The Communitarian Constitution

Notes

Notes Preface 1. Abraham Lincoln, ‘‘Message to Congress in Special Session, July 4, 1861,’’ in Abraham Lincoln: Speeches and Writings, 1859–1865 (New York: Library of America, 1989), 253. 2. Ex Parte Merryman, F. Cas. 9487 (1861). 3. Lincoln, ‘‘Message to Congress,’’ 253. 4. See Stephen M. Gri≈n, American Constitutionalism: From Theory to Politics (Princeton, N.J.: Princeton University Press, 1996). o n e : Introduction 1. See Herbert Storing, What the Anti-Federalists Were For (Chicago: University of Chicago Press, 1981). Throughout the work, Storing discusses the argumentative atmosphere that pervaded the drafting and ratification of the U.S. Constitution. He remarks : ‘‘The nation was born in consensus but it lives in controversy, and the main lines of that controversy are well-worn paths leading back to the founding debate’’ (p. 6). 2. See United States v Schwimmer, 279 U.S. 644, 654–55 (1929) (Holmes, J., dissenting ). 3. See Abrams v United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting). 4. See New York Times Co. v Sullivan, 376 U.S. 254, 270 (1964). 5. Catherine Drinker Bowen, Miracle at Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston: Little, Brown, 1966), 5. 6. See in particular, Charles Beard, An Economic Interpretation of the Constitution (New York: Free Press, 1913). 7. See Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton, N.J.: Princeton University Press, 1996), esp. chap. 3. 8. Storing, Anti-Federalists, 5. Storing further notes that the lack of consensus was not unique to Anti-Federalists. Federalists were also contradictory in their priorities: ‘‘There is an impression of greater unity [among Federalists] because [they] were (in general) unified in supporting the Constitution. . . . The impression has been strengthened by the Federalists’ victory and the massive impact on later generations of The Federalist Papers, which have tended to occupy the Federalist stage and lend their unity to the whole group supporting the Constitution. There were in fact diverse and contradictory opinions among the Federalists just as there were among their opponents.’’ 220 Notes to Pages 5–9 Adding confusion to the matter, consider also Paul Finkelman, ‘‘Antifederalists: The Loyal Opposition and the American Constitution,’’ Cornell Law Review 70 (1984): 182– 207, who not only emphasizes Anti-Federalist divisions but also points out the limitations of Storing’s overall analysis. 9. Moore, Constitutional Rights, 70–71. 10. Jonathon Elliot, ed., The Debates of the State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia in 1787 (Philadelphia, 1866), 3:579. 11. Suzanna Sherry has argued that the debate between Federalists and AntiFederalists over the issue of virtue and the public good signaled a paradigm shift in which man abandoned the classical view of republicanism that engendered the primacy of the community and replaced that view with a modernist one that now celebrates above all else the principles of individualism and autonomy. See Suzanna Sherry, ‘‘Civic Virtue and the Feminine Voice in Constitutional Adjudication,’’ Virginia Law Review 543 (1986): 72. 12. Storing, Anti-Federalists, 15. 13. Ibid., 20. 14. See George W. Carey and Bruce Frohnen, eds., Community and Tradition: Conservative Perspectives on the American Experience (Lanham, Md.: Rowman and Little field: 1998). 15. Barry Alan Shain, ‘‘American Community,’’ in Community and Tradition, ed. Carey and Frohnen, 55–56. 16. Wilfred M. McClay, ‘‘Mr. Emerson’s Tombstone,’’ in Community and Tradition, ed. Carey and Frohnen, 92. 17. There has been a surge of literature over the last three decades suggesting that late-eighteenth-century America should be characterized more accurately as an era that promoted classical republicanism. See Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass.: Harvard University Press, 1967); Lance Banning, The Je√ersonian Persuasion: Evolution of a Party Ideology (Ithaca, N.Y.: Cornell University Press, 1978); Sherry, ‘‘Civic Virtue’’; and Carey and Frohnen, eds., Community and Tradition. 18. Sherry, ‘‘Civic Virtue,’’ 5. 19. Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (New York: Modern Library), no. 10. 20. See Storing, Anti-Federalists, chap. 3. 21. Alexis de Tocqueville, Democracy in America, trans. George Lawrence, ed. J. P. Mayer (Garden City, N.Y.: Anchor Books, 1969), 2:508. See also McClay, ‘‘Mr. Emerson ’s Tombstone,’’ 92–97. 22. Gordon S. Wood, The Creation of the American Republic 1776–1787 (Chapel Hill: University of North Carolina Press, 1969), 58. 23. Shain, ‘‘American Community,’’ 46. 24. Brutus I, 2.9.16, in Herbert J. Storing, The Anti-Federalist: Writings...