Book Review: The Anti-Federalist Papers

I'm rather ashamed that I got through all of The Anti-Federalist Papers before I got through all of The Federalist Papers, but these things happen. I ended up reading the Anti book after some libertarian friends on Facebook tried to convince me that the U.S. Constitution was, in fact, a coup d'etat, a statement with which I vehemently disagree--and still do, come to think of it. However, I already had this book on my Kindle, so the conversation more or less prodded me to read. The Federalist Papers, of course, are the articles written by James Madison, Alexander Hamilton, and John Jay under the group pseudonym "Publius" to persuade the people of the United States to fully reform the Articles of Confederation by adopting a wholly new Constitution. Those works succeeded and, in my view, constitute some of the most profound political thinking ever written on this continent.

But let us give the Anti-Federalists their due. They, too, had some profound insights into human nature and its effects on politics. Like the Federalist Papers, the Anti- version is not particularly easy reading, written as they are in a somewhat windy 18th century prose. But the language is still recognizably American English, and carries with it many of the same underlying political assumptions and sources that were used by the Founders to write the Constitution we use today, including Montesquieu (which I'm also in the proces of reading).

We tend to forget that it was not just a matter of Madison, Hamilton, and Jay trying to persuade Americans to accept their new vision, but they were fighting those who preferred things as they were with simply a few adjustments. The Constitutional Convention most definitely exceeded its mandate, which was to reform the Articles because the nation was experiencing political and economic turmoil in the late 1780s.. However, to call that a coup d'etat, when the Constitution required adoption by vote by all of the States is stretching the point a little too far.

Still, what was it that the Anti-Federalists disliked so about the Constitution? What did they see as contemporaries of Publius that we, looking back through the awe of History do not? Here are their primary objections, and many of them are on-target and prophetic--just 200+ years too early to be taken seriously:

• They objected strenuously to the right of the U.S. Congress "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." It was thought all such "necessary" laws as the Congress might create could supersede and eventually eliminate the power of state laws.
• They objected to the lack of a Bill of Rights prior to signing. These were eventually written by George Mason.
• They thought that the terms of office for the House of Representatives, Senate, and President were all too long.
• They felt that federal taxes on top of state taxes would make the people poorer.
• They wanted the states to have the right to censure and recall their Senators if they should prove unsuitable or too independent.
• They felt that the President would become little more than an elected monarch and that he held too much power.
• They felt that the Supreme Court held too much power by virtue of its right to "interpret" the Constitution with no higher appeal.
• They felt that the Supreme Court's Justices would eventually eliminate the right to trial by jury, one of the few legal practices Americans proudly retained from the British.

In short, they felt that the new federal government, so constituted, would trample on the rights of the individual 13 States to make their own laws, govern their own people, and collect their own taxes. The 10th Amendment notwithstanding, the arguments of the Anti-Federalist Papers hold up pretty well over the course of nearly 233 years, though to the credit of the writers of the Constitution, it took nearly that long for most of the fundamental weaknesses in the structure to be undone or exploited.

One might ask, what did the Anti-Federalists want? What sort of government did they hope to protect? The Articles of Confederation owe some of their heritage to the constitution of Switzerland, which consists of several small cantons (the equivalent of states) with very different local cultures and traditions. For example, Switzerland comprises French, German, and Italian consitutents, as well as Catholic and Protestant citizens. For the sake of peace, independence, and the common defense, the Swiss have strong local governments and a weak federal government. This allowed--and continues to allow--Switzerland to maintain its local cultures and traditions without a lot of meddling from the central government.

This was the model early Americans strove to emulate. True, no one hears about Switzerland conquering anybody or making huge changes to its neighbors or the world at large, but they have stubbornly guarded their freedom and way of life for nearly 500 years--and many Americans would have preferred it that way. The lack of European-style ambition along the lines of Germany or France was one of the things that separated Americans early on in our history. This changed, of course, and the Constitution had some hand in that.

It's difficult to read the arguments of the losing side--after all, who cares? But my libertarian friends would say that many of the problems they identify (and I agree with) today--such as excessive federal power, taxation, and military overreach--are fundamental and inevitable offspring of our 222-year-old Constitution, and therefore need to be called into question. I would beg to differ, and merely suggest that the current President and Congress at least make some effort to operate within the Constitution as writ. It might also be of value to eliminate the XVII Amendment, which called for direct election of Senators--making them once again answerable to the states--and maybe add a clause regarding the States' rights to recall their Senators.

The reason why no one takes "states' rights" seriously anymore--and hasn't for over a century--is because the Confederate States of America picked the absolute worst cause in the world upon which to stand on their rights: slavery. If they had been fighting excessive taxation, government regulations, or some other issue, the federal government might not have reached the levels we've seen in the 20th and 21st centuries, and the Civil War might never have happened. Alas, we must live within our history, and it is very difficult to resurrect a political doctrine that is almost as far gone as the buggy whip. Nevertheless, The Anti-Federalist Papers still deserve to be read today. These writers--including George Clinton, Robert Yates, and others--saw many of our problems today well before their time.

Rereading the Constitution

I'm really not interested in recounting the sins of the previous administration. I can watch CNN or MSNBC for that. The Bush Administration was neither completely wise nor brilliant in its handling of the War on Terror. Fine. Moving on. Obama is President now. What he's doing matters, both in the present and for the future of this nation's efforts to prosecute the GWOT (oh, sorry, the Overseas Contingency Operation) abroad and ensure politcal comity and stability here at home. President Obama needs to reread the Constitution, which is somewhat surprising, since he reputedly taught constitutional law at Harvard Law School.

Let's start with Article I, which states:

No bill of attainder or ex post facto Law shall be passed.

A bill of attainder, according to TechLawJournal.com, is:

A legislative act that singles out an individual or group for punishment without a trial.

An ex post facto law is a law that subjects individuals to criminal penalties for actions that were legal at the time they were committed.

The Founders had several reasons for including bills of attainder and ex post facto laws in the Constitution. They had read history. They knew that Rome began to shift from a Republic to an Empire with a winner-take-all political system when winners of elections would attempt to prosecute their predecessors after the fact for just such things. It became increasingly important to hold onto power because if you ever lost it or retired, you'd soon find yourself executed under some new law. That is where we're heading now with allowing CIA agents to be prosecuted--here or overseas--for interrogations performed in pursuit of terrorists.

The military and CIA interrogators had strict guidelines on what they were and were not allowed to do during their interrogations of people like Khalid Sheikh Mohammed, and they got actionable intelligence that saved lives. If we subject them to ex post facto laws, we're violating our own Constitution. And we're also putting past, present, and future CIA employees and other Americans at risk from international prosecution. The war is still going on, after all, and Obama is showing signs of continuing the Bush policies in Iraq and Afghanistan. He certainly hasn't withdrawn our forces. In any case, once the Obama administration comes to an end, as all regimes do eventually, the President is leaving his own people vulnerable to the very thing he's threatening to do to President Bush's people now. This is why we have ex post facto laws and also why the President is empowered to pardon people--to prevent junk like this from happening.

Let me guess: the next thing I'm going to hear is, "Torture is a violation of our Constitution, too." Awhile back I was scolded by a liberal friend for accepting or being indifferent to the use of waterboarding or other non-lethal, non-flesh-damaging, non-bone-breaking, non-permanently-harming interrogation techniques on terrorists caught on the battlefield. I believe the exact phrasing was, "Come on, Bart. You wouldn't accept your mother or sister being subjected to that." To which I'd respond, then as now, "No, I wouldn't. But then my mother or sister wouldn't have been caught on the battlefield in Afghanistan, shooting at our troops and hanging out with people planning to kill Americans."

So, seriously, I have another question for my liberal readers: how do you get information about imminent terrorist activities from very bad people who have no interest in helping you and every reason in the world (to them) to harm you? Let's say, for argument's sake, that I'm wrong, that torture is in fact unreliable as a means of obtaining informaiton. Then what? Rather than take the "you wouldn't let your sister be waterboarded" angle, I would ask the reverse: your sister is being held captive by people known for beheading their prisoners and posting the videos on Al Jazeera. You've captured a guy that you know is high up in a terrorist organization. You know his group plans to strike again, soon, and possibly behead your sister. Now: would you forbid waterboarding if you had the lead bad guy sitting captured before you? Repeat playings of Barry Manilow records? Jimmy Carter "national malaise" speeches? How do you get the information? I don't know, either.

However, Americans who have been in the very rough and serious business of fighting this nation's enemies deserve at least the benefit of the doubt. More than that, they deserve the protections of the Constitution they've been fighting to preserve.

And the Fun Continues

Another trillion dollars gone from the stock market. Where's the bailout? Who's going to accept responsibility for the bailout not working? I'll take a bet on this: President Bush, being the stand-up guy that he is, will get on the tube and admit the bailout didn't work before the Democrats (the problem is, what's he gonna say next?). The Democrats' reply message will be something like, "Well, yeah, it didn't work, but it's not our fault. It's the fault of overpaid CEOs, deep systemic problems in the financial system, and unscruplous lenders." They will not admit that their policy fix didn't work.

*

I got into a bit of a philosophical discussion with a friend today about government, human nature, and the American Constitution. We both agreed (approximately) on the following:

• The current system is geared toward people skilled at getting and staying elected, not necessarily governing.
• Power and resources (money) are concentrating into fewer and fewer hands.
• Human nature tends to reach for more and more power.
• The Constitution, understanding human nature, was established to limit the ability of individuals to seize power.
• Unfortunately, the Constitution was established by an aristocracy of honorable men of similar social standing who created a government that assumed future generations of men like them would continue to run it. This process lasted as long as the Founding Fathers lived. Political leaders since then have spent the last 200 years or so undoing the careful structures the Founders erected to prevent centralized power.
• The items above are not good for the Republic.

Why does this concentration of power and the direction of the Constitution matter?

Senators used to be elected by the legislatures of the states they represented. This ensured that said Senators would be more responsive to the interests of their states rather than some national party or constituency. The 17th Amendment undid this part of the structure. With more-or-less independent Senators, accountable only to their own attitudes, it became easier for lobbyists to focus on two people instead of multiple people in state legislatures.

Federal regulations and Supreme Court rulings also have done their part to reduce the power of the 10th Amendment...

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.

...taking power away from the states.

And then there's the military. The National Security Act of 1947, changed the nature of the President's relationship to the armed forces. Prior to 1947, the President had control of the Department of the Navy, which handled seaborne and limited Marine engagements, while the Congress had control of deploying the Army, since it was assumed that the Army would only be deployed in the event of full-scale war. The 1947 Act put all armed forces under the Department of Defense, and the Department under the President.

The War Powers Act and the All-Volunteer Force, which were passed in 1973 as a means of preventing "another Vietnam," actually allowed Presidents to send American armed forces to more places without a declaration of war. The War Powers Act still allows the President to deploy U.S. forces for up to 60 days without consulting Congress and without a draft.

Understand that I have the highest respect for the U.S. Armed Forces. I couldn't cut it, doing what they're doing, and I salute them for doing it. But here's the problem with an all-volunteer force: politically, it is much easier to send professional soldiers than draftees. Again, the Constitution's system was set up the way it was on purpose. It was fine for the Navy to be under the control of the President because any engagements it participated in were necessarily limited. It was supposed to take a declaration of war before deploying the Army.

So anyway, now we've got social engineering, military, homeland security, regulatory, taxation, legislative, news media, and judicial powers concentrated in Washington. Thus a horde of lobbyists can more easily descend on one city and influence policy there rather than disperse to the 50 states and hope for the best. It's a matter for serious thinking for all voters, since both parties have contributed to this centralization, though most of that centralization can be traced to a party I haven't voted for.

And I, by grousing about sticking to the forms of the Constitution, am considered a right-wing nut job. Frightening.