Skip to comments.The Antifederalists Were Right
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.
Always remember - People may die, but ideas live for ever. The philosophies from the Ancient Greeks are still with us and the Marxist(Liberals) prove daily their ideas are not new, but they progressively push their agenda in order to get those old ideas in place.
Study James Madison - he is the one who read and researched the older philophies of John Locke and others. Study John Locke’s writings on Social Contract. My students are taught about all of these men and their ideas.
Most of all, the time has come for the Conservatives to be as “dogmatic” as the Marxist. The question is - “Do we Conservatives believe our ideas and agenda are greater than that of the Marxist”? Are Conservatives willing to do whatever has to be done to win in the end?
” restore the necessary common sense and good judgment to an electorate willing to have such a man for their president. The problem is much deeper and far more serious than Mr. Obama, who is a mere symptom of what ails us. “
While it’s virtually, and morally, impossible to ‘legislate common sense’, it would be possible to mitigate the power of the fools by returning, somehow, (and exactly ‘how’, I must leave to those smarter than I..) to the system which limits, if not eliminates, the ability of the populace to vote largesse for itself from the public coffers....
I see freedom of the press as protecting a right to publish and not some profession or industry.
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?
I'm reminded of Churchill's statement: “No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.”
So it is with the Constitution: the worst organizational document, except for all the others proposed. The only other document that was ever come up with was the Articles of Confederation, and its flaws were what led to the Constitution.
In the end there are two types of Anti-federalists:
1) those that have come up with something better,
2) the critics, whiners and complainers.
So far there are no Anti-federalists who qualify for 1).
Perhaps it is long past time for Anti-federalists to actually come up with a document.
“The anti-federalists also got a lot wrong.”
Exactly!! The US Constitution is a brilliant document. It works well....when followed.
Our decay is spiritual and moral. This is the root of our problems.
Ya see, that's the kind of thinkin' ya get when people actually study real history, instead of "social studies"! Lucky the libs are taking care of that! (I don't really need the /s tag, do I?)
In fact, although they didn’t explicitly mention the possibility that you site, the anti-Federalists DID see the flaw.
All of the problems originated long before Obama. He is nothing more than a symptom of it...a figurehead.
I agree with your post, except for one part. I don’t think we would be 50 independent countries. I think we would be 13 colonies reconquered by Britain.
The problem of our having an electorate which allows tyranny because it is capable of electing "liberal" Democrats in general and Barak Obama in particular is, IMHO, the problem of transcending the emotional appeals of Sophists. It should be recalled that the answer to an opponent who claims superior wisdom is not to get into a "he said, she said" contest with them but to adopt the stance of the philosopher. The philosopher does not claim superior wisdom, but claims only to love wisdom. That constitutes a challenge to the sophist to stick to facts and logic.
It is common, even on FR, for people to accept the premise that Fox News Channel is conservative and that other journalism is "objective." A recent example, and my response, follows:
Democrats are cowards for refusing to go on Fox. They would be glad to, if they had facts and logic rather than showmanship behind their snake oil, but they don't - so they stay away from the exposure. The trouble with going on Fox is that you will be asked the second question. If you have the facts and logic to back up your case, that's no problem. Conservatives do have facts and logic behind their cases; it is their defining characteristic.and then turn around and call republicans stupid for going on any of the other networks.
Journalism as we know it did not exist until the era of the Civil War. Prior to that, newspapers were fractiously independent of each other, and didn't accept claims that competing newspapers' reporters were objective. In fact, the newspapers of the pre-Civil War era were more like National Review than like The New York Times. Most were weeklies, and some had no deadline at all and just went to press when the printer decided he was ready. More than modern "hard news," they were about the opinions of their printers. Presses of that ilk naturally were ordinarily associated with political parties. The whole paper was what we'd now think of as an editorial page - and the printers couldn't and didn't try to make that a secret. That was the milieu when the First Amendment was written and ratified.Its hypocritical and pathetic.What changed that?
The telegraph. The telegraph, and the Associated Press. Suddenly the printer had available to him a font of news stories to which his readership could not be privy before he printed them. A wonderful thing for the printer of a paper! But, at a price. It was expensive in money, and the printer needed to get value out of his AP newswire. How to do that, when the printer didn't employ, didn't even know, the reporters who produced the cornucopia of newswire stories? How to vouch for the veracity of the stories? Simple - you simply launch a propaganda campaign to the effect that all reporters are objective!
Here's a news flash for you: journalists actually aren't objective! How do I know? Well, you can do a lot of ponderous research, such as (A Measure of Media Bias (research shows Drudge/Fox centrist, NYT far liberal) ), to prove it - but you need not expect that journalists will do anything but stonewall the results, no matter how thorough the research might be. Far simpler to just be direct - journalists are not objective because they say that they are objective. Simple - the only way anyone can even attempt to be objective is to start your analysis with an up-front declaration of your own interest in the question you are analyzing. If you are arguing that more roads should be built, you declare up front if your father-in-law would be the one to build them, and you would even declare your ownership of a car which would be more useful if there were more roads. Declaring your own objectivity is the precise opposite of that, so you should take it for granted that journalists who never declare anything but their own "objecitivity" are not merely not objective, they are heavily biased.
What is the inherent bias of journalism? Simple again - journalists are biased in favor of the notion that journalists are heroes. In Mark Steyn's expression, they are cardboard heroes - great at attacking "dastardly villains" such as bankers who actually pose no threat, but impotent and cowardly in the presence of actual villains such as ruthless terrorists who'll behead you for crossing them. Cowards who boast that "you never argue with someone who buys ink by the carload" - and then pick on some poor defenseless schlub precisely because he can't effectively argue back, and wouldn't hurt a fly anyway.
How does that bias of journalism play into politics? Simple again - "liberal" politicians are those who cooperate with journalists and essentially exist in symbiosis with them. You can tell that by the way journalists give them positive labels. Americans favored liberalism - which was a word for the advocacy of liberty - so journalists began to call politicians in symbiosis with them "liberals." The meaning of the word "liberal" was inverted in the 1920s, according to Saffire's New Political Dictionary. Journalists also, alternatively, call politicians in symbiosis with them "progressives." What American doesn't favor progress? And as to the label applied to "liberals'" opponents, well, I'll believe that "conservative" is intended as a positive label as soon as you convince me that marketers don't want to label their products New!
Ann Coulter has pointed out that if she goes on a book tour and is put on TV, journalists always "balance" her with one (usually more than one) "liberal" commentator to argue with her. in addition to the "objective journalist" him/herself, who will always attack as well (the usual result is that Ann has to really fight to get a word in edgewise - and as quick-tongued as she is, that's saying something). If a "liberal" goes on a book tour, when have you ever seen him/her "balanced" by a conservative? When have you ever seen him/her attacked by the "objective" journalist?
http://www.freerepublic.com/focus/news/2518098/postsNot only is there no hypocrisy involved in advocating that conservative politicians go on Fox but keep the "objective" journalist at arm's length, it is IMHO actually pathetic to think that they are obligated to do otherwise.
A constitutional revival, IMHO, must begin with the recognition - first by the courts, and then by the public - that the government is not a safe repository for the judgement of what is, and what is not, "objectivity." With all that that implies for the authority of "Campaign Finance Reform" and the "Federal Communication Commission."
“If ever a man debauched a nation, George Washington debauched the United States.” That’s not journalism. That's opinion, boldly stated. And that's what the early American press largely deal it.
It was as raucous as the supermarket tabloids today. 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.
John / Billybob / Ben
You’re probably right. I am guilty of optimism in my weaker moments. Can’t wait for November so I can assess just how much trouble we are in.
FReeper Book Club: The Debate over the Constitution
5 Oct 1787, Centinel #1
6 Oct 1787, James Wilsons Speech at the State House
8 Oct 1787, Federal Farmer #1
9 Oct 1787, Federal Farmer #2
18 Oct 1787, Brutus #1
22 Oct 1787, John DeWitt #1
27 Oct 1787, John DeWitt #2
27 Oct 1787, Federalist #1
31 Oct 1787, Federalist #2
3 Nov 1787, Federalist #3
5 Nov 1787, John DeWitt #3
7 Nov 1787, Federalist #4
10 Nov 1787, Federalist #5
14 Nov 1787, Federalist #6
15 Nov 1787, Federalist #7
20 Nov 1787, Federalist #8
21 Nov 1787, Federalist #9
23 Nov 1787, Federalist #10
24 Nov 1787, Federalist #11
27 Nov 1787, Federalist #12
27 Nov 1787, Cato #5
28 Nov 1787, Federalist #13
29 Nov 1787, Brutus #4
30 Nov 1787, Federalist #14
1 Dec 1787, Federalist #15
4 Dec 1787, Federalist #16
5 Dec 1787, Federalist #17
7 Dec 1787, Federalist #18
8 Dec 1787, Federalist #19
11 Dec 1787, Federalist #20
12 Dec 1787, Federalist #21
Publius has a biweekly thread on the Federalist papers.