Some Thoughts on anti-Federalist No. 1

Along with our study of the Federalist Papers, we’ve been reading through the anti-Federalist papers too.  They are often easier to read and frequently raise questions about some of the decisions and compromises that the Founders were required to make in framing the Constitution.  The anti-Federalists were almost forced into a negative position from the start of the debate.  Hamilton’s clever adoption of “Federalist” as a positive moniker to describe the views of those supporting the Constitution left them almost no alternative but to be “anti-Federalist.”  When you read these essays, however, you’re struck with how wary the writers were of the concentration of power in the proposed federal government and especially in the executive.  After all, it was the Federalists who were proposing a wholesale replacement of government, a replacement that the anti-Federalists saw as draining authority from the states.  The anti-Federalist papers have just as much relevance today as do the Federalist papers.

In anti-Federalist No. 1, Brutus humbly suggests that he has something to offer in a debate so important to “the happiness and misery of generations yet unborn.”  The crux of the argument is, of course, whether to adopt the new Constitution.

If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. You may rejoice in the prospects of this vast extended continent becoming filled with freemen, who will assert the dignity of human nature. You may solace yourselves with the idea, that society, in this favoured land, will fast advance to the highest point of perfection; the human mind will expand in knowledge and virtue, and the golden age be, in some measure, realised. But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty — if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining assylum for liberty will be shut up, and posterity will execrate your memory.

Never before in our country’s history has this issue been more relevant than today.  With all of its flaws and missteps, the answer has always seemed obvious.  In its first 2 centuries America provided unprecedented freedom and prosperity – in some measure realizing the “golden age” of which Brutus spoke.  It’s been the source of hope, inspiration and an example for the world.  But now it seems, our leaders question America’s contribution to the cause of human liberty.  Over time, the federal government, even without the amendment process, has grown in power and scope to an overbearing extent.  A seemingly prescient Brutus warned that there were insufficient protections against the expansion of government in the Constitution.

The anti-Federalists looked at history and saw that when the people once part with power, they can seldom or never regain it but by force.

Many instances can be produced in which the people voluntarily increased the powers of their rulers; but few, if any, in which rulers willingly abridged their authority.

The anti-Federalists believed that was reason enough to induce caution in how  power is vested in government.

Brutus foresaw the diminished power of the states as a foregone conclusion.  He worried about what powers the new and powerful federal government would determine to be “necessary and proper”.  The term “general welfare” gave him pause as to its potential application.  He was even concerned about the proclivity of Congress to get into debt.

[Congress] has authority to make laws which will affect the lives, the liberty, and property of every man in the United States; nor can the constitution or laws of any state, in any way prevent or impede the full and complete execution of every power given. … [and the] authority to contract debts at their discretion; they are the sole judges of what is necessary to provide for the common defence, and they only are to determine what is for the general welfare…

For every bill passed through Congress, thousands of pages of regulations are “enabled” for its implementation.  About.com has a whole site dedicated to the size and scope of the federal government:

According to the Office of the Federal Register, in 1998, the Code of Federal Regulations (CFR), the official listing of all regulations in effect, contained a total of 134,723 pages in 201 volumes that claimed 19 feet of shelf space. In 1970, the CFR totaled only 54,834 pages.

The General Accountability Office (GAO) reports that in the four fiscal years from 1996 to 1999, a total of 15,286 new federal regulations went into effect. Of these, 222 were classified as “major” rules, each one having an annual effect on the economy of at least $100 million.
While they call the process “rulemaking,” the regulatory agencies create and enforce “rules” that are truly laws, many with the potential to profoundly effect the lives and livelihoods of millions of Americans. What controls and oversight are placed on the regulatory agencies in creating the federal regulations?

The Obamcare bill by itself is estimated to generate between 30,000 and 50,000 pages of new regulations.

Brutus’ predictions on states being beholden to the largess of the federal government weren’t far off the mark either.  Consider the ever increasing number of states forced to use “stimulus” funds to provide a short-term “fix” to cover insolvency brought about, in many cases, by unfunded mandates from Washington.  Obamacare promises to further add to the burden of bankrupt states.

… when the federal government begins to exercise the right of taxation in all its parts, the legislatures of the several states will find it impossible to raise monies to support their governments. Without money they cannot be supported, and they must dwindle away, and, as before observed, their powers absorbed in that of the general government.

Brutus continues on this theme, and raises the specter of a federal government impatient with even the slightest abrogation of authority by the states.

… it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.

The news of the past several months validates these fears. Recent headlines tell of a federal government that is suing the state of Arizona over its authority to protect its citizens from illegal immigration, to enforce federal law, and to require presentation of an ID to vote.

Brutus then takes his argument in a direction which, until only recently would seem to have been thoroughly dis-proven by events.  He cites Montesquieu’s contention that a large country cannot be effectively governed by either democratic or representative means.

The confidence which the people have in their rulers, in a free republic, arises from their knowing them, from their being responsible to them for their conduct, and from the power they have of displacing them when they misbehave: but in a republic of the extent of this continent, the people in general would be acquainted with very few of their rulers: the people at large would know little of their proceedings, and it would be extremely difficult to change them. … The consequence will be, they will have no confidence in their legislature, suspect them of ambitious views, be jealous of every measure they adopt, and will not support the laws they pass. Hence the government will be nerveless and inefficient, and no way will be left to render it otherwise, but by establishing an armed force to execute the laws at the point of the bayonet — a government of all others the most to be dreaded.

In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them. The trust committed to the executive offices, in a country of the extent of the United-States, must be various and of magnitude…. When these are attended with great honor and emolument, as they always will be in large states, so as greatly to interest men to pursue them, and to be proper objects for ambitious and designing men, such men will be ever restless in their pursuit after them. They will use the power, when they have acquired it, to the purposes of gratifying their own interest and ambition, and it is scarcely possible, in a very large republic, to call them to account for their misconduct, or to prevent their abuse of power.

Does any of this sound familiar?  Perhaps we should recall what candidate Obama said in July of 2008.

We cannot continue to rely on our military in order to achieve the national security objectives that we’ve set. We’ve got to have a civilian national security force that’s just as powerful, just as strong, just as well-funded.

The anti-Federalists believed that virtue could be maintained only in small homogeneous republics and that the very size of the republic to be governed by the power concentrated in the central government would lead inevitably to corruption. Maybe they were closer to the truth than we knew.