June 3, 2003

ET TU, BRUTUS?

The Constitutional Thought of the Anti-Federalists (Murray Dry, APSA)
The Anti-Federalists claimed to be the true federalists because they were the true republicans. Consequently, we begin with their account of republican government and its relation to federalism.

The Anti-Federalists believed that to maintain the spirit of republican government, which was the best defense against tyranny, individuals needed to know one another, be familiar with their governments, and have some direct experience in government. Only then would the citizenry possess a genuine love of country, which is the essence of republican, or civic, virtue.

The Anti-Federalists espoused the then traditional view of republican government, reflected in the first state constitutions, which emphasized the legislative branch of government. With the first federal constitution, the Articles of Confederation, the states, through their legislatures, retained effective control of federal men and federal measures. The delegates to Congress were chosen by the state legislatures and were subject to being recalled. The federal power to raise taxes and armies not only required a vote of nine states, but, even after such a vote, it depended on state requisitions, which meant that the federal government depended on the good will of the states to execute the law.

In stark contrast, the Constitution proposed by the Federal Convention in 1787 provided the basis for a strong national government. Elections to the House of Representatives were by the people directly, not the states, and the federal powers over taxes and the raising of armies were completely independent dent of the state governments. This new form of federalism necessarily produced a new form of republicanism, the "large republic." Furthermore, Publius did not shrink from providing a positive argument in support of it." Federalist 10 justified the new form of republicanism, not only as the price of union but as the republican remedy to the disease of majority faction, or majority tyranny.

Because the Federalists saw a major danger not from the aggrandizing of the ruling few, but from the tyranny of the majority, they sought to restrain the influence of that majority in order to secure individual rights and the permanent and aggregate interests of the community. Such restraint was to be achieved through a large extended sphere, i.e. the constituencies of the federal government. These would be larger and more diverse than the constituencies of the states, and so would make majority tyranny more difficult, since more negotiation and compromise would be needed for any single faction to become part of a majority. In addition, the increased competition for office would produce better representatives and a more effective administration throughout the government.

Perhaps because he took republican government for granted, as a given in America, Publius understood it to require only that offices of government be filled directly or indirectly by popular vote. Furthermore, the representation of the people was satisfied by the fact of election, regardless of the contrast between the wealth and influence of the elected and the electorate.

To the Anti-Federalists, the people would not be free for long if all they could do was vote for a representative whom they would not know and who would be very different from them.

Because the Anti-Federalists emphasized participation in government, they argued that a small territory and a basically homogeneous population were necessary for a notion of the "public good" to be agreed upon. The Anti- Federalists did not insist that every citizen exercise legislative power. But they did emphasize representation of the people in the legislatures and on juries. By "representation" they meant that the number of people in a legislative district must be small enough and the number of districts large enough so that the citizens will know the people they are voting for and be able to elect one of their own-one of the "middling class." This latter phrase referred to the large number of farmers of modest means. A substantial representation of this agricultural middle class was possible even in the large states and necessary for the character of the governors to reflect the governed. Under the proposed constitution, argued the Anti-Federalists, this kind of representation would be impossible at the federal level, where the districts would contain at least 30,000 people.

Likewise, by participating in local jury trials, in civil as well as criminal cases, the people in their states acquired a knowledge of the laws and the operation of government, and thereby, argued the Anti-Federalists, they become more responsible citizens. It was feared that this responsibility would be lost when cases were appealed to the proposed national supreme court, which had jurisdiction on appeal over all questions of law and fact.

Since the Anti-Federalists believed that republican government was possible in the states but not in one single government for the entire country, only a confederacy, that is, a federal republic, could safeguard the nation's freedom. They understood such a form of government to have a limited purpose, primarily common defense. Hence, those who became Anti-Federalists originally favored limited amendments to the Articles of Confederation, rather than an entirely new constitution. When a new constitution became inevitable, they hoped to limit the transfer of political power from the states to the national government. They claimed to be the true republicans and the true federalists because they understood republican government to require a closely knit people attached to their government. They sought to grant only so much power to the federal government as was absolutely necessary to provide for defense. In this way, the distribution of governmental power, as between the nation and the states, would correspond to the distribution of representation. And while the Anti-Federalists did argue for an increase in the federal representation, that by itself would not have satisfied the requirement of republican government, as they saw it, since the people would always be more substantially represented in their state governments. According to the Anti-Federalists, the Federalists were not federalists but consolidationists; and the ultimate effect of the Constitution would be to reduce the states to mere administrative units, thereby eliminating republican liberty. [...]

The Anti-Federalists lost the ratification debate because they failed to present a clear and convincing account of a constitutional plan that stood between the Articles of Confederation, which they acknowledged was unable to provide for the requirements of union, and the Constitution proposed by the Federal Convention, which they feared would produce a consolidation of power. And yet the periodic and contemporary constitutional debates over federalism, over the extent of legislative and executive power, and over individual rights and judicial review reflect the different conceptions of republican government that were developed in the founding dialogue over the Consituation.

Any strict construction of federal power has much in common with Anti- Federalist constitutionalism. During the founding debate, opponents of a strong national government wanted to amend the Constitution; after ratification, Anti-Federalists had no choice but to interpret the Constitution to require limited federal government. The contemporary controversies over abortion, pornography, and sexual practices among consenting adults, and the issues surrounding the religion clauses of the First Amendment reveal disagreements over the scope of individual rights, on the one hand, and the legitimacy of government maintenance of community manners and morals on the other. These controversies resemble the founding debate over republican licanism, where the Federalists focused on the security of individual rights and the Anti-Federalists expressed a greater concern for the character of republican citizenship, maintained in part through religion. Through such debates, Anti-Federal constitutionalism, as applied to governmental structure and to moral qualities necessary for free government, thus remains an important part of our constitutional polity.

The democratic tragedy is that the Anti-Federalists were wrong in the short-run, but right in the long-run. Greater centralization was necessary if the young Republic was to succeed, but the forces of centralization, once set in motion, are notoriously difficult to stop, as we've learned to our great regret. Posted by Orrin Judd at June 3, 2003 10:04 PM
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