Anti-Federalist Constitutional Thought
Anti-Federalist Constitutional Thought
ANTI-FEDERALIST CONSTITUTIONAL THOUGHT
The men who opposed the Constitution's unconditional ratification in 1787–1788 were called Anti-Federalists, although they claimed to be the true federalists and the true republicans. Contrary to common opinion, their major contribution to the American founding lies more in their critical examination of the new form of federalism and the new form of republican government than in their successful argument for a bill of rights.
The federalism issue was complicated by an ambiguity in usage during the Confederation period and by changes in both the Federalist and Anti-Federalist conceptions of federalism during the ratification debates. herbert j. storing has explained the ambiguity by showing how "federal" referred to measures designed to strengthen the national authority, as opposed to state authority, but also to the principle of state supremacy. In the constitutional convention, the federal principle meant congressional reliance on state requisitions for armies and taxes, in contrast to the national principle of direct governmental authority over individuals. The Anti-Federalists argued that the Constitution, which strengthened the national authority, went beyond the federal principle by moving away from requisitions and state equality in representation. Supporters of the Constitution were able to take, and keep, the name Federalists by treating any recognition of the state governments in the Constitution (for example, election, apportionment, ratification, amendment) as evidence of federalism, thereby redefining the term. james madison, in the federalist #39, consequently called the Constitution partly federal, partly national. For their part, the authors of the two best Anti-Federalist writings, who wrote under the pseudonyms Brutus and Federal Farmer, conceded the need for some direct governmental authority over individuals, thereby acknowledging the inadequacy of traditional federalism.
The Anti-Federalists emphasized the need to restrict the national power to what was absolutely necessary to preserve the union. They proposed limiting the national taxing power to imported goods, relying on requisitions if that source was insufficient. Moreover, Brutus proposed limiting standing armies in time of peace to what was necessary for defending the frontiers. If it became necessary to raise an army to repel an attack, he favored a two-thirds vote by both houses of Congress.
As part of their argument that a consolidation of power in the general government was incompatible with republicanism, the Anti-Federalists frequently cited Montesquieu for the proposition that republics must be small, lest the public good be sacrificed. But they agreed with the Federalists, against Montesquieu, that the first principle of republican government was the regulation and protection of individual rights, not the promotion of civic virtue. They also, with rare exceptions, assumed the necessity of representation, while Montesquieu mentioned it only in his discussion of England, not in his discussion of republics.
Defining republican government somewhere between a selfless dedication to the common good, on the one hand, and individualism plus the elective principle, on the other, the Anti-Federalists emphasized mildness in government as essential for public confidence. This mildness required a similarity "in manners, sentiments, and interests" between citizens and officials and among citizens themselves. This, in turn, made possible a genuine representation of the people. Federal Farmer called such representation and local jury trials "the essential parts of a free and good government."
When the Anti-Federalists examined the representation in Congress, they saw an emerging aristocracy. They claimed that the democratic class, especially the middle class or the yeomanry, would have little chance of gaining election against the aristocracy, the men of wealth and of political and professional prominence. Since the middle class was substantially represented in the state governments, the Anti-Federalists argued that the powers of Congress had to be restricted to produce a proper balance between the nation and the states.
The Anti-Federalist objections to the structure of the proposed government related either to federalism or to republicanism. As examples of the former, the Senate, despite state equality, did not satisfy federalism because the legislatures did not pay the senators and could not recall them, and because the voting was by individuals, not by state delegations. And Brutus, who viewed the judicial power as the vehicle of consolidation, objected to Congress's power to ordain and establish lower federal courts. He thought the state courts were adequate to handle every case arising under the Constitution in the first instance, and he favored a limited right of appeal to the Supreme Court. As examples of their republicanism, the Anti-Federalists feared the Senate, with its six-year term, plus reeligibility, and its substantial powers, especially regarding appointments and treaty-making, as a special source of aristocracy. The Anti-Federalists were only somewhat less critical of the executive. They favored the proposed mode of election but opposed reeligibility; they generally favored unity but wanted a separately elected council to participate in appointments; some supported and others opposed the qualified executive veto power; and some expressed apprehension about the pardoning power and the commander-in-chief power. As for the judiciary, Brutus argued that the combination of tenure for good behavior plus a judicial power that extends to "all cases in law and equity, arising under this Constitution," meant not only judicial review but judicial supremacy. He preferred that the legislature interpret the Constitution, since the people could easily correct the errors of their lawmakers.
Finally, the Bill of Rights was as much a Federalist as an Anti-Federalist victory. The Anti-Federalists wanted a bill of rights to curb governmental power. When the Federalists denied the necessity of a federal bill of rights, on the ground that whatever power was not enumerated could not be claimed, the Anti-Federalists pointed to the Constitution's supremacy clause and to the extensiveness of the enumeration of powers. Paradoxically, this decisive argument resulted in a bill of rights that confirmed the new federalism, with its extended republic. Neither the Anti-Federalist proposals to restrict the tax and war powers nor their proposal to restrict implied powers was accepted. Nevertheless, the Anti-Federalist concern about "big government" has continued to find occasional constitutional expression in the restrictive interpretation of the enumerated powers, along with the tenth amendment.
Kenyon, Cecelia 1966 The Antifederalists. Indianapolis: Bobbs-Merrill.
——1981 The Complete Anti-Federalist. 7 Vols. Chicago: University of Chicago Press. (Volume 1 separately published in paperback as What the Anti-Federalists Were For.)