What the Anti-Federalists Were For

The Political Thought of the Opponents of the Constitution

Herbert J. Storing

• Publisher: University of Chicago Press
• Year: 2008
• ISBN:
  9780226775807
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

The Anti-Federalists, in Herbert J. Storing's view, are somewhat paradoxically entitled to be counted among the Founding Fathers and to share in the honor and study devoted to the founding. "If the foundations of the American polity was laid by the Federalists, " he writes, "the Anti-Federalist reservations echo through American history; and it is in the dialogue, not merely in the Federalist victory, that the country's principles are to be discovered." It was largely through their efforts, he reminds us, that the Constitution was so quickly amended to include a bill of rights.Storing here offers a brilliant introduction to the thought and principles of the Anti-Federalists as they were understood by themselves and by other men and women of their time. His comprehensive exposition restores to our understanding the Anti-Federalist share in the founding its effect on some of the enduring themes and tensions of American political life. The concern with big government and infringement of personal liberty one finds in the writings of these neglected Founders strikes a remarkably timely note.

1
Introduction

The Constitution of the United States was viewed by the founding generation as distinctive, even unique, in the extent to which it was the product of deliberation. Most previous foundings seemed to have been the result of chance or the edict of one all-powerful man. But the United States Constitution was framed by a numerous and diverse body of statesmen, sitting for over three months; it was widely, fully, and vigorously debated in the country at large; and it was adopted by (all things considered) a remarkably open and representative procedure. Viewed in this light, those who opposed the Constitution must be seen as playing an indispensable if subordinate part in the founding process. They contributed to the dialogue of the American founding. To take only the most obvious case, the Constitution that came out of the deliberations of 1787 and 1788 was not the same Constitution that went in; for it was accepted subject to the understanding that it would be amended immediately to provide for a bill of rights. Moreover, the founding of a nation does not end with the making of a constitution. The Constitution did settle many questions, and it established a lasting structure of rules and principles—we do not adopt the current cant that fundamental law is shapeless stuff to be formed at will by future generations. But it did not settle everything; it did not finish the task of making the American polity. The political life of the community continues to be a dialogue, in which the Anti-Federalist concerns and principles still play an important part.

The Anti-Federalists are entitled, then, to be counted among the Founding Fathers, in what is admittedly a somewhat paradoxical sense, and to share in the honor and the study devoted to the founding. In general, however, they have not enjoyed such a position. Champions of a negative and losing cause, they have found only a cramped place in the shadow of the great constitutional accomplishment of 1787. They have often been presented as narrow-minded local politicians, unwilling to face the utter inadequacy of the Articles of Confederation or incapable of seeing beyond the boundaries of their own states or localities. They have been described as men without principle, willing to use any argument to drag down the Constitution, yet willing, many of them, when the Constitution was adopted, to change their colors and become enthusiastic Federalists.¹ It is true that with the rise of the Beardian critique of the Constitution and its framers, the Anti-Federalists have been viewed with a more friendly eye. Merrill Jensen has taught us to take seriously the possibility that the Anti-Federalists were right about the need for only modest changes in the Articles of Confederation and about the departure of the Constitution from the principles of the Revolution. He has inspired a full historical account of the Anti-Federal movement, and he has pointed to the need to take up the serious study of Anti-Federal thought. At the same time, the harsh edges of Beardian analysis have been worn away, and we are now in a position to consider afresh the class differences involved in the constitutional controversy, freed of many of the Beardian excesses.² Yet valuable as all of this has been, the corrected Beardian eye betrays still its original squint. It tends to see simple democratic agrarians among the Anti-Federalists as it tends to see self-seeking commercial oligarchs among the Federalists.³ There is some basis for these views, but the picture is thin and distorted. Indeed, one of the few substantial accounts of Anti-Federal thought is a persuasive refutation of the Beardian thesis as applied to the Anti-Federalists and an attempt to show that the Anti-Federalists were in fact “men of little faith” in American national self-government.⁴ Gordon Wood has added greatly to our understanding of the Anti-Federalists in his rich and encyclopedic account of the American founding and the way the Americans gradually blundered into a new political theory. Deep and lucid as his insights often are, however, Wood is finally less interested in understanding the Anti-Federalists (or the Federalists) as they understood themselves than in exposing the deeper social forces from which the whole sphere of “ideology,” to use Bailyn's term, is derivative. Thus a debate that was for the Anti-Federalists fundamentally political becomes for Wood fundamentally sociological.⁵

There has been no sustained, comprehensive attempt to examine the thought, the principles, the argument of the Anti-Federalists, as they were understood by the Anti-Federalists themselves and by the other men of that time. Such an examination will be undertaken here. The aim will not be a history of the Anti-Federal movement or an analysis of its economic, sociological, or psychological underpinnings. We shall try to avoid presupposing some external set of questions or framework of analysis. Rather, we shall try to proceed from inside Anti-Federal thought, seeing the questions as they saw them, following the arguments as they made them. We shall explore the different levels of Anti-Federal theorizing, working our way critically through and if necessary beyond them, but always with the idea that the Anti-Federalists may have something to teach. Because the American founding took the form of a debate or dialogue, Anti-Federal thought is best examined within the movement and different levels of that dialogue. For this reason it will be necessary to take some note of the Federalist as well as the Anti-Federalist side of the debate, but the purpose is to present only so much of what the Anti-Federalists were against as is necessary to understand what they were for.

In beginning with the question of what the Anti-Federalists were for, we are not, it must be admitted, adhering to the aim of presenting the Anti-Federalist argument as it presented itself. The Anti-Federalists were primarily against the Constitution. We do remain true to our aim in a deeper and more significant sense, however, because the Anti-Federalists themselves understood their negative conclusions about the Constitution to be derived from a positive political theory or set of political principles.^*6 The aim, then, will be to give a sympathetic, critical, and full account of the fundamental Anti-Federal position.

Was there, however, a single Anti-Federal position? In the most obvious sense there surely was not. The Federalists claimed that the opposers of the Constitution could not agree among themselves, that they shared no common principles, that their arguments canceled each other out. This is an exaggeration, for there was more agreement about many points of opposition to the Constitution than might appear at first glance.⁷ Yet it is not possible to read far among the Anti-Federal writings without being struck by an extraordinary heterogeneity. It would be difficult to find a single point about which all of the Anti-Federalists agreed. They did not, finally, even agree unanimously in opposing the adoption of the Constitution. Many favored adoption if amendments could be secured; and others finally accepted the Constitution, even without a guarantee of amendment, as the best of the available choices. There is in fact no hard and fast way of even identifying “Anti-Federalists.” Some men, notably Edmund Randolph, were Federalist and Anti-Federalist at different times. Moderate or lukewarm adherents to either side were often almost indistinguishable from one another. Moreover, the specific points of disagreement and the reasons given by the Anti-Federalists were various and even contradictory. This is not to say that the Federalists were in much better condition. There is an impression of greater unity here because the Federalists were (in general) unified in supporting the Constitution, although some Federal reservations are scarcely distinguishable from Anti-Federal objections. That impression has been strengthened by the Federalists’ victory and by the massive impact on later generations of The Federalist papers, which have tended to occupy the Federalist stage and lend their unity to the whole group supporting the Constitution.^*8 There were in fact diverse and contradictory opinions among the Federalists just as there were among their opponents.

If the Federalists and Anti-Federalists were divided among themselves, they were, at a deeper level, united with one another. Their disagreements were not based on different premises about the nature of man or the ends of political life. They were not the deep cleavages of contending regimes. They were the much less sharp and clear-cut differences within the family, as it were, of men agreed that the purpose of government is the regulation and thereby the protection of individual rights and that the best instrument for this purpose is some form of limited, republican government. It is their common ground that explains, to a large extent, the relatively unclear line between the two camps and the diversity within each of them. This is not to say that the differences are negligible, as those would argue who claim that there is no basic political controversy or political theorizing in the United States.⁹ The differences are limited, but they are nevertheless substantial and well formed. The nation was born in consensus but it lives in controversy, and the main lines of that controversy are well-worn paths leading back to the founding debate.

In searching for the underlying unity in the Anti-Federal position we are not tabulating the frequency of different arguments. We are looking not for what is common so much as for what is fundamental. We might well find the foundations laid in a very few writings, even a single one. Thus, on the Federalist side, a James Madison is more important in this kind of quest than a Tench Coxe, not because he is more typical or more influential in a direct sense but because he sees farther or better. He can explain more. The same is true on the Anti-Federal side of The Federal Farmer, Brutus, and such little known writers as A [Maryland] Farmer and The Impartial Examiner. Not all of these men were widely read, and some of them made arguments that were uncommon; but they explored or at least exposed the theoretical ground that most other Anti-Federalists took for granted.

Proceeding in this way, clearing our path through the superficial tangle, dealing as well as we can with the patches of obscurity and looseness we find in even the best Anti-Federal thinkers, we shall discover a set of principles that is a good deal clearer and more coherent, and also more relevant to an understanding of the American founding and the American polity, than has usually been supposed. But we shall also find, at the very heart of the Anti-Federal position, a dilemma or a tension. This is the critical weakness of Anti-Federalist thought and at the same time its strength and even its glory. For the Anti-Federalists could neither fully reject nor fully accept the leading principles of the Constitution. They were indeed open to Hamilton's scornful charge of trying to reconcile contradictions.¹⁰ This is the element of truth in Cecelia Kenyon's characterization of them as men of little faith. They did not fail to see the opportunity for American nationhood that the Federalists seized so gloriously, but they could not join in grasping it. They doubted; they held back; they urged second thoughts. This was, however, not a mere failure of will or lack of courage. They had reasons, and the reasons have weight. They thought—and it cannot easily be denied—that this great national opportunity was profoundly problematical, that it could be neither grasped nor let alone without risking everything. The Anti-Federalists were committed to both union and the states; to both the great American republic and the small, self-governing community; to both commerce and civic virtue; to both private gain and public good. At its best, Anti-Federal thought explores these tensions and points to the need for any significant American political thought to confront them; for they were not resolved by the Constitution but are inherent in the principles and traditions of American political life.

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* References to substantive notes are accompanied by an asterisk.

2
Conservatives

One of the striking and, to many readers, surprising aspects of the debate over the Constitution is the conservative posture of the opposition. The Anti-Federalists did not deny the need for some change, but they were on the whole defenders of the status quo. They deplored departures of the Constitution from “the good old way” or “the antient and established usage of the commonwealth.” They shook their heads at “the phrenzy of innovation” sweeping the country: “The framing entirely new systems, is a work that requires vast attention; and it is much easier to guard an old one.” They warned that constant change would leave Americans “always young in government.”¹ Some expressed the primitive conservative view that whatever is old is good. Others revealed profound (but seldom explored) misgivings about the modern political principles on which the Constitution was so wholeheartedly based.^*2 Ordinarily, however, their conservatism was neither so shallow nor so deep. In the main, they saw in the Framers’ easy thrusting aside of old forms and principles threats to four cherished values: to law, to political stability, to the principles of the Declaration of Independence, and to federalism.

The Anti-Federalists often objected even to entering into debate on the Constitution because of legal irregularities in the proceedings of the Philadelphia Convention. They argued that that Convention had been authorized “for the sole and express purpose of revising the Articles of Confederation,” and had no right to propose any radical change in the government of the Union.³ While not invincible, this argument is very powerful; but it became less pertinent every day simply because the Constitution was in fact before the people and its merits under discussion. The threshold had been crossed, and the Anti-Federalists had little choice but to follow the Federalists over it. But there were other legal objections. The Convention proposed that Congress and the state legislatures should be bypassed in favor of special ratifying conventions and that the Constitution should come into effect when nine states ratified. For neither of these proposals was there any legal basis. They ran counter to Congress's commission to the Convention, and they violated the mode of amendment established in the Articles of Confederation.

The proposals of the Framers were self-defeating in their casual disregard of the forms of legality: “the same reasons which you now urge for destroying our present federal government, may be urged for abolishing the system which you now propose to adopt; and as the method prescribed by the articles of confederation is now totally disregarded by you, as little regard may be shewn by you to the rules prescribed for the amendment of the new system. …” “Charters,” Rawlins Lowndes warned, “ought to be considered as sacred things….” The Anti-Federalists saw in the proceedings and proposals of the Philadelphia Convention a threat to that “publick faith and confidence,” which “bind[s] and cement[s] the community” and “establishes] them as a body politick.”⁴ Of course the Anti-Federalists agreed that the people have a right to alter their governments; but they insisted that any revolution (including the one most of them had proudly aided) must be secured by an initially fragile political stability. They criticized the Federalists, in typical conservative fashion, for threatening this precious stability. “The late revolution having effaced in a great measure all former habits, and the present institutions are so recent, that there exists not that great reluctance to innovation, so remarkable in old communities, and which accords with reason, for the most comprehensive mind cannot foresee the full operation of material changes on civil polity….” Hasty and blind adoption of government will lead to hasty and blind alterations, “and changes must ensue, one after another, till the peaceable and better part of the community will grow weary with changes, tumults and disorders, and be disposed to accept any government, however despotic, that shall promise stability and firmness.”⁵

Far from straying from the principles of the American Revolution, as some of the Federalists accused them of doing,⁶ the Anti-Federalists saw themselves as the true defenders of those principles. “I am fearful,” said Patrick Henry, “I have lived long enough to become an old fashioned fellow: Perhaps an invincible attachment to the dearest rights of man, may, in these refined enlightened days, be deemed old fashioned: If so, I am contented to be so: I say, the time has been, when every pore of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American.”⁷ The Anti-Federalists argued, as some historians have argued since, that the Articles of Confederation were the constitutional embodiment of the principles on which the Revolution was based:

Sir, I venerate the spirit with which every thing was done at the trying time in which the Confederation was formed. America had then a sufficiency of this virtue to resolve to resist perhaps the first nation in the universe, even unto bloodshed. What was her aim? Equal liberty and safety. What ideas had she of this equal liberty? Read them in her Articles of Confederation.⁸

The innovators were impatient to change this “most excellent constitution,” which was “sent like a blessing from heaven,” for a constitution “essentially differing from the principles of the revolution, and from freedom,” and thus destructive of the whole basis of the American community. “Instead of repairing the old and venerable fabrick, which sheltered the United States, from the dreadful and cruel storms of a tyrannical British ministry, they built a stately palace after their own fancies…” ⁹

The principal characteristic of that “venerable fabrick” was its federalism: the Articles of Conf...