J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Sunday, May 06, 2012

Responding to Responses to the Bill of Rights

The April 2012 issue of the William and Mary Quarterly arrived this weekend. Its articles aren’t available free online, but the Omohundro Institute publishes the book reviews for everyone. And in this issue that includes a detailed discussion of M.I.T. professor Pauline Maier’s Ratification: The People Debate the Constitution, 1787-1788, available as a series of P.D.F. files from this page (for now).

First are five essays responding to Ratification by other scholars: Todd Estes, Saul Cornell, Seth Cotlar, Maeva Marcus, and R. B. Bernstein. Maier herself responds to those comments, and then the five respond to her responses. Finally, Maier responds to the responses to her response to the responses to her book. And they could have gone on forever.

A clear division opens among the scholars in the conversation, as shown by how Marcus began her second essay:
After reading the comments of my fellow Forum participants, I came away thinking that perhaps I had read a different book from the one read by Professors Seth Cotlar and Todd Estes. . .
The big question is, as so often, whether this study gives enough attention to the people as opposed to elite politicians. Maier chose to examine ratifying the Constitution rather than writing it, a process that necessarily was more broadly based. But did that widen the focus only a bit to the elite politicians in each state? And what if those gentlemen were the biggest part of the story?

Along the way there are interesting exchanges like this, starting with Maier:
Although bills of rights were a popular issue in the state ratification debates, of the five states that both ratified and recommended amendments, only Virginia formally asked that a bill of rights be added to the Constitution.

However, Virginians who ardently supported that demand, such as Patrick Henry and Richard Henry Lee, were bitterly disappointed with the amendments the First Federal Congress proposed. Neither they nor, for that matter, anybody else—not Washington, or Jefferson, or Madison—referred to the twelve amendments proposed by Congress or the ten ratified by the end of 1791 as a “bill of rights.” When did that term become commonplace, and why?
To which Cornell replied:
Maier…places a bit too much confidence in the work of legal scholar Akhil Reed Amar, whose controversial study of the Bill of Rights claims that this term was not applied to the first ten amendments until late in the nineteenth century, when collective rights such as the Second Amendment morphed into individual rights during Reconstruction. If one looks closely at Amar’s sources, they turn out to have a clear bias that reflects his heavy reliance on case law.

To be sure, Amar and Maier are absolutely correct that the term Bill of Rights was not widely used in the years immediately following the adoption of the first ten amendments. I have found evidence that it began to gain some purchase during the Alien and Sedition crisis. By the time his law lectures were published in 1831, Henry St. George Tucker referenced “the bill of rights and written constitutions, both of the federal and state governments.” Two years later the eminent legal scholar and Supreme Court justice Joseph Story used the same phrase in his influential Commentaries on the Constitution. Story wrote that “at its very first session, [Congress] took into consideration the amendments so proposed; and by a succession of supplementary articles provided, in substance, a bill of rights.” In the time between the Alien and Sedition crisis and the Jacksonian era, the term had clearly entered American legal discourse.
Story was born in Marblehead in 1779, Tucker in Virginia in 1780. They were too young to have closely followed the original debates over amending the Constitution, so their writings represented the consensus of the next generation of American legal scholars. The first generation was divided enough about the meaning and weight of those amendments that they passed the Sedition Act. The ascendancy of the Jeffersonian Republicans—including Story and Tucker—might have made their interpretation of the first ten amendments as a Bill of Rights the American standard.

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