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The Antifederalists Were Right
Ludwig von Mises Institute ^ | September 27, 2006 | Gary Galles

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.

TOPICS: Constitution/Conservatism; Editorial; Extended News; Philosophy
KEYWORDS: 10thamendment; federalistpapers; statesrights
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To: Congressman Billybob
All the surviving early newspapers are available in the Madison Building, across the street from the Jefferson Building, main building of the Library of Congress.
It would be fascinating if they were on the WWW!

41 posted on 05/22/2010 5:31:57 PM PDT by conservatism_IS_compassion ( DRAFT PALIN)
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To: RogerFGay

With the nomination of Rand Paul, the neo-confederates are feeling their oats.

42 posted on 05/22/2010 5:38:49 PM PDT by EternalVigilance (There is no right to do wrong. Those who claim there is destroy the foundations of true liberty.)
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To: Paige

Go back even earlier than Locke, and read Hobbes..(leviathan, et al)..Madison was certainly the cerebral member of the bunch, but Adams (John) was also well read and understood well the lessons of history.....he has taken a rough rap from history, however, primarily due to his early loyalty to King George.

I do tend to agree with much the antt-federalists argued about, although it is clear that the Federalist group never considered the possibility, and eventuality, of life-long politicians, such as we have was dismissed as folly...after all, what kind of person would want to make a career of that?? As such, the Federalists were proven to be right on most of their concerns.

As Franklin so eloquently said, when asked what they had accomplished in the continental congress...”a republic, if you can keep it”

43 posted on 05/22/2010 5:42:01 PM PDT by QualityMan (Extremism in the pursuit of liberty is no vice.)
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To: RogerFGay

Great article.

The antifederalists were certainly right—the central government behemoth we now have is undeniably authoritarian and is supra-constitutional. It has been a slow but inexorable march to tyranny, with occasion periods of sharp racheting up of central government power (e.g., King Lincoln, FDR, LBJ, Ohaha).

May the Lord’s grace preserve our nation and return us to the limited government our forefathers thought they were bequeating us.

44 posted on 05/22/2010 5:47:10 PM PDT by SharpRightTurn (White, black, and red all over--America's affirmative action, metrosexual president.)
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To: EBH; Publius
Thanks for the ping and an apology for the belated reply. Yates was certainly one of the more articulate and long-sighted anti-Federalists but by no means the only one to be considered. We already have discussed George Clinton (Cato) as well as some whose identities aren't really known at all.

The real problem for the modern analyst is that both sides had very good points, and they weren't often arguing about the same things. Hamilton's case for a strong central government was bolstered by the strong historical suggestion that those nations without one tended to have their futures dictated by those who had one. The anti-Federalists replied that even were this the case, the proposed Constitution contained in it the seeds of a despotism with potential expressions of power that would be abusive and in excess of that necessary to maintain independence in a hostile world.

Where the anti-Federalists seemed to be at their best was in the arena of enumerated powers, more specifically how best to ensure that the government would not exceed them. Hamilton insisted that the very structure of the Constitution made it impossible for the government to exceed them - the government had, in his view, no possible way to do so. The anti-Federalists thought this approach the political equivalent of fairy-dust and with two centuries of hindsight we can hardly disagree. That was, however, one argument for the existence of a Bill of Rights, an argument shared by thinkers on both sides of the debate. But not Hamilton, who pointed out that such a Bill would tend to imply that those rights enumerated were the only ones the people possessed, a point of view which those same two centuries of hindsight will also uphold. That the very ones specified in such a Bill of Rights would also be encroached upon was not something either side cared to contemplate, although those two centuries of hindsight sometimes make us with that they had.

Great stuff. It is a bit questionable how much influence the furious debate in three New York newspapers that is the Federalist Papers had on the ultimate ratification, but there really isn't anything quite like them for articulating the point-counterpoint that had already taken place in the writing of the Constitution. That there even is a Bill of Rights is largely a consequence of this controversy.

What amazes me personally is how timely and relevant these same issues continue to be two centuries later. We're still fighting about the same things, and perhaps this is one secret to the Constitution's longevity. Even long-lived things can be killed by determined enemies. Sometimes they can be kept alive by equally determined friends.

All are encouraged to join Publius and me for a twice-weekly discussion of the Federalist Papers and the anti-Federalist replies. Every little bump helps.

45 posted on 05/22/2010 6:38:42 PM PDT by Billthedrill
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To: Jacquerie; central_va
Thanks for the ping central_va.

Jacquerie: The anti-federalists also got a lot wrong.

Could you point out a few or is that an oblique reference to the Articles of Confederation? Does it strike you as ironic that many of the anti's arguments are the same ones we hear from consertatives today? Even so, revisionist histories have left us with little meat to actually chew on when considering the pros and cons of the Articles. Historians would have us believe the Articles were a complete and total failure, which is patently false. Did the Federalists, who of course wanted an overbearing NATIONAL government hoodwink the anti delegates into believing the convention had been called to tweak the Articles? Can you say "budding progressives"???

46 posted on 05/22/2010 10:40:55 PM PDT by ForGod'sSake (You have just two choices: SUBMIT or RESIST with everything you've got!)
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To: ForGod'sSake; central_va

The Articles were treaties between sovereign states, not a government.

47 posted on 05/23/2010 5:31:11 AM PDT by Jacquerie (Islam is a barbaric social and political system in religious drag.)
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To: RogerFGay
Article misses what did not happen. The country was on the verge of Jacobinism.

In the north, the deadbeats of Shay's rebellion were demanding the state inflate the currency and allow debtors to pay off debts in whatever they had on hand (corn, pigs, whatever).

A corrupt southern aristocracy which had refused to sell off British property in lots even the middle class (what existed of a middle class in the south) could afford were getting out of their debts by running to judges. Everything the colonies had fought for in the Revolution was about to turn into mob rule and a fractious economic race to the bottom as each state positioned itself fight other states.

The Federalists stopped all that from happening...for a while. Delegated powers were not enough to stop centralization but it did postpone it for generations.

The real error, the original sin of the Constitution, was allowing for purposes of representation, slaves to be counted as 3/5ths of a person. That allowed the corrupt aristocracy Jefferson represented which had allied itself with an ignorant underclass and a venal press to wipe out what the federalists had created. Fisher Ames, a Federalist who was critical to the ratification of the constitution and who drafted the first amendment wrote in 1805:

Federalism was therefore manifestly founded upon a mistake, on the supposed existence of sufficient political virtue, and on the permanency and authority of the public morals. The party now in power committed no such mistake. They acted upon what men actually are, not what they ought to be . . .They inflamed the ignorant; they flattered the vain; they offered novelty to the restless; and promised plunder to the base. The envious were assured that the great should fall; and the ambitious that they should become great . . . we are descending from a supposed orderly and stable republican government into a licentious democracy . . .
The Federalists weren't the problem. The Jeffersonians were. Look at what Ames wrote. He's describing the Democratic party of today.
48 posted on 05/23/2010 5:46:00 AM PDT by Brugmansian
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To: QualityMan

Thanks for your reply. I have gone back further. Some of the ideas from the left go as far back as Ancient Greece. One of my passions is studying history. The other passion is studying and understanding Constitutional Law. :)
Thanks Again!

49 posted on 05/23/2010 7:33:48 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: Cheburashka
And extolling the virtues of the Anti-federalist ideas ignores the simple fact that they came up with absolutely nothing. They never produced a document, an “Anti-federalist Constitution”, either before, during, or after the adoption of the Constitution. What prevented them from holding their own Constitutional convention, even after the Constitution actually went into effect and proposing their own, better document?

Ridiculous. First, the antifederalists (the real federalists) had a document--The Articles of Confederation.

Second, the delegates in Philly were sent to the convention to fix the Articles by adding a few specific powers--they weren't supposed to create a new system. In other words, the antifeds had already offered their ideas and sent delegates to act on those ideas.

Third, The antifeds didn't create a constitution because they were against consolidating the government. They believed in a union of states--not a single, unified, consolidated, supreme government.

Finally, they didn't hold a convention after ratification because they had lost the political battle. Most antifeds followed Patrick Henry's example. Once the Constitution was ratified, they accepted it and moved on.

50 posted on 05/23/2010 8:13:01 AM PDT by Huck (Q: How can you tell a party is in the majority? A: They're complaining about the fillibuster.)
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To: Brugmansian
Federalism was therefore manifestly founded upon a mistake, on the supposed existence of sufficient political virtue, and on the permanency and authority of the public morals.

That's a good quote. Whenever I see that quote by Adams about our government being fit only for a moral and religious people, I think--what kind of maniacs would create such a utopian system???

51 posted on 05/23/2010 8:14:53 AM PDT by Huck (Q: How can you tell a party is in the majority? A: They're complaining about the fillibuster.)
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To: RogerFGay
I am beginning to think that they may have had the better part of the argument - too bad hindsight is always 20/20.

52 posted on 05/23/2010 8:16:37 AM PDT by Oceander (The Price of Freedom is Eternal Vigilance -- Thos. Jefferson)
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To: Paige
Anti- Federalist books should be read time and time again by Conservatives.

Agreed. Antifederalist Papers dealing with implied powers and with the judiciary especially. You'll never hear Limbaugh or Levin mention them. It's always the Federalist Papers. Sad. The fed papers make me laugh. They are so wrong so often it's mind-boggling. Madison talks about "few and defined" powers--lol. Always good for a belly laugh.

53 posted on 05/23/2010 8:18:21 AM PDT by Huck (Q: How can you tell a party is in the majority? A: They're complaining about the fillibuster.)
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To: Huck

Desperation. They really feared the rot they saw coming from Europe first during the French and Indian wars and then from our French allies during the Revolution. They saw the democratic impulse—they threat of the mob—feared it more than they feared a monarch or judges and attempted to ward it off by a fairly strong but limited Republic which was designed to curtail democracy. Before Jefferson, “democrat” was a slander. Even Jefferson ran from the word and insisted he held republican values.

54 posted on 05/23/2010 8:28:44 AM PDT by Brugmansian
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To: SharpRightTurn

While the Constitution, as ratified, did indeed give more power to a central government than the anti-federalists liked, (franklin was also concerned about certain provisions, including the need for a “presidency” as it smacked of monarchy), if the Constitution would be followed to the letter of the law, the government is restricted to the extent it needs to be...but, activist congresses over the past two centuries doomed us, almost from the beginning.starting with Andy jackson, through “King Lincoln”, et al.

55 posted on 05/23/2010 8:28:52 AM PDT by QualityMan (Extremism in the pursuit of liberty is no vice.)
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To: Brugmansian

“The Federalists weren’t the problem. The Jeffersonians were. Look at what Ames wrote. He’s describing the Democratic party of today.”


Jefferson was a “radical”, little wonder him and John Adams did not agree. Adams, as a Federalist, could not reconcile with Jefferson’s views, and as such, they feuded. Some interesting reads are the letters they exchanged after Jefferson left the that time frame, they began to reconcile their differences...those letters lend some wonderful insight into both of their experiences, and thought processes...( i am sure you are probably WELL aware of that.... :)

This is what I love about FR.....some of the most well read, intelligent people I have ever encountered.

56 posted on 05/23/2010 8:40:07 AM PDT by QualityMan (Extremism in the pursuit of liberty is no vice.)
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To: Huck
There's a saying in politics - you can't beat someone with no one. It means no matter how bad the other party's guy is, you've still got to put up someone better.

If Anti-federalists are actually going to try to resurrect the Articles of Confederation - adjudged by everyone as a failure after only 6 years over 220 years ago - hey, good luck with that. If Anti-federalists aren't going to try to resurrect the Articles of Confederation, they'll actually have to come up with a document, or or they can just be irrelevant. Their call. No tickee, no shirtee.

57 posted on 05/23/2010 9:59:58 AM PDT by Cheburashka (Stephen Decatur: you want barrels of gunpowder as tribute, you must expect cannonballs with it.)
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To: Huck

Study Madison, that is what he wanted.... Hamilton was the big government advocate.

58 posted on 05/23/2010 11:23:48 AM PDT by Paige ("All that is necessary for the triumph of evil is that good men do nothing," Edmund Burke)
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To: Rapscallion

The problem goes far far deeper then that. It goes through Lincoln, Wilson and FDR right through the current userper.

59 posted on 05/23/2010 11:25:34 AM PDT by Kozak (USA 7/4/1776 to 1/20/2009 Reqiescat in Pace)
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To: Cheburashka
they'll actually have to come up with a document, or or they can just be irrelevant.

I think it's pretty obvious that antifederalism (actual federalism) has been politically irrelevant, as you point out, for a very long time.

It's not a question of coming up with "a document." The Constitution forever changed the FORM of government. It went from a simple Congress of states to a consolidated nation/empire. There's no putting the toothpaste back in the tube on that one.

The relevance of it all, to me, is to better understand the current situation. Antifederalist writings help me understand it all much better. It helps me understand that the Constitution is the source of the problems.

60 posted on 05/23/2010 1:35:10 PM PDT by Huck (Q: How can you tell a party is in the majority? A: They're complaining about the fillibuster.)
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