Sunday, June 28, 2009

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.


J. Neil Schulman said...

"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."

Second time's the charm? :-)

Bartacus said...

I presume you mean take a second shot at fighting for states' rights, not slavery...