The Antifederalists Were Right By Gary GallesPosted

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The Antifederalists Were Right By Gary GallesPosted

Post#1 » Tue Oct 17, 2006 1:42 am

The Antifederalists Were Right By Gary GallesPosted
on 9/27/2006

The Antifederalists were opponents of ratifying the US
Constitution. Gary Galles writes that they feared that it would
create an overbearing central government, while the
Constitution's proponents promised that this would not happen. As
the losers in that debate, they are largely overlooked today. But
that does not mean they were wrong or that we are not indebted to
them.">Digg this story.

September 27 marks the anniversary of the publication of the
first of the Antifederalist Papers in 1789. The Antifederalists
were opponents of ratifying the US Constitution. They feared that
it would create an overbearing central government, while the
Constitution's proponents promised that this would not happen. As
the losers in that debate, they are largely overlooked today. But
that does not mean they were wrong or that we are not indebted to

In many ways, the group has been misnamed. Federalism refers to
the system of decentralized government. This group defended
states rights — the very essence of federalism — against the
Federalists, who would have been more accurately described as
Nationalists. Nonetheless, what the so-called Antifederalists
predicted would be the results of the Constitution turned out to
be true in most every respect.

The Antifederalists warned us that the cost Americans would
bear in both liberty and resources for the government that would
evolve under the Constitution would rise sharply. That is why
their objections led to the Bill of Rights, to limit that
tendency (though with far too little success that has survived to
the present).

Antifederalists opposed the Constitution on the grounds that
its checks on federal power would be undermined by expansive
interpretations of promoting the "general welfare" (which would
be claimed for every law) and the "all laws necessary and proper"
clause (which would be used to override limits on delegated
federal powers), creating a federal government with unwarranted
and undelegated powers that were bound to be abused.

One could quibble with the mechanisms the Antifederalists
predicted would lead to constitutional tyranny. For instance,
they did not foresee that the Commerce Clause would come to be
called "the everything clause" in law schools, used by
centralizers to justify almost any conceivable federal
intervention. The 20th-century distortion of the clause's
original meaning was so great even the vigilant Antifederalists
could never have imagined the government getting away with it.

And they could not have foreseen how the Fourteenth Amendment
and its interpretation would extend federal domination over the
states after the Civil War. But it is very difficult to argue
with their conclusions from the current reach of our government,
not just to forcibly intrude upon, but often to overwhelm
Americans today.

Therefore, it merits remembering the Antifederalists' prescient
arguments and how unfortunate is the virtual absence of modern
Americans who share their concerns.

One of the most insightful of the Antifederalists was Robert
Yates, a New York judge who, as a delegate to the Constitutional
Convention, withdrew because the convention was exceeding its
instructions. Yates wrote as Brutus in the debates over the
Constitution. Given his experience as a judge, his claim that the
Supreme Court would become a source of almost unlimited federal
over-reaching was particularly insightful.

Brutus asserted that the Supreme Court envisioned under the
Constitution would become a source of massive abuse because they
were beyond the control "both of the people and the legislature,"
and not subject to being "corrected by any power above them." As
a result, he objected to the fact that its provisions justifying
the removal of judges didn't include making rulings that went
beyond their constitutional authority, which would lead to
judicial tyranny.

Brutus argued that when constitutional grounds for making
rulings were absent, the Court would create grounds "by their own
decisions." He thought that the power it would command would be
so irresistible that the judiciary would use it to make law,
manipulating the meanings of arguably vague clauses to justify

The Supreme Court would interpret the Constitution according to
its alleged "spirit", rather than being restricted to just the
"letter" of its written words (as the doctrine of enumerated
rights, spelled out in the Tenth Amendment, would require).

Further, rulings derived from whatever the court decided its
spirit was would effectively "have the force of law," due to the
absence of constitutional means to "control their adjudications"
and "correct their errors". This constitutional failing would
compound over time in a "silent and imperceptible manner",
through precedents that built on one another.

Expanded judicial power would empower justices to shape the
federal government however they desired, because the Supreme
Court's constitutional interpretations would control the
effective power vested in government and its different branches.
That would hand the Supreme Court ever-increasing power, in
direct contradiction to Alexander Hamilton's argument in
Federalist 78 that the Supreme Court would be "the least
dangerous branch."

Brutus predicted that the Supreme Court would adopt "very
liberal" principles of interpreting the Constitution. He argued
that there had never in history been a court with such power and
with so few checks upon it, giving the Supreme Court "immense
powers" that were not only unprecedented, but perilous for a
nation founded on the principle of consent of the governed. Given
the extent to which citizens' power to effectively withhold their
consent from federal actions has been eviscerated, it is hard to
argue with Brutus's conclusion.

He further warned that the new government would not be
restricted in its taxing power, and that the legislatures war
power was highly dangerous: "the power in the federal
legislative, to raise and support armies at pleasure, as well in
peace as in war, and their controul over the militia, tend, not
only to a consolidation of the government, but the destruction of

He also objected to the very notion that a republican form of
government can work well over such a vast territory, even the
relatively small territory as compared with today's US:

History furnishes no example of a free republic, anything
like the extent of the United States. The Grecian republics were
of small extent; so also was that of the Romans. Both of these,
it is true, in process of time, extended their conquests over
large territories of country; and the consequence was, that their
governments were changed from that of free governments to those
of the most tyrannical that ever existed in the world.

What you think you know might not be trueBrutus
accurately described both the cause (the absence of sufficient
enforceable restraints on the size and scope of the federal
government) and the consequences (expanding burdens and
increasing invasions of liberty) of what would become the
expansive federal powers we now see all around us. But today,
Brutus would conclude that he had been far too optimistic. The
federal government has grown orders of magnitudes larger than he
could ever have imagined (in part because he was writing when
only indirect taxes and the small federal government they could
finance were possible, before the 16th Amendment opened the way
for a federal income tax in 1913), far exceeding its
constitutionally enumerated powers, despite the constraints of
the Bill of Rights. The result burdens citizens beyond his worst

The judicial tyranny that was accurately and unambiguously
predicted by Brutus and other Antifederalists shows that in
essential ways, they were right and that modern Americans still
have a lot to learn from them. We need to understand their
arguments and take them seriously now, if there is to be any hope
of restraining the federal government to the limited powers it
was actually granted in the Constitution, or even anything close
to them, given its current tendency to accelerate its growth
beyond them.

Gary M. Galles is a professor of economics at Pepperdine
University. Send him mail. See his archive. Discuss this article
on the blog.

See also "The Political Economy of the Antifederalists" by
James Philbin, "Empire or Liberty: The Antifederalists and
Foreign Policy" by Jonathan Marshall, "Live Free or Separate" by
William Watkins, "Taxes and the General Welfare," by Gary Galles,
and "Why the Bill of Rights," by Gary Galles.

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