Subject: Re: [EL] Anonymity and harassment
From: Jerald Lentini
Date: 4/6/2011, 10:23 AM
To: Jason Rylander <jasonrylander@gmail.com>, Sean Parnell <sparnell@campaignfreedom.org>
CC: "election-law@mailman.lls.edu" <election-law@mailman.lls.edu>

Professor Gregory E. Maggs published a wonderful article four or five years ago--I believe this was in the Boston University Law Review--explaining that the Federalist Papers' virtue is that they lay out the original meaning and intent of the Framers, but they probably cannot be fairly said to represent that of the state ratifiers, who most likely wouldn't have read them before they voted, as republication wasn't common (he included a great timeline in the appendix, comparing initial publication dates to ratification vote dates in the states).  Maggs finds no record exists of the essays being mentioned in any of the state ratification debates, and considers it highly unlikely that the essays had that much of an audience outside New York before ratification.  In other words, the premise of your question--that the Federalist Papers had ANY noticeable impact (at least outside of New York) on the vote to ratify the Constitution--might well be wrong.

The obvious possible exception would be Madison's home state of Virginia.  But Hamilton and Madison both actively participated in their states' ratification debates (and, in all likelihood, made it known to their compatriots that they were responsible for authoring some of the essays), and the Constitution was a fait accompli when both those states voted to ratify.

Whatever contributions the Federalist Papers may have made to the ratification debates, it's hard to say what effect anonymity had.  Odds are it was quite slight.  The arguments in those essays were presented cogently and eloquently, but they were certainly also presented in other fora by known speakers and authors--especially in the state ratification debates where the delegates to the Constitutional Convention were actively involved (which, come to think of it, was all of them but Rhode Island).

Jon Roland can probably provide a better answer, but from my rudimentary understanding, The State House Yard address of James Wilson, which took place almost a month before Federalist 1 was published, was more popularly distributed and widely read at the time, since it was far more concise (a few hundred words shorter than Federalist #10 alone).  And that was far from anonymous, being delivered by one of the most famous figures in the country, in front of an audience of citizens and officials, in broad daylight.

-JR Lentini


From: Jason Rylander <jasonrylander@gmail.com>
To: Sean Parnell <sparnell@campaignfreedom.org>
Cc: election-law@mailman.lls.edu
Sent: Wed, April 6, 2011 11:34:59 AM
Subject: Re: [EL] Anonymity and harassment

A thought for all of you -- and perhaps those who have studied this in more depth may have an answer -- if the Federalist Papers were not written anonymously would the vote for the Constitution have been different?  What would a disclosure rule have meant at the time?

Jason Rylander
Arlington, VA

On Wed, Apr 6, 2011 at 11:13 AM, Sean Parnell <sparnell@campaignfreedom.org> wrote:
What, exactly, does it mean to hold speakers "accountable," and what is the
government's proper role in helping to hold people "accountable" for their
speech? I was under the impression that the First Amendment meant, in fact,
that government wouldn't be holding people "accountable" for their free
speech (i.e. punishing them for voicing the "wrong" opinions).

Sean Parnell
President
Center for Competitive Politics
http://www.campaignfreedom.org
http://www.twitter.com/seanparnellccp
124 S. West Street, #201
Alexandria, VA  22310
(703) 894-6800 phone
(703) 894-6813 direct
(703) 894-6811 fax

-----Original Message-----
From: election-law-bounces@mailman.lls.edu
[mailto:election-law-bounces@mailman.lls.edu] On Behalf Of Paul Lehto
Sent: Tuesday, April 05, 2011 5:47 PM
To: jon.roland@constitution.org
Cc: election-law@mailman.lls.edu
Subject: Re: [EL] Anonymity and harassment

One real problem with the anonymity/harassment debate is the fairly
low standard of "harassment" that gets regularly applied by many.
Oftentimes, accountability and "harassment" feel very much the same -
to a person being held accountable.  (This of course does not cover
the more extreme examples of harassment.)

Under such relatively low standards, criminal defense attorneys,
prosecutors, as well as judges are certainly both subjected to and in
reasonable apprehension of "harassment."  One could add jurors in some
cases as well.  At least the attorneys, prosecutors and judges would
all have the constitutional first amendment right to wear hoods
covering their faces and to conceal their names, on grounds of actual
and potential "harassment."

The above is the main reason why, in my mind, the concept of "civic
courage" must be given a a relatively heavy counterweight to whatever
realities of harassment exist.

Paul Lehto, J.D.

On 4/5/11, Jon Roland <jon.roland@constitution.org> wrote:
> Not if they are collaborating with the harassers.
>
> There are degrees and kinds of harassment. It can extend to assassination,
> which may be unlikely but only has to happen once for a given
> speaker/publisher.
>
> Our rights were forged in an environment of occupation by a brutal enemy,
> and defense of them should always assume real enemies that are capable of
> anything. Abuses by government officials are not just in the movies. I
have
> had my life threatened by a government agent after I criticized his
agency.
> Some of you seem to be oblivious to how brutal it can get in the real
world.
>
> Or it can be simply a matter that the speaker/publisher wants his words to
> be evaluated on their own merit without intrusion by his reputation, be it
> good or bad, with various recipients. If the author is a known partisan,
his
> words may be largely ignored by both his opponents and supporters, rather
> than made the subject of deep deliberation.
>
> On 04/05/2011 03:37 PM, Rick Hasen wrote:
>>
>> In the campaign finance context, it makes sense to have a court or
>> regulatory body made determinations about harassment.
>
> -- Jon
>
> ----------------------------------------------------------
> Constitution Society               http://constitution.org
> 2900 W Anderson Ln C-200-322           twitter.com/lex_rex
> Austin, TX 78757 512/299-5001  jon.roland@constitution.org
> ----------------------------------------------------------


--
Paul R Lehto, J.D.
P.O. Box 1
Ishpeming, MI  49849
lehto.paul@gmail.com
906-204-4026 (cell)
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