Were the Antifederalists right?

[Shooterman]

This fellow makes a compelling case for the premise.

The Antifederalists Were Right - Mises
Institute

By Gary Galles

September 27 marks the anniversary of the publication of the first of the Antifederalist Papers in 1789. The Antifederalists were opponents of ratifying the US Constitution. They feared that it would create an overbearing central government, while the Constitution's proponents promised that this would not happen. As the losers in that debate, they are largely overlooked today. But that does not mean they were wrong or that we are not indebted to them.

In many ways, the group has been misnamed. Federalism refers to the system of decentralized government. This group defended states rights — the very essence of federalism — against the Federalists, who would have been more accurately described as Nationalists. Nonetheless, what the so-called Antifederalists predicted would be the results of the Constitution turned out to be true in most every respect.

snip

One of the most insightful of the Antifederalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention was exceeding its instructions. Yates wrote as Brutus in the debates over the Constitution. Given his experience as a judge, his claim that the Supreme Court would become a source of almost unlimited federal over-reaching was particularly insightful.

Brutus asserted that the Supreme Court envisioned under the Constitution would become a source of massive abuse because they were beyond the control "both of the people and the legislature," and not subject to being "corrected by any power above them." As a result, he objected to the fact that its provisions justifying the removal of judges didn't include making rulings that went beyond their constitutional authority, which would lead to judicial tyranny.

Brutus argued that when constitutional grounds for making rulings were absent, the Court would create grounds "by their own decisions." He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.

The Supreme Court would interpret the Constitution according to its alleged "spirit", rather than being restricted to just the "letter" of its written words (as the doctrine of enumerated rights, spelled out in the Tenth Amendment, would require).

snip

Brutus predicted that the Supreme Court would adopt "very liberal" principles of interpreting the Constitution. He argued that there had never in history been a court with such power and with so few checks upon it, giving the Supreme Court "immense powers" that were not only unprecedented, but perilous for a nation founded on the principle of consent of the governed. Given the extent to which citizens' power to effectively withhold their consent from federal actions has been eviscerated, it is hard to argue with Brutus's conclusion.

Not a long read. Well reasoned out and seemingly much, if noy most, has come to pass.

[tnkr111]

The anti-federalists were off their rocker then, and still are. Trust me, I know a couple from my hometown, a small town in Northern Michigan, lets just say Looney Toon puts it nicely describing them.

1) Since the Supreme Court is the target of your snips, consider this. The Supreme Court cannot deliberate, decide, or issue opinion unless the law is challenged as unconstitutional before them. They cannot make law, only interpret the application thereof. They can throw out entire laws and force the Congress to rewrite the law, or leave it lay. Oh, and a juicy bit on this, it is not enumerated anywhere in the Constitution that the Supreme Court can render laws unconstitutional, this is the result of the precedent set by the Marbury v. Madison decision, look it up, it is linked in Google.

2) Anti-federalists clearly were turning a blind eye to the abject failure at the first attempt at government, the Articles of Confederation. The Articles loosely bound the states but did do a fair job at regulating anything or providing for a proper defense of the new nation.

3) Speaking of the Common Defense, who would handle it with no central government or a weak one? How would it be funded, maintained, organized and controlled? With no defense, there is no nation.

[Shooterman]

Originally Posted by tnkr111

The anti-federalists were off their rocker then, and still are. Trust me, I know a couple from my hometown, a small town in Northern Michigan, lets just say Looney Toon puts it nicely describing them.

1) Since the Supreme Court is the target of your snips, consider this. The Supreme Court cannot deliberate, decide, or issue opinion unless the law is challenged as unconstitutional before them. They cannot make law, only interpret the application thereof. They can throw out entire laws and force the Congress to rewrite the law, or leave it lay. Oh, and a juicy bit on this, it is not enumerated anywhere in the Constitution that the Supreme Court can render laws unconstitutional, this is the result of the precedent set by the Marbury v. Madison decision, look it up, it is linked in Google.

2) Anti-federalists clearly were turning a blind eye to the abject failure at the first attempt at government, the Articles of Confederation. The Articles loosely bound the states but did do a fair job at regulating anything or providing for a proper defense of the new nation.

3) Speaking of the Common Defense, who would handle it with no central government or a weak one? How would it be funded, maintained, organized and controlled? With no defense, there is no nation.

Am I to presume, and please tell me if I'm wrong, your concept of the Federal government is drastically different from that which the founders proposed, i.e, a government that was limited in scope by the prohibitions placed upon it by the Bill of Rights, as well as the intentioned requirement of a Republican form of government both nationally and in the states, as well.

As for the common defense of the nation, even presuming the need, unforseen at the time, of a standing army, it still was a long way from ever presuming we should have troopers scattered throughout the world in a position of warfare readiness.

Interesting concept.

[JohnRN]

Originally Posted by tnkr111

Oh, and a juicy bit on this, it is not enumerated anywhere in the Constitution that the Supreme Court can render laws unconstitutional, this is the result of the precedent set by the Marbury v. Madison decision, look it up, it is linked in Google.

I don't disagree - Article III of the constitution is the most vague and laast defined of the three articles that describe the government - legislative, executive and judiciary.

Originally Posted by tnkr111

2) Anti-federalists clearly were turning a blind eye to the abject failure at the first attempt at government, the Articles of Confederation. The Articles loosely bound the states but did do a fair job at regulating anything or providing for a proper defense of the new nation.

I'm assuming you meant that they did NOT do a fair job.

And they didn't - primarily because of a chronic shortage of funds caused largely by haggling between the States when Congress requested funds for the conduct of the Continental War. Who knows, had the States put up the money - maybe the US would have won the war outright rather than winning because the other side got tired of fighting and gave up.

By the way - interesting that you should bring this point - since the Southern States in the War Between the States were also a loosely bound "confederation" and suffered from similar problems in the conduct of their war against the Union.

Originally Posted by tnkr111

3) Speaking of the Common Defense, who would handle it with no central government or a weak one? How would it be funded, maintained, organized and controlled? With no defense, there is no nation.

The prurpose of keeping a weak central government was to prevent it from using arbitrary justification and the power of a standing army to become a new tyranny.

States were allowed (and supposed) to keep militias. In times of national emergency - such as invasion, the central government was supposed to call upon State militias to form up into the US Army.

That's what Fedaralism means. It's a league of States. The league has no justification existing without consent from all Sates i.e. the league cannot usurp the individual States.


Nevertheless, the government of today has far, far, far, far exceeded the original mandate given to it upon it's creation.

[tnkr111]

John, my original post is not to be construed as an authoritative explanation of my view. I do believe the Federal Government has a responsibility to be strong and to administer all manner of state matters internally and externally. The purview of the Federal government has unarguably grown over the last 230 years, but it has always stayed inside the intent and purpose of the Framers. It is disingenuous, and downright foolhardy, to think that the federal government should recede and take a backseat to the States. We live in a complex world fraught with many threats ot our survival, and as a nation, 50 ideas on how to handle each one is a recipe for disaster. Furthermore, the States are ill equipped, financially and otherwise, to meet the real threats faced by our nation- militarily or criminally. The Federalists were right, and since they wrote the Constitution I swore "to protect and defend form all enemies foreign and domestic" I'll side with them.

I do believe that there needs to be some serious change in our government, but not by receding its power. New leadership will fix most of our problems out of hand- pay for our expenses as we go, restore the law to fully reflect the Bill of Rights, force corporate responsibility on the environment, and force a rehabilitation of our addiction to petroleum.

[Caldric]

Originally Posted by tnkr111

1) Since the Supreme Court is the target of your snips, consider this. The Supreme Court cannot deliberate, decide, or issue opinion unless the law is challenged as unconstitutional before them. They cannot make law, only interpret the application thereof. They can throw out entire laws and force the Congress to rewrite the law, or leave it lay. Oh, and a juicy bit on this, it is not enumerated anywhere in the Constitution that the Supreme Court can render laws unconstitutional, this is the result of the precedent set by the Marbury v. Madison decision, look it up, it is linked in Google.

However the power of opinion is all powerful. Once the opinion is set on any case they rule on they can interpret what the law means and change it with opinion. Once that is done it sets the precedent and is basically the law until someone takes it up through the courts once again (or congress changes it). The system is used to create laws because as you said it "cannot deliberate, decide, or issue opinion unless the law is challenged as unconstitutional before them". Which basically gives organizations like the ACLU the power to side step two branches of government and use the courts to create laws. For instance lets use Prayer in School was not a congressional law or one presented by the administrative branch of government. The court took a piece from the 1st adm. and used it to make the law that Prayer in School is illegal. The fine points can be argued but I think it is pretty clear. Not to mention abortion. There is no right to have prayer in school nor is their a law against it but they use to power of the USSC to make it a law by interpretation.

Also something is interesting is that the USSC has no power over the military or their laws, that is the power of the congress only.

[tnkr111]

Caldric,

I'd politely disagree with your assertion that the Courts make law by decision and issuing opinion. It appears that you are you are being less than precise with the language here, and since we are talking about law, decision and opinion, accuracy in language is paramount. It is disingenuous to suggest that they create law. They only interpret, and that interpretation becomes a precedent for future decisions. This is the tradition of English Common Law, the same tradition that gives us the innocent until proven guilty system.

You are correct, the only way to alter precedent is through subsequent decision, or introduction of a law that negates it- that is solely the realm of the Legislature. But by your suggestion, you'd cut off the courts ability to interpret laws and thus Congress only balance is the President by Veto- but they can override him, and what if together the legislature and Executive make a law that violates the Constitution, or worse inside existing the law the Executive imitates a program that potentially violates the Constitution? Who reviews the statutes to ensure compliance?

For more info on the precedent set by Marbury v. Madison, and the text of the decision issued by the Chief Justice, visit this page. Of particular note,

Originally Posted by Marbury v. Madison

Marshall's decision in this case has been hailed as a judicial tour de force. In essence, he declared that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void. Thus he was able to chastise the Jeffersonians and yet not create a situation in which a court order would be flouted.

The critical importance of Marbury is the assumption of several powers by the Supreme Court. One was the authority to declare acts of Congress, and by implication acts of the president, unconstitutional if they exceeded the powers granted by the Constitution. But even more important, the Court became the arbiter of the Constitution, the final authority on what the document meant. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since.

The Court would not declare another act of Congress unconstitutional until 1857, and it has used that power sparingly. But through its role as arbiter of the Constitution, it has, especially in the twentieth century, been the chief agency for the expansion of individual rights.