Posted on 05/22/2010 3:40:40 AM PDT by RogerFGay
September 27 marks the anniversary of the publication of the first of the Antifederalist Papers in 1789. The Antifederalists were opponents of ratifying the US Constitution. They feared that it would create an overbearing central government, while the Constitution's proponents promised that this would not happen. As the losers in that debate, they are largely overlooked today. But that does not mean they were wrong or that we are not indebted to them.In many ways, the group has been misnamed. Federalism refers to the system of decentralized government. This group defended states rights — the very essence of federalism — against the Federalists, who would have been more accurately described as Nationalists. Nonetheless, what the so-called Antifederalists predicted would be the results of the Constitution turned out to be true in most every respect.
The Antifederalists warned us that the cost Americans would bear in both liberty and resources for the government that would evolve under the Constitution would rise sharply. That is why their objections led to the Bill of Rights, to limit that tendency (though with far too little success that has survived to the present).
Antifederalists opposed the Constitution on the grounds that its checks on federal power would be undermined by expansive interpretations of promoting the "general welfare" (which would be claimed for every law) and the "all laws necessary and proper" clause (which would be used to override limits on delegated federal powers), creating a federal government with unwarranted and undelegated powers that were bound to be abused.
One could quibble with the mechanisms the Antifederalists predicted would lead to constitutional tyranny. For instance, they did not foresee that the Commerce Clause would come to be called "the everything clause" in law schools, used by centralizers to justify almost any conceivable federal intervention. The 20th-century distortion of the clause's original meaning was so great even the vigilant Antifederalists could never have imagined the government getting away with it.
And they could not have foreseen how the Fourteenth Amendment and its interpretation would extend federal domination over the states after the Civil War. But it is very difficult to argue with their conclusions from the current reach of our government, not just to forcibly intrude upon, but often to overwhelm Americans today.
Therefore, it merits remembering the Antifederalists' prescient arguments and how unfortunate is the virtual absence of modern Americans who share their concerns.
One of the most insightful of the Antifederalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention was exceeding its instructions. Yates wrote as Brutus in the debates over the Constitution. Given his experience as a judge, his claim that the Supreme Court would become a source of almost unlimited federal over-reaching was particularly insightful.
Brutus asserted that the Supreme Court envisioned under the Constitution would become a source of massive abuse because they were beyond the control "both of the people and the legislature," and not subject to being "corrected by any power above them." As a result, he objected to the fact that its provisions justifying the removal of judges didn't include making rulings that went beyond their constitutional authority, which would lead to judicial tyranny.
Brutus argued that when constitutional grounds for making rulings were absent, the Court would create grounds "by their own decisions." He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.
The Supreme Court would interpret the Constitution according to its alleged "spirit", rather than being restricted to just the "letter" of its written words (as the doctrine of enumerated rights, spelled out in the Tenth Amendment, would require).
Further, rulings derived from whatever the court decided its spirit was would effectively "have the force of law," due to the absence of constitutional means to "control their adjudications" and "correct their errors". This constitutional failing would compound over time in a "silent and imperceptible manner", through precedents that built on one another.
Expanded judicial power would empower justices to shape the federal government however they desired, because the Supreme Court's constitutional interpretations would control the effective power vested in government and its different branches. That would hand the Supreme Court ever-increasing power, in direct contradiction to Alexander Hamilton's argument in Federalist 78 that the Supreme Court would be "the least dangerous branch."
Brutus predicted that the Supreme Court would adopt "very liberal" principles of interpreting the Constitution. He argued that there had never in history been a court with such power and with so few checks upon it, giving the Supreme Court "immense powers" that were not only unprecedented, but perilous for a nation founded on the principle of consent of the governed. Given the extent to which citizens' power to effectively withhold their consent from federal actions has been eviscerated, it is hard to argue with Brutus's conclusion.
He further warned that the new government would not be restricted in its taxing power, and that the legislatures war power was highly dangerous: "the power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their controul over the militia, tend, not only to a consolidation of the government, but the destruction of liberty."
He also objected to the very notion that a republican form of government can work well over such a vast territory, even the relatively small terrority as compared with today's US:
History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.Brutus accurately described both the cause (the absence of sufficient enforceable restraints on the size and scope of the federal government) and the consequences (expanding burdens and increasing invasions of liberty) of what would become the expansive federal powers we now see all around us.But today, Brutus would conclude that he had been far too optimistic. The federal government has grown orders of magnitudes larger than he could ever have imagined (in part because he was writing when only indirect taxes and the small federal government they could finance were possible, before the 16th Amendment opened the way for a federal income tax in 1913), far exceeding its constitutionally enumerated powers, despite the constraints of the Bill of Rights. The result burdens citizens beyond his worst nightmare.
The judicial tyranny that was accurately and unambiguously predicted by Brutus and other Antifederalists shows that in essential ways, they were right and that modern Americans still have a lot to learn from them. We need to understand their arguments and take them seriously now, if there is to be any hope of restraining the federal government to the limited powers it was actually granted in the Constitution, or even anything close to them, given its current tendency to accelerate its growth beyond them.
That’s a great article!!! Brutus was certainly right. Thanks for posting!
The framers of the Constitution did not foresee the possibility of an anti-American president who would need to be removed immediately by an impeachment originating from among a majority of the populace, not the House of representatives. Now we see the flaw.
Robert Yates a Yankee I can agree with!
One of the most insightful of the Antifederalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention was exceeding its instructions. Yates wrote as Brutus in the debates over the Constitution. Given his experience as a judge, his claim that the Supreme Court would become a source of almost unlimited federal over-reaching was particularly insightful.
History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.
-- Robert Yates
We have to post the entire Anti-Federalist papers on Free Republic!
Good read thank you for posting.
Anti-Federalist Bump!
Patrick Henry - “The rights of conscience, trial by jury, liberty of the press, all your immunities and franchises, all pretensions to human rights and privileges, are rendered insecure, if not lost, by this change, so loudly talked of by some, and inconsiderately by others.”
Also, the necessity of a virtuous electorate to the continuance of our republic was widely discussed at the time. An immoral people will elect dirtbags. We've got the government we deserve, not the one designed by our Framers.
We now live in a color coded anti-white male feminized society that has been rubber stamped by the Supreme Disappointment. A Constitution not followed is worse than no Constitution at all. This state of affairs breeds contempt for the government in the intelligent, and a sentimental belief in the phony protections it was supposed to have in the weak minded. As such, the Constitution now provides a fig leaf for the naked aggression of the socialist statist agenda.
Ping!
Also, why do we look to the failed systems of the past to point to the way it should be? And I don't see any suggestion of a better way proposed. 50 independent states without an elected central system is called Europe. Ours has been the most successful system yet, and all it needs is a few patriots with balls to set it right again! It is not irreparable; it is in need of some serious house-cleaning and return to the Founders' guiding intentions.
” did not foresee the possibility of an anti-American president “
Unfortunately, the “all we gotta do is get rid of Obama” solution is a non-solution which completely misses the point...
Obama did not spring whole from the Earth brandishing his terrible swift sword to bring about the ruination of our once-great nation — he is merely the culmination, the current manifestation, of a process which, the author of this article says - correctly, IMO - traces its roots to flaws in the original Constitution, and began in earnest with the 14th amendment....
The removal of the current claque is necessary, but only as a step towards addressing the core problems that brought us to this sorry state...
/my $0.02
FReeper Book Club: The Debate over the Constitution, Federalist #21
A Publius/Billthedrill Essay | 20 May 2010 | Publius & Billthedrill
http://www.freerepublic.com/focus/news/2517414/posts?page=2
We will post two threads per week, every Monday and Thursday, starting February 1, for 55 weeks. Again, we will use the keyword “freeperbookclub” to mark these threads.
What is old has become new again. It’s time to explore federalism and the philosophy of the Framers. The lessons of 1787 are just as valid today.
The thing that gets me is how the power hungry mobsters can use the Antifederalist criticisms as a plan. The intent was well documented as well as what not to do. We have to contend with the fact that what’s been done wrong was done knowing it to be wrong.
Eloquent.
-- Thomas Jefferson
That's a tagline.
Something left out of these threads is that some powerful people had a personal interest in the continuance of the anarchy under the Articles. Most prominent were southern planters with pre-war debts to English creditors. Without a federal judiciary, these debts could not be collected in accordance with the peace treaty.
— Author Unknown
With all honesty, the Anti-Federalists were correct. When studying the Anti-Federalist while attending Georgetown, their main problem was - “organization”. They were not as organized as Hamilton, Madison ,and Jay -
“The Federalists”.
Rarely are the Anti-Federalist discussed in Constitutional Law classes. Anti- Federalist books should be read time and time again by Conservatives.
In 1988, I was privileged to be asked to write the Introduction to the reprint of Robert Yates' Secret Proceedings and Debates of the Convention to Form the US Constitution. Judge Yates was the leading Anti-Federalist, and sought to defeat the Constitution in Philadelphia, and later in the New York Ratification Convention.
That lengthy Introduction pointed out that the ratification nearly failed in both Virginia and New York. Most importantly, it pointed out that the claims of the Anti-Federalists were coming true not in their time, but in ours.
Though it was written almost a quarter century ago, I stand by every word of that. And, BTW, it was not just the Anti-Federalists who feared an over-reaching federal judiciary. Thomas Jefferson called it "the most dangerous branch," and gave his reasons.
John / Billybob / Ben
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