A free society needs both liberty and order. As Russell Kirk once put it, "order is the first need for any society—only then can liberty and justice be reasonably secure." From September 1787 through July 1788, this principle of ordered liberty shaped Federalist arguments for, and anti-Federalist arguments against, the ratification of the Constitution. Contemporary Americans might be tempted to assume that the opposition does not deserve to be counted among the Founding Fathers and Framers. But not only do many anti-Federalists belong in both categories, their works need to be read alongside the more famous Federalist Papers and James Wilson's oratory, if Americans hope to restore a sane balance between state and federal power.
Recent experience with tyranny shaped the Articles of Confederation, the United States' constitution from 1781-1787. In an effort to avoid everything that had become instruments of tyranny in British hands, the Articles contained no national army, no executive branch, no national judiciary, and States had to vote unanimously for any tax. A unicameral Congress, with members elected by State legislatures and in which each State had one collective vote, oversaw all national matters via committees. In this highly decentralized Union, ensuring State sovereignty trumped concerns about individual liberty. Almost immediately, restrictions in the Articles, along with regionalism and factionalism, hampered commerce, foreign trade, and debt repayment. In May 1787, 55 delegates from every State but Rhode Island met in Philadelphia. Rather than amend the Articles, they instead began to draft a new constitution, starting with the Virginia Plan, co-authored by Edmund Randolph and James Madison. This plan was decidedly in favor of order through centralization. It called for proportional representation in a bicameral congress, and gave Congress a veto over State laws and the power to appoint the nation's president and judges. By mid-September, delegates finally reached a compromise, which among other things, included equal representation for States in the upper house and proportional representation in the lower house. Madison opposed this, but was voted down. Following final approval of the Constitution on September 17, 1787, delegates presented it to the United States. Federalists and anti-Federalists went to work trying to influence the composition of the State ratifying conventions.
Elbridge Gerry of Massachusetts summed up anti-Federalist concerns when he predicted that the new Constitution would "produce a monarchy, or a corrupt, tyrannical aristocracy." Other prominent anti- Federalists included George Clinton of New York, Virginians Richard Henry Lee and Patrick Henry, and Luther Martin of Maryland. Yet for reasons that will become apparent, the less famous Robert Yates of Pennsylvania and Samuel Bryan of New York also deserve a place on this list of important anti-Federalists. Bryan attacked the Constitution's checks and balances, saying these would not protect liberty but only serve to obfuscate federal corruption. Bryan also argued that one representative in the House for 30,000 inhabitants was "too few to communicate the . . . local circumstances and sentiments of so extensive" a country. Like George Mason and other anti-Federalists, Bryan especially lamented the absence of a Bill of Rights. The people, Bryan said, had cried out for order amid the chaos of 1787 and the Confederation's perceived "impotency." The "wealthy and ambitious" had preyed on these fears, which Bryan thought were exaggerated, "not for the welfare of the country" but for "power and aggrandisement." Bryan feared a congressional oligarchy more than a presidential monarchy: "a permanent aristocracy" unaccountable to "the great body of the people" because it was so far removed from them.
Although Bryan claimed that the United States' size would produce tyranny while preventing Congress from understanding local needs, he still believed a decentralized republic could maintain the order needed to keep liberty secure. But New York Supreme Court judge Robert Yates disagreed, noting that only two countries in 1787 were as large as the United States: Russia and China. As Yates pointed out, autocrats ruled both. Historically, large territorial republics actually endangered liberty because there was no way other than coercion to balance their many regional and factional interests. "In so extensive a republic" as the United States, Yates said, "the great officers of government would soon become above the control of the people and abuse their power for the purpose of aggrandizing themselves."
Yates singled out Congress' taxation power and the Supreme Court as the most likely avenues to despotism. Since Congress could approve taxes to "provide for the common safety, and the general welfare," taxation would be unlimited. "The government," warned Yates, "would always say their measures were designed and calculated to promote the public good; there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves." Meanwhile, the Supreme Court, as constructed, would not to be guided at all by Natural Law, precedent, or any other law, just by its own whims and whatever precedents it might set.
Federalists posed counter-arguments to all these accusations. They claimed the "general welfare" clause actually limited the government's range of power. Where anti- Federalists saw a future consolidated nation-state inherent in the Constitution, Federalists beheld a firm grounding for a lasting federal union that balanced liberty with order. This is exactly what Madison argued in Federalist #10 and #51, in which he flipped on its head the maxim that factionalism in large republics breeds disorder, followed either by tyranny or disunion. In a nod to what G.K. Chesterton later called that most provable Christian dogma, Original Sin, Madison acknowledged that the "causes of faction are sown in the nature of man." Since the causes of faction cannot be removed, Madison noted realistically, to be free Americans required a polity founded on the principle of ordered liberty to control its effects.
Federalists claimed the Constitution would restrain factionalism far better than had the Articles. How? Certainly not through coercion, Madison said. Nor would it depend on enlightened aristocrats, for "enlightened statesmen will not always be at the helm." Madison predicted that the country's diversity would prevent any majority from stepping on minority rights even as it mitigated Congressional attempts to pass unwise laws. In the same way a representative government was superior to a purely democratic one because of its greater ability to field temperate, prudent leaders, so would a large republic be superior to a small one. The difficulty for Madison was that his acknowledgement of American plurality conceivably could support anti-Federalist warnings about heterogeneous republics. Yet how diverse really was the United States? John Jay in Federalist #2 had already given the answer for this: Not so much, in the way that multi-ethnic, multireligious, and multi-lingual Russia and China were. In an overstatement even for 1787 (although not too much of one), Jay described Americans as "one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in manners and customs." Put simply, when it comes to republics, the Federalists seemed to be saying that as long as citizens share common foundational attributes, "bigger is better." Faction would balance faction. The government's primary role in such a system was to be little more than a "dispassionate umpire," Madison privately told Washington.
The U.S. Constitution won ratification on June 21, 1788, mainly because of promises to anti-Federalists that a Bill of Rights would be added as soon as possible. (Federalists had opposed the addition of a Bill of Rights on the grounds that listing Americans' liberties in amendments might unintentionally limit them.) Another comforting thought was that George Washington, who had proven trustworthy with power, would be the first president.
There would be no violent counter-revolution in America, only a working out of anti-Federalist principles under the new U.S. government. In the 1790s, Lee, Yates, and Henry even became Federalists: Yates ran as a Federalist for New York governor against Clinton and Lee, as a senator from Virginia, fought to pass Hamilton's economic program.
Having now taken into account both sides in the ratification debate, how should those who promote a free and virtuous society evaluate the anti-Federalists? Were their fears based on the Constitution itself, with its alleged inability to balance liberty and order and prevent the consolidation of power at the national level? They clearly believed this to be the case. Yet their fears about consolidated state power are those that anyone protective of liberty ought to have about any government, for they are rooted in an anthropology revealed both by Nature and by Revelation; namely, that the human person is fallible and capable of choosing evil over good. Given an analysis of past and present--the continued growth of the "nanny state" comes to mind--the likelihood is not small that some will choose safety, comfort, and a leveling equality over freedom and the life that is worth living. Still, anti-Federalists did correctly predict that the U.S. Constitution would become a much-abused instrument in the hands of those who wished to build a muscular, far-reaching government. They also foresaw that the judiciary might endanger liberty more than a quasi-monarchical president. Yates' warnings about the Supreme Court and Congress certainly ring true today, as do Bryan's predictions about politicians taking advantage of crises to pursue ideological or partisan ends. These processes tend to limit Americans' liberties while chipping away at their virtue via government-constructed moral hazards. Indeed, as J. Budziszweski notes in The Line through the Heart, Yates' "arguments seem even stronger today than they did at the time they were written."
Does this mean, then, that the anti-Federalists ought to have succeeded in stopping the Constitution's ratification? Far from it. The Federalists correctly criticized the Confederation for being unable to provide the minimum order needed so that Americans could flourish as a free people. Their arguments show they understood better than anti-Federalists the necessary balance between liberty and order. Had the anti-Federalists defeated the Constitution, the Union would have soon split into multiple confederations or divided into highly separate States. The consequences for liberty and human flourishing under these scenarios would have been worse than the most dismal anti-Federalist prediction about life under the Constitution.
This does not mean, however, that Federalists believed any governmental formula could, of itself, maintain a polity in which liberty and justice would be secure. They, like their anti- Federalist opponents, recognized the need for virtue in a free society. But while both acknowledged virtue as a precondition for republican government, Federalists were far less likely to expect it. "The few . . . who act upon principles of disinterestedness," wrote Washington, "are, comparatively speaking, no more than a drop in the Ocean." A rational Constitution, prudently drawing on Enlightenment liberalism and based on Americans' own experience as a free people, would help bridge the gaps.
The anti-Federalists, though perceptive when identifying problems, tended to permit the perfect to be the enemy of the good. There was nothing inherent in the Constitution relative to a penchant for disorder and illiberality that is not present in the human person. The Federalists realized this; the anti-Federalists did not. Yet to understand the degree to which the American founders understood the balance between liberty and order necessary for a free people, one must not neglect the anti-Federalists. They were responsible for modifying what would have been a highly centralized government from the very beginning, had the Virginia Plan succeeded in toto, and had anti-Federalists like George Mason failed to secure a Bill of Rights.
Dr. Pinheiro is associate professor of history at Aquinas College in Michigan, and author of Manifest Ambition: James K. Polk and Civil-Military Relations during the Mexican War.
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