Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 4

Americans have two constitutions: The Constitution of 1789 and the Bill of Rights/Civil War Amendments. The first finds gloom in human nature. The second radiates sunshine and light. Madison is involved in both, but they are based on different assumptions. The Constitution followed shortly after Shays’s Rebellion. The Founding Fathers assumed that passion of the moment and narrow self-interest often motivated ordinary people. A Republic would put representatives between the seats of government and the people. Large constituencies provided a large pool of talent from which to draw a representative. A large constituency would also check the impact of factions and passions on the seats of government by letting the cacophony of small interests cancel one another out. This was the Federalist approach.

The anti-Federalists lost on the Constitution but won on the Bill of Rights. Those recalcitrant to vote for the Constitution agreed if Madison would introduce a series of rights amendments in the first Congress. Madison obliged, and soon the Constitution had ten amendments, collectively known as the Bill of Rights. The anti-Federalists wanted a confederation rather than a federation. They supported states’ rights and begrudged most power given to the central government. In making their case, the anti-Federalists claimed that the states were the protectors of individual rights because they are closer to the people. The Bill of Rights limited the reach of the federal government but presumed the states would protect the rights and privileges of their citizens.

The main Constitution compromised the sovereignty of the states. The central government gained certain powers, the exercise of which was supreme to any competing state actions. The central government and the states dueled over the distribution of final power: sovereignty. The anti-Federalists insisted on these amendments as a check on central government power. The means were not entirely suited to the anti-Federalist end. Although the amendments did check the central government, most were rights reserved to the people, not the states. Because the anti-Federalists considered the states closer to the people, they inadvertently introduced the logic of a third sovereignty: the individual. The triumvirate slowly becomes operative after the Civil War Amendments, particularly the 14th.