So, a couple of weeks ago, we left the Constitutional debate with William Findley’s detailed, 22-point objection to the document.  The editors of the Library of America volume include a similarly detailed, point-by-point rebuttal, by an anonymous respondent under the pseudonym “Plain Truth.”  Some of his responses are weak, others are off the mark, but other score some points, and it’s interesting to see which are which.

Two of the themes that evolved early on were the lack of a Bill of Rights, and the stability of the tension between the states and the federal government.  While the concern is among the most serious, the argument here back and forth is among the weakest, in part because of the lack of historical reference points.  The Dutch and the Swiss had federal republics, but they were small, and the great threats came from outside, not inside.  The Roman Empire – always a point of reference – was more useful is worrying about the concentration of power in the executive, a completely different mal-distribution of power.

But the question of whether or not the tension between the states and the federal government could be maintained, or would eventually either consolidate or fracture the Republic, is one that has to be conducted almost entirely in hypotheticals.  It makes for a debate that we can evaluate in retropect, but one which must have been frustrating for those who weren’t committed to one side or the other.  The federal-state split also manifests itself in odd ways.  One letter in opposition to the Constitution, a “Letter from An Old Whig,” argues that the amendment process is too cumbersome, and that either no amendments will ever pass, or the country will tear itself apart trying to pass them.

Oddly, the debate between Findley and the rebuttal on this point could be about slavery – but isn’t, at least not in the way we think of it later.  Findley objects that Congress can’t ban the slave trade until 1808, and his respondent says that he agrees this is too long, but since the matter can’t be much worse than it is now, maybe at least by then it will be better.

The question of a Bill of Rights is rebutted with much the same logic that Wilson used in his original speech defending the new Constitution: it isn’t necessary, since we assume that Congress’s powers are exclusive, while state constitutions are inclusive.  Findley’s objection isn’t that this is wrong, but that he doesn’t trust that the Framers really mean it, or that future generations will live by it.  The debate over the Banks of the United States would show there was some real risk on this point, but even that debate was carried on with the assumption of enumerated power, that the burden of proof was on the Bank’s advocates.

And for you 2nd Amendment fans – and who among us isn’t a 2nd Amendment fan – there’s the response to Findley’s worries about a standing army.  “Plain Truth” claims that a standing army shouldn’t be a concern, since every man is a member of a militia, and what standing army could pose a threat to that?  For those of you who think that guns are only for personal defense, consider that long and hard.

Two other points about the tenor of the debate stand out, as well.  There’s another letter from Cincinnatus which reads like a blog screed.  The “Old Whig’s” letter starts off professing that he really wants to be persuaded of the Constitution’s goodness, at least as an experiment.  It’s not apparent whether he’s sincere, or is the Revolutionary Era equivalent of a seminar caller.  The “Plain Truth’s” point-by-point refutation reads like an expert Fisking.  In short, this is what robust, healthy political debate looks like.

In Ghosts of Constitutional Debates Past, I looked at some of the things that Centinel, aka Samuel Bryan, objected to in the Constitution, and how some of his projections about how power might migrate away from the original plan seemed to parallel the claims that the Progressives have made stick in order to distort the Framers’ initial plan.  The next few letters in the Library of America’s compilation of the debate likewise are from the anti-Constitutional party.  And they point out some of the things that they got very wrong.

One of Centinel’s worries was that the Constitution would create a permanent aristocracy.  But his concerns center not on the executive, but on the Senate.   Interestingly, Centinel’s analysis virtually places the Senate not in the legislative branch, but in the executive branch, since it has a role in approving treaties and confirming appointments.  The Vice President, of course part of the executive branch, is President of the Senate.  With a weak executive, Bryan is more concerned that we’ll see a hegemony of the Senate than of the Presidency.  He’s correct that Montesquieu prescribed a strict separation of the executive and legislative powers as a precondition of liberty.  But it’s the Presidency, with the help of a Congress that has delegated legislative power to the executive, and the complicity of favorable Supreme Court rulings, that has gotten there, not the Senate.

One of the recurring themes also was the preservation (or the alleged lack thereof) of the juries in civil cases.  Now, eventually this was rectified in the 7th Amendment (thank you, George Mason), but what’s interesting here is the rhetoric.  The anti-Constitutionalists assume that this was a deliberate act by the Convention, in order to help the higher courts usurp the lower courts, and to weaken liberties.   In fact, this point was debated in the Convention, in the context of a Bill of Rights.  But the reason that some opposed including it in the Constitution was that the laws varied from state to state, and that detailing which cases were appropriate for juries would be difficult.  (There are some civil cases that traditionally did come before judges rather than juries; in such cases “equity” law was said to apply.  I’m nowhere near an expert on what made a case an “equity” case as opposed to a jury case, and apparently the Conventioneers were similarly daunted by setting forth rules for the distinction.)

So, while Bryan and his cohort did get certain concerns correct, they missed others by a wide mark: it wasn’t the Senate that was the threat, and the fact that the Convention missed some elements didn’t imply a grand conspiracy to deprive people of their liberty.

UPDATE: After further reflection, the importance of juries in civil suits, which are  by definition property rather than criminal cases, reinforces the fact that property rights were seen (and ought to be seen) as identical with political rights.

I’d also point out that Centinel’s concern that the federal courts would inevitably trump the state courts in civil cases has also not borne out.  One instance is liability law, where the worse abuses have occurred in state courts (take asbestos, for instance), and the federal courts have been powerless to stop them.  The situation has only gotten better with the revisions of state law to make them more sensible.