Ratification, part two

As I noted earlier this week, there’s more to RATIFICATION: The People Debate the Constitution, 1787-1788 by Pauline Maier than just refuting David Brooks.
Maier does an excellent job recounting, in detail, the state conventions that finally approved the Constitution (with the exception of naysayers North Carolina and “Rogue Island”) and the issues and political gamesmanship they grappled with. While I highly recommend the book if you like detailed examinations of Constitutional history (if you just want the highlights, this isn’t for you), I think it’s also interesting for what it brings up about modern Constitutional interpretation. As I’ve mentioned before, the unfortunate thing about trying to recover the Founders’ “original intent” or “original meaning” is that we usually discover it’s identical to our own wishes. The Founders clearly agree with us on the right to own guns/ban guns, Christ-centered government/secular government, freedom from unreasonable searches/the right to search anyone who looks suspicious. Hell, Bush’s attorneys discovered a Constitutional ability to waive any form of legal restriction on the president’s actions (including his legal right to torture children), though I’m skeptical how sincere this was (John Yoo, the attorney who argued for the “unitary president’s” absolute power has routinely denounced Obama as exceeding his Constitutional limits).
Reading Maier’s accounts of the debates shows the flaws in this. For starters, the political mindset of the Revolutionary generation is not liberal, conservative or libertarian by today’s standards (I’ve heard all argued). It’s not Democrat or Republican. They’re just well, themselves, with their own perception.
Many of the state conventions objected to Congress having the power to impose taxes directly (rather than require the states contribute to the national treasury), which might make the anti-tax right happy. But they also objected just as strongly to having a standing army in time of peace, which is by today’s standards a radical left position. They had objections that nobody’s making today to the best of my knowledge, for example that Congress’ power to schedule the time and place of elections was the equivalent of gerrymandering: Pick a time and location when almost nobody can vote, so that only your supporters are available to drop in a ballot and presto, you’re re-elected!
Another point to consider is that “the Founders” didn’t speak with one voice. We (including myself) talk as if the finished Constitution represented a unanimous decision with a consensus as to its interpretation.
Not so. Many in the conventions wanted to preserve the power of the states as independent entities; some of the drafters dreamed of the day the states would wither into inconsequence. Some of the convention delegates demanded we rewrite the rule about no religious tests for public office to ban “Papists,” while others believed in absolute religious freedom. Some of them were outraged that the Constitution accepted slavery, while others were delighted (and then there were those who saw it as a necessary compromise).
Did the Constitution give the federal government specific, limited powers it couldn’t exceed? Because in that case a Bill of Rights was unnecessary. Would forbidding Congress from taking away freedom of religion imply that therefore, it had some degree of power over religion—because that would make a Bill of Rights even worse. Then again, the body of the document protected the right of habeas corpus—didn’t that raise the same problem? Just how far could the “general welfare” clause be extended?
Take every claim about the original meaning of the Constitution with a grain of salt. Including mine.