The Home of American Intellectual Conservatism — First Principles

December 14, 2018

“Entirely a National Government”? The Anti-Federalist Perspective
Bill Kauffman - 07/16/10
Forgotten Founder, Drunken Prophet

Any study of the rightful functions of government should take account of the arguments of the Anti-Federalists, those Americans who opposed ratification of the Constitution. Historians typically have not been kind to the Anti-Federalists, but Bill Kauffman argues in this essay, adapted from his acclaimed biography Forgotten Founder, Drunken Prophet: The Life of Luther Martin, that the Anti-Federalists’ warnings about the dangers of centralizing political authority were prescient. Referring to what he calls “the handiest and hoariest of conservative objections to so many acts of the national government: namely, ‘It’s unconstitutional!’” Kauffman writes: “The Anti-Federalists would have told you that such ‘unconstitutional’ interventions were inevitable. Indeed, they are not so much unconstitutional as they are logical extensions of the consolidationist thought of [James] Madison, [James] Wilson, [Gouverneur] Morris, and the nationalist faction that triumphed at Philadelphia.”

Historians have not, on the whole, been kind to the Anti-Federalists, the misleading name slapped on those who opposed ratification of the Constitution. In the main they have been written off as bucolic bumpkins unable to grasp the exquisiteness of the Madisonian argument or as agrarian radicals motivated by antipathy toward wealth, commerce, and table manners. They are sometimes, grudgingly, with many qualifications, given credit for siring, indirectly, the Bill of Rights, but more often they are swept aside as beetle-browed brutes incapable of appreciating the majesty of the Constitution.

Permit me to say a few words for the Anti-Federalists.

The Antis are the men—and women, I add, not as a p.c. genuflection but in recognition of the Bay State’s Mercy Otis Warren, playwright and historian and among the most literary Anti-Federalists—who considered what the delegates to the Constitutional Convention had wrought in that sweltering Philadelphia summer of 1787 and said No. They included dissenting delegates to that convention, like George Mason of Virginia; patriots still afire with the spirit of ’76, like Patrick Henry; and backcountry farmers and cobblers and libertarian editors and malcontent layabouts. They were “not simply blockheads standing in the way of progress,” wrote Robert Rutland in The Ordeal of the Constitution, “but . . . serious, oftentimes brilliant, citizens who viewed the Constitution in 1787–88 with something less than awe.”

The Anti-Federalists regarded consolidation of governmental power with what seems to me a meet suspicion, though it has seemed to others to verge on paranoia. One of my favorite Anti-Fed pseudonyms was taken by the writer who called himself “None of the Well-Born Conspirators.”

They often made wild predictions about where this all would lead. For instance, George Clinton—not the funky parliamentarian but the New York Anti-Federalist—prophesied that the federal city created by the Constitution, later known as Washington, D.C., “would be the asylum of the base, idle, avaricious and ambitious.” Gee, thank God that never happened.

The Anti-Federalists raised a central question of political philosophy: Where ought political power to reside? In a remote central authority, or hard by the people? (My invidious phrasing, I admit.) A prominent Federalist—which is to say, using the down-is-up nomenclature devised by those crafty consolidationists, an advocate of the new Constitution—lectured that “we must forget our local habits and attachments,” but this is only possible for those who have no local habits or attachments. One might as well enjoin that “we must forget our heart and lungs.”

The sheer scope of this new system, the audacity of bringing thirteen far-flung states under one central government, astonished the Anti-Federalists. James Winthrop of Massachusetts marveled, “The idea of an uncompounded republick, on an average one thousand miles in length, and eight hundred in breadth, and containing six millions of white inhabitants all reduced to the same standard of morals, of habits, and of laws, is in itself an absurdity, and contrary to the whole experience of mankind. . . . Large and consolidated empires may indeed dazzle the eyes of a distant spectator with their splendour, but if examined more nearly are always found to be full of misery.”

The Antis were not quibblers, not captious carpers arguing about dotted i’s and uncrossed t’s. Their objections cut to the heart of the new Constitution. Indeed, they began with the preamble. Samuel Adams, brewer and sometime Anti-Federalist, upon reading “We the People of the United States,” remarked wryly, “As I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a Federal Union of Sovereign States.” Patrick Henry stumbled, too: “The question turns, sir, on that poor little thing—the expression, We, the people, instead of the states, of America”—a locution that was “extremely pernicious, impolitic, and dangerous.”

Patrick Henry

“For the Anti-Federalists,” wrote the historian Herbert J. Storing, “government is seen as itself the major problem.” The Anti-Federalists stood for decentralism, local democracy, antimilitarism, and a deep suspicion of central governments. And they stood on what they stood for. Local attachments. Local knowledge. While the Pennsylvania Federalist Gouverneur Morris “flattered himself he came here in some degree as a Representative of the whole human race,” Anti-Federalists understood that one cannot love an abstraction such as “the whole human race.” One loves particular flesh-and-blood members of that race. “My love must be discriminate / or fail to bear its weight,” in the words of a modern Anti-Federalist, the Kentucky poet-farmer Wendell Berry. He who loves the whole human race seldom has much time for individual members thereof.

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The Anti’s Anti, the man who is, without doubt, the least honored delegate to the Constitutional Convention, is Luther Martin of Maryland. Popular accounts of the Constitutional Convention designate Martin as the villain—think a circa-1973 hybrid of Dennis Hopper and Ernest Borgnine, endlessly talkative but fitfully coherent, an obstructionist, a naysayer. He is the town drunk, the class bore, the motormouth.

Yet he was also, as the historian M. E. Bradford has written, “The tireless champion of the sovereignty of the states . . . A cheerful pessimist . . . and a great original.”

“The federalistic principles found in the Constitution are largely a result of concessions to [Martin’s] demands,” wrote historian Everett D. Obrecht. “Without his presence in the convention, the new national government would have been far more powerful.” Yet it was still too powerful for Luther Martin.

Martin understood quite clearly that the Constitution was a counterrevolution, recentralizing that which had been decentralized upon the assertion of American independence. “Men love power,” Hamilton told the convention. To Hamilton this was a simple statement of fact, not at all deplorable. The Anti-Federalists had their doubts about its accuracy—did not men love their families, their homeplaces, their liberties even more?—but in the event, they desired not to channel this powerlust toward profitable ends but rather to block those avenues down which power is pursued. If it is true that men love to wield power over other men and that a centralized state will attract such warped creatures, then rather than design a Rube Goldberg scheme by which the will to dominate is transmuted into gold for the commonweal, why not just not construct a centralized state? Remove the means of gratifying the temptation.

Luther Martin was “the bitterest states’ rightser at the Convention,” wrote Christopher and James Lincoln Collier. “He was unyielding, beyond compromise on the point, and when he spoke on the issue it was always in the strongest of terms.” This is because he conned the game and he kenned the consequences. Not only the rights of the states but their very existence was at stake.

Lest the dire warnings of Martin and the Anti-Federalists be dismissed as so much alarmist hokum, consider that not every nationalizer spoke with politic caution. Delaware’s George Read declared: “Too much attachment is betrayed to the State Governments. We must look beyond their continuance. A national Govt. must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the national Senate.” Effused Read: We must “do . . . away States altogether.”

Or ponder the exchange between James Wilson, the archcentralist Scotsman, and Alexander Hamilton. Though they putatively represented Pennsylvania and New York, their ultimate loyalties could never be centered upon mere states of a confederacy. “With me, it is not a desirable object to annihilate the State governments,” Wilson said on June 19, “and here I differ from the honorable gentleman from New York. In all extensive empires, a subdivision of power is necessary.”

Hamilton objected, ever so mildly, to Wilson’s verb. In his lengthy address of the day ultimo, “my meaning was, that a national government ought to be able to support itself without the aid or interference of the state governments,” explained Hamilton. The states, he added, “will be dangerous to the national government, and ought to be extinguished, new modified, or reduced to a smaller scale.”

Extinguish, yes; annihilate, no. The only difference is in the violence of the verb.

Time and again, Luther Martin stood alone, or nearly so, in attempting to infuse the new Constitution with something of the spirit of ’76. He was a libertarian in a body of men convinced that America needed a more vigorous government; he spoke of decentralism to men with centripetal convictions. He might not be seconded; oft he was rebuffed, rebutted, reproached. But he kept on coming.

Thrice he proposed to bar the president from reelection. He advocated the appointment of judges by the Senate, not the executive. (James Madison conceded that concurrence of the second branch might guard against “any incautious or corrupt nomination by the Executive.” Martin got half of this loaf.) He called for senators to be paid by the states, not the national government, because “the Senate is to represent the States, [so] the members of it ought to be paid by the States.” He successfully proposed to affix “or on confession in open court” to the requirement that “No person be convicted of treason unless on the testimony of two witnesses to the same overt act.” (He would revisit the grounds for treason much later.) Martin moved that the Electoral Collegians be chosen by state legislatures. His was the only stated objection to (and Maryland’s the only vote against) per-capita voting by senators. He wished them to vote as a unit by states, in keeping with the gist of the Articles of Confederation. He successfully opposed a clause, proposed by Charles Pinckney and Gouverneur Morris, that would give the national government the power “to subdue a rebellion in any State” even if the legislature of the state had not requested intervention.

On August 21, 1787, he greeted the morning with a motion, seconded by his colleague James McHenry, requiring that direct taxation (which in any event “should not be used but in case of absolute necessity”) be paid by the states into the national treasury rather than be levied directly by the national government. It failed, 7–1, with only New Jersey voting aye. (Maryland was divided.)

On August 29, he seconded the motion of Charles Pinckney that acts “regulating the commerce of the U.S. with foreign powers, or among the several States,” required the approval of two-thirds of each house of Congress. Pinckney’s motion, which would have effectively eliminated high tariffs and made the U.S. a kind of free-trade zone, failed, attracting only the votes of Maryland, Virginia, North Carolina, and Georgia.

Also on the 29th, Martin asserted, vainly, the position of the “limited States” against “the large States” on the matter of the disposition of western lands. The sudden embrace of state territorial integrity by the likes of Gouverneur Morris and James Wilson amused him: “He wished,” Madison transcribed Martin as saying, that “Mr. Wilson had thought a little sooner of the value of political bodies. In the beginning, when the rights of the small States were in question, they were phantoms, ideal beings. Now when the Great States were to be affected, political societies were of a sacred nature.”

Why should the people of the western lands not have the right to form their own states? And why must Maryland and New Jersey and Delaware “guarantee the Western claims of the large” states? This dispute was a carryover from the debate over the Articles. It felt stale.

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George Mason

Summer’s end was in the air. It was a time for summing up. On August 31, George Mason said that he would “sooner chop off his right hand than put it to the Constitution as it now stands,” and in the end, he did neither. “There is no declaration of rights,” he later said by way of explaining his refusal to sign the document. “There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil cases, nor the danger of standing armies in time of peace.”

Mason’s objections were sweeping and took in all three branches of the new government. The House of Representatives would provide “the shadow only” and not the substance of real representation. The Senate, with its powers of appointment and treaty-making and its elongated six-year terms, “will destroy any balance in government.” As for the federal judiciary, it is “so constructed and extended as to absorb and destroy the judiciaries of the several states.” In transferring the administration of justice to a remote capital, it renders “justice as unattainable” and enables “the rich to oppress and ruin the poor.”

The executive, without benefit of a constitutional council chosen by the states through the House of Representatives, will be “directed by minions and favorites.” His helpmeet, “that unnecessary officer, the Vice-President . . . for want of other employment, is made president of the Senate; thereby dangerously blending the executive and legislative powers.”

A very bad moon was on the rise. “This government,” predicted Mason, “will commence in a moderate aristocracy: it is at present impossible to foresee whether it will, in its operation, produce a monarchy or a corrupt oppressive aristocracy; it will most probably vibrate some years between the two, and then terminate in the one or the other.”

Never afraid to stand alone, Martin moved on August 31 that the approval of all thirteen states be required for ratification. He lost, nine states to one. He and Daniel Carroll, over Jenifer’s dissent, cast the only state vote against final passage of the ratification clause. Nine states only would be necessary to junk the Articles and get this party started. Martin later explained that

It was my opinion, that to agree upon a ratification of the constitution by any less number than the whole thirteen states, is so directly repugnant to our present articles of confederation, and the mode therein prescribed for their alteration, and such a violation of the compact which the states, in the most solemn manner, have entered into with each other, that those who could advocate a contrary proposition, ought never to be confided in, and entrusted in public life.

Martin and Carroll also caused Maryland to cast the sole vote against ratification by convention, Martin contending that state legislatures were the proper arbitrators. Martin was no mobocrat. In his brief remarks on state conventions we can foresee the Federalist of 1800 in utero. He understood “the danger of commotions from a resort to the people,” for the people can be gulled, the people fall for lies, the people can rampage. Martin was an Anti-Federalist but he was not a populist. Nor, however, was he a preening aristocrat. Within the convention, he stood at antipodes from the likes of Hamilton or Charles Pinckney, who suggested property qualifications of $100,000 for president and $50,000 for senators, representatives, and federal judges. (Doctor Franklin piped up that some of the greatest rogues were the richest rogues, and Pinckney’s plutocratic motion died.)

Martin left Philadelphia on September 4. He intended, he said, to return, but did not. Despite “two months close application under those august and enlightened masters of the science with which the Convention abounded,” Martin had been unable to discover “anything in the history of mankind . . . to warrant or countenance the motley mixture of a system proposed.” The Constitution was

neither wholly federal, nor wholly national—but a strange hotch-potch of both—just so much federal in appearance as to give its advocates . . . an opportunity of passing it as such upon the unsuspecting multitude, before they had time and opportunity to examine it, and yet so predominantly national as to put it in the power of its movers, whenever the machine shall be set agoing, to strike out every part that has the appearance of being federal, and to render it wholly and entirely a national government.

Though Luther Martin did not return to Philadelphia to give “my solemn negative” to the document, he did phone in a request, as it were: “that as long as the history of mankind shall record the appointment of the late Convention, and the system which has been proposed by them, it is my highest ambition that my name also be recorded as one who considered the system injurious to my country, and as such opposed it.”

Bill Kauffman is the author of the new book Bye Bye, Miss American Empire: Neighborhood Patriots, Backcountry Rebels, and Their Underdog Crusades to Redraw America's Political Map.

To learn more about the importance of limited government to the Founders, visit the ISI short course on The American Experience.

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