Lorianne Updike Schulzke (Yale Law School; Northern Illinois University College of Law) has posted Sufficient Bills of Rights (22 pages) on SSRN. Here is the abstract:
Accepted wisdom dictates that the Anti-federalists fought against the Constitution and helped to secure a marked improvement on the Constitution via the Bill of Rights. Yet this account is incomplete. As early state constitution-writing illustrates culminating in the Massachusetts (1780) and New Hampshire (1784) Constitutions, it became normative to include both a “frame of government,” or a structural plan for institutions, and a bill of rights in a constitution by the time the federal document was crafted. Proto Anti-federalists in the Constitutional Convention were aware of this trend and framed a movement which adopted this new kind of constitution.
In this light, the Anti-federalist campaign was a movement in favor of the federal Constitution, but a completed one. To them, the US Constitution was not a “constitution” as it came to be known until it contained both a frame of government and a bill of rights. The Anti-federalists were thus not detractors and extremists but conformists and enforcers of the new norm, a norm forged and instantiated through state constitution-writing and culminating in the Massachusetts and New Hampshire constitutional texts and processes. This altered and corrected story marks the final shift from a once-dominant definition of a common law constitution comprised of several documents that can be gradually changed to the modern connotation of a constitution as a unified document wherein the structure of government is defined and rights are protected in one unified text. This shift in dominant definitions culminating in the ratification of the Bill of Rights in the United States demonstrates a break with the past wherein constitutions and the bills of rights they included became fixed, fundamental texts requiring dualism.
Posted at 6:23 AM