Anti-Federalists

Although they claimed to be the true federalists and true republicans, those who opposed the unconditional ratification of the Constitution in 1787–1788 were called the Anti-Federalists, and the name stuck. While they lost the ratification debate, the Anti-Federalists are worth studying for two reasons. First, as Herbert Storing ( 1981b ) has pointed out, the Anti-Federalists contributed to the founding dialogue, in particular by questioning whether a large heterogeneous republic that relies primarily on private interest can provide enough public-spiritedness to maintain itself. Second, the Anti-Federalist position on federalism survived the ratification of the Constitution.

When the Federal Convention concluded its work on September 17, 1787, in what is now called Independence Hall in Philadelphia, it sent the proposed new federal Constitution to the United States in Congress Assembled (the Confederation Congress) with instructions to submit the proposed Constitution to ratification conventions in the states. In each state, the conventions were to be chosen by the people in a manner determined by the state legislatures. The major state ratification debates took place in Pennsylvania, Massachusetts, Virginia, and New York.

The Anti-Federalist conception of republican government emphasized persuasion over coercion and drew on Montesquieu's discussion of republics and the constitutional controversy that led to the American Revolution. Brutus argued that only a small territory and homogeneous population could support republican government; otherwise “the public good is sacrificed to a thousand views … and depends on accidents” ( Storing 1981a, 2.9.11 ). Federal Farmer argued that two essential ingredients of republican government, a substantial representation and jury trial, are not secure. A full and equal representation “is that which possesses the same interests, feelings, opinions, and views the people themselves would have were they all assembled”; it requires regulation so that “every order of men in the community, according to the common course of elections, can have a share in [government],” including “professional men, merchants, traders, farmers, mechanics etc.” ( Storing 1981a, 2.8.15 ). The jury trial concern is twofold: Article III of the Constitution provides for jury trial in all criminal cases, save impeachment, but it also provides for appellate review, by the Supreme Court, of all cases “in law and fact.” That Congress could make exceptions to this is no guarantee that it would. And no jury trial was provided for in civil cases.

The fullest exchange on the character of representation in the new government took place between Melancton Smith and Alexander Hamilton in the New York convention. After defining natural aristocracy in terms of birth, education, talents, and wealth, as did Federal Farmer, Smith makes two claims on behalf of the middling class, or yeomanry. First, they are by habit and necessity “more temperate, of better morals, and of less ambition, than the great.” Second, they are “the best possible security to liberty … because the interests of both the rich and the poor are involved in that of the middling class. No burden can be laid on the poor but what will sensibly affect the middling class” ( Elliot 1891, 246–48 ).

Smith's argument is fully consistent with popular election, as long as the number of representatives is substantial enough for the yeomanry (or middling class) to get elected, and it is sound if that class embodies the entire community. His argument also combines the AntiFederalist focus on civic virtue with the need to rely on representation. While the size of the states precluded each citizen's direct participation in legislation, the AntiFederalists thought that a substantial representation would sustain the public spiritedness necessary for republican government.

What Hamilton sees as a division between the few and the many ( see Elliot 1891, Vol. 2, 257 ), Smith sees as a tripartite division, with an agricultural middle class holding the balance of power. Hamilton says inequality is inevitable if individual liberty is secured, and if forced to choose he opts for the public benefits of the vices of the wealthy few. Smith does not regard substantial inequality as inevitable, and he considers the frugal yeoman the representative of the public good.

Another element to Anti-Federalist republicanism concerns the importance of religion as a source of character formation and a common set of beliefs. In the Massachusetts convention, Charles Turner argued that “without the prevalence of Christian piety, and morals, the best republican Constitution can never save us from slavery and ruin” ( Storing 1981b, 23, from Storing 1981a, 4.18.2 ). Federal Farmer put it this way: “It can be no objection to the elected, that they are Christians, Pagans, Mohametans [sic], or Jews; that they are of any colour, rich or poor, convict or not. Hence, many men may be elected who cannot be electors” ( Storing, 1981, 2.8.150 ). Storing described the Anti-Federalist position as “not so much that government ought to foster religion as that the consolidating Constitution threatened the ealthy religious situation as it then existed in the states” ( Storing 1981b, 23 ).

The Anti-Federalists declared themselves the true “Federalists” and viewed the appropriation of that name by the Constitution's supporters as an act of larceny ( Storing 1981b, 8, 80 ). This issue was complicated. During the Confederation period “federal” referred to measures designed to support and strengthen Congress. At the same time, the federal principle meant that the states, not the union, were primary, and hence it was appropriate for the state legislatures to control the unicameral Congress, through election, recall, and federal reliance on state requisitions of men and money. As supporters of a measure to strengthen the authority of the union, namely, the Constitution, the Federalists had a claim on their name; on the other hand, the Constitution's opponents argued that the measures proposed were so strong as to go beyond the federal principle. That is, because the proposed powers were extensive and their implementation no longer depended on the states, the eventual result would be a consolidated national government.

As Patrick Henry's objection to the Preamble, at the Virginia Convention, shows, the dispute over terminology is connected to the substantive issue:

The major Anti-Federalist argument for constitutional change was for a redistribution of the powers of government between the nation and the states. Their most important proposals concerned restrictions on the federal powers to tax and to raise armies: the former should be limited to the power to tax foreign imports, and the latter should not extend to a general power to raise armies in time of peace, unless two-thirds of both houses support it ( Storing 1981a, 2.9.126 ). To the question Hamilton raised in Federalist No. 23—how could one foresee the extent of the powers necessary for raising and supporting armies?—Brutus replied that the power would be granted when truly needed. He also argued that the object of government in the United States was not only to “preserve the general government, and provide for the common defence [sic] and general welfare of the union …,” but also to support the state governments ( Storing 1981a, 2.9.80 ). On this point, Storing agreed with Hamilton that the Anti-Federalists were trying to “reconcile contradictions” by advocating a government for the American union but refusing to give it adequate powers to secure its objects, especially the common defense.

Patrick Henry, Centinel, and the essayist calling himself A Maryland Farmer argued that the proposed Constitution was an unsuccessful hybrid of the pure separation of powers, which to them meant legislative supremacy, and mixed government, which required a hereditary monarch and nobility. Since the materials for a mixed government were not present in America, the only sound choice was to construct a government with a simple structure, in which the middling class would predominate in the legislature and the legislature would be the supreme branch of government ( Storing 1981b, 53–63 ).

The most common Anti-Federalist criticisms focused on the Senate, in particular the absence of rotation and recall and that body's participation in the appointment and treaty-making powers. The Anti-Federalists preferred a council of appointment to be elected by the legislature, as many of the state constitutions provided, and many preferred that both houses approve treaties.

In light of their apprehension about consolidated government, the Anti-Federalist assessment of the executive was surprisingly moderate. Perhaps it was because all knew that George Washington would become the first president. The Anti-Federalists tended to accept both nity and the qualified veto, but they opposed reelection ( Dry 1987, 285–87 ).

As for the judiciary, Brutus's prescient account anticipated the full development of judicial power, including judicial review ( Storing 1981a, 2.9.130–196 ). By extending the judicial power to all cases in law and equity arising under the Constitution, Article III permitted the courts “to give the constitution a legal construction.” Hence “the real effect of this system of government will … be brought home to the feelings of the people through the medium of the judicial power” ( Storing 1981a, 2.9.130 ). Brutus argued that the courts should not be permitted to interpret the Constitution against acts of Congress, or, alternatively, if they were to have that power, they should not have life tenure. He also thought that lower federal courts were unnecessary, as the states could provide the courts of first resort ( Storing 1981a, 2.9.169, 183 ).

The main Federalist arguments in defense of the Constitution without a bill of rights were: (1) the entire Constitution, as it provides for a well-framed government with power checking power and offices filled by election, is a bill of rights; (2) there is an internal bill of rights, especially in Article I, Sections 9 and 10; and (3) unlike the state governments, the federal government is one of enumerated powers, and hence what is not enumerated is not given, and the state bills of rights remain in force ( McMaster and Stone 1888, 143–44, 252–54; Federalist No. 84 ). The Anti-Federalist responses, in reverse order, were: (1) the clear supremacy of the federal Constitution and the extensiveness of the powers granted call into question any reliance on the state bills of rights on the one hand, or the implied restrictions on powers on the other; (2) to the extent that one might rely on the principle of implied restrictions on powers, the very fact that certain restrictions are noted suggests, if anything, that what is not expressly reserved is granted; and (3) to the general argument about a well-constructed government, the Anti-Federalists claim that the structure does not guarantee either federalism or republican government ( Storing 1981a, 2.9.22–33; 1981b, 64–70 ).

In the First Congress, Madison proposed what became the Bill of Rights, after being persuaded by Jefferson and many of his constituents that it would at least be useful if not necessary. In his speech introducing the amendments, Madison said that he did not intend to change the structure or the powers of the proposed government. Consequently, he successfully opposed Anti-Federalist Thomas Tucker's motion to insert the word “expressly” before “delegated” in what became the Tenth Amendment, and which reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

As Storing points out, the Constitution “established a lasting structure of rules and principles,” but “it did not settle everything; it did not finish the task of making the American polity” ( 1981b, 3 ). The Anti-Federalist legacy reminds us of two points of ongoing contention over the character of American constitutionalism. One concerns the extent to which we can maintain sufficient ublic-spiritedness while we enjoy the blessings of liberty and prosperity that our large republic has provided. The second concerns American federalism. Our ongoing debate over strict versus loose construction, which began when Hamilton proposed a national bank and Madison joined Jefferson in opposing it, means that Anti-Federalist constitutionalism remains present whenever the Supreme Court strikes down an act of Congress as beyond that body's enumerated powers. More generally, urrent constitutional debates over “big government” reflect the founding debate over the Constitution, hich, as Tocqueville observed, led to a new form of federalism. The Tea Party Movement, a development of this century, recalls the American Revolution just as the Anti-Federalists did. But Tea Party advocates often express a libertarian hostility to government at any level, whereas the Anti-Federalists were not hostile to government at the state and local levels.

SEE ALSO Articles of Confederation ; Constitution ; Constitutional Convention of 1787 ; Constitutionalism ; Equality ; Federalism in American History ; Federalists ; Liberty ; Ratification of the U.S. Constitution ; Republicanism ; US Bill of Rights .