Mar 4, 2020
How the Anti-Federalists Shaped the Constitution
The Anti-Federalists had a strong distrust of government power. A national government with too much power was, as far as they were concerned, a pathway to government oppression.
Just over two hundred and thirty years ago, a convention gathered in Philadelphia to consider improvements to the United States’ first constitution, The Articles of Confederation. The Articles had several shortcomings, such as a lack of authority to maintain an army for use in emergency situations and the inability to raise money to pay for any of its responsibilities, and many of America’s brightest minds were sent by their individual states to reform that system. Over the course of the summer of 1787 these men debated their ideas of good government and, in the end, came up with a plan to replace the Articles with a new constitution that would strengthen the central government while respecting the sovereignty of the states.
In September of 1787 the convention voted to accept the new constitution and pass it along to the states for ratification. As the states considered whether to adopt the Constitution, those who supported ratification, the Federalists, and those who opposed it, the Anti-Federalists, passionately courted the support of the people of the states. That debate, which was carried out not just in the legislative bodies of the states considering ratification, but also in essays published in newspapers and pamphlets, produced a wealth of brilliant writings about political power and the nature of government.
Recently, however, the writings of the Founders have taken on a strange new role in public discourse. There are some on both the left and the right who argue that the world has changed so much that the Founders’ words are no longer relevant. It’s true that the world we know is quite different from the one the Founders knew. Despite the many differences between America of 2020 and America of 1787, the principles the Founders debated are timeless and just as instructive about good governance today as they were then. The Anti-Federalists are particularly important, though somewhat overlooked, for the way they warned about the ways the Constitution’s federalist system could be misused and for their role in the ratification process and the passing of the Bill of Rights.
The Anti-Federalists primary concern was that the Constitution left too much room for the national government to oppress the people. There are common themes to be found in the several writings of the Anti-Federalists that tell us what they feared most about the Constitution. The scope of those themes goes beyond the particular time and situation in which the Anti-Federalists were writing. The concerns they raised about the Constitution can be applied to government in general, to understand how governments oppress those they govern and what can be done to prevent such oppression.
Abuse of Power
The Anti-Federalists had a strong distrust of government power. A national government with too much power was, as far as they were concerned, a pathway to government oppression. In 1787, for example, “Brutus,” who was probably New York judge Robert Yates, wrote to the citizens of New York, “when the people once part with power, they can seldom or never resume it again but by force.”1 This thought lines up nicely with others expressed by “John DeWitt,” on Nov. 5, 1787, who wrote:
It cannot be doubted at this day by any men of common sense, that there is a charm in politicks. That persons who enter reluctantly into office become habitated, grow fond of it, and are loath to resign it. – They feel themselves flattered and elevated, and are apt to forget their constituents, until the time returns that they again feel the want of them. – They uniformly exercise all the powers granted to them, and ninety-nine in a hundred are for grasping at more.2
Near the top of their list of concerns was that of aristocracy and monarchy. The government set up by the new constitution, they thought, was destined—as those who held office gathered power to themselves—to become aristocratic; and as the government accumulated power, it might begin to oppress the people.3 Similarly, Patrick Henry argued that the president could easily become a king, as the support of a small number of senators was all that would be necessary for the president to ignore citizens’ rights.4
Several factors contributed to the Anti-Federalists’ worry. The Constitution gave the president authority to appoint his own “ministers,” Supreme Court justices, justices to other federal courts as might be set up by Congress, and many other executive branch officials. Anti-Federalists believed there were far too many government officials who served at the discretion of the president and owed their power and authority to the president. The concern was that they would become more like royal officials and work toward consolidating the president’s power.5
Similarly, there was a concern about the Senate itself. Before the passage of the Seventeenth Amendment in 1913, the members of the U.S. Senate were appointed by the legislatures of the states. Their job was to represent the interests of the state as a single entity to the national government. The fact that the senators were appointed, rather than elected, and that their terms would last for six years each, led the Anti-Federalists to believe that the Senate might become an aristocracy, similar to the house of Lords in England, because they were too far removed from the people.6
Taxing authority was another area that caused concern for the Anti-Federalists, particularly when coupled with the supremacy of the national government as set forth by the Constitution. They were not merely bothered by the potential for oppressive taxes, although they definitely worried about that. They also believed that Congress could use this power to usurp the powers of the states by making them irrelevant. Congress could pass a variety of taxes and then overturn taxes that were passed by the states, depriving state governments of revenue. Then, as the states became less able to oppose the capital, the national government would use their power to oppress the people.7
The power to create and maintain an army and navy was another important issue for the Anti-Federalists. A standing army was seen as an easy route to oppression for the national government. Brutus wrote that “the power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their control over the militia, tend, not only to a consolidation of the government, but the destruction of liberty.”8
It was thought that first Congress would pass whatever taxes or laws it felt were necessary for the “general welfare” and then would use the standing army to enforce them.9 The people would be left with little recourse: The standing army was under the authority of the national government and the Constitution gave authority to the national government to federalize the state militias, leaving the citizens unarmed and without relief from oppression.10
Federalist Response at Convention
The Anti-Federalists had expressed these reservations at the Constitutional Convention long before the ratification debates, and their concerns helped bring about concessions and compromises to protect the people from potential federal oppression. The core of the Anti-Federalists argument was well expressed during the later ratification debates by Brutus: “When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.”11
The term “powerful checks” is the perfect way to describe the way the Constitution is supposed to protect the people. The use of these checks can be seen in the way the Founders sought to keep the army from becoming a tool of oppression. In the first place, the Constitution firmly placed the army under the control of civilian leadership with the president as commander in chief. They also established another check on the army by placing a strict limit on its funding. The Constitution requires that an appropriation for the army, or navy for that matter, could not be for a longer period than two years before Congress would have to re-authorize it. The idea was that the army would always be accountable to those who are accountable to the people.12
Army appropriation made up only one part of what is another valuable check on the national government. The Founders placed all appropriations for the national government under the authority of Congress. More importantly, they stipulated that all spending bills must originate with the House of Representatives. This power was granted to the House primarily because it is the most responsive to the people who elect them. The members of the House are limited to two-year terms, meaning that they must stand for re-election every other year when their constituents can weigh in on whether or not they have adequately represented them in Congress.
Those two-year terms represented another important check designed into the Constitution. The terms of the House, Senate and the President are written into the Constitution so they could not be easily changed. Having those set terms meant that each of these elected officials would remain accountable to those who elected them. After all, if they were not providing adequate representation to their constituents, the House to the people of the states, the Senate to the state legislatures, and the President to the nation at large, it was assumed that they would not be returned to office.13
Concessions in the Bill of Rights
One of the most common complaints among the Anti-Federalists was the Constitution’s lack of a statement guaranteeing the rights of both citizens and the states. Many Federalists, including James Madison, originally worried that a Bill of Rights might weaken the Constitution, or that it was unnecessary because the British Bill of Rights still applied and the Constitution did not explicitly give the national government the power to violate it. In June of 1789 Madison told his fellow Congressmen, “If we can make the Constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness in the judgement of those who are attached to it, we act the part of wise and liberal men to made such alterations as shall produce that effect.”14
As far as Madison was concerned, there were many benefits to adding a Bill of Rights. He had come to believe that the British Bill of Rights merely limited the executive authority, exercised in England by the king. Adding a Bill of Rights to the Constitution would mean those kinds of limits could be clearly extended to the legislative branch as well. It would mean that Congress could not use broad interpretations of its power to chip away at the rights of the people. His intention was to make those rights as clear as possible, and he used the many lists written by the Anti-Federalists during the ratification debates to create the Bill of Rights.
Looking at the Bill of Rights, we can see the kinds of rights that Madison, and the Anti-Federalists, felt needed to be guarded the most, especially if we look at them in the context of the concern that had been expressed by the Anti-Federalists. The First Amendment protects several rights that allow the people to criticize the government, including the right of the press, the right to free speech, and the right to peaceably assemble and seek redress of grievances, giving the people an avenue to protect themselves from oppression. The Second Amendment protects the right of the people to arm themselves for their own defense, while the Third guarantees that the government cannot encroach on citizens’ private property. The Fourth through Seventh Amendments protect the people from arbitrary or capricious prosecution, which might be used by an oppressive government against those who oppose or criticize it.
A Modern Real-World Application
Of course, it is easy to talk about the thoughts of the Founders on rights and abuse of power as a theoretical exercise, but the inability to see their theories at work in the practical world is what enables tyranny. A case that is currently in front of the Supreme Court, Seila Law Inc v Consumer Financial Protection Bureau can illustrate the danger of forgetting what the Anti-Federalists wrote.
Seila Law is a law firm that, among other legal services, helps clients resolve consumer debt. The Consumer Financial Protection Bureau opened an investigation into whether the law firm violated federal telemarketing laws and Seila objected when the CFPB demanded information and documentation from the firm. The firm argued that the CFPB was unconstitutional, primarily because its structure, with a single director who could not be removed except with cause and because it draws its funding from the Federal Reserve rather than Congressional appropriations.15
This case raises important issues in context of the arguments from the Anti-Federalists and the type of influence they had on the Constitution. Because the director can only be fired for cause, he or she remains largely free of oversight from the president. Without that oversight, it could be argued that the CFPB lacks accountability. The CFPB is also not accountable to Congress because its funding is outside of the normal appropriations mechanism. Without the ability to deny funding to it, Congress has very little recourse to exert any kind of influence over it.
As discussed here, the Anti-Federalists were greatly concerned that there was not enough accountability to the people in the national government. Their concerns about a standing army, the strength of the executive, the lengthy terms of senators, and the independence of the judicial branch were that they would become tyrannical if not made suitably accountable to the people, from whom all power emanates. It was this concern that led to placing checks on each of these powers, from denial of funding to the army by Congress, to the president’s authority over the executive branch agencies, to Congress’s impeachment power; all were meant to guarantee that the people would have a final say over the course of their government and its policies. The CFPB is problematic because it exercises legislative, executive, and judicial power, but lacks the kind of accountability the Anti-Federalists thought were so important. This lack of accountability invites abuse.
There are variations of this kind of unaccountable power throughout the executive branch. Many agencies wield significant regulatory authority that allows them to exercise the powers of all three branches. The EPA, for example, can write regulations, determine the punishment for violating those regulations, investigate potential violations of those regulations, and then issue judgement on those violations. The CFPB takes this one step further, though, because while Congress does have the ability to deny funding to the EPA and the director of the EPA answers to the president, so there are still checks on its power, the CFPB faces no such checks.
By itself, the CFPB does not represent a major attack on liberty and is not tyrannical. A government that can create agencies that do not answer to the people though, is a government that can become tyrannical. Melancton Smith, in the New York ratification debate, said “if this government becomes oppressive it will be by degrees: It will aim at its end by disseminating sentiments of government opposite to republicanism; and proceed from step to step in depriving the people of a share in the government.”
The words of the Anti-Federalists give us an effective warning about the perils of a government that is no longer accountable to the people. The Federalists, in their response to the Anti-Federalists, show the proper way to maintain those checks against the progress of a government toward tyranny. The Founders’ words still have wisdom today.
- Each of my references for the Anti-Federalist papers comes from my well-worn, marked up copy of the Signet Classic edition. Each of the following citations will provide author and page number where it can be found. “Brutus,” 18 October, 1787, The Anti-Federalist Papers and the Constitutional Convention Debates, Ralph Ketchum, ed (New York: New American Library, 1986) 271. ↩
- “John DeWitt”, 5 November, 1787, 313. ↩
- “John DeWitt,” 5 November, 1787, 313. ↩
- Patrick Henry, 7 June, 1787, 215. ↩
- “Cato,” 27 November, 1787, 319. ↩
- “Cato,” 27 November, 1787, 320. ↩
- “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, 8 December, 1787, 243. ↩
- “Brutus,” 18 October, 1787, 273. ↩
- “Centinel,” Number 1, 5 October, 1787, 232. ↩
- Patrick Henry speech of 5 June, 1788, 206. ↩
- “Brutus,” 10 April, 1788, 331. ↩
- Federalist No. 41, The Federalist Papers (New York: Bantam Dell, 1982) 247. ↩
- Federalist No. 39, 228. ↩
- Ralph Ketchum, James Madison (Charlottesville: University of Virginia Press, 1990) 290. ↩
- Amy Howe, “Justices to review constitutionality of CFPB structure,” SCOTUSblog (Oct. 18, 2019, 3:56 PM), accessed Feb 23, 2020, 3:52 PM. ↩