Today in Supreme Court History: September 27, 1787

9/27/1787: First Anti-Federalist letter by "Cato" is published.

Comments

[Brett Bellmore]

Always important to read the Federalist and Anti-Federalist papers together; Otherwise you’re just looking at one side of a debate. And the Anti-Federalists were actually fairly prescient about how things would work out, perhaps more so than the Federalists.

This is the combined edition I bought my son.

Really, my only complaint would be that the Federalist and Anti-Federalist papers would have been better interleaved in the order they were actually published. But that's a minor quibble.

[Mr. Bumble]

The Federalist and Anti-Federalist papers; early blogging at its best.

[Stephen Lathrop]

Bellmore, it is an anti-contextual quibble. At the time the Federalist Papers were being published and widely recognized, nobody knew or suspected that anything like anti-Federalist papers existed. A so-called, "combined edition," is thus a historically confusing anachronism.

For further explanation, read the Wikipedia article on the history of the "anti-Federalist papers."

[Brett Bellmore]

Seriously? Then why did the Federalists find they needed to humor them with a Bill of Rights, if nobody knew they even existed?

[Stephen Lathrop]

Bellmore, you seem to insist on assuming as true what the notion of anachronism—absent evidence of no-anachronism—contradicts. You seem to want your point to be historically accurate. Given that, better historical reasoning might speculate that inchoate opposition to ratification was widespread, gave force to more-salient threats from powerful local politicians. Problem is, you don't need that unknowable inchoate influence to get the result. You have Madison on record suggesting that it was state politicians' insistence on continuation of entitlement to untoward local power—power which they had grown accustomed to wield personally under the Articles of Confederation—that forced the concession on the Bill of Rights.

Of course, when you say of Hamilton, "He did NOT share the rest of the founders’ preference for small government," you invite an unrealistic assessment of the views of other especially-influential founders, including Washington, Franklin, John Adams, Madison, and James Wilson. Even Jefferson, philosophically an arch-revolutionist, was hardly a small government conservative in today's right-wing mold.

In general—like so many among today's political right wing—you seem to indulge an impulse to recast founding era history in a selective present-minded mold—a right wing mold, of course. America's founders were not modern right wingers. Nor were they modern left wingers. They were not modern anything.

If you want to invoke history, you must be prepared to meet historical figures on their own terms. Had you read enough of the historical record to understand that era, you would have found it an uneasy fit for almost every modern notion you can think of. The strangeness of it would baffle every expectation you brought to your research.

That is why present-minded moderns are unwise when they try to mine historical nuggets in support of modern agendas. They ought to find the distant past always much more unfamiliar than they had supposed. But confident that history's inherent strangeness is just a mis-reading of what seems so self-evidently correct today, they proceed assertively, to read the present back into the past.

You do that constantly. Because you have not read much in the historical record, you do it without any inkling. Like every other present-minded person, you assume unreflectively that today's context—constructed as it is almost exclusively out of raw material occurrences which post-dated the founding era—is nevertheless a proper yardstick to measure the distant past.

That is not so. Historical occurrences are properly interpreted only within context prevailing when they occurred. Every bit of accurately historical context dates earlier than events under study—so for the founding era, everything which happened after 1790 is utterly irrelevant.

Try to imagine how you would think if you knew absolutely nothing about what happened in the world after 1790. You would have to practically empty your mind to do it. And then fill it back up with pre-1790 intellectual history, material history, and culture about which you presently know very little.

Even if you suppose (mistakenly) that you have useful grasp of pre-1790 everything, the notion of ridding your mind of post-1790 experience and thought ought to be sufficiently imposing to sober you up. Give that some reflection the next time you venture your historical conclusions—for instance, about how committed to small government all the founders were, except Hamilton.

[David Nieporent]

At the time the Federalist Papers were being published and widely recognized, nobody knew or suspected that anything like anti-Federalist papers existed.

Huh? These things were published; that was the whole point. Everyone knew these things existed.

What they didn't know existed — because it didn't — was a discrete work known as the Anti-Federalist Papers. It was just a series of independent anti-constitution essays, pamphlets, etc. But that doesn't make it "anachronistic" to publish those arguments alongside the pro-constitution Federalist Papers.

[Stephen Lathrop]

Nieporent, it has always been true that a great deal gets published which passes without notice. Or which gets noticed without delivering influence.

Some historical influences may indeed operate without contemporaneous awareness. Arguably, fundamental economic factors can work that way. Opinion does not work that way. To make an argument that opinion was influential, I think you have to show contemporaneous notice of the influence.

The fact that the very notion of, "Anti-Federalist Papers," was an invention of 1960s-era scholarship suggests their contemporaneous influence had never previously been recognized. If that is accurate, then historical assessments which attribute the Bill of Rights to their influence deserve critique as potentially present-minded and backward-looking.

I have not studied the matter. Perhaps I am mistaken. Other than pure speculation about effects publication of each paper might have delivered, are you aware of contemporaneous historical evidence of notable political influence for the so-called, "Anti-Federalist Papers?"

[Dan Schiavetta]

Taniguchi v. Kan Pacific Saipan, Ltd. (decided September 27, 2011): granted cert due to Circuit Court split of authority; the Court subsequently held that "compensation to interpreters" recoupable by prevailing party as part of "costs" (28 U.S.C. §1920) did not include expense of translating documents, 566 U.S. 560, 2012 (Mariana Islands resort had won summary judgment against Japanese baseball player who fell through wooden deck; resort wanted to tax the expense of translating Japanese medical records into English, which totaled -- $5517.20?? they went all the way up to the Supreme Court for this? were the attorneys working for minimum wage?) (the reports all say Taniguchi was a baseball player but the accident happened in 2006, and he last played in 2001) (the oral argument, which was recorded, was memorably acted out in PuppyJusticeAnimated, https://www.youtube.com/watch?v=zNU6Y13gqZQ)

[Mr. Bumble]

Wonder which side (Federalist, Anti-Federalist) EV would take?

[Rev. Arthur L. Kirkland]

More practical: What does the modern American mainstream favor?

[Mr. Bumble]

Given the ignorance of history of so much of the population that might be difficult to determine.

[apedad]

Gotta agree with you there.

[CJColucci]

I've long wondered why, when trying to discern the original meaning of the Constitution, the fears of the anti-federalists (which, as Brett rightly points out, were largely vindicated) are not taken as seriously as the assurances of the federalists.

[CJColucci]

Why is there an Edit pencil on my post of 6 hours ago and on nobody else's? Not that I mind, just curious.

[Mr. Bumble]

Because you're special?

[Stephen Lathrop]

A note to Anti-Federalist fans. You are cheering for a team that never was.

Publication of the Federalist Papers was a thing in history. It was a planned collaboration among 3 principal authors. It had a goal, to promote ratification of the Constitution.

The so-called Anti-Federalist papers were not a thing at the time. They were a bunch of disjointed complaints, by authors who were not working in collaboration with each other. They had no unified goal. Interests expressed were various, from principled resistance to a more powerful government, to protection of vested local political power.

Because this mish-mash went unrecognized as a contemporaneous founding era political phenomenon, historical attributions of influence to add a Bill of Rights to the Constitution are overstated at best. A more accurate attribution would be that all the founders were well aware that established state political interests, particularly in Virginia, had power sufficient to threaten ratification. That was all that was necessary to get concession on the Bill of Rights question, and that is what accounted for it.

Actual historical recognition of the so-called anti-federalist papers had to await the labors of mid-20th century historians. Even their work to catalog various anonymous publications, and (often ineffectually) to struggle to attribute authorship, did not succeed as substantive proof of influence. What the so-called anti-federalist papers show as a matter of history is that various folks, for various reasons, did not want the new constitution ratified, and that few at the time took much notice of their efforts.

Of course, there is also a recent-history story to tell. About how modern anti-big-government conservatives have picked up on the historically spurious notion of anti-federalist papers, and used it to suggest an alternative history of principled resistance to the Constitution.

There were indeed pseudonymous articles published by people who preferred the Constitution not be ratified. There is little or no evidence that they collaborated. A historical phenomenon so disjointed and evanescent that it went unrecognized for nearly 200 years can hardly be counted an important historical influence.

[Dan Schiavetta]

It is a mistake to think that supporters of the Constitution were "Federalists". The Federalist Papers were written by three men (Hamilton, Madison and Jay) whose ideal of a strong federal government had been rejected by the Convention. Most of the delegates assumed that the document they hammered out created a less centralized system than what appears in the Papers.

[Brett Bellmore]

The irony is that the "Anti-Federalists" wanted a genuine federal government, while the "Federalists" were pushing for something closer to a unitary nation state. So the names are kind of swapped relative to their actual positions.

[Dan Schiavetta]

True. Though I can't think of a current example of such a government. There are governments that use the term "federal", such as Germany, but they are (even) more centralized than ours.

[not me]

The European Union

[Dan Schiavetta]

You’re right

[Brett Bellmore]

What about Switzerland? Seems rather federal in nature to me.

[Mr. Bumble]

Given its small size and homogeneous population a federal state would be much easier to establish and maintain. I think the same might be said for much of Europe.

[Brett Bellmore]

I was thinking the exact opposite: That one of the reasons Switzerland successfully maintains a federal system in the face of centralizing tendencies is it's linguistic heterogeneity. The same would go for the EU.

The US, by contrast, has a common language, which tends to blur the differences between states, make them seem more like mere administrative districts.

[Stephen Lathrop]

Most of the delegates assumed that the document they hammered out created a less centralized system than what appears in the Papers.

For all I know that could be true. It is a striking and interesting assertion. What makes you think it is historically accurate?

[Mr. Bumble]

Wow, what a breath of fresh air. Thoughtful comments all around.

[Brett Bellmore]

The Federalists got the Constitution, but the Anti-Federalists got their Bill of Rights. So it was a bit of a draw.

[Brett Bellmore]

To me, too, but I suppose they understood "interpreting" to mean somebody translating on the spot for somebody who didn't speak English, rather than document translation.

[Dan Schiavetta]

The statute allows taxation of "Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses".

The Court used the rule of construction, "Expressio unius est exclusio alterius", i.e., a listing of specifics implies the exclusion of other specifics. But "interpreters" can be easily construed as including translators of medical records. What if it was a deposition on written questions? Would the person putting answers into English be an "interpeter" or a "translator"?

[Stephen Lathrop]

The other difference is that the authors, although unrecognized for a time by many, were understood by almost everyone to be influential founders, writing with a purpose to impart knowledge of what the Constitution meant. Their purpose to focus debate on ratification was fulfilled.

The so-called anti-federalist papers achieved none of that.

[Rev. Arthur L. Kirkland]

A couple of dozen citations to original sources and scholarly analyses would have been more appropriate?

Is the two-link limit still enforced by this site?

[Bob from Ohio]

"Claims to be trained in the study of history"

He was a reporter/journalist, now a photographer. He has no claimed [that I can recall] history training, so I assume he has none. He certainly is not a professional historian, so by his own assertions, shouldn't be commenting on history.

His history posts are as worthwhile as his other posts.

[Brett Bellmore]

The only bad guy I see in that story is Hamilton, who I like to say was planting an an acorn to get an oak tree; He did NOT share the rest of the founders' preference for small government. But as I said, I've long thought the Anti-Federalists proved the more realistic about how things would go.

The Articles of Confederation clearly weren't working out, but in my opinion, the Constitution overshot the mark in correcting things.

[Mr. Bumble]

"The so-called anti-federalist papers achieved none of that."

They made the argument for the eventual enactment of the Bill of Rights.

[Mr. Bumble]

...and as you noted below the Articles clearly were not working. So what were the options?

The Colonies fought a war for independence as the "United States of America". They won their independence from Great Britain and their original attempt to remain united under the Articles of Confederation was proving to be woefully inadequate. Seems they had two options: Devolve to thirteen separate nations of try a new path forward.

[Brett Bellmore]

One option was to do the job they'd been sent to Philadelphia for: Originate amendments to the Articles, instead of junking them and starting over.

Another option would have been to originate a new constitution that was somewhere between the Articles and the Constitution in terms of centralization of power, that better addressed the Anti-Federalists' concerns.

[Mr. Bumble]

Were the Articles so flawed that they were beyond fixing?

I admit to not being well read enough on the matter and that's why I am asking.

[Brett Bellmore]

I wouldn't say the problems were limited to that.

Yes, the central government was starved for revenue, because it couldn't directly tax anybody, and couldn't enforce it's claims for revenue from the states.

Amendments to the articles had to be agreed to unanimously. Maybe feasible for 13 states, but not scaleable.

They lacked the power to compel attendance by members of the legislature, so it lacked a quorum most of the time.

In fact, it was so weak that it could have been strengthened greatly and still not have centralized things as much as the Constitution did.

[Ridgeway]

I was reading something recently (cannot remember where) that claimed Patrick Henry was actually significantly less influential than he is made out to be.