Legal Commentary

For an article I'm working on (about which I hope to blog further soon), I came across the following quote, delivered by the current Attorney General in a 2004 speech. Referring to the Founding, then-Judge Mukasey suggested that the Federalists:

resisted pressure from people like Patrick Henry . . . to include the substance of what later became the Bill of Rights in the Constitution itself because they understood that if you give equal weight to a citizen?s rights against the government . . . and to the definition of government itself, it becomes correspondingly harder to command support for that government and correspondingly easier for people to simply go where their rights, and their interests, seem to take them.

Mukasey made a slightly weaker form of the same argument in a Wall Street Journal op-ed published a few months later, suggesting that "the hidden message in the structure of the Constitution . . . is that the government it establishes is entitled, at least in the first instance, to receive from its citizens the benefit of the doubt."

Here's what's troubling me: Isn't this entirely backwards? I had always understood the consensus narrative of the Founding to be that (1) the Constitution's structural features, especially the separation of powers, were crafted largely (although perhaps not entirely) for the purpose of protecting individual rights; and (2) the reason why the Federalists were opposed to a Bill of Rights wasn't because they thought that individual rights were not entitled to "equal weight"; quite to the contrary, they feared that whatever rights remained un-enumerated might not be protected...

So I guess I have two questions:

1. Was Mukasey re-writing history (or, put another way, am I just wrong)?
2. If he was (and I'm not), how pervasive is this idea in contemporary understandings of the Founding?

I have my own ideas, but am curious for others' thoughts...