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.
In some ways Madison comes off worse than Hamilton. At least Hamilton was big gov all the way and no doubt about it. Madison helped create the monster, then scurried around trying to undo what he'd just done, apparantly caught flatfooted by the very things the antifeds had warned about and Madison as Publius had mocked--implied powers, unaccountable judiciary, etc.
Why is it that no one, not Henry, not Yates, ever offered specific corrections to The Articles of Confederation?
What would you have done?
Answer: Confederacies do not constitute government.
Even if there were no chance of implementation today, you would think Anti-federalists would memorialize their improved document for the sake of future generations.
I'm certainly not going to hold my breath waiting for the Anti-federalist unicorn.
That is as far as I'll go, I get paid to lecture about this... but the gist of this is - Madison was nothing like Hamilton and if you think so then you truly have not researched and read about these two men.
I didn’t say Madison was like Hamilton. I said Madison, in some ways, was worse. Hamilton was a big gubmint guy all the way. Madison was a sucker who created a big government and then got hoodwinked by his own creation-—numerous times.
The antifeds HAD their document-—the Articles of Confederation.
Articles of Confederation - epic fail, as judged by the men who crafted it and who abandoned it as inadequate only six years after it went into effect. But if that’s the Anti-federalists’ recommendation for a better document than the Constitution, hey, good luck to them with that.
Constitution—epic fail. Limited government? LOL. Few and defined powers? LOL. Oh man, it sure is good for a laugh though.
And it's a failure. First, the idea of a part-national, part-federal system is a failure. When you have a supreme national government, the states become mere administrative agencies, retaining only those powers the national government lets them keep. Second, the "few and defined" powers has been proven a failure. And it didn't take long. The Implied Powers doctrine was applied in the Washington administration (the first time Madison got hoodwinked.) Third, the unaccountable judiciary has proven to be a virtually limitless loophole for the nationals to expand power, with common law principles making it virtually impossible to undo the damage done over the course of our history. Finally, the system is just as indebted as the old government was under the Articles. Supposedly that was why we needed consolidation--to pay our debts. How's that working out.
In short, any objective observer can see the Constitution completely failed to create the government Madison described in his Federalist papers. What the Constitution created was a leviathan.
For the sake of argument assuming the Constitution was all bad, wrong, evil, pernicious, (insert additional negative adjectives here), you would think the Anti-federalist Constitution should be leaping off (the Anti-federalists’) pens... well, to update the image leaping off their keyboards. Yet the mountains groan and bring forth... nothing, not even a mouse.
Articles of Confederation - epic fail, as judged by the men who crafted it and who abandoned it as inadequate only six years after it went into effect. But if thats the Anti-federalists recommendation for a better document than the Constitution, hey, good luck to them with that.
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. (A small addition:) Or admit they cannot.
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.
You know my position - I know yours. We must agree that we disagree and will not come to any agreement.
Good luck to you in future ventures.
That's not correct. The flaws in the Articles led to delegates being sent to Philly, with instructions to amend the articles--on commerce, on taxation.
What led to the Constitution was the desire on the part of certain key elites to create a consolidated government worthy of empire. The convention was merely the political opportunity they seized upon to hatch their plan.
It's all water under the bridge now. The Constitution has brought us to where we are. Not much we can do about it now. The "framers" really screwed the pooch.
Good point. Certainly there would have been no Louisiana Purchase and no War with Mexico. Hence, nothing recognizable as the US past the Mississippi. Most likely, the Lousiana Purchase lands would have gone to Britain after defeating Napoleon. It would make an interesting alternative history novel.
SO you think a loose confederation would still be standing? Excuse me, but that did give me quite a chuckle.
The problem started with the radical Congress during and after the Civil War. Then FDR didn’t help with the threat of stacking the court. Most of all, Marxist professors teach that the strict literal misinterpreted is wrong, because they believe the Constitution is a living breathing document.
The Constitution worked for well over 150 years, until the Marxist came along and interepreted the Post Civil War amendments.
You’re quick to blame Madison, but why don’t you do your homework with the Moonbat Brigade and the last 100 years???