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enumerated rights, unenumerated rights, structure of government, Federalists and Anti-Federalists


This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted their cherished governing institutions to resolve ambiguities justly when controversies arose in the future. Nevertheless, the Bill of Rights did not include a caveat stating that those amendments were a somewhat random collection of liberties spelled out for the sole benefit of persons unaware of how constitutions best protected rights. Persons reading the constitutional text after 1791 might well conclude that those rights enumerated were more central to the constitutional order than those omitted. Marbury v. Madison, or rather the nineteenth century political movements that successfully reinvigorated the logic of Marbury, further promoted enumeration and judicial power as the only means for limiting republican government. Such claims were made, however, only after Americans forgot the constitutional strategies for protecting fundamental rights adopted in 1787 and transformed the partisan strategy adopted in 1789 for appeasing political opponents into the best constitutional strategy for securing vital freedoms in the present.


9 University of Pennsylvania Journal of Constitutional Law 357 (2006).


Constitutional Law | Legal History