“a tub for the whale” — more on the historical contingencies that created our Bill of Rights

Will Baude at the Volokh Conspiracy points us to a lovely conversation between Gordon Wood and Scott Gerber about the use of history in law. Baude is mostly interested in Wood’s cautious, partial endorsement of the use of history by constitutional “originalists.” (He calls the Supreme Court’s type of history a “necessary fiction.”)

But for me, the real pleasure in the exchange is this delightful summary of Madison’s political maneuvering in picking certain items to enshrine in the Bill of Rights. It’s a little long, but very much worth reading:

QUESTION: Thank you both for coming and talking. I appreciate hearing your thoughts. This question is for you, sir. You mentioned at the beginning of your talk that you didn’t think the Founding Fathers even thought about the possibility of a debate like we are having today over gun control. But if they didn’t think about us having a debate over gun control, why would they need the Second Amendment?

ANSWER (GORDON S. WOOD): Because it was part of an English tradition. The right to bear arms goes back to English history—it goes back to the seventeenth century. So that’s all they were saying. It’s conventional wisdom for an Englishman to include such a right to bear arms. No big deal about it, nobody questioned it, nobody thought that, oh, “is that for the militia or is it just for the individual?” They wouldn’t have raised that issue. As far as I know, nobody made a big deal about the rights Madison listed in his proposed Bill of Rights, because they were essentially common law rights and a few of these traditional English rights . . . .

That’s why Madison initially didn’t think a bill of rights was necessary in 1787. In England the Bill of Rights of 1688 was a fence put up to guard against the preexisting prerogative power of the king; in England in 1688 Englishmen needed such a fence against this dangerous pre-existing encroaching power that threatened their rights. In America, look, said Madison, this is a government of limited powers—it’s a government of delegated powers. Power does not preexist—there is no prerogative power that needs to be fenced off. We’re creating, delegating, the power and we can pull it back if we need to. That’s why we don’t need a bill of rights. Madison had a very sophisticated argument, too sophisticated and too precious for the time.

Of course, once the notion of a Bill of Rights gets thrown out into the public arena it had such resonance for Englishmen, going back to 1688/89, that there was no stopping it. And especially Jefferson, of all people, picks it up and writes a letter to Madison, but also to a friend in Maryland, saying “where’s the Bill of Rights? My French liberal friends can’t believe we don’t have a Bill of Rights.” You can hear Madison groaning, “Oh my God, those French intellectuals, what are they doing?” Madison writes back to Jefferson a very sophisticated argument about why there is no Bill of Rights, but it just goes right by Jefferson’s head. Jefferson says, “What would my liberal French friends think?” Jefferson is the kind of knee jerk liberal who doesn’t think through things the way Madison does, and as far as he’s concerned, “what would my friends think” is all that’s on his mind. Madison didn’t publish his letter from Jefferson, but this Marylander did, and of course once it’s out in the public arena—“Mr. Jefferson in Paris says we have to have a Bill of Rights”—the Anti-Federalists say, “Ah, we’ve got an argument.” That was their best argument and they used it very effectively and put the Federalists on the defensive on behalf of the Bill of Rights.

Madison is very shrewd, though. He finally has to agree to pass a Bill of Rights to get elected to the House. You probably know that story: Patrick Henry, who controls the Virginia legislature, ices Madison out of the Senate; so poor Madison has to run for the House. Henry redistricts Madison’s district and puts up this young, very attractive candidate—Revolutionary War hero, which Madison was not—to oppose him, James Monroe. Madison has to actually electioneer—give a speech—which he hated to do. He thought it was unbecoming a republican—small r—and yet he does campaign—gives a speech—and in the speech he promises that if elected, he will promote a Bill of Rights, which he does.

But what he does is take the hundred and twenty—thirty, or a couple hundred, I think—of these rights suggested by the states in their ratifying conventions. He sifts through them, throws out the serious ones, which struck at the structure of the federal government, and keeps all the innocuous ones—the common law rights that everyone takes for granted. So when the Anti-Federalists see this they say, “This is a tub for the whale, Madison’s list of rights.” A tub for the whale being a metaphor for a diversion—that’s what mariners did when the whales were bearing down . . . they throw a tub overboard hoping to divert the whale to the tub. This is exactly what Madison’s Bill of Rights was in the minds of the Anti-Federalists. In the end, they’re angry at his Bill of Rights, that’s not what they wanted. They wanted really serious rights, in other words, encroachments on the strength of the federal government—limiting the president’s power, limiting the taxing power—these are serious rights, which again, were ignored by Madison.

He’s a good Federalist. He wants his national government. This is the way politics works. In this respect it wasn’t different then from now.

(I’ve added some paragraph breaks for clarity.)

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