The Antifederalists Were Right

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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).

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.

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.

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
, 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

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).

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.

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 legislature’s 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:

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.





What you
think you know might not be true

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.

15, 2009

Gary M.
Galles [send him mail]
is a professor of economics at Pepperdine University.

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