The Power of Nine: Federalists, Antifederalists, and Natural Law Synthesis in the Ninth Amendment

Part One in a Four-Part Series

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

-Ninth Amendment to the United States Constitution, 1791

Introduction

In an 1807 letter, John Adams wrote to Mercy Otis Warren, stating, “I was always for a free republic, not a democracy, which is as arbitrary, tyrannical, bloody, cruel, and intolerable a government as that of Phalaris with his bull is represented to have been.”[1] Adams’s reference to Greek tyrant, Phalaris, and his brazen bull—which was used to roast people alive—is telling. Democracy may be held today as among the highest values of the American system of government, but the American founders looked upon democracy with suspicious eyes. Antidemocratic notions can be jarring and displeasing to modern sensibilities, but such reactions are commonly due to a lack of understanding regarding the framers and their devotion to Natural Law philosophy. Such an understanding can only be realized through an analysis of the theory of Natural Law.

Natural Law philosophy subscribes to the notion that individual rights are fundamental, inherent, inborn, and precede government. Unlike legal positivism, which asserts that rights are established and endowed by government, followers of Natural Law believe that rights are derived by nature, and nature’s God, and that the only legitimate form of government is one that protects individual inalienable rights. It is a view commonly rejected by those who believe in the administrative state and the virtuousness of institutions. Natural Law does not find a lot of supporters from those who seek to enlarge government or expand its powers, because the very notion of Natural Law philosophy limits governmental powers to that which protects individual rights of life, liberty, property, and conscience. There are important historic exceptions to this, however. For example, northern abolitionist and Secretary of State from 1861 to 1869, William Seward, asserted the supremacy of the “higher law”[2] the nation was beholden to which superseded any supposed protections the U.S. Constitution held to retain slavery. Seward stated that “one who is equal to another cannot be the owner or property of that other… [slavery] is repugnant to the law of nature…”[3] This example underscores Natural Law tradition in American philosophical thought. Thus, Natural Law sentiment, which flowered during the Civil War era and provided the moral and philosophical reasoning for slavery’s obliteration, had its seed planted in the founding era. This was the same ethical argumentation which had informed the political thinking of the framers. It provided the ideological foundations behind the debates over a new system of government during the late 1780s, and it underlies the synthesis of Federalist and Antifederalist thought enshrined in the Ninth Amendment. However out of vogue today, Natural Law informed the founders’ worldview.

Political scientist Michael P. Zuckert states, “Rights in their proper sense arise when human beings come to recognize a need for reciprocity in rights, when they recognize that to claim a right for oneself requires accepting the same right in others. That system of mutual recognition constitutes the system of natural duties correlative with natural rights.”[4] Zuckert points to a paradox of the American political tradition of obsessing over the concept of rights. “Although the theme of rights obviously goes back to the founding era, those who are concerned with rights in the contemporary context hardly look to the founding period on the question, while those who study the founding have more or less abandoned the perspective of rights.”[5] This is unfortunate. The challenging issues of the founding era, including slavery and the subservient role of women, have muted historical scholarship concerning the philosophy of rights during the American founding. The result has been a dearth of historians taking up the matter. Instead, the discussion has been dominated by political scientists and legal theorists, if the discussion has occurred at all. Historians have room to enter this territory, and the field would benefit from it greatly. An historical examination of how Natural Law philosophy informed the Constitution and the Bill of Rights—with particular focus on the Ninth Amendment—is long overdue.

The framers imbued the United States system of constitutional government with crucial Natural Law-based safeguards. These safeguards were championed both by supporters of the ratification of the U.S. Constitution, the Federalists, and those against ratification, the so-called Antifederalists. These protections included independence of the courts and the powers of the Senate, advocated by Federalists, and the protection of individual rights—freedom of speech, conscience, the press—by Antifederalists. A synthesis of Federalist and Antifederalist Natural Law philosophy can thus be found in the Bill of Rights generally and the Ninth Amendment specifically, which will be the focus of this work.

The governmental system of the United States has been successful because of the constant push and pull between democratic republicanism and liberal individualism. This tension is illustrated in modern political parties—Republicans and Democrats, Greens and Libertarians, etc. The same stress between democracy and liberalism, local control versus national power, and the inherent rights of the individual contrasted with the needs of the collective, played out in the earliest days of the republic. These opposing yet complimentary creeds were argued by Federalists and Antifederalists alike. They were not advocated across cleanly-divided lines. Indeed, while Federalists largely argued for concentration of centralized power in a new national government in the late 1780s, Antifederalists supported certain liberal/undemocratic—even antidemocratic—principles which would secure individual rights. Additionally, even as Antifederalists raised concerns about protecting rights of speech and the press, the Federalists inserted certain individual rights protections into the body of the Constitution, including the right of habeas corpus.[6] It is important to note this, because Federalists and Antifederalists often argued upon similar principles. Both raised concerns about concentrated power in the wrong hands. It should thus be stated that democratic principles of the American system of government are essential to its strength and its agile ability to reform itself. Democracy, however, is merely half the story, and it was Federalists as well as Antifederalists who ensured undemocratic protections against abuses of power and the violation of individual rights.

This article will offer an examination of the twin pillars of historiography concerning the motivations behind the drafting and ratification of the United States Constitution, Charles Beard’s economic thesis and Bernard Bailyn’s ideological thesis. It will further deliberate on the ratification debates which followed the drafting of the Constitution and survey how the debates informed the adding of additional amendments, which came to be known as the Bill of Rights. One of the most crucial characteristics of the American system will also be discussed: the independent judiciary, including its deliberately undemocratic nature at the level of the appellate courts. Finally, the Ninth Amendment will be scrutinized because of its unique status in law and American intellectual history. The Ninth Amendment, perhaps more than any other single sentence in the entire Constitution, reflects the Natural Law philosophy of the Federalists and Antifederalists.

A Century of Historiography

To properly approach a substantive discussion of how Natural Law informed Federalists and Antifederalists during ratification of the Constitution and Bill of Rights, some attention must first be given to the historiography over the past century regarding the motivation behind the Constitution. The first century of scholarship that followed ratification of the Constitution was of the classically Whig, nineteenth-century, approach: honoring the accomplishments of the framers without questioning too closely the motivations and self-interests of the participants. Conflicting interpretations then replaced this orthodox view in the twentieth century. Two separate and opposing viewpoints would vie for preeminence, and continue to do so in the twenty-first century. These opposing interpretations can be described as the Economic Thesis by Charles Beard, and the Ideological Thesis by Bernard Bailyn.

 In 1913, Charles Beard ushered in a Marxist-influenced school of thought, often referred to today as the Progressive school, which examined the economic motivations of the framers. Beard’s An Economic Interpretation of the Constitution (1913) argues that economic self-interest largely defined and explained the desire for a stronger central government on the part of the Federalists. Beard contends that the “overwhelming majority of members, at least five-sixths, were immediately, directly, and personally interested in the outcome of their labors at Philadelphia, and were to a greater or less extent economic beneficiaries from the adoption of the Constitution.”[7]  The economic thesis soon overtook the historical field of the early American republic and dominated the conversation for the next several decades. Beard’s thesis perfectly fit into the Progressive school method, which became the prevailing view and approach to history in the first half of the twentieth century. More than merely fitting into a certain psychological matrix at a convenient moment in time, however, Beard’s economic thesis offered a new and credible critique of the framers’ motivations. Many of his arguments were convincing and shed new light upon the founding era. Beard asserted that support for the U.S. Constitution was carried principally by interests connected to “money, public securities, manufactures, and trade and shipping.”[8] At the heart of Beard’s economic thesis is his assertion that the U.S. Constitution was “essentially an economic document based upon the concept that the fundamental private rights of property are anterior to government and morally beyond the reach of popular majorities.”[9]

Among the many supporters of the economic thesis of the Constitution was Jackson T. Main. In the 1950s and 1960s, Main offered more primary data than Beard had done to argue the thesis of economic self-interest and that support and rejection over ratification fell along class lines. “Main was close to Beard in his emphasis on class conflict—and he had the evidence of contemporary testimony to prove it.”[10] Main was arguably the most loyal champion of Beard and the economic thesis in the middle of the twentieth century. Rather than focusing too much on the limitations of Beard’s work, which Beard himself had admitted was “’frankly fragmentary,’ designed to open new fields for research rather than to present a completed study,”[11] Main sought to flesh out the economic thesis and bring forth a more comprehensive analysis. Doing so, Main became more resolute regarding the economic thesis by affirming that the “fact is that… more than half of those who signed the constitution, were rich, and others were well to do… [The Federalists comprised] precisely what Beard said they were: a ‘consolidated group.’”[12]

Supporters of the economic thesis in the twenty-first century have attempted to utilize still more hard data to prove their case. Economist Robert A. McGuire, in his 2004 book, To Form a More Perfect Union: A New Economic Interpretation of the United States Constitution, introduced a series of statistics and analyzed the occupations of the Federalists—more so than any of his predecessors—to analyze their economic motivations. In the opening of To Form a More Perfect Union, McGuire states, rather practically, “Constitutions are the products of those who frame and adopt them.”[13] McGuire also utilized, to great effect, the arguments of the framers themselves, stating that “whether real or imagined, economic and other problems were used to justify the Philadelphia convention.”[14]

A crucial difference exists, however, in the original economic thesis of Charles Beard and the more recent economic thesis of Robert A. McGuire. Beard utilized a form of economic determinism to assert that economic self-interest was the motivator for creating a stronger central government on the part of the Federalists. McGuire’s newer thesis is more nuanced and does not entirely discount ideology. Nor does McGuire question why these men of social and economic prominence would be the ones to participate in this restructuring. “[I]t is difficult to imagine any society that would choose individuals with no rank and no distinction, or influence, to participate in constitutional reform.”[15]

By the mid-1950s, the economic thesis of the Constitution began to be seriously questioned and critiqued by historians. One of the most vocal and effective of these critics was Cecelia M. Kenyon. Her critique of Beard’s thesis includes attacks upon his ultimate conclusions. Kenyon argues, in “Men of Little Faith: The Anti-Federalists on the Nature of Representative Government” that Beard had completely ignored, or unfairly dismissed, philosophical and ideological motivations. She reasons that the ideological context of the Constitution “was as important in determining its form as were the economic interests and motivations of its framers… the failure of Beard and his followers to examine this context has rendered their interpretation of the Constitution and its origin necessarily partial and unrealistic.”[16] Kenyon further adds that Beard’s thesis concerning motivation behind the creation of the Constitution was “unrealistic and unhistorical.”[17]

One of Kenyon’s most pointed criticisms of Beard’s thesis, which is ultimately relevant to the thesis provided in this work, was Beard’s fundamental misunderstanding of certain undemocratic values the Antifederalists actually shared with the Federalists. Kenyon stated, in her 1963 article, “’An Economic Interpretation of the Constitution’ After Fifty Years,” that it was true the “Founding Fathers had some doubts that the will of the majority would always be wise, or right, or just. But it is also true that those who opposed the Constitution had these same doubts… Beard did not report these Antifederalist ideas, and apparently either did not notice them, or did not see the significance they had for his theory.”[18] This is a crucial oversight by Beard. His assumption that Federalists were antidemocratic hoarders of wealth and power while Antifederalists were modest farmers who championed democracy was just what Kenyon said it was: unhistorical. Kenyon’s claim that the Constitution was ideologically motivated found support from many scholars, including Bernard Bailyn.

Bernard Bailyn first approached the ideological impulses of the framers by examining surviving pamphlets of the pre-revolutionary and revolutionary eras. By doing so, he became convinced that both the American Revolution and the subsequent drafting of the Constitution carried significant philosophical underpinnings. Bailyn’s The Ideological Origins of the American Revolution (1967) maintains that the Constitution “is the final and climactic expression of ideology of the American Revolution.”[19] Bailyn describes the writing and ratification debates of the Constitution as being the third and final phase of the ideological origins of the American Revolution. Bailyn asserts that the first phase was the pre-revolution arguments of liberty, the second phase was the military reality of revolution itself, leading to the end of the war and the third phase: the realization of the ideology of the revolution—brought into practice under the Constitution.[20]

Bailyn’s ideological thesis was arguably as impactful and paradigm-shifting in the second half of the twentieth century as Beard’s economic thesis had been in the first. Nonetheless, his interpretation was criticized by the emerging social history movement of the 1970s, which was motivated by the exploration of the historically ignored histories of women, minorities, and the poor: the politically and economically disenfranchised. The social history movement generally supported Beard’s thesis. Nevertheless, Bernard Bailyn’s ideological thesis not only shifted the scholarship of the history of the American founding for a generation, but students of Bailyn have championed his interpretation ever since.

[End of Part One]

Notes:

     [1] John Adams, letter to Mercy Otis Warren, July 30, 1807, accessed November 27, 2016, http://founders.archives.gov/documents/Adams/99-02-02-5199.      [2] William Seward, “Higher Law Speech,” The Works of William H. Seward, George E. Baker, ed. (New York: Redfield, 1853), vol. I. Furman University Digital Archives. http://eweb.furman.edu/~benson/docs/seward.htm.       [3] Ibid.      [4] Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame: University of Notre Dame Press, 1996), 74.      [5] Zuckert, The Natural Rights Republic, 10.      [6] A writ of habeas corpus, Latin for “you have the body,” is a right derived from English common law. Cornell University Law School’s Legal Information Institute explains the writ of habeas corpus as a legal right “used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person's imprisonment or detention is lawful.  A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody. It can also be used to examine any extradition processes used, amount of bail, and the jurisdiction of the court.” https://www.law.cornell.edu/wex/habeas_corpus.      [7] Charles Beard, “An Economic Interpretation of the Constitution,” Essays On The Making Of The Constitution, ed. Leonard W. Levy, (New York: Oxford University Press, 1969), 6.      [8] Ibid., 31.      [9] Ibid.      [10] Leonard W. Levy, Essays On The Making Of The Constitution, ed. Leonard W. Levy, (New York: Oxford University Press, 1969), 144.      [11] Robert E. Brown, Charles Beard and the Constitution, (Princeton: Princeton University Press, 1956), 4.      [12] Jackson T. Main, “The Beard Thesis Defended,” Essays On The Making Of The Constitution, ed. Leonard W. Levy, (New York: Oxford University Press, 1969), 152.      [13] Robert A. McGuire, To Form a More Perfect Union: A New Economic Interpretation of the United States Constitution, (New York: Oxford University Press, 2004), 8.      [14] Ibid., 50.      [15] McGuire, To Form a More Perfect Union, 54.      [16] Cecelia M. Kenyon, “Men of Little Faith: The Anti-Federalists on the Nature of Representative Government,” William and Mary Quarterly 12, no. 1 (Jan. 1955): 5. http://www.jstor.org/stable/1923094.      [17] Ibid., 43.      [18] Cecelia Kenyon, “’An Economic Interpretation of the Constitution’ After Fifty Years (1963),” reprinted in Men of Little Faith: Selected Writings of Cecelia Kenyon (Amherst and Boston: University of Massachusetts Press, 2002), 166.      [19] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 321.      [20] Ibid., 323.