The Constitutional Liberty of the Antifederalists

Your Anti-Federalists or My Antifederalists?

Let’s presume that we turn to the American Founding to seek advice in our contemporary conversation with the Neo Progressives and the Admnistrative State.  I suggest that we are better served by considering the advice of the Antifederalists than The Federalist since our current situation is actually a perversion of the good government-good administration teaching of The Federalist. But that means the Antifederalists must be coherent and relevant rather than 1) incoherent and irrelevant, 2) coherent but irrelevant, 3) relevant but incoherent.

 

Incoherent and Irrelevant

The easiest way to define the Antifederalists is narrowly: They opposed the ratification of the unamended Constitution, both “indoors” and “out of doors,” between 1787 and 1788. This definition actually makes them lower case antifederalists—the preferred nomenclature of The Federalist. Antifederalists are obstructionists without any coherent and relevant program. They didn’t agree with each other, said Madison in Federalist 38.  They are “absurd” said Hamilton in Federalist 23.

This narrow definition generates the following interpretation: the Antifederalists were self-serving and narrowly spirited politicians who found fault here and then there in the Constitution. Alpheus Thomas Mason said it all: The Antifederalist legacy—to the extent that a series of “unrelated shots across the bow of the Constitution” can be called a legacy–is an effort to “scuttle the Constitution and return us to the monstrous imperium in imperio, so convincingly discredited in the years both before and after 1776.”  The Antifederalists are incoherent and irrelevant. But Mason’s Antifederalists are not my Antifederalists.

 

Coherent but Irrelevant

Another popular narrative portrays the Antifederalists as victims.  The narrative goes something like this: The Madison-Hamilton nationalists “cleverly assumed the name Federalists,” and “deceptively” defeated the Antifederalists who were, in fact, the “true federalists.” Sheldon Wolin goes so far as to suggest that there is nothing to celebrate on the two-hundreth anniversary of the Constitution:  “The true American narrative,” he says, is how the Esau Antifederalists of the Declaration of Independence and Articles of Confederation sold their political birthright to the Jacob Federalists of the Constitution. Wolin’s Antifederalists are not my Antifederalists.

Nor are my Antifederalists the proto nullifiers and seccessionists of 1830-1865 who envision more than one confederacy in America. True, the Antifederalists warned about the dangers of the concentration of power in a centralized administration supported by a standing army.  But the problem with linking the nullifiers-secessionist interpretation with the Antifederalists is that even the New York and Virginia Antifederalists did not 1) call for separate confederacies or individual state secession, 2) articulate a doctrine of nullification, 3) discuss the concept of concurrent majorities, 4) insist on a conditional ratification of the Constitution, nor 5) advocate or encourage the preservation of slavery.

John Calhoun never cited an Antifederalist even though he took extensive aim at The Federalist!  Moreover, in The Discourses, he thought that Madison’s partly national, partly federal definition of the Constitution in Federalist 39 was “loose talk” because he knew the Constitution was wholly federal.  My response is that Madison defended the “compromise,” but without enthusiasm.  The Antifederalists defended the partly national, partly federal Constitution as a matter of “principle,” rather than a play thing.  They warned that the Constitution had the potentiality to depart from the partly national and partly federal principle and become wholly national. They also warned that the Constitution had the potentiality to turn away from a check and balance, separation and division of powers, republic into an administrative state run by aristocratic officials interested in securing good government rather than free government.

The Antifederalists have a strong republican side in addition to a strong federalism side. As William Allen and I have argued elsewhere, there actually is legitimacy rather than victimization in the Antifederalist nomenclature controversy. During the 1780s, they acquired a reputation of not wanting to “cement“ the union, Anti-Cementers were known “antifederal men.” The point here is that their case in favor of uncemented localism and republican federalism differs from Calhoun’s project. Nevertheless, David Ericson portrays the Antifederalists as proto secessionists: “the nullification debate was a replay of the ratification debate,” and “John C. Calhoun bears the patrimony of the Anti-Federalists.” Ericson’s Anti-federalists are not my Antifederalists.

Cecelia Kenyon’s “men of little faith” thesis also portrays the Antifederalists as coherent but irrelevant.  They are coherent–they endorsed a logical theory of small republicanism and limited government—but irrelevant. They lacked a “theory of democratic leadership” because they had “little faith in elections as a means of securing responsibility.” The Antifederalists did not show enough trust, or faith, in the ability of the politicians to control themselves in the presence of vast power!  Really? And and that shows their irrelevance?  Bring back the 1950s.

Kenyon dismisses the Antifederalist warning that a broad and sweeping interpretation of Congressional powers would move us in a national direction as “exaggerated,” and “distorted.” She raises doubts about the Antifederalist grasp of political reality.  They concoct worst case scenarios, she says, rather than address the facts of political reality. The Federalists, by contrast, were “sober,” “practical,” and “experimental.” And this from a respected defender of the role of the Antifederalists.  True, she shows that the Antifederalists are not Neo Progressives, but Kenyon’s Anti-Federalists are not my Antifederalists.

Kenyon’s work has generated many other faith-based favorable interpretations of the Antifederalists. Michael Lienesch considers them to be men of a “simply different” faith.  Jennifer Nedelsky portrays “the Federalists’ faith in centralization and the Anti-Federalists’ faith in decentralization” as the great divide.  That makes a lot of sense to me especially if we go on to declare that the Antifederalist advice is superior to The Federalist. Christopher M. Duncan argues that the Antifederalists were “men of superior faith,” because they adhered to the “communitarian-republicanism” of the Declaration and the Articles over against the individualistic utilitarianism of the Constitution. But why is communitarianism superior to individualism and who says these documents are incompatible?  Robert W. Hoffert asks why is it “an act of little faith to be advocates of…the positive principles of the Declaration of Independence?” Indeed; I agree. Their legacy, says Saul Cornell, is this: dissenters of every generation can cite the Antifederalists to “express their dissatisfaction with the dominant trends in American life.” Really? Their relevance rests in their incoherence!  Finally, David J. Siemers claims they are “Men of Great Faith and Forbearance.” The Antifederalists “vowed to work for change from within the system.” Siemers is correct about the non-radical disposition.

 

Relevant but Incoherent

Herbert Storing shifts the issue from faith to reason and thus invites us to judge whether or not the Antifederalists warnings about the potentiality of the Constitution make sense. Storing argues that the Antifederalists are relevant, but incoherent. They are relevant—and this an odd understanding of relevance– because they should have supported ancient republican classical virtue in contrast to the “low” but “solid” commercial vices of Federalist 10 and the institutional separation and division of authority in Federalist 51. This was the moment for high toned Antifederalist relevance.  They failed to rise to the level of Framers. At best, they were junior partners at the Founding.

Storing portrays the Antifederalists as incoherent. He agrees with Hamilton’s  “absurd” argument in Federalist 23: “For the absurdity must continually stare us in the face of confiding to a government the direction of the most essential national interests, without daring to trust it to the authorities which are indispensable to their people and efficient management.”  He also praises the Federalists for facing up to the “ugly truth” revealed in Federalist 51: the people are incapable of governing themselves voluntarily; thus the need for “auxiliary precautions” which, according to Storing, replace rather than supplement the electoral system. Storing says the Antifederalists missed this “ugly truth” as well as a golden opportunity.

Storing’s “ugly truth” thesis is rather odd given the many references in The Federalist to the importance of  reflection and choice. Both Madison and the Antifederalists agreed that the election system was the primary way to get the government to control itself. And both agreed that the electoral system needed “auxiliary precautions,” or “inventions of prudence.” They differed on what sort of auxiliaries are needed but they agree that auxiliaries are needed.  Neither side thought that they were repudiating the electoral system because of an “ugly truth.”

Increasingly, the Storing “ugly truth” argument reminds me of  Kenyon’s “little faith” argument.  Both arguments are informed by contrary interpretations of  Federalist 51. I am persuaded that Storing thinks that America is ill-founded; America should have been founded according to ancient principles rather than wholly modern perversions. That was the Antifederalists opportunity but, unfortunately, they could not rise to the occasion.  The Antifederalists prefered liberty to virtue.  Kenyon emphasizes that the Antifederalists did not trust the electoral system to automatically produce good outcomes.  And, I say, good for them!

Coherent and Relevant

I suggest the battle between the Antifederalists and the Federalists was not a battle between the ancients and the moderns.  It is a new world battle over how best to preserve liberty.  The Antifederalists remind us that free government means limited government, thus the political project should be focused on limiting the power of politicians. Antifederalist statesmanship involves an attachment to means rather than a focus on the administration of ends.  Accordingly, there is nothing absurd or incoherent about the Antifederalists fussing over means because means are actually powers and the abuse of powers sets us on the road to old world tyranny and the doctrine that the end justifies the means. Storing’s Anti-Federalists are not my Antifederalists.

Let’s take a broader definition of Antifederalism, upper case and without a hyphen, one that also suggests that they are coherent and relevant. My Antifederalists are a composite of Agrippa, Brutus, Cato, Centinel, Federal Farmer, Old Whig, Plebian, and Melancton Smith. No two or three people wrote something called The Antifederalist. They are informed by Montesquieu’s understanding of federalism and republicanism, but not immobilized by that traditional understanding. Their essential thought is matured by the debates over the creation and adoption of the Constitution and completed with the adoption of the Bill of Rights.  By 1791, Madison was pretty much on board with their concerns about the potentiality of the Constitution. Only a few Virginians still rejected the amended version of the original Constitution that would restrain rather than abolish the new federal government.

The Antifederalists had, in fact, been incorporated within the new America System.  Take a look at the Electoral College, the enumeration of Congressional powers, the drawing of Congressional districts, the equality of States in the Senate, the amendment process, the very ratification process itself, the adoption of the Bill of Rights and the Tenth Amendment. It is difficult to explain how we got from the liberty preserving concerns of the Framers to the National Democracy project of the Progressives. Suffice it to note, here, that today we face the choice between a national democracy and a federal republic and that choice would have sounded very familiar to the Founding generation.

One implication of this broader definition of the Antifederalists is the following:  we can’t restore the earlier conversation of the Antifederalists and The Federalist about a partly national and partly federal republic until we seriously challengethe Progressive perversion of The Federalist version of national democracy.  And that can’t take place unless we inject a strong dose of federal republican Antifederalism into the current debate. The constitutional impediments to the completion of the Progressive national democracy project actually rest on promoting the Antifederalist rather than the Federalist features of the Constitution and Bill of Rights.

The Antifederalists warned that the Constitution contained the potentiality to move toward the consolidation of political power in a) the nation to the detriment of the various states, and b) one branch of the federal government at the expense of the separation of powers. At times it may be the executive and at other times it may be the judiciary that is overbearing, but we must resist the temptation to support The Federalist claim that the legislature is the most dangerous branch.  Perhaps The Federalistdid its job of guarding against the Congress too well. Currently, thanks also  to the Progressive campaign against the legislative branches, Congress is the least approved branch. That has got to change if representative government has a chance of survival.  The Antifederalists, today, would have us warn about 1) the dangers of the Presidency and the Judiciary and 2) the concentration of power in the federal government. By contrast, The Federalist warns about 1) the dangers of Congress and 2) the dangers of too much decentralization of power in State governments.

The Antifederalists  also warned about the corrupting influence that political power has on even decent people, whom even more decent people elected into office, and they urged that practical experience rather than ideological considerations be the guide to public policy. They thought that all politics is local and thus particular attachments rather than abstract ideas matter in the preservation of a liberal  political order. The Antifederalists also made a vital distinction between the opportunities and possibilities of the new world, where the consent of the governed matter, and the traditions of the old world where the well-being of the rulers matter.

My Antifederalists then are coherent and relevant. Their version of federal republicanism is worth keeping alive because it addresses what ails contemporary America’s relentless drift toward Progressive national democracy. The Antifederalists argued that the Constitution had the potentiality to place republicanism in danger because it removed the traditional pillars of small territorial size, frequent elections, short terms in office, and accountability of the representatives to the people. They warned that unless restrictions were placed on the powers of the federal government the potentiality for the abuse of power would become a reality.  These warnings culminated in their insistence on a Bill of Rights which they saw as the ultimate “auxiliary precaution.”

Among the dramatic changes in recent American politics is the increased presence of the centralized Administrative State, and the dangerous consequences of an arrogrant executive branch and a “caring” judiciary that openly thwarts the deliberate sense of the majority.  These are Antifederalist concerns about the tyranny of politicians and administrators. The term limits movement of the 1990s demonstrates that the Antifederalist message–keep your representatives on a short leash, otherwise you will lose your freedom—still resonates with the American people, because Antifederalism is very much a part of the American political experience.

When we hear the claim that our representatives operate independently of the people, and that Congress fails to represent the broad cross-section of interests in America, we are hearing an echo of the Antifederalist critique of the potentiality of the representation system. When we hear that the federal government has spawned a vast and unresponsive administrative bureaucracy that interferes too much with the life of American citizens, we are reminded of the warnings of the Antifederalists concerning consolidated government.  They warn that, in effect, executive orders, executive privileges, and executive agreements will create the “Imperial Presidency.” And they warn that an activist and independent judiciary will undermine the deliberate sense of the majority.

And we are reminded of the Antifederalist warning that delegated powers can easily become delegated government. The Antifederalists viewed the Constitution as potentially creating mutually independent sovereign agents. The proposed regime had the potentiality to destroy political liberty by destroying the sovereignty of the people assembled in local communities and elected forums.  Accordingly, the Antifederalists insisted on a federal Bill of Rights as a declaration of popular sovereignty and the limitation on the reach of the general government.

Similarly Brutus warned that an independent federal judiciary would not only undermine the integrity of the state court system, but also substitute its own will for that of the people and their elected representatives when interpreting the Constitution.  In fact, he hinted that the Constitution invited the “Independent” justices to invoke the now famous and, to the Antifederalists, regime-corrupting axiom that we live under a Constitution, but the Constitution is what the justices say it is.  This critique by Brutus prompted Federalist 78 to respond that an independent judiciary is consistent with a federal republican government. The Judiciary is the least dangerous branch. It has neither the purse nor the sword!  Properly understood, assured Hamilton, judicial review did not, and would not, empower the judiciary to deviate from the “manifest tenor” of a limited Constitution. Besides, the judges were tied down by precedent and Congress had the power to control appellate jurisdiction.  Congress would never let the “worst fears” of the Antifederalists come to pass.  Who is correct?  Brutus or Hamilton?

Nor would Congress ever let the Antifederalists’ “worst fears” about the growth of the power of the Executive take place.  An energetic executive is consistent with republican government says Hamilton.  Besides, Congress would never stand for Executive war power grabs.  The potentiality of the Constitution to tilt the Antifederalist-Federalist balance in favor of the Federalists has been seen in our life time with regard to both the Judiciary and the Presidency.

To restore the Amtifederalist-Federalist balance requires that a strong dose of Antifederalism be applied to restraining the national democracy project of the Progressive Administrative State. Are we willing to accept Alexander Pope’s wonderful saying emulated in large part by Hamilton: for forms of government, let fools contest, that which is governed best is best?  The Antifederalist teaching is that we have another choice: the form of government and the means by which power is exercised matter when we are talking about securing the blessings of liberty.