The Anti-Federalist

Today is Alexander Hamilton's birthday, so it's kind of ironic that today I discovered the Anti-Federalist Papers. Until today, I sided with the federalists, like any loyal American. After all, America wasn't doing well under the Articles of Confederation, and a stronger central government seemed like the clear solution. The Constitution itself seemed very well-planned, well-thought-out, and well-written. I assumed that our problems are solely the result of men dishonestly misinterpreting the Constitution.

Not so. The mess we're in now was actually predicted in 1787. The "Brutus" essays were a series of essays "To the Citizens of New York" that appeared in the newspaper during the same time period as did the Federalist. The author, believed to be New York judge Robert Yates, predicted the misuse of the "necessary and proper" clause and the corruption of the federal judiciary. About the necessary and proper clause, he wrote, "This government is to possess absolute and uncontroulable power, legislative, executive and judicial, with respect to every object to which it extends, for by the last clause of section 8th, article 1st, it is declared "that the Congress shall have power 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 office thereof." (Essay I, 18 October 1787)

He continued, "the legislature of the United States are ... by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the state governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual states, small as it is, will be a clog upon the wheels of the government of the United States; the latter therefore will be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unerring experience of ages, that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way."

He also wrote that "the powers given by this article are very general and comprehensive, and it may receive a construction to justify the passing [of] almost any law." [emphasis added] This is exactly what has happened.

In essay XI (31 January 1788), the author cautioned about investing federal judges with the power "not only to carry into execution the powers expressly given, but where these are wanting or ambiguously expressed, to supply what is wanting by their own decisions." He wrote that they " will give the sense of every article of the constitution, that may from time to time come before them. And in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they are authorised by the constitution to decide in the last resort....

"The judicial power will operate to effect, in the most certain, but yet silent and imperceptible manner, what is evidently the tendency of the constitution: — I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every adjudication of the supreme court, on any question that may arise upon the nature and extent of the general government, will affect the limits of the state jurisdiction. In proportion as the former enlarge the exercise of their powers, will that of the latter be restricted." [emphasis added] Again, this is exactly what has happened and is happening today!

Those misinterpreting the Constitution are not the only ones at fault for the problems of today. "Brutus" warned, but nobody listened.

It will be interesting to read more of the Brutus essays and other parts of the Anti-Federalist.