Constitutional questions used to be intellectually serious, steeped in competing traditions, and shaped by schools of thought often rooted in divergent interpretations of the American past. No more. Now we get pressing questions like, “Can Trump run for president from prison?,” Congressmen asserting that “the Electoral College is hazardous to democracy,” and post-liberals whose proposal for the U.S. Constitution is to “burn it down.” Today’s critics of the U.S. Constitution, especially those who argue it is the doomed instantiation of an irreligious, ideological liberalism indistinguishable from contemporary progressivism, ought to pause to admire the principles, tactics, and prudence of the Constitution’s first and best critics, the Anti-Federalists. Dreary utopianism and nostalgia, it turns out, is no match for the hopeful prudential politics of the Anti-Federalists.
In May 1787, fifty-five delegates from every state but Rhode Island met in Philadelphia. Rather than do what they had come to do—amend the Articles of Confederation—they instead began to draft a new constitution for the United States. They began with the Virginia Plan, which was decidedly in favor of order through centralization. It called for proportional representation in a bicameral congress and gave Congress a veto over state laws and the power to appoint the nation’s president and judges. By mid-September, delegates finally reached a compromise, which among other things included equal representation for states in the upper house and proportional representation by population in the lower house. Following final approval of the Constitution on September 17, 1787, delegates presented it to the United States.
Supporters of the new constitution, such as James Madison and Alexander Hamilton, called themselves Federalists. Opponents thus took the name “Anti-Federalist.” Anti-Federalists were concerned about the potential coercive powers of the new central government and the corruption of virtue. A diverse bunch, with no general strategy, some Anti-Federalists proposed radically democratic solutions and others proffered aristocracy to balance what some called the worst political evil, democracy. Prominent Anti-Federalists included George Clinton of New York; Virginians Richard Henry Lee, George Mason, and Patrick Henry; and Luther Martin of Maryland. Yet it was the less famous Robert Yates of New York and Samuel Bryan of Pennsylvania who laid out arguments that John Jay and James Madison refuted in detail in three of the most famous Federalist essays: no. 2, no. 10, and no. 51.
- (Bryan) Centinel no. 1, October 1, 1787
- (Yates) Brutus no. 1, October 18, 1787
- (Jay) Federalist no. 2, October 31, 1787
- (Madison) Federalist no. 10, November 22, 1787
- (Yates) Brutus no. 6, December 27, 1787,
- (Madison) Federalist no. 51, February 6, 1788
The timeline of this rhetorical fight shows just how occasional the Federalist Papers really were, written in a back-and-forth debate often determined by what the Anti-Federalists said first.
Bryan attacked the Constitution’s checks and balances, saying these would not protect liberty but only serve to obfuscate federal corruption. Bryan also argued that one representative in the House for thirty thousand inhabitants was “too few to communicate the … local circumstances and sentiments of so extensive” a country. Both solidarity and subsidiarity would suffer. Like George Mason, Bryan especially lamented the absence of a Bill of Rights. He feared “a permanent aristocracy” unaccountable to “the great body of the people” because it was so far removed from them.
Although Bryan claimed that the United States’ size would produce tyranny while preventing Congress from understanding local needs, he still believed a decentralized republic could maintain the order needed to keep liberty secure. Yates was not as optimistic, noting that only two countries in 1787 were as large as the United States: Russia and China. Autocrats ruled both, one claiming the Mandate of Heaven and the other taking his title from Julius Caesar (i.e., Tsar). Historically, large territorial republics actually endangered liberty because there was no way other than coercion to balance their many regional and factional interests. “In so extensive a republic” as the United States, Yates said, “the great officers of government would soon become above the control of the people and abuse their power for the purpose of aggrandizing themselves.”
Yates singled out Congress’s taxation power and the Supreme Court as the most likely avenues to despotism. Since Congress could approve taxes to “provide for the common safety, and the general welfare,” taxation would be unlimited. “The government,” warned Yates, “would always say their measures were designed and calculated to promote the public good; there being no judge between them and the people, the rulers themselves must, and would always, judge for themselves.” Meanwhile, the Supreme Court, as constructed, would not be guided at all by natural law, precedent, or any other law, just by its own whims and whatever precedents it might set.
Federalists posed counterarguments to all these accusations. They claimed the “general welfare” clause actually limited the government’s range of power. Where Anti-Federalists saw a future consolidated nation-state inherent in the Constitution, Federalists beheld a firm grounding for a lasting federal union that balanced liberty with order. This is exactly what Madison argued in Federalist no. 10 and no. 51, in which he flipped on its head the maxim that factionalism in large republics breeds disorder, followed by either tyranny or disunion. In a nod to what G. K. Chesterton later called that most provable Christian dogma, original sin, Madison acknowledged that the “causes of faction are sown in the nature of man.” Since the causes of faction cannot be removed, Madison noted realistically, to be free Americans required a polity founded on the principle of ordered liberty to control its effects.
Federalists claimed the Constitution would restrain factionalism far better than had the Articles. How? Certainly not through coercion, Madison said. Nor would it depend on enlightened aristocrats, for “enlightened statesmen will not always be at the helm.” Madison acknowledged that “liberty is to faction as air is to fire,” but argued that the country’s diversity would prevent any majority from stepping on minority rights even as it mitigated congressional attempts to pass unwise laws. In the same way that a representative government was superior to a purely democratic one because of its greater ability to field temperate, prudent leaders, so would a large republic be superior to a small one. “We behold a republican remedy for the diseases most incident to republican government,” wrote Madison in Federalist no. 10. The difficulty for Madison was that his acknowledgement of American plurality conceivably could feed Anti-Federalist fears about heterogeneous republics.
It is common to argue that The Federalist Papers served as a blueprint for the American republic. It is certainly true that later Americans drew from these in the way a communist ideologue might draw from Marxist writings when designing a government. But the story of the Federalist debate reveals these to have been occasional essays, written to convince New Yorkers (and, admittedly, others) to vote to ratify the Constitution. Jay writes reassuringly in Federalist no. 2 that “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.” Madison two months later contradicts him in Federalist no. 10 to argue that diversity is a great thing but not to worry, because faction will balance faction.
The Constitution won ratification on June 21, 1788, mainly because of promises to Anti-Federalists that a Bill of Rights would be added as soon as possible. The rhetorical battles among prudent men thus produced good fruit. Another comforting thought was that George Washington, who had proven trustworthy with power, would be the first president. A broad cross section of American society supported the Federalists, because they knew that the Confederation structure was bad for trade, commerce, security, and that the Constitution would be a vast improvement in that regard.
Important for the course of American history, Anti-Federalists yielded to the will of the state conventions and acquiesced to the new order. There would be no violent counterrevolution, only a working out of Anti-Federalist principles under the new national government. As Patrick Henry told James Monroe in 1791, “It is natural to care for the crazy machine.” Whittaker Chambers referred to this same prudential wisdom and spirit of compromise when he defined a conservative’s role in society as knowing “how much to give in order not to give up basic principles.” Neither Chambers nor Henry said, “Burn it down.”
The Federalists correctly criticized the Confederation for being unable to provide the minimum order needed so that Americans could flourish as a free people. That minimum order is what the Augustinian City of Man demands. The Federalists’ arguments show they understood better than Anti-Federalists how a well-ordered liberty could promote the Christian faith and maintain virtue. Had the Anti-Federalists defeated the Constitution, the Union would have soon split into multiple confederations or divided into highly separate states. The consequences for liberty under these scenarios would have been worse than the most dismal Anti-Federalist prediction about life under the Constitution. Certainly, it is difficult to see how slavery might have begun its road to extinction without the new constitutional order and its implication, in the outlawing of the international slave trade, that there was something intrinsically wrong with slavery. Slavery ultimately ended in the United States due to Christian arguments that it is an intrinsic evil, not to constitutional arguments and Lockean rights language. This was likewise the case with the civil rights movement of the 1950s and 1960s, which is why Martin Luther King Jr. in 1963 quoted St. Augustine and St. Thomas Aquinas and not John Locke to explain why he had intentionally broken segregation laws and ended up in the Birmingham jail.
The Anti-Federalists as well as the Federalists recognized that no governmental formula could, of itself, maintain a polity in which liberty and justice would be secure. This is the key point for critics of the American constitutional order to recognize before prudently considering the real-world alternatives to the American experiment in democracy.
Federalists, like their opponents, recognized the transcendence of truth and justice, as well as the need to inculcate virtue in a free society. Both sides understood that all just laws found their ultimate source in a transcendent morality. Each acknowledged virtue as a precondition for republican government. In 1776, John Adams asked, “If there is a form of government, then, whose principle and foundation is virtue, will not every sober man acknowledge it better calculated to promote the general happiness than any other form?” Still, between Federalists and Anti-Federalists, the Federalists were less likely to expect virtue. “The few … who act upon principles of disinterestedness,” wrote Washington, “are, comparatively speaking, no more than a drop in the ocean.” A Constitution, prudently drawing on Enlightenment liberalism but deeply rooted in Americans’ own experience as a free Christian people, would help bridge the gaps. As Adams put it, “It will be safest to proceed in all established modes, to which the people have been familiarized by habit.”
The Anti-Federalists, though perceptive when identifying problems, tended to permit the perfect to be the enemy of the good. In this they have something in common with contemporary Catholic critics of American democracy. There was no remarkable penchant in the Constitution for disorder or illiberality but there was much to ward against these tendencies. The Federalists realized this; the Anti-Federalists did not. Yet to understand the degree to which the American Founders understood the balance between liberty and order necessary for a free people, one must not neglect the Anti-Federalists. Subsidiarity had no role in the Virginia Plan, and the Constitution as written had no guarantee for religious liberty. Anti-Federalists were responsible for modifying what would have been a highly centralized government from the very beginning had the Virginia Plan succeeded in toto and had Anti-Federalists such as Mason failed to secure a Bill of Rights. It was the Anti-Federalists who made explicit the role of religious liberty in the American order—perhaps the best reason to celebrate them on Constitution Day.
This essay is based on an excerpt from John C. Pinheiro’s The American Experiment in Ordered Liberty (Acton Institute, 2019).