November 18, 2002
By Matt Johnson
The present moment discovers a new face in our affairs. Our object has been, all along, to reform our federal system, and to strengthen our governments-to establish peace, order and justice in the community. But a new object now presents. The plan of government now proposed is evidently calculated totally to change, in time, our condition as a people. Instead of being 13 republics, under a federal head, it is clearly designed to make us one consolidated government. (260)
So says “the Federal Farmer” (likely to be Melancton Smith) in his “Letters” of Oc to ber 9, 1787. One of the overriding con cerns of the Anti-Federalists was that the state system would eventually be replaced by a centralized government. He continues, a bit later in his letter:
Independent of the opinions of a great many authors, that a free elective government cannot be extended over large territories, a few reflections must evince that one government, and general legislation alone, never can extend equal benefits to all parts of the United States: Different laws, customs, and opinions exist in the different states, which by a uniform system of laws would be unreasonably invaded. (264)
Interestingly, such communitarian arguments were largely avoided by the authors of The Federalist. Of course, during the so-called Civil Rights struggle of the 1950s and later, such an argument, long ignored, was resurrected. In recent years, over such issues as wetlands, the Environmental Protection Agency and ranchland policy, such arguments again have been dusted off. Unfortunately, they may have been rehabilitated too late.
In a very general sense these two passages sum up the Anti-Federalist position, and the nature of the Anti-Federalist Founding Fathers’ predictions of the future: simply, that the federal government, under the constitution then proposed, would gobble up the states, and in so doing, force all internal business to be regulated by the central monolith. In the process, of course, true liberty would be destroyed, and a forced uniformity would be the official ideology of the new, revolutionary system. Such ideas shall now be explored in some detail.
The general opinion of the Anti-Federalists was that the power of taxation will gradually become the property of the federal government, and that in the process the independence of the states would be destroyed. The Anti-Federalists predicted the coming of the income tax and its horrible, invasive consequences concerning the vitiation of personal privacy and property under the malevolent gaze of capricious federal tax regulators. “Brutus,” another major Anti-Federalist writer (probably New York judge Robert Yates, who, along with fellow New York delegates to the Federal Convention, refused to sign the constitution), describes the coming federal tax regime and the vicious oppression of the future Internal Revenue Service (IRS):
This power [of direct federal taxation], will introduce itself into every corner of the city and country-It will wait upon the ladies at their toilet, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even in their church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlor, preside over the table, and note down what he eats or drinks . . . it will take cognizance of the professional man in his office . . . it will watch the merchant in his counting house, or in his store; it will follow the mechanic into his shop, and in his work and will haunt him and his family, and in his bed; it will be the constant companion of the industrious farmer in all his labor, it will be with him in his house, and in the field . . . (283)
The minority of Pennsylvania, those dissenting from the proposed constitution from that state, wrote on December 18, 1787 in the same vein as “Brutus”:
The power of direct taxation will further apply to every individual, as Congress may tax land, cattle, trades, occupations etc in any amount, and every object of internal taxation is of that nature, that, however oppressive, the people will have but this alternative, except to pay the tax, or let their property be taken, for all resistance will be in vain. The standing army and select militia would enforce the collection. (252-53)
Not only is some sort of income tax predicted, but the existence of the IRS. In other words, a tax on income (taxes on “trades and occupations”) would force, necessarily, a huge invasion of one’s family and personal life in order to regulate the collection of such taxes. Never forget that while reading either The Federalist or The Anti-Federalist, that Daniel Shays’s rebellion (August 1786-February 1787) had just passed, and tax warfare and tax rebellion were already in full swing. Those who dreamed of a global financial empire, such as Alexander Hamilton, knew that federal enforcement of taxation would even tually be a necessity, and the Anti-Federalists responded in kind.
The Pennsylvania minority hinted at this by claiming, in reference to this difficulty, that “the framers of this constitution appear to have been aware of this great deficiency. . . .” (254)-an accusation, in context, of a political sleight-of-hand, that is, that the framers were less than forthright about the constitution’s difficulties.
The Pennsylvania minority continues:
The powers of Congress under this new constitution are complete and unlimited over the purse and the sword, and are perfectly independent of, and supreme over, the state governments, whose intervention in these great points is entirely destroyed. By virtue of their power of taxation, Congress may command the whole or any part of the property of the people. They may impose what imposts upon commerce; they may impose what land taxes, poll taxes, excises, duties, on all written instruments, and duties on every other article that they may judge proper. (243)
All of this, so the Anti-Federalists claimed, would be legitimized under the authority of the “general welfare” clause of the constitution (8th section, article I). This clause-vague and imprecise-caused the Anti-Federalists much worry. What limit, they asked, would the federal government have if it can justify everything under the heading of “general welfare”? Many in this camp smelled a rat within the Federalist party, suspecting that the latter was using purposely vague language so they-or their successors-might later impose a centralized tyranny upon the country. The taxing power was one of the most important steps to this and was an indispensable element to political or economic centralization.
In a similar vein, Samuel Bryan of Pennsylvania, writing under the name of “Centinel” on October 5, 1787, wrote that, under the “general welfare” clause,
. . . the federal government, specifically the president commanding a standing army, would have absolute control over the commerce of the United States and all external objects of revenue, such as unlimited imposts upon imports etc-they are to be vested with every species of internal taxation-whatever taxes, duties and excises they may deem requisite for the general welfare, may be imposed on the citizens of these states, levied by the officers of Congress, distributed through every district of America; and the collection would be enforced by the standing army, however grievous or improper they may be. (232)
It would be difficult to find a clearer prediction of the creation of the IRS, and, specifically their future abuses of the individual liberties of American citizens. Conveniently, Bryan has been dropped from the “canon” of American Founding Fathers. Presently, he is all but forgotten.
Another clause caused the Pennsylvania minority difficulty, as well as their compatriots such as Bryan- namely, the “necessary and proper” clause. In other words, once a federal program went into effect, however innocuous, this clause left the door open to any sort of federal intervention into the lives of individuals, localities, counties or states in that they might do whatever-in the eyes of the feds-is “necessary and proper” to fulfill their “duties” in carrying out the policy. This was another hole that the minority thought was too gaping to have been an accident.
An issue of importance here is that there is no specific provision (in or out of the Bill of Rights) that specifically leaves taxing power to the states. Now, once that is combined with the explicit supremacy of federal power found in the constitution (article 6), the power of the states to exist as substantially sovereign units is little more than formal. Such a subterfuge would “indirectly destroy the state governments.” (243) The pathetic show of state governors and legislatures complaining about the lack of federal funds and federal support for their pet projects shows how far from the original idea of a decentralized confederation of republics the United States has come.
Patrick Henry, perhaps the greatest known opponent of the federal constitution, was equally concerned about this. He wrote on June 7, 1788:
So that the whole of our property may be taken by this American government, by laying what taxes they please, giving themselves what salaries they please, and suspending our [state] laws at pleasure: I might be thought too inquisitive, but I believe I should take up but very little of your time in enumerating the little power that is left to the government of Virginia; for this power is reduced to little or nothing. . . . The voice of tradition, I trust, will in form posterity of our struggles for freedom: if our descendants be worthy of the name “Americans,” they will preserve and hand down to their latest posterity, the transactions of the present times. . . . (211-12)
Henry went on to praise the idea of the American union, but in a manner the Federalists would not have found pleasing. One must recall when reading the Founding Fathers that the idea of taxes on income was universally condemned; but alone among the founders of the American polity were the Anti- Federalists in predicting that it would be a reality in a future time if the constitution, as it stood, were adopted.
It is probably the case that the Anti-Federalists worried far more about, ultimately, the elimination of states as independent political (and even moral) entities more directly than anything else; much else of value was bound up with the idea of decentralization and cultural particularity. Unlike most Federalists, the Anti-Federalist movement at this time was largely communalist, believing that the specific politics, needs and norms of the specific states and regions were the keys to social stability, and, as such, needed to be kept in place.
For most of them, the very worst thing that could happen to the fledgling American republic was that it be ruled by an arrogant central administration, far re moved from the local needs of the specific states and regions of the nation. “Brutus” writes, on October 18, 1787, in this regard:
In a republic of such vast extent as the United States, the [federal] legislature cannot attend to the various concerns and wants of its different parts. It cannot be sufficiently numerous to be acquainted with the local condition and wants of the different districts, and if it could, it is impossible it should have sufficient time to attend to and provide for all the variety of cases of this nature that would continually be arising. (279)
Of course, federal taxing powers will be the vanguard of this usurpation of state prerogatives. Thus the question of state power lies with the power to tax, and, more accurately, the power of the federal government to nullify state taxes for the “general welfare,” or because it is “necessary and proper” for the federal government to more efficiently carry out its own duties. Much of the argument of the Anti- Federalist writers might well be reduced to this.
Patrick Henry, as with many of the Anti-Federalists, was alarmed by the standing army some of the Federalists were proposing. Such innovations were viewed as something that specifically applied to European aggression, imperialism and perpetual warfare. That a standing army would be the enforcers of tyranny was a continuous charge of the Anti-Federalist faction. Henry writes in 1788 concerning this development and its relationship to state authority:
Of what service would [a state] militia be to you, when most probably you will not have a single musket in the state; for as arms are to be provided by Congress, they may or may not furnish them. Let me here call your attention to that part which gives Congress power, “To provide for organizing, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointments of the officers, and the authority of training the militia, according to the discipline prescribed by Congress.” By this, Sir, you see that their control over our last and best defense is unlimited. (206)
If the militias of the various states were to be themselves essentially creatures of the federal system, then they could have no role in defending the state against the encroachments of the federal government. The modern “militia movement,” so derided by the kept press of today, is precisely a reaction to this difficulty. The “Federal Farmer,” of October 1787, makes his argument this way:
It is, however, to be observed that many of the essential powers given to the national government are not exclusively given; and the general government may have prudence enough to forbear the exercise of those which may still be exercised by the respective states. But this cannot justify the impropriety of giving powers, the exercise of which prudent men will not attempt, but imprudent men will, or probably can, exercise in a manner destructive of a free government. (268)
Much of the political wisdom found in the Anti-Federalist writings comes in this form: that of realizing the limitations of institutional structure. They realized that, regardless of the institutional checks on federal power, a loophole can always be found by the unscrupulous or tyrannical. In other words, institutions matter far less than the caliber of people running them.
Another issue of concern for the Anti-Federalist forces was the institution of the president. Thomas Jefferson, not largely seen to be a member of this party, thought it the most alarming feature of the constitution, though he accepted it in its fullness later. Patrick Henry writes in 1788:
If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute: The army is in his hands, and, if he be a man of address, it will be attached to him. And it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design. And, Sir, will the American spirit solely relieve you when this happens? (214)
Such objective powers of prophetic utterance outshine the alleged abilities of Nostradamus. President Abraham Lincoln and both Roosevelts are foreshadowed in the above quotation, something that the Federalist mind thought would never happen, or at least refused to say anything on record about it. Not only does Patrick Henry predict the nature of American foreign policy (and its relationship to the domestic sphere) in the 20th century, that of unlimited executive power to declare war and control the movements of the military with minimal and pathetic congressional input, but he further predicts that the “American spirit” will be impotent to do anything about it. Or even that such a spirit would be nonexistent once this regime consolidates itself. No one today denies that specifically within the realm of military politics, the realm of foreign policy, the United States is as purely an autocracy as any that currently exists.
In other sections of these papers, the existence of the “American empire” is predicted, but it can never be brought to fruition unless the executive branch completely brings foreign policy and the military under the president’s complete control. “Centinel” writes in 1787:
If the forgoing be a just comment-if the United States are to be melted down into one empire, it becomes you to consider whether such government, however constructed, would be eligible in so extended a territory; and whether it would be practicable, consistent with freedom? It is the opinion of the greatest writers that a very extensive country can not be governed on democratical principles. . . . (324)
As one continues to read The Anti-Federalist, one realizes that the true patriots fell on the side of those who distrusted the proposed constitution, or, at least, that a truer understanding both of government and individual psychology lies within those like George Clinton and Patrick Henry, rather than James Madison (who changed parties later in his career) and, certainly, Alexander Hamilton.
Another major concern was the coming lack of proper representation. The new constitution sought to represent, in the minds of the Anti-Federalists, a large territory, rather diverse in composition, with a relative handful of representatives in the national capitol. All that this would accomplish would be to alienate the people from the rulers and, more importantly, alienate the rulers from the people. On numerous occasions, the Anti-Federalists write of the creation of a ruling clique in Washington, with its own way of life, one separate to itself, more concerned with its own specific interests as an organization than with the individuals and interests they are supposed to be representing. That, simply put, the existence of a capital, with concentrated powers, rather distant in location from the represented, cannot help but develop interests to itself (cf. esp. 325-31, the letters of “Brutus”).
Furthermore, difficulty with the constitutional plan of representation is that, in order to pass a law-one with the intrinsic power to override state laws-only a minuscule handful are necessary. In other words, these men asked, if a federal law can override a state law, who is being represented, if simply a bare majority is needed for this? Further, that in a legislature so small (small relative to the population of the country), the influence of a handful of particularly eloquent men can sway the entire assembly, whereas with one numerous and dispersed, the chances of this are minimized.
For example, the Pennsylvania minority claims: “Thus it appears that the liberties, happiness, interests, and great concerns of the whole United States, may be dependent upon the integrity, virtue, wisdom and knowledge of 25 or 26 men-how inadequate and unsafe a representation” (cf. esp. 326-27; “The Pennsylvania Minority,” also 247-48).
The later development of the committee system of government has made matters worse, and this statement from the Pennsylvania minority does foreshadow that development, or at the least raises an alarm about its possibility. Many Americans today ignore the fact that most congressmen are highly dependent upon their staffs for information, something also foreshadowed by the above statement, or that elected officials have highly limited powers, with the real power being largely in the hands of congressional staff, media moguls and the bureaucracy. Simply put, a capital that centralized, run by a small handful, could never be properly representative of the American population.
The general argument is well stated by “Brutus,” in his paper of November 29, 1787:
The people of this state will have very little acquaintance with those who may be chosen to represent them; a great part of them will, probably, not know the character of their own members, much less that of a majority of those who compose the federal assembly; they will consist of men whose names they never heard. . . . The representatives of the people cannot, as they now do, after they have passed laws, mix with the people, and explain to them the motives which induced the adoption of any measure. . . . The number will be so small that but a very few of the sensible and respected yeomanry of the country can have any knowledge of them. Being so far removed from the people, their station will be elevated and important, and they will be considered as ambitious and designing. They will not be viewed by the people as part of themselves but as a body distinct from them and having separate interests to pursue. The consequence will be that a perpetual jealousy will exist in the minds of the people against them; their conduct will be narrowly watched; their measures scrutinized; and their laws opposed, evaded or reluctantly obeyed. (328)
These ideas represent another possible summation of the Anti-Federalist difficulties with the proposed Constitution and its political centralization. Such prophesies, of course, have been borne out in their fullness, nearly to every detail.
Many of the Anti-Federalists thought, also concerning the matter of representation, that the judiciary has little check upon it. Sooner or later, the courts would be making federal policy, some Anti- Federalists predicted. In general, the Anti-Federalists thought the court system proposed at the federal level would eventually overstep its bounds and take legislative power unto itself. One must keep in mind that the Anti-Federalists made such predictions about the future usurpations of the federal courts previous to the formal definition of “judicial review” (the power the courts seized for themselves of ruling on the constitutionality of congressional statutes), making their powers of prophecy that much more profound. Consider this from “Brutus” on January, 31, 1788:
They [federal courts] will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the Supreme Court, whatever they may be, will have the force of law; because there is no power provided in the constitution that can correct their errors, or control their adjudications. . . .
The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution-I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the Supreme Court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted. (295-96)
Several things are happening in this lengthy passage. First, the prediction of future arbitrariness is being made. That is, the courts, uncontrolled and unchecked by the other branches of government, will act with impunity regardless of the nature of their decisions. Secondly, the relationship between the courts and the states presented here is simply saying that the courts can never act against the interests of the federal government, of which the court represents one-third. Given that the federal Supreme Court may override any other courts (significantly including the state jurisdictions), the latter shall get smaller and smaller as the years go on. Thirdly, of course, the subtext of the entire essay by Brutus on the judiciary is that the court, without proper checks, shall begin to rule outside of the Constitution itself. Further, in his essay of February 7, 1788, he writes:
From these observations it appears, that the judgment of the [judiciary], on the constitution, will become the rule to guide the legislature in the construction of their powers. What the principles are, which the courts will adopt, it is impossible for us to say; but taking up the powers as I have explained them in my last number, which they will possess under this clause, it is not difficult to see, that they may, and probably will, be very liberal ones. (300)
He summarizes his objections to the construction of the judicial branch of government in his paper of March 20, 1788:
1st. There is no power above them that can correct their errors or control their decisions…
2d. They cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity . . .
3d. The power of this court is in many cases superior to that of the legislature. I have [shown], in a former paper, that this court will be authorized to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. (306-07)
There can be no question, that, beginning about 175 years after this paper was written, the federal courts and the supreme court have continually, under various guises, taken legislative power into their hands, and that, further, they have acted precisely as Brutus had claimed they would, and he had no opportunity to familiarize himself with the as yet not existing concept of “judicial review,” something that, very soon after the adoption of the constitution, was brought into being by Federalist party member John Marshall, who was then chief justice of the Supreme Court.
That the “cultural revolution” of the past fifty years was largely the work of this court, bypassing any semblance of debate or discussion, is beyond question. The Supreme Court, even beyond the predictions of the Anti-Federalist movement during the convention debates, not only usurped the power to dominate the legislature, but also assigned itself the crusading “mission” to remake American society in its own image.
These are but a handful of predictions made by the Anti-Federalist movement during the convention debates. Little that can be found in their pages did not eventually turn out to be the case. Many of the scourges of our body politic could have been avoided had the concerns of the Anti-Federalist movement been taken more seriously both at the time and by subsequent generations.
All citations in this article from from the Ralph Ketcham edition of the Anti-Federalist Papers, published by Signet.