“You are not to inquire how your trade may be increased, nor how you are to become a great and powerful people, but how your liberties can be secured; for liberty ought to be the direct end of your government.”
Patrick Henry, Anti-Federalist leader
Right-wing critics of America and/or the Constitution often seek to legitimize their position by appealing to the Anti-Federalist Papers, a collection of essays from the late 1780s written in opposition to the new proposed Constitution drafted in Philadelphia. The authors of the papers, who almost all wrote under various pseudonyms, did indeed make several interesting observations about the Constitution and accurately predict a number of the problems that America has faced since its adoption, such as activist courts, a decadent capital and the loss of states’ rights. It is therefore our duty to honestly consider their arguments and ask if our Constitution could be improved.
We begin with the Anti-Federalist Brutus, who argued that the Constitution grants too much arbitrary authority to the judicial branch, essentially allowing the courts to rewrite the law.
“it appears, that the judgment of the judicial, on the constitution, will become the rule to guide the legislature in their construction of their powers. What the principles are, which the courts will adopt, it is impossible for us to say; but…it is not difficult to see, that they may, and probably will, be very liberal ones. We have seen, that they will be authorized to give the constitution a construction according to its spirit and reason, and not to confine themselves to its letter.”
(Brutus Letter XII)
The predictions of Brutus have most tragically come to pass. Numerous national disasters, such as the legalization of abortion and school desegregation, were only achieved through the Supreme Court violently departing from the clear letter of the law. These unpopular policies would have been impossible to pass in the federal legislature, so the forces of degeneracy exploited this weakness in the Constitution.
Early Americans saw themselves as the founders of a modest pioneer republic based on frugality and personal responsibility. They loathed the bloated, luxurious European courts full of corrupt sycophants leeching off of the central government, and they certainly did not want the American capital to look like this. But Anti-Federalist Cato warned that the office of President as defined in the Constitution would indeed lead to such a situation.
“I endeavored to prove that the language of the article relative to the establishment of the executive of this new government was vague and inexplicit, that the great powers of the President, connected with his duration in office would lead to oppression and ruin. That he would be governed by favorites and flatterers, or that a dangerous council would be collected from the great officers of state, — that the ten miles square [the federal capital]…would be the asylum of the base, idle, avaricious and ambitious, and that the court would possess a language and manners different from yours.”
(Cato Letter V)
Cato very accurately describes the current state of Washington, D.C., where the greedy politicians are joined by an army of lobbyists and consultants sucking dry our national wealth. As recent populist outbursts have proven, Americans widely believe that the denizens of our capital view themselves as a distinct noble class that should not have to listen to the concerns about the peasants in flyover country. And this belief is completely correct, as the disdain that our political elites feel for the “deplorables” has never been more obvious.
Perhaps the most serious charge against the new proposed Constitution was that it would eventually destroy the identity of the states as individual sovereign entities. In one of the Anti-Federalist papers credited to “The Pennsylvania Minority,” we find that the author correctly predicted that the “Supremacy Clause” in Article VI of the Constitution effectively meant the end of states’ rights.
“the supremacy of the laws of the United States is established by article 6th, viz. ‘That this constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding.’ It has been alledged that the words ‘pursuant to the constitution,’ are a restriction upon the authority of Congress; but when it is considered that by other sections they are invested with every efficient power of government, and which may be exercised to the absolute destruction of the state governments, without any violation of even the forms of the constitution, this seeming restriction, as well as every other restriction in it, appears to us to be nugatory and delusive; and only introduced as a blind upon the real nature of the government. In our opinion, ‘pursuant to the constitution,’ will be co-extensive with the will and pleasure of Congress, which, indeed, will be the only limitation of their powers.”
(The Pennsylvania Minority)
Probably the greatest legacy of the Anti-Federalists was the addition of the Bill of Rights to the Constitution. These amendments were largely crafted as a response to the concerns brought forth by these critics. The concern about the erosion of states’ rights was addressed in Tenth Amendment, which reads,
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
However, the Tenth Amendment has done very little to stop the encroachment of the federal government upon the rights of the states, vindicating the Anti-Federalists even further. Federal supremacy ultimately was won through the force of arms, not legislation. Once the federal apparatus was allowed to build a military, it was then able to use this force to impose its will on any recalcitrant states, regardless of what the Tenth Amendment says. During the forced integration of public schools many Southerners objected that the federal government was overstepping its limits as defined in the Tenth Amendment. The Supreme Court responded by citing the Supremacy Clause and the President responded by sending in federal troops to force racial harmony down the throats of white Southerners.
One of the more important critiques of the Constitution made by the contemporary far-right is that the document does not clearly define the racial requirements for American citizenship. I have shown elsewhere that this did not prevent several states, including those outside of the South, from passing pro-white racial legislation. However, the failure to define racial issues clearly at the federal level has ultimately been a very costly mistake for the nation. And although race was not the main concern of the Anti-Federalists, they did notice the deficiency of the Constitution on this point. For example, the Federal Farmer commented on the fact that the Constitution has age requirements, but not racial or religious requirements, for holding office.
“The qualifications of the representatives are also fixed and designated, and no person under 25 years of age, not an inhabitant of the state, and not having been seven years a citizen of the United States, can be elected; the clear inference is, that all persons 25 years of age, and upwards, inhabitants of the state, and having been, at any period or periods, seven years citizens of the United States, may be elected representatives. They have a right to be elected by the constitution, and the electors have a right to chuse them. This is fixing the federal representation, as to the elected, on a very broad basis: it can be no objection to the elected, that they are Christians, Pagans, Mahometans, or Jews; that they are of any colour, rich or poor, convict or not: Hence many men may be elected, who cannot be electors. Gentlemen who have commented so largely upon the wisdom of the constitution, for excluding from being elected young men under a certain age, would have done well to have recollected, that it positively makes pagans, convicts, &c. eligible.”
(Federal Farmer Letter XII)
The Anti-Federalist Agrippa pointed out that another danger of the Constitution is that it gives the federal government exclusive power over immigration law, which could result in states that wish “to keep their blood pure” being overruled by the federal government. Interestingly Agrippa, a New Englander, gives Pennsylvania, with its recent German and Dutch immigration, as an example of a state that is less prudent in racial matters.
“We come now to the second and last article of complaint against the present confederation, which is, that Congress has not the sole power to regulate the intercourse between us and foreigners. Such a power extends not only to war and peace, but to trade and naturalization. This last article ought never to be given them; for though most of the states may be willing for certain reasons to receive foreigners as citizens, yet reasons of equal weight may induce other states, differently circumstanced, to keep their blood pure. Pennsylvania has chosen to receive all that would come there. Let any indifferent person judge whether that state in point of morals, education, energy is equal to any of the eastern states; the small state of Rhode-Island only excepted. Pennsylvania in the course of a century has acquired her present extent and population at the expense of religion and good morals. The eastern states have, by keeping separate from the foreign mixtures, acquired, their present greatness in the course of a century and an half, and have preserved their religion and morals. They have also preserved that manly virtue which is equally fitted for rendering them respectable in war, and industrious in peace.”
(Agrippa Letter IX)
If these racial concerns had been taken more seriously by the founding generation, it is quite possible that we could have avoided much of the death and suffering that we have experienced in our nation’s history.
Having seen that the Anti-Federalists did indeed anticipate many of the problems created by the Constitution, what lessons should we take from this? Some far-right critics have attempted to use the writings of the Anti-Federalists as proof that Americanism as a whole was rotten from the beginning and that we should abandon it in favor of European style monarchy. This approach, however, ignores the wisdom of the Anti-Federalists. Far from being opposed to representative government, the Anti-Federalists in fact objected to the Constitution largely because they felt that it was too aristocratic. They were greatly concerned that the Constitution would not allow men of the working classes to serve in the federal legislature and that the ratio of representation in this body would be much too large.
“Each order [social class] must have a share in the business of legislation actually and efficiently. It is deceiving a people to tell them they are electors, and can chuse their legislators, if they cannot, in the nature of things, chuse men from among themselves, and genuinely like themselves.”
(Federal Farmer Letter VII)
“A representation so formed as to admit but few or none of the third class, is, in my opinion, not deserving of the name — even in armies, courts-martial are so formed as to admit subaltern officers into them. The true idea is, so to open and enlarge the representation as to let in a due proportion of the third class with those of the first. Now, my opinion is, that the representation proposed is so small, as that ordinarily very few or none of them can be elected; and, therefore, after all the parade of words and forms, the government must possess the soul of aristocracy, or something worse, the spirit of popular leaders.”
(Federal Farmer Letter IX)
“The great body of the yeomen of the country cannot expect any of their order in this assembly — the station will be too elevated for them to aspire to — the distance between the people and their representatives, will be so very great, that there is no probability that a farmer, however respectable, will be chosen — the mechanicks of every branch, must expect to be excluded from a seat in this Body — It will and must be esteemed a station too high and exalted to be filled by any but the first men in the state, in point of fortune; so that in reality there will be no part of the people represented, but the rich, even in that branch of the legislature, which is called the democratic. The well born, and highest orders in life, as they term themselves, will be ignorant of the sentiments of the midling class of citizens, strangers to their ability, wants, and difficulties, and void of sympathy, and fellow feeling.”
(Brutus Letter III)
The Anti-Federalists clearly shared one of the main concerns of many of the founding fathers: that a republic must strive to harmonize all classes of society by giving them a voice in government. That sought-after harmony does not exist today, and the enormous gulf that exists between the people and our representatives in Washington certainly does not help the situation.
The founders who supported a stronger federal government did have legitimate concerns about the weakness of the Articles of Confederation, and even though some of the solutions they proposed to strengthen the union eventually had negative consequences, it would be unfair to simply condemn the supporters of the Constitution as being malicious. It would also be incorrect to label the Constitution as being “anti-American.” Even with the flaws that were pointed out by the Anti-Federalists, the document is still uniquely American and possesses many fine qualities. There were wise, sincere men on both sides of the debate over the Constitution, and supporting one side of the debate does not mean that we must dishonor the other. Nor does siding with the Anti-Federalists in any way justify an anti-American attitude. The Federalists and Anti-Federalists were not debating the validity of Americanism, they were debating what manner of written constitution would best reflect the organic, preexistent American identity. They were creating a new legal code, not a new ethnicity. No Englishman or Frenchman would think of abandoning his English or French identity because there were flaws in a centuries old legal code, nor should we abandon our American identity because the Constitution is imperfect. Rather we should commit ourselves to improving the American nation, learning from both the triumphs and the errors of previous generations.