Losers:

As the chattering begins over George W. Bush's upcoming judicial appointments, much attention has been devoted to the so-called Federalist Society, the rightist legal organization that has been recommending candidates. Launched two decades ago by a clutch of conservative law students -- including current Secretary of Energy Spencer Abraham -- the Society has since colonized Washington power circles as well as numerous federal benches nationwide. Under Bush, this trend will likely accelerate. For example, The New York Times recently reported that President Bush is likely to name the Federalist Society's Peter D. Keisler to fill a vacancy on the U.S. Court of Appeals for the Fourth Circuit . Another feather in the Federalist Society's cap is the appointment of longtime member Theodore B. Olson to serve as U.S. solicitor general. Olson, of course, was the Bush team's lawyer in last December's case-of-the century Bush v. Gore.

Federalist Society types repeatedly excoriate liberal "judicial activism" of the Roe v. Wade variety, and praise "strict constructionist" judges who interpret the Constitution according to the Founders' "original intent." But their understanding of "original intent" is twisted, if not entirely backwards. In its name the Federalist Society lovingly invokes James Madison, Alexander Hamilton, and John Jay's Federalist Papers. And yet -- irony of ironies -- the group has helped spur a revival of the views of the historical Anti-Federalists -- the outspoken opponents of, and ultimate losers to, the Federalists in the original struggle over the Constitution.

The Anti-Federalists of the late 1780s spoke in a cacophony of voices; they were unified in nothing so much as their opposition to the Constitution. But by and large they tended to fear government centralization, which they suspected would result in tyranny. Thus, despite the obvious failure of the pitifully weak Articles of Confederation, the Anti-Federalists believed the new Constitution vested dangerous powers in the federal government. For this reason, historian Cecilia Kenyon famously derided the Anti-Federalists as "men of little faith" in 1955.

The Anti-Federalists' influence on the Constitution itself was relatively minimal. Sure, they won out in their demand that the document include a Bill of Rights. But they lost out on content. Federalist James Madison drafted the Constitution's first 10 amendments, and included none of the Anti-Federalists' demands to fundamentally restructure and decentralize the government the Federalists had designed.

Nevertheless, in the past 20 years, legal scholars and courts have rehabilitated the Anti-Federalists. Today, their anti-Big Government writings appeal not only to fringe militia gunslingers of the Timothy McVeigh variety, but to a wide range of academic constitutionalists. As the Ohio State historian Saul Cornell writes in his recent book The Other Founders: Anti-Federalism & the Dissenting Tradition in America, 1788– 1828, Anti-Federalists like George Mason, Patrick Henry, and Elbridge Gerry (not to mention pseudonymous writers like "Brutus" and "A Federal Farmer") were cited almost as frequently from 1982 to 1995 in law reviews as the historical Federalists. In other words, scholars have begun to interpret the Constitution based on the views of its opponents.

This is an academic phenomenon, but hardly without political import. For despite the fact that some liberal scholars have shown interest in the Anti-Federalists' populist tendencies, "the overall tenor . . . is that they're the darlings of the right," explains the Tulsa Law School professor Paul Finkelman, author of a recent article on the Anti-Federalists in the Texas Law Review.

Indeed, the trend of treating the Anti-Federalists as founders of the union they hoped to block began under the intellectual aegis of the Reagan Administration, where the Anti-Federalist distrust of centralized government had an obvious appeal. The Anti-Federalist revival was partly fostered by the right-wing political scientist Gary McDowell, whose work includes articles with titles like "Were the Anti-Federalists Right? Judicial Activism and the Problem of Consolidated Government" (1982), and "Federalism and Civic Virtue: The Antifederalists and the Constitution" (1987). McDowell was a head speechwriter for Reagan's second Attorney General Edwin B. Meese, the original proponent of "original intent" jurisprudence, and currently a member of the Federalist Society's "Board of Visitors" (apparently an honorary group including such conservative luminaries as Senator Orrin Hatch and Judge Robert Bork). McDowell was also a student of Herbert J. Storing, a Chicago School Straussian scholar whose seven volume collection The Complete Anti-Federalist (1981) became a dorm shelf staple for conservative law students. "That I think was the beginning of a modern efflorescence of interest in them," observes the Duke Law School professor Jeff Powell, who as early as 1982 characterized William Rehnquist's jurisprudence as more or less Anti-Federalist in an article in the Yale Law Journal.

As a result of the Anti-Federalist legal revival, judges and scholars are gradually rewriting American constitutional law to reflect the viewpoint of the losers of the ratification debates. Though there's no doubt that some Anti-Federalists were sophisticated political thinkers, from a historical and constitutional standpoint this interpretation is seriously wrongheaded. As the historian Garry Wills writes in his A Necessary Evil: A History of American Distrust of Government (1999):

To keep quoting [the Anti-Federalists] as the framers, as authors whose ethos pervades the very Constitution they denounced, is to commit the fundamental interpretive error Jefferson criticized in 1800, when he said that we should ascribe to the Constitution "a meaning to be found in the explanations of those who advocated not those who opposed it."

Nevertheless, this kind of thinking has filtered even into the deliberations and jurisprudence of the U.S. Supreme Court -- particularly states' rights opinions written by its most conservative members. Clarence Thomas probably cites Anti-Federalists most frequently; Antonin Scalia is also a fan. But so are slightly more centrist judges. In 1999's 5-4 Alden v. Maine decision, which limited federal power to enforce the Fair Labor Standards Act of 1938, Justice Anthony Kennedy's majority opinion remarked on the "well-known creativity, foresight, and vivid imagination of the Constitution's opponents." In dissent, Justice John Paul Stevens labeled the Court's federalism decisions an attempt to return to "the brief period of confusion and crisis when our new nation was governed by the Articles of Confederation" -- a weak government of a type the Anti-Federalists might have preferred.

The Anti-Federalist Society

The Federalist Society has been intimately linked to the Anti-Federalist legal revival; it comports nicely with the group's political ideology. The bibliography on the Society's website includes references to Storing and other writings on the Anti-Federalists, with the explanation:

The Anti-Federalists, Storing reminds us, were our Founding Fathers, too -- their debate with the Federalists will never be finally resolved, and it was largely through their efforts that the Bill of Rights was added to the Constitution. Storing explains their principles and arguments, many of which are just as applicable today.

Similarly, the Society hosted an influential symposium in 1993 in their lead publication The Harvard Journal of Law and Public Policy on "The Legacy of the Federalist Papers," which ended up being significantly devoted to the Anti-Federalists.

To hear Federalist Society members tell it, the Anti-Federalist critique of judicial activism has particular relevance. Testifying before the Senate Judiciary Committee in 1997 on the topic of judicial appointments, the Federalist Society's C. Boyden Gray -- chairman of the group's Business Advisory Council and former legal counsel to President George H.W. Bush -- invoked the Anti-Federalists extensively. "The Framers well understood that judicial activism was antithetical to democracy," Gray explained. He immediately continued: "The Anti-Federalists warned that an unelected, life-tenured judiciary was not accountable to the people and could lead to judicial tyranny."

Note how Gray blithely equates "Anti-Federalists" and "Framers" in this testimony. When I ask Duke's Jeff Powell whether it's accurate to call the Anti-Federalists "Framers," he responds, "No, that's ridiculous." In fact, as Powell points out, many leading Anti-Federalists skipped out of the Constitutional Convention in Philadelphia in 1787. Patrick Henry was invited but refused, saying that he "smelt a rat." Another Virginia Anti-Federalist, Richard Henry Lee, was also a no-show. Accordingly, these Anti-Federalists didn't "frame" anything -- though they were more than happy to bash the new Constitution once it was made public.

Nevertheless, these are the figures conservative jurists and legal thinkers would use to interpret the Constitution. Anti-Federalism has been particularly influential in burgeoning scholarly efforts to reinterpret the Second Amendment; Anti-Federalists, of course, felt an armed citizenry would serve as a crucial check on government tyranny. (At the Virginia ratification convention, where he attacked the new Constitution, Patrick Henry declared, "The great object is that every man be armed.") But as Paul Finkelman explains in the Texas Law Review, the attempt to discern the Founders' "original intent" by poring over the writings of the Anti-Federalists is "fundamentally misconceived." "If there is any 'original intent' to be gleaned from the antifederalists," Finkelman writes, "it is that the framers or ratifiers did not believe that the Constitution meant what the antifederalists said it meant and that the framers dismissed the fears of the antifederalists."

Yet somehow, conservatives and libertarians just can't resist the "give me liberty or give me death" rhetoric of Patrick Henry and other Anti-Federalists. For whatever reason, they seem to want the anarchic, decentralized confederation the Anti-Federalists tried to give us, despite the great courage and heroism of the nation's founders in uniting the states. "It's curious that they constantly cite these lamely pathetic losers in American history, rather than listening to Alexander Hamilton or James Madison," observes Finkelman. Conservatives love to style themselves as underdogs, and usually it's a calculated ploy. But when it comes to adulation of the Anti-Federalists, the label "underdog" isn't quite strong enough. Citing the Anti-Federalists as our nation's founders is sort of like flying the Rebel Flag in Mississippi. Some Southerners apparently can't get over the Civil War -- and some conservative constitutionalists can't get over the Constitution.

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