Ry Amidon

American Political Thought – Anti-Federalism

November 10, 2006

When the Philadelphia Constitutional Convention, rather than modifying the Articles of Confederation as planned, announced its plan for a new government in September, 1787 the response was not unified. Publicly, opinion was divided into two camps. Those in favor of the Constitution are historically known as the Federalists, and those opposed are referred to as Anti-Federalists. The Anti-Federalists held in common several criticisms of the proposed Constitution, including: the lack of a Bill of Rights, a tendency towards aristocratic rule, the comparatively small size of the Senate and House of Representatives, the supremacy of the Federal government, and the consolidation of the thirteen states into what they believed was too large of a republic. The Anti-Federalist arguments had their imperfections as well as strengths. Some were in my assessment, unrealistic, petty, or speculative. Other concerns were far-sighted, poignant, or enlightening. I will examine the Anti-Federalist concerns, their merits, and shortcomings in this essay.

The greatest legacy of the Anti-Federalist movement is the Bill of Rights, as there was none included at the time of ratification. The framers of the Constitution had concluded that one was unneeded, because the people were reserved all rights not explicitly sacrificed in the Constitution. This is in line with the Social Contract Theory, which states that citizens give up certain rights in the formation of a government but retain those rights not taken, as long as they abide by the contract. The Framers did see a need to include some civil rights protections, however. Under Section 3 of Article 1, habeas corpus in legal proceedings was made mandatory, while titles of nobility and ex post-facto laws were prohibited. “The people surrender nothing,” Alexander Hamilton argued in Federalist Paper number 84, “and as they retain every thing, they have no need of particular reservations” (Kammen 237). The Anti-Federalists were skeptical that the government would not encroach on the liberties of its citizens as people in power have historically been “ever active to enlarge their powers and abridge the public liberty” (Kammen 315). This proved to be a valid concern when the Federalists, under the presidency of John Adams, passed the Sedition Act which criminalized the publication of “false, scandalous, and malicious writing” about the government (5^th Congress, 2^nd Session, Ch 74, Sec 2). This was not the only such violation; a similar law restricting criticism of the government during war time was passed 120 years later under the Woodrow Wilson administration.

The Anti-Federalists wanted a Bill of Rights not only to protect individual rights, but also those of the states. Concerns about the extent and vagueness of federal authority led to the inclusion of a tenth article to the Bill of Rights. This amendment handed whatever powers not given to the federal government over to the states “or the people,” and was an important addition to a document championed by people concerned with retaining as much local control of their lives and government as possible.

The legislative branch was a point of concern for the Anti-Federalists because of its size, powers, and its approach to representation. “The federal representative branch will have but very little democracy in it,” as the Federal Farmer put it (Kammen 276). The proposed Senate at the time would be composed of twenty six members; the House would have sixty five members. Critics saw this as far too few representatives for a nation of millions, and were even more worried about how few legislators were required to do business. “The power of making any law,” writes the Federal Farmer,” will be in the president, eight senators, and seventeen representatives,” (Kammen 280); this is consistent with the Anti-Federalists concerns about the concentration of power and the distancing of law-making from the people under the proposed constitution.

The Federal Farmer was using a hypothetical situation to demonstrate the degree to which power could be concentrated, but the author is focusing on the worst-case scenario. Legislators may have a long distance to travel to the capitol, but the likelihood of only the bare minimum number of legislators showing up for business is slim.

Anti-Federalist writers predicted that such an unusually disproportionate (particularly when compared with the British Parliament) number of representatives and senators, as well as the powers they hold, would create a “strong tendency to aristocracy, or the government of the few” (Kammen 278). Having so few seats, Anti-Federalists argued, meant that political power on the national level would be available only to the most wealthy and elite members of society. Critics also noted that state legislatures at the time often had hundreds of members representing a population which was much smaller than the nation, which had fewer than one hundred representatives and senators for all thirteen of its states. Such a small group of people, the Anti-Federalists argued, would not possibly be able to represent all the diverse interests, beliefs, and needs of the people of such a vast country. As a result of this disconnect of the legislature from the common people, Anti-Federalists believed that the military would be needed to create compliance with the law. The Federal Farmer predicted a bleak future: “the general government, far removed from the people…will be forgot or neglected, and its laws in many cases disregarded, unless a multitude of officers and military force be continually kept in view…to make the government feared and respected” (Kammen 274). The Whiskey Rebellion of 1791-4, when militias were called to quell an anti-federal tax uprising in Pennsylvania, appeared to validate this concern shortly after the implementation of the new government.

Anti-Federalists also saw some of the proposed representation methods as unfair. The infamous Three Fifths Compromise, which allowed every five slaves to count as three people when determining the number of representatives apportioned to a state. To Anti-Federalists, this made no sense. Slaves had no legal ability in government or society; they had no ability to vote, could not own property, etc. Slaves were legally property under the total control of their masters, and the Three Fifths Compromise allowed slave owners to use their property for their own political benefit. Federalists saw the Compromise as essential to the continuation of the Union, Anti-Federalists, like Brutus, saw it as an absurd policy: “If this be a just ground for representation, the horses in some of the states and the oxen in others, ought to be represented” (Kammen 320). This is a very strong point that the Anti-Federalists made, which ought to have received more attention because slave owners could continue importing slaves for several years to increase their state’s share of representatives, effectively buying seats in the legislature.

Anti-Federalists saw the powers given to Congress and the president as too broad and vague, while the framers of the constitution saw strong federal government as a necessity in the preservation and security of the country. Anti-Federalists would have preferred a federal government which had narrow, specific, and enumerated powers. Any power not specifically granted to the federal government should be reserved for the state and local government, which, according to the Anti-Federalists, were better able to consider the interests of their constituents. Another point of concern for Anti-Federalists was that Congress had control over the government’s funds, which in turn allowed them to control all other powers by cutting or increasing spending. This has proved to be true in that Congress can, and has forced states to change their laws or risk losing federal monies. For example, under a section of the Federal Highway Act (Title 23, Section 158) which was enacted in 1985, any state which has a drinking age lower than twenty one will lose ten percent of its Federal Highway funding. This turned out to be an effective way for Congress to control states’ drinking age laws; today not a single state in the union has a drinking age less than 21.

Anti-Federalists also thought the United States of America was too large of a country to be effectively governed by a federal republic which had far too few representatives for the new nation’s large and diverse population. It was also argued that a populace so varying in interests and political beliefs would tend to lose confidence in and connection with the federal government. Having so few legislators making decisions affecting such a large and diverse body of citizens would cause the common people to be “acquainted with very few of their rulers” (Kammen 311), and the rulers would likely know very few of the common people.

The sentiments of localities would not be as well represented as in state legislatures, which tended to have hundreds of members for the whole state as compared to fewer than a hundred members for the entire country. Anti-Federalists believed that the states were far better equipped to satisfy the numerous different demands of their citizens. They took to quoting Montesquieu, who popularized the belief that republics can not persist long over large areas. “In a small [republic],” Montesquieu wrote, “the interest of the public is easier perceived, better understood, and more within the reach of every citizen” (Kammen 308). Anti-Federalists felt that in a country as large as the United States, there was no practical way that the government could be in touch with the interests, needs, and beliefs of the common folk.

This detachment, according to Anti-Federalist writers, could lead to domestic insurrection and despotism. If certain factions feel that their interests are not being represented in the legislative process then they can refuse to obey the laws. If civil disobedience is rampant, the government may choose to use the military to force cooperation. Government leaders might see this as useful tool to promote domestic peace and engage in it more often. Anti-Federalists saw this as one of the ways in which the United States constitution can lead to aristocracy.

The Anti-Federalists were fearful of the democratic-republic transforming into an aristocracy backed by a standing army. In history, there have been rebellious factions in the population that have been upset about a lack of representation, and they have been stopped by military force. This was seen in the Whiskey Rebellion as mentioned above, when citizens upset about tax laws rebelled against the government and were beaten by militia. However, political participation, rather than rebellion has been a more common tool of dissatisfied citizens, and domestic use of the military has not been a tool used too frequently by the federal government. Federalists also believed that the country was not too big for a republic. They saw the mixed form of government, the checks and balances, the administrative decentralization combined with governmental centralization, etc. as methods of controlling as well protecting local interests. This Anti-Federalist argument was somewhat unrealistic.

Some Anti-Federalist concerns about the Constitution have carried over to contemporary political culture: the “states’ rights” debate has been prevalent since the early days of the Constitution, even sparking a civil war, the United States has added thirty seven states since the early days of the Constitution which makes the “vast” thirteen state nation seem tiny and easy to run, and the Bill of Rights has become one of the most prominent and fought-over aspects of Constitutional law, and has proved to be very necessary in protecting individual liberties from infringements by the federal government.

Some of the Anti-Federalists’ arguments were valuable and influential in the formation of the constitution. They can claim credit to the first ten constitutional amendments known as the Bill of Rights, which the Framers did not even see as necessary, but have in countless circumstances been essential to the preservation of civil liberties. The absurdity of the Three Fifths Compromise was not apparent to most political leaders until much later, but Anti-Federalists were criticizing it from the start. Some arguments were unrealistic or unlikely situations, such as the bare-minimum of legislators showing up to do business, or the transformation from democracy to military despotism because of insufficient concern for local interests. Overall, the Anti-Federalists publicly pinpointed some important flaws in the Constitution, which aided in its modification towards a more perfect document.

Works Cited

The text of the Sedition Act can be found here:

http://memory.loc.gov/cgi- bin/ampage?collId=llsl&fileName=001/llsl001.db&recNum=719

Title 23 of the US Code is available here: http://epw.senate.gov/title23.pdf

Kammen, Michael Ed. The Origins of the American Constitution: A Documentary History. Penguin: New York. 1986