at Federalist 10, one sees that religion is mentioned only twice, and with no specificity regarding the threat to or from a religious faction. In contrast, what seems to me a more historically sensitive reading is that the minority that will be protected by the large republic is property holders, against the depredations of a leveling majority and its legislature. It is the "most considerate and virtuous citizens" who are complaining about the current government, and the goal of the new arrangement, quite specifically, is to protect among other things "the possession of different degrees and kinds of property". This sort of thing was likely to be top of mind in the aftermath of the Shays Rebellion, rather than the minority civil rights issues we have been concerned with in the last 50 years. Yet Shays is not usually discussed by those, such as yourself, construing Federalist 10. (Consider who would be for and against Publius's list of "improper or wicked projects" you quoted.) The discussion in your article gives short shrift to the Antifederalists when it claims that Publius says that the Supreme Court would interpret the Constitution via a process of "judicial review". Actually, the closest Publius comes to something approaching this position is in Federalist 78, where Hamilton admits that in the event a legislative act contradicted the Constitution, the Court would uphold the Constitution and not the new law. Moreover, Publius muddles this somewhat in Fed 81, when he says that the Constitution doesn't actually encourage the Supreme Court to do this: "there is not a syllable in the plan under consideration which *directly* empowers the national court to construe the laws according to the spirit of the Constitution...". With our 20th-21st century relativistic worldview we take it as obvious that it's not possible to determine a conflict of a law and the Constitution without interpreting them both, but that is not necessarily the way that it would have looked to the founders, before Marbury v. Madison. Publius seems at pains to consider this issue both straightforward and rare. Actually, a far more persuasive and prescient analysis of how the Supreme Court would work in practice and that "interpretation" would be a part of its duties is in the Antifederalist Brutus' (probably Robert Yates, a NY judge) articles XI and XII - to which Hamilton seems to be replying. It's noteworthy that Brutus found the "general and indefinite terms" of the Constitution as lending themselves to the enhancement of the national government's powers against the those of the states, which turns out in retrospect to have been dead on. I am neither a lawyer nor a historian. (I am actually trained as a physicist, and was on the Harvard faculty in the early '90s.) I write because I have an abiding interest in the ratification debate and what it teaches us, and a deep desire to see it better addressed in American legal discourse. One hears (especially on the political Right) declarations that this or that judge is following the "original intent" of the founders, without evidence that he is marshalling any knowledge of the founders or their times than that afforded by a none-too-deep reading of the Federalist Papers. My bigger hope is, therefore, to urge law schools (by way of you!) to take a more historic approach to the subtleties of the ratification and its time, of what the worldviews of the contending parties were, and a less olympian view of the side that won. Mitch Golden