The Anti-Federalists were right

It is couth in intellectual political circles to speak of the Anti-Federalists as well-intentioned but ultimately wrong in their predictions of the doom that the Constitution spelled for freedom in America. Their often emotionally-saturated arguments are talked of as fear-mongering propaganda, a pejorative classification usually not attached to Federalist arguments for the Constitution.

Perhaps this rather biased view can be accounted for with several sad and simple truths about how individuals reason. First, positive arguments tend to be viewed more favorably because they advance an actionable idea whereas negative arguments only dismantle and are often rooted in fears which are hard to substantiate and appear more ridiculous the more hard-line they are.

Second, many people only engage in an analytical process with ideas that already support their position. In this case, the phenomenon of selection bias works in conjunction with what appears to be can only be centuries of historical evidence which appears to dispel Anti-Federalist fears.

The social science theory of punctuated equilibrium, however, helps explain the folly of such cognitive laziness. Society, it posits, changes slowly over long increments of time and is punctuated only quickly and briefly by rapid transformation. Therefore, it is possible that the Anti-Federalists were correct and the slow, progressive slog of politics has made this imperceptible to those willing to simply accept the consensus view.

In actuality, the Anti-Federalists were alarmingly accurate in prognosticating how the faults of the Constitution would manifest.

Samuel Bryan, whom historians believe to have been the author of the Centinel papers, was a member of the much abused Anti-Federalist Pennsylvanian delegation to the Constitutional Convention. Following the eventual capitulation of many of his companions and his state’s ratification of the Constitution, he authored “The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents,” which described the abuses Anti-Federalists suffered, including ideas they had not been allowed to put on the record, and outlined specific fears.

Several stand out as disturbingly accurate descriptions of power abuses in modern politics: “We dissent… because the powers vested in Congress by this constitution must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several states.”

In short, Bryan was concerned that over-breadth and vagueness in the enumerated powers given to Congress left room for them to re-interpret and expand their influence over the states. It must be remembered that the Bill of Rights was not ratified until 1791, almost four years after the adoption of the Constitution. So there was no reservation of non-delegated rights to the states. Yet, even the codification of the Bill of Rights, which incorporated many of the safeguards the Anti-Federalists lobbied for at the convention, did not prevent the feared expansion of powers. The modern reading of the commerce clause, which considers any sort of interstate business travel to grant Congress power to regulate in-state business practices, alone provides an almost endless list of cases which prove right Bryan’s fears.

Similarly, Bryan was concerned of the virtually limitless reaches of Congress’s taxing power: “They may impose what imposts upon commerce; they may impose what land taxes, poll taxes, excises, duties on all written instruments, and duties on every article that they may judge proper, in short, every species of taxation, whether of an external or internal nature is comprised in section the 8th, of article the 1st, viz.”

Article 1, Section 8 lists the enumerated powers granted to Congress. This concern is actually ancillary to his fear that Congress could expand those powers. The income tax, after all, did not exist as a policy until 1913 when the 16th Amendment expunged Article 1, Section 2, which forbade direct taxes and required them to be apportioned among the states. This action demonstrates Bryan’s eerie precognition on both fears. The 16th Amendment gave Congress powers not laid out to it by Article 1, Section 8 and in doing so seized the right of the states to decide how best to apportion their share of federal costs in a manner that made the most sense for their state’s economy. It also opened wide the doors to a host of new forms of direct federal taxes of precisely the sort which had spurred the American Revolution. Comparing a list of items subject to taxation under the Intolerable Acts and the things which Americans now must pay taxes on is alarmingly similar, historical anachronisms aside.

The evidence is too overwhelming to dismiss the Anti-Federalist arguments as populist histrionics which time has made irrelevant. Bryan and others were correct in their fears of how the creep of federal overreach would erode liberty. It is perhaps a testament to the power of the propaganda within the Federalist Papers that, even today, their arguments are being used to dismiss Anti-Federalist arguments and those of modern dissenters who raise the same fears about the erosion of liberty.  But restoring the good name of long dead and often slandered politicians is less important than removing the stigma against them so that the reasons for their prescience can be examined. These lessons must be extrapolated into the modern context and applied before it is too late.


Also published on Medium.

All content protected by copyright. The Politics of Discretion, 2016.
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