To the extent that Americans are aware of them at all, the Anti-Federalists are remembered as a band of vaguely disreputable second-raters who failed to prevent the 1788 ratification of the US Constitutiona document that for many Americans has become, over the past two centuries, something approaching a divine instrument.
But now, at a moment when so many of the Constitution's vaunted democratic safeguards seem to be breaking down, the Anti-Federalists' legacy may be due for a more respectful reassessment. As a matter of fact, the Anti-Federalists deserve credit for seeing the future quite clearly, and for perceiving, long before the rest of us could, some of the Constitution's most dangerous latent defects. So what did the Anti-Federalists believe? And what led them to oppose the Constitution's ratification?
Anti-Federalist thinking was complex, and Anti-Federalists disagreed with one another on many specific policy questions. Indeed, their fractiousness explains, in part, why they failed to defeat the Constitution. But at the core of Anti-Federalism was a coherent set of beliefs about human nature, the promise and peril of democracy, and how to design democratic institutions. The late, great political theorist Wilson Carey McWilliams summed up the Anti-Federalists' fundamental beliefs this way:
The Anti-Federalists believed that democratic government depended on the virtue of individual citizens andstrange as this may sound to usthat government must be designed to foster that virtue, by creating the "public happiness" that grows out of citizens having an intimate connection to self-government as a collective enterprise.
Public happiness is what Thomas Jefferson refers to in the Declaration of Independence when he declared that government is instituted to secure our rights to "Life, Liberty, and the pursuit of Happiness." This is not the same as personal satisfactionindeed, public happiness requires citizens to subordinate their personal satisfaction to the public good (or, in ideal circumstances, to merge the two).
Because democracy both depended on and created this sort of public engagement, the Anti-Federalist model insisted that as many decisions as possible must be pushed out from the center to the states. Only in those smaller, more homogeneous communities, the Anti-Federalists argued, can individuals meaningfully participate in public debate, directly experience the benefits of legislating in the common good, and feel the ties of affection to fellow citizens that undergirds public happiness. (Note that though the Anti-Federalists were localists, they nevertheless were not tied to the classical model of the Greek city-state. They understood that modern life required greater scale.)
By contrast, the Federalists were far more skeptical about democracy leaning heavily on the virtue of the mass of citizens. "A dependence on the people," James Madison wrote in Federalist No. 51, "is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."
The Federalists imagined democracy for a large, diverse and fractious America in which citizens engaged with the public interest only occasionally and more likely acted according to their grubby private interests than some noble conception of the public good. The Federalists aimed to fit democracy to these hostile conditions.
The key innovation, laid out in Federalist No. 10, was the view that Anti-Federalist localism was upside-down. Only a large, diverse republic, Madison said, could "break and control the power of faction," by which he meant a private or group interest inconsistent with the public good. First, in an extended republic, Madison wrote, it would simply be more difficult for a faction to gain enough leverage to dictate policy:
Madison acknowledged that scale was not a complete answer. Factional interest may gain majority support even in a large country. In that instance, the Federalists relied not upon the virtue of citizens, but of their representatives. Because representatives in a large republic are chosen by a larger and more diverse body of citizens, the results of elections, Madison wrote, "are more likely to centre in men who possess the most attractive merit and the most diffusive and established characters." Once in office, these men will act "to refine and enlarge the public views," blunting factional proposals "by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
So the Federalists relied heavily on deliberation by national elites. They downplayed citizen virtue in favor of elite virtue. The Anti-Federalists objected furiously. They saw the Federalists as centralizing power, removing virtue from politics, elevating representatives as a sort of aristocracy, and, ultimately, as setting loose the power of self-interest which inevitably, they feared, would usher in tyranny and corruption.
None of this is to deny that the Anti-Federalists had their blind spots; it's difficult to imagine that their program of localism and citizen virtue could possibly have worked in a country as large and individualistic as America. And yet in light of what we've all witnessed, who can say now that the Anti-Federalists didn't, in general, see the defects of the Federalist project more clearly than the Federalists who defeated them?
The Anti-Federalists feared that the national government would wax in power at the expense of the states. They were correct. They feared that future presidents would make claims to monarchical power. They were again correct. The Anti-Federalists feared that the legislature would become oligarchic. Today's United States Congress, comprised of a majority of millionaires, bears the Anti-Federalists out on this one, too.
The Anti-Federalists were perhaps most prescient, however, in predicting how the United States Supreme Court would become glutted with powerto the point where we risked, in the view of the Anti-Federalists, becoming a nation ruled by judges.
The Federalists believed the federal courts were, in Hamilton's words, the "least dangerous" branch. He argued in Federalist No. 78 that we had little to fear from courts, because they were powerless relative to the president and the Congress:
But the Anti-Federalists understood the likely role of the Supreme Courtthe only court established in the Constitutionvery differently. Those views are best summed up by the Anti-Federalist "Brutus," who, in the months prior to the Constitution's ratification, wrote a series of editorials in a New York newspaper detailing his fears that the Supreme Court would exercise essentially unreviewable power:
Unlike in England, Brutus wrote, where rulings are subject to correction by Parliament, under the proposed Constitution the courts are subject to no check:
And also unlike in England, where courts claim no power to set aside democratically-enacted laws, Brutus predicted that the Supreme Court would insert itself into lawmaking by striking down legislation:
And finally, Brutus predicted that the Constitution's vague text wouldn't constrain the Supreme Court's power, but rather further expand it. Most of the Constitution's articles, he wrote, and especially the most important ones, "are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold their meaning." The Supreme Court would feel little constraint from "any fixed or established rules, but would determine, according to what appears to them the reason and the spirit of the constitution." Brutus expected the Court would take every opportunity to expand its power to control the Constitution's meaning:
"This power in the judicial," Brutus concluded, "will enable them to mould the government, into almost any shape they please."
Brutus's Anti-Federalist account of the Supreme Court has proven far more accurate than Hamilton's conviction that the Court would act with "neither FORCE nor WILL, but merely judgment." The Anti-Federalists were correct in anticipating that the Constitution's oracular text would license the Supreme Court to make political judgments, cloaked (barely) in the language of law. They were correct in anticipating there would be no possibility of democratic recourse in most instanceseven where the Supreme Court exercised its great "latitude of interpretation" to issue deeply unpopular decrees. And the Anti-Federalists were prescient in predicting the Supreme Court would refuse to be constrained by "any fixed or established rules."
We saw an example of that when the court reversed course after decades of First Amendment Free Exercise precedent, introducing a new formula for deciding those casesone more favorable to claims that religious organizations should be exempt from generally-applicable laws and regulations. The court did so not in the context of a case on its regular docket, but in a "shadow docket" case decided outside the court's normal procedure and with minimal briefing and no oral argument. In so holding, the court broke its own rules, which bar changing the law in a shadow docket decision. But who is going to hold the court accountable? The Anti-Federalists knew. No one.
Unfortunately, the Anti-Federalists did not anticipate all the harm that would eventually be done by our imperial Supreme Court. Most importantly, they did not predict that a political party would attempt, as Republicans did under Donald Trump and will do again the next time a Republican occupies the White House, to harness the Supreme Court's overweening power for partisan political ends. Republicans have built their recent political strategy around stocking the federal bench with right-wing judges. And they've done this with a greater goal in mind. The party can effectively stay in power even if it can't win. The furious energy with which Trump, Mitch McConnell, and the Federalist Society worked to elevate partisan conservativesby far the most consequential achievement of Trump's presidencyis all about frustrating the ability of the Democrats to do much with power once they have it.
That said, the Anti-Federalists' lesson for us is that the problems with the Supreme Court are much deeper than the politics of the moment. It's not just that the justices are too conservative or too liberal. It's that they are too powerful. That is why the Americans need to be looking back to the Anti-Federalists for ideas about how to shrink the power of the Supreme Court. Recent proposals have focused mostly on shifting the Court's composition through court packing and the introduction of judicial term limits. But the Anti-Federalists would have wanted a deeper reform. One that is focused not on who sits on the court but on creating accountability for it.
There is such a mechanismone that the Federalists wrote into the Constitution itself but the implications of which the Anti-Federalists, unfortunately, failed to apprehend. Article III gives Congress power to strip jurisdiction: a power that can be employed to rein in politicized courts and even override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants.
The implications of Article III power are potentially profound. Congress's power over courts' jurisdiction means that it can reclaim from an unaccountable Supreme Court authority to interpret the Constitution in particular cases. It would give us, in other words, some of the accountability that the Anti-Federalists warned we lacked.
See original here:
These key defects in the Constitution threaten democracy because we ignored the warnings - Raw Story
- Trump Fight On COVID Bill Shows Strength Of Conservative Populism - The Federalist [Last Updated On: December 26th, 2020] [Originally Added On: December 26th, 2020]
- Report: Infants Born Alive During Botched Abortions In Texas In 2019 - The Federalist [Last Updated On: December 26th, 2020] [Originally Added On: December 26th, 2020]
- 8 Of The Craziest Items In The $900 Billion COVID Blue-State Bailout Bill - The Federalist [Last Updated On: December 26th, 2020] [Originally Added On: December 26th, 2020]
- We Must Ban These Christmas Classics To Please The Wokesters - The Federalist [Last Updated On: December 26th, 2020] [Originally Added On: December 26th, 2020]
- Josh Hawley Was The Exact Sort Of Prick Youd Imagine Him To Be At Yale Law School - Above the Law [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- GOP Lawmakers Have A Point: Americans Need To Trust Elections - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- The Year Another Capitol Siege Almost Took Place on the Hill - Governing [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- I lost a law school election to Josh Hawley. I moved on then, and he should now on Trump. - USA TODAY [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Trump Calls For Peace As Riot Roils Capitol: 'You Have To Go Home Now' - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Devin Nunes Tells The Truth Until It Hurts - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Democrat Pastor Ends Congressional Prayer With 'Amen And A-Woman' - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Why Georgia's May Be The Most Important Election In Recent History - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Maxine Waters: Trump Is Creating A 'Civil War' And Must Be Prosecuted - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- The Tipping Point: What Drove People To Riot At The Capitol? - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Biden Calls Hawley And Cruz Nazis Who Are 'Part Of The Big Lie' - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- No Police Officers Will Be Charged In Kenosha Shooting Of Jacob Blake - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Somalias 2021 elections and the threats of federalism | Daily Sabah - Daily Sabah [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Watch Obama And Clinton Support Objection To The 2005 Certification - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Ridiculing Election Fraud Concerns Will Not Make Them Go Away - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Michael Flynn And Sidney Powell Are Permanently Banned From Twitter - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Why it's time for state IT to have a 'federalist moment' - StateScoop [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Left Won't Be Satisfied Until Conservatives Smear Trump Voters As Bigots - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Facebook Will Ban And Delete All Photos And Videos Of Capitol Riots - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- The Capitol Riot Will Hurt The People Who Were Already Hurting Most - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Listen To Rush Limbaugh On The Federalist's Capitol Hill Coverage - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Georgia Confirms The Pre-Trump GOP Is Dead And Gone - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Twitter Just Nuked The Account Of The World's Biggest Critic Of Big Tech And China - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Your Monthly Reminder That Nikki Haley Is A Social-Climbing Opportunist - The Federalist [Last Updated On: January 9th, 2021] [Originally Added On: January 9th, 2021]
- Dems With COVID Voted For Pelosi, Then Blamed GOP For Infections - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- Democrats Are Using The Recent Capitol Riot To Consolidate Power - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- Federalist Publisher: Big Tech Colluding to Destroy Conservative Speech - WBAP News/Talk [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- The election that foreshadowed 2020 - Newsday [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- Why Millennials Love To Hate Boomers And Whether It's Deserved - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- Facebook And Instagram Just Permabanned The US President - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- The 2020 Election Aftermath Is Not At All Unprecedented In US History - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- To Win In The Future, Republicans Need To Move On From Trump - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- The Biggest Gun Forum Just Kicked Off The Internet Without Explanation - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- Democrat Wants To Put Josh Hawley And Ted Cruz On The No-Fly List - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- Andrew Yang Can't Imagine The Reality New Yorkers Face - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- A Divisive Impeachment Will Only Make Trump A Martyr - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- 'Mandalorian' Star Gina Carano Takes Us Behind The Scenes, Explains Her Politics - The Federalist [Last Updated On: January 13th, 2021] [Originally Added On: January 13th, 2021]
- In Modern Storytelling, 'Mank' Is A Beautiful Blast From The Past - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- 8 Strategies For Exiting The Biden Years Stronger Than The Right Went In - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Why School Choice Isn't Enough To Really Improve American Education - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Disney And Marvel's 'WandaVision' Is As Fun As It Is Weird - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Unity has long been a theme, and anxiety, for new presidents - ABC News [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Attorney and Federalist Society member sounds alarm about 'progressive tide' in small towns - Yahoo News [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Hemingway: Leaders Should Be Wary Of Post-9/11 Style Crackdown - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Illinois Dem With #MeToo History Could Be The Next State House Speaker - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Russell Crowe Is Right, If You Think 'Master And Commander' Is Boring, You Need To Grow Up - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- March For Life Cancelled As Abortion Extremist Descends On White House - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Andrew Yang Used To Champion Ideas. Now He Is A Boring Democrat - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Twitter CEO Says Censorship Will Be 'Much Bigger' Than The Trump Ban - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Dems Say GOP Lawmakers Gave 'Reconnaissance' Capitol Tours. Where's The Evidence? - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- What Jefferson And Lincoln Say About National Unity In Dark Times - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- One Student's First-Person Account Of The Rally That Turned Into A Riot - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- MSNBC's Joy Reid Calls For 'De-Baathification' Of The GOP - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- A Second Trump Impeachment Ensures The GOP Will Never Be The Same - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Politico's Ben Shapiro Freakout Is An Illustration Of A Much Bigger Problem - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- The Nuclear Energy Tech Of The Past Four Years Will Blow Your Mind - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- How Big Government And Big Tech Conspire Against Voters - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Trump Set To Leave Office With A Higher Approval Rating Than Bush - The Federalist [Last Updated On: January 19th, 2021] [Originally Added On: January 19th, 2021]
- Of Course We Don't Need A 9/11-Style Commission On The Capitol Riots - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Chris Wallace: Biden's Speech Is 'Best Inaugural Address I've Ever Heard' - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Column: Political Ambitions Leave Nation Struggling to Move Forward - Southern Pines Pilot [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Why Are Vaccinated Members Of Congress Still Wearing Masks? - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Book excerpt: seditions and insurrections are inseparable from politics - Orange County Breeze [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Why Does Biden Have A Bust Of A Union Radical In The Oval Office? - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Rand Paul: I'm Not Going To Listen To Comey, He Should Be In Prison. - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Senate Can Convict Trump After He's Out. Would That Be Prudent? - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Biden, Harris Release Statement Celebrating Killing Babies In The Womb - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Why Calling China's Genocide What It Is Really Matters Federalist #3 - 2 hours ago - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- From The Tea Party To Trump: Reflections On The Eve Of Inauguration - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Amanda Gorman's Inauguration Poem Shows What The Left Truly Believes - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Biden Follows 'Unity' Speech With 48 Hours Of Divisive Social Policy - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- DC Elite Used National Guard As Props, Questioned Their Loyalty, Then Made Them Sleep In Parking Garage - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Reshaped By Trump, Our Institutions Will Hobble Into The Biden Era - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Things Are Beginning To Unravel On 'WandaVision' - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Day One, Biden Destroys Girls' Sports With Anti-Science Executive Order - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]
- Biden Plans To Put Big Tech In Charge Of Its Own Regulation - The Federalist [Last Updated On: January 25th, 2021] [Originally Added On: January 25th, 2021]