The Federalist Regained

By Paul Reidinger

An American writer offers a riposte to Alexander Hamilton and a fresh interpretation of the Bill of Rights.

Author's note: As of 18 July 2012, I have slightly modified this piece to emphasize the view that corporations cannot be considered citizens and therefore should not be able to claim constitutional protections (under the Bill of Rights and the 14th Amendment's due-process and equal-protection clauses) clearly intended for citizens, i.e. human individuals. The test, I believe, should be whether you can vote. If you can vote (or have a realistic prospect of being able to vote at some point, i.e. when you turn 18 or pass a citizenship test) then those protections apply to you. If not, they don't. Pretty straightforward. Are you following along at home, you justices of the U.S. Supreme Court?

• Language: English
• Publisher: Paul Reidinger
• Release date: May 16, 2012
• ISBN: 9781476035611

Paul Reidinger

Paul Reidinger is the author of several novels, including The Best Man, Good Boys, The City Kid, and The Bad American. His other books include a memoir, Lions in the Garden, a collection of essays and criticism Patchwork, and The Federalist Regained, an essay on the Constitution. He grew up in Wisconsin, was educated at Stanford University and the University of Wisconsin-Madison, and lives in San Francisco.

Book preview

The Federalist Regained

By Paul Reidinger

Published by Paul Reidinger at Smashwords

copyright 2012 by Paul Reidinger

Cover art: Patriotic Gesture, oil on canvas, copyright ©2000 by Jack Freeman. Used by permission.

We hold these truths to be self-evident ... .

--Thomas Jefferson, The Declaration of Independence

Table of Contents

Introduction

Mr. Tax

The Great American Question: Why?

The Bill of Rights Tells a Story

What Happened?

An American Reformation

Introduction

The subject of this essay is what I call the idea of the Bill of Rights. In what follows, I argue for a fresh reading of the Bill on the ground that the document as a whole – as a bill – has not been properly understood, despite (or is that because of?) several centuries of pronouncements about it by the U.S. Supreme Court and other agents of the judicial and legal elites. My discussion touches on aspects of American history, law and politics, but at its heart it is psychological.

Some might regard as, shall we say, rather bold my claim that the Bill has long been misunderstood by generation after generation of legal minds and legal academics. Maybe so. But boldness is one of life’s important spices, and I do believe that my reading is supported by what law students know as the plain meaning rule, i.e. the acknowledgement of the obvious and natural meaning of the language in a piece of legal writing.

Even legal writing can have obvious and natural meanings. We forget this. The Bill of Rights might have been drafted by lawyers, but it wasn’t drafted for lawyers. It was meant to be read and understood by the citizenry, by people with no special training in law or legalese who nonetheless were expected to participate in the country’s civic life and to govern themselves. This is the most basic assumption in American life. This is the essence of the experiment. The first three words of the Constitution itself are We the people. In that same spirit, this essay is not pitched to and for legal elites but for the laity, the public at large, the people.

The idea that an important document of government, though drawn up by lawyers, was meant to be accessible to ordinary citizens must seem almost naive to us latter-day folk. Lawyers in our time are generally obscurantists who use the peculiar language of their profession, Latin-heavy and crowded with awkward nouns, to cloud, confuse and distract. Legalese is meant to, and does, exclude.

It is perhaps the greatest misfortune to befall the Bill of Rights that it ended up in the possessive hands of lawyers, who argue endlessly among themselves about its meaning and application while seldom troubling to speak plainly to the lay public about what’s going on.

Such a pattern becomes self-perpetuating. As the discussion about the Bill has grown more elaborately arcane over time and as its phrasings have been crusted over by layer after layer of opaque language in judicial opinions, like soot building up in a chimney, the gulf between the controlling elite and the great mass of the people has widened. The result is that the people have become estranged from a meaningful understanding of and relationship with the document whose plain and central purpose, in my view, was to protect their right to participate in the country’s political life and, beyond that, ensure that the people remain the ultimate source of political legitimacy in our system.

I have not concerned myself with what various constitutional interpreters, mainly judges and academics, have had to say about the charter down the years. Whole careers can and have been made in arguing points of constitutional minutiae. I have not been concerned with what those first disputants, the Framers themselves, said and thought about their work, and, as I explain later, I have particularly not been concerned with that bible of undergraduate political-science courses, The Federalist.

I have been interested, instead, in the language of the document itself. Law students know this approach as the four corners rule, which teaches that the meaning of a legal document is contained within the four corners of the document. Everything else, from media interviews given by the drafters of the document to material in the legislative record, is ephemera and effluvia – what we call spin. Spin is irrelevant here. The document – the Bill of Rights, in this case – is assumed to be self-explanatory. This piece is