Right and Liberties

What is the relationship between the individual and the state?

o Each of us and the government
Liberal exceptionalism- where relationship between individual
and state is most seen.
Important to try & make a distinction between:
o Liberty- a freedom from government action, government
influence- our inherent, god given freedom.
Liberty comes from same root as liberal & it means
freedom from.
o Right- claims on government protection.
I can say that if I want- if it is your freedom you
would just say it, would not have to point out that
you could say it.
Making a claim that you are free enough to say it.
o Both are in pursuit of individual freedom
Can take anyone who violates your liberties to court.
o Appealing t government for protection
o Government is key to securing our right.
The state is the threat to liberty
o There are somethings the state cant do when we are
talking about my property, my speech ect.
o Government is the most likely perpetrator- interferencewith the exercise of my liberty
Govt is the protector of the right
o This might be why we entered into a govt in the first
place- to protect our rights from outside rule.
o Most of the bill is rights is saying there are certain things
the govt cannot do and certain procedures they must
follow (prosecuting a criminal case against you)- limitations
on govt rather than claims on govt protection.
o This becomes confusing.
o 14th amendment is confusing- guarantee from federal
govt, from citizens, that they wont let state govts take
away your liberty.
National govt stepping up and saying we will protect
you from the state.
So when you make a federal case against the state,
you are asking national govt to protect you & your
rights.
Therefore, govt is both threat & protector
During this time fo writing the constitution, they still

o Have language form Europe which was brought up around

kings and aristocrats
o So they are more likely to see govt as threat because gov;t
might represent king or aristocrats- threat to the people
o This idea is most prevalent on anti-federalist but the
language is present for both federalists and anti-federalists
alike.

Anti-federalist & Federalists views on B.O.R

Antifederalist
o Pg. 157 Old wig in federalist and antifederalist
o The story starts with men free running around in the wood,
joining one another in protective alliance
o The danger in joining together to protect ourselves- you
have to give up some of your rights.
o There has to be equilibrium- giving up too much rights and
thus becoming a slave or giving up to little and making
govt too weak.
o Antifederalists fear the constitution
o Pg. 158-149
the govs is the threat
federalist countryman Roger Sherman pg. 168
o if the government structured in a way that it merits our
confidence than there is no need for bill of rights.
o believes anti federalist are telling hysterical stories of
constitution and how its a threat
o the structure of govt that will and has always been what
protects our liberty
o degrading writing out all of our rights- the rights are too
important to just scribble them down. mere paper
protection- protection is not in claiming rights. It is doing
so with representatives who have our best interest at
heart.
o These members of congress are subject to democratic
check so we can call them back- if they are going to be
interested in that which interests us generally, should we
not expect them to be good protectors of our liberty
Federalist Wilson
Pg. 166
o There is a clandestine and industrious effort by
antifederalists to undue the good that has been done by
the constitution
o If you put bill of rights, you are taking away liberty. Liberty
is threatened because you have given to the govt and

implied that they have the authority to do which you had

without govt. They have the power to name your liberty
and encroach upon it.
o Its superfluous and absurd & is perhaps to give the wrong
implications about the extent of power of govt.
o Like saying yu are implying the govt has much more
power fi you tell it oh by the way, you cannot do this. Who
ever said the govt could do these things?
Ex: do not take away freedom ofthe press- who said
they could take it away?- implying they have more
power.
o A bill of rights is dangerous- if we list something, that
might all we get & therefore, if its not written, maybe
we dont have it. & again, it is implying government is
the one that has the power to give ti to us.
Implies that govt is a threat
o The fallibility of humans- we make mistakes & we might
leave out by mistake some rights.
Pg. 170
o You do not need bill of rights if govt is doing what it should
be doing.
Federalist are against bill of rights. Thought the bill of rights were
threats to what they had just constructed- to simply
amendments to them.
o Both antifederalist and federalsits believe these are right
we had before government
o They all think humans make mistakes- the fallibility of
humans
o The federalists are pretty impressed with what they have
done- feel they have constructed a govt who has the tools
on their own from a good republic govt to protect rights of
people.
Antifederalist Pg. 164 Smilie
o John smilie is not impressed with the constitution
o The constitution fails to be careful with the powers
constructed
o If you do not have list of things govt cant do, how would
we know when the govt has degenerated into oppression?
o There will be no check but the people- to check the govt
against oppression.
o The tyranny will progress and it will be impossible to stop ti
since it will be difficult to communicate them the
oppression thats have been committed

Therefore, the job of the bill of rights is to draw lines

that people can refer to and that can protect people
against govt.
Antifederalist pg. Whitehill
o Bill of rights erects a permanent landmark (juxtaposed
against the mere paper protection the federalist refer to it
as)
o Govt learns its authority and people can discover the first
encroachments on their liberties
o Both antifederalists are sure this govt is going to grow and
in a tyrannical way
o Constitution is this loose, poorly constructed testament to
state power- it is a threat
Brutus antifederalist pg. 159
o Brutus seems to think, or at least imply, that there is a
design here
o These are complete governments
Richard henry lee antifederalist pg. 152
o Juxtaposes point made by Sherman who says congress is
enough
o It is dangerously oligarchic- the house is only a very small
part of the govt & it certainty doesnt dominant it
o So the popular form of govt is a mere rag of
representation
o
In some ways antifederalists are more imaginative and creative
o Thinking about what is going to happen down the world
Federalists tend to be more pragmatic in way they argue.
What Hamilton says
o The constitution, the structure or govt, is the bill of rights
o Very few state governments have bill of rights
o Cant say this about our constitution and not state
constitutions
o Constitution actually mentions rights protections- talks
about habeas corpus no title of nobility, impeachment ect.
saying there are protections already in constitution
o The constitution may be a really good structure to protect
our rights
o Theoretical argument- a bill of rights really makes much
more sense where you have aristocrats and kings. They
make sense in monarchies, not republics, if people retain
all the power, they need not say oh, by the way, we want
to keep this and this because they keep it all.
Again, danger in implication

o Not just inappropriate but even dangerous

By writing down these rights, it is giving more
powerful than what govt actually ahs right to do.
Can have people saying oh, because that is not listed
you do not have it- implying gov;t gave us rights and
privileges- not that we already have them.
But we have all the power in a republic- we are the
ones giving some power to the govt.
The antifederalists see bill of rights as permanent landmark t
liberty & peoples awareness to right and govt taking too much
power
o They are for democracy- people being aware and protected
o If the people retain control thats how you eliminate fear
Federalists see it as mere paper and the protection of rights is a
well constructed government.
o People are the threat, not government