The Antifederalists warned us; time to listen  

anti-federalistApproaching an ominous election day, Donald Kochan wrote an article urging Americans to consider the Federalist Papers’ warnings against populism and demagoguery before voting. They do have valuable insight. But the Antifederalists offer more valuable insights into our political world.

The Antifederalists opposed the U.S. Constitution as enabling an overbearing central government threatening individual liberties. With history written by the winners, they are ignored now, but, as Joseph Stromberg noted, “pretty much every dire prediction made by the Antifederalists has proven correct.”

Antifederalists thought the Constitution’s checks on federal power would be overridden by expansive interpretations of the government’s role in promoting the “general welfare” and other clauses, creating a federal government that would invent undelegated powers.

Antifederalists’ determination to protect Americans’ inalienable rights from the constitutional “loopholes” that would be created by those bent on that course led to the Bill of Rights. Some are now the last line of defense against government invasions, and under threat (e.g., the 5th Amendment’s Takings Clause), while others have already largely succumbed (e.g., the 10th Amendment).

Antifederalists did not envision all the ways their fears would come true. They didn’t anticipate that the Commerce Clause would now rationalize almost any federal action — the distortion necessary was too great for them to even imagine. They didn’t foresee how the 14th Amendment would be used to extend federal domination over states. They didn’t foresee the 16th Amendment allowing an income tax, which they would never have accepted, and the massive expansion of government, and its abuses it produced. But those changes have just made the expansion of government power and contraction of Americans’ freedom they feared worse.

Among the most important Antifederalists was Brutus — Robert Yates, a New York judge — who withdrew as a Constitutional Convention delegate because it was exceeding its instructions. His analysis of federal overreaching were particularly insightful.

Brutus asserted that courts would be beyond control “both of the people and the legislature.” Consequently, he objected that the grounds for removing judges didn’t include making rulings that exceeded their constitutional authority, leading to judicial tyranny.

Brutus argued that when constitutional grounds were absent, courts would create grounds “by their own decisions,” manipulating the meanings of vague clauses as justification. It would interpret the Constitution’s alleged “spirit,” rather than its written words. Such rulings would then effectively “have the force of law,” due to the absence of constitutional means to “correct their errors.” This constitutional failing would compound over time in a “silent and imperceptible manner,” through precedents that built on one another.

The courts’ constitutional interpretations would expand the power vested in federal government, making the courts the most dangerous branch, not “the least dangerous branch,” as Federalist 78 asserted.

Brutus predicted the adoption of “very liberal” principles of constitutional interpretation. He claimed that there had never in history been a court with such “immense powers” and so few checks upon it, making it perilous for a nation founded on consent of the governed. Given the extent to which Americans’ power to effectively withhold their consent from federal actions has been eviscerated, Brutus was right.

Brutus accurately recognized the cause (insufficient enforceable restraints on the federal government’s scope) and consequences (increasing burdens and invasions of liberty) of the expansive federal powers now surrounding us. But he was too optimistic. The federal behemoth has grown orders of magnitude larger than he could ever imagine, much less find justifiable.

The judicially-enabled tyranny Brutus and other Antifederalists feared has come to pass. What Thomas Hobbes described as our ultimate protection against a “war of all against all” — government — has become the main battlefield on which that war is now fought. The increasing magnitude of the difference between prize and punishment has made the battle for political control increasingly nasty and brutish, but horribly drawn out rather than short. And unless we learn from the Antifederalists, our politics will be a continually escalating fight over who controls the Titanic’s deck chairs as it sinks.

Gary M. Galles is a professor of economics at Pepperdine University, a research fellow at the Independent Institute, adjunct scholar at the Ludwig von Mises Institute, and member of the FEE faculty network. His books include Apostle of Peace (2013), Faulty Premises, Faulty Policies (2014) and Lines of Liberty (2016).