The Power of Nine: Federalists, Antifederalists, and Natural Law Synthesis in the Ninth Amendment, Part Three

Part Three in a Four-Part Series

The Natural Law view that emerged during the American Revolution was influenced by the Enlightenment and informed by the Glorious Revolution of England in 1688. England’s revolution in the late seventeenth century established the primacy of parliament over that of its king. Modern interpreters may have trouble seeing the Glorious Revolution as a victory for democracy, as the House of Lords and House of Commons were made up of the most privileged, land-holding nobles and men of wealth. Nevertheless, it was an historic step forward in establishing a foothold for democratic structures in the form of representative government.

A distinction, however, between the English idea of the people and the American concept developed in the new United States in the 1770s and 1780s. Arguably informed by the bitter distrust of government which contributed to American independence, a different idea of the people came into being: the people and their government—i.e., their representatives, were not one and the same. Whereas English Parliament was largely immune from limits on power, Americans saw the same threat of abuse of authority in representatives as they did any king. Gordon Wood has noted, “The English Bill of Rights was designed to protect the subjects not from the power of Parliament but from the power of the king… Parliament was the highest court in the land and was therefore the bulwark and guardian of the people’s rights and liberties; there was no point in limiting it.”[1] Americans had begun to shed this view during the revolutionary and post-revolutionary eras. A long history of self-government in the American colonies had also instilled a healthy distrust of power.

This misgiving of authority is important to note, because it was a symptom of a largely new American creed: suspicion of too much political power from any source—including the people themselves. This can be a difficult position for some to comprehend, because it is counter to modern prevailing thought which enshrines popular will as the legitimate source of authority. Many founders, however—both Federalist and Antifederalist—held suspicion of mob rule to be as critical as suspicion of monarchy or oligarchy. American Natural Law was a decisive philosophical break from English representative democracy, which held popular will as the source of governmental legitimacy—albeit couched in a landed aristocracy. Wood acknowledges, “It is important to note that American rights are not merely the rights of the people against the power of government; they are the rights of individuals against the power of the people themselves.”[2] This suspicion of representatives and of popular will informed much of the arguments between Federalists and Antifederalists during the ratification debates of 1788. Patrick Henry, master rhetorician and one of the major icons of the American Revolution, stated “the tyranny of Philadelphia [the federal Convention] may be like the tyranny of George III.’”[3] To some, power—no matter the source—was a threat to individual rights.

The Antifederalists, by opposing ratification, claimed to be holding true to the essence of the patriot cause. They saw themselves as advocates of the principles of American independence and viewed the agenda of Alexander Hamilton, James Madison, and other supporters of the Constitution as betrayers of that cause. “[I]n the context of the great mass of ratification documents, the antifederalists emerge as the ones who kept the faith—the ancient faith so fundamental a part of the ideological origins of the Revolution, from which, they argued, the Constitution departed.”[4]

Antifederalists’ concerns over the proposed new federal government were not uniform. Some merely wanted to see a Bill of Rights which ensured individual rights and the security of certain state powers, while others were vehemently opposed to ratification under any circumstances. Their motivations were as varied as their objections, and while many would make similar arguments, there was a chasm between those who aimed to see inclusion of a Bill of Rights and those who wanted no part of the Constitution whatsoever. As Pauline Maier has stated, “the critics of the Constitution were no one thing.”[5]

Among the most prominent of the Antifederalists was George Clinton, governor of New York. Clinton’s reasons for objecting to the new Constitution may have been the least ideological. Clinton was a powerful and successful governor. He wielded enormous executive power and made his success without the help of the federal government since the end of the Revolutionary War. Maier observes, “New York’s economy pulled out of the depression of the mid-1780s and began to prosper—with no help from Congress… That the governor would resist giving Congress a right to tax imports, which was at the time an exclusive right of New York, was not hard to imagine.”[6] The struggle for control between two prominent New Yorkers, Antifederalist George Clinton and champion of the proposed Constitution Alexander Hamilton, illustrates that the debates over ratification had enormous political, as well as, economic ramifications. It is here, when examining the economic and political motivations of those opposed to ratification, that the Beardian thesis becomes most credible. Maier maintains that “Hamilton and his allies wanted to create a stronger national government in part to counter the power of states like Clinton’s New York.”[7]In this regard, one can see the concerns Federalists like Hamilton and Madison held toward state officials in much the same way Antifederalists harbored suspicion toward a too-powerful national government. Additionally, James Madison had proposed during the Convention at Philadelphia that the new national government should have the power to veto state laws. This was interpreted as overreach and roundly rejected. Most at the convention regarded the proposal as an attempt to encroach upon the legitimate powers of the individual state governments.

Perhaps the most ardent Antifederalist was Mercy Otis Warren. Warren is a particularly important figure in the history of the American Revolution. As the wife of James Warren and sister of James Otis, Mercy Otis Warren found herself in the middle of patriotic rebellion in Massachusetts in the 1760s and 1770s. Her home was an important station of communication, helping to facilitate the Committees of Correspondence—the precursor to the Continental Congress—during the beginnings of the Revolution. Her specific contribution was also unique. She was a gifted playwright and essayist who wrote plays critical of monarchy. Her writings are among the first and most influential in overlapping the patriot cause with sympathetic artistic sentiment. Her work influenced support for independence. In her later life, she wrote the first multi-volume history of the American Revolution.

Warren viewed the proposed Constitution as antithetical to the values of the Revolution. She was not unique in this matter, as Antifederalists often saw themselves as guardians of the cause. Bernard Bailyn observes, “The identity between antifederalist thought and that of the most fervent ideologists of ’76 is at times astonishing.”[8] Warren did not see the Constitution as something to be fixed or improved upon. Writing under the pseudonym, “A Columbian Patriot,”[9] Mercy Otis Warren railed against the aims of the Federalists. “’[L]et the sublime characters, the philosophic lovers of freedom who have wept over [freedom’s] exit, retire to the calm shades of contemplation there… [to] look with pity on the inconsistency of human nature, the revolutions of states, the rise of kingdoms, and the fall of empires.’ Warren’s tract stands as an impassioned plea that Americans reject the proposed federal government.”[10] If a change of government at the federal level were to transpire, Warren wanted it rebuilt from the foundation up. She saw no hope in the proposed Constitution, nor improving upon it. “I[n] short, she wanted the convention to start over from scratch, not, like Richard Henry Lee and many [other Antifederalists], to repair the Constitution’s most egregious shortcomings.”[11]

Antifederalists stood on a spectrum of opposition, from political differences to apprehensions regarding the erosion of state/local sovereignty. These concerns were similar, but not always the same. Warren’s concerns were principled and rooted in civic virtue. Cheryl Z. Oreovicz observes, “… the vision [Warren] articulates encompasses what historians refer to as ‘the republican synthesis,’ the commitment of citizens to both public and private virtue in their own lives so that the commonwealth may flourish.”[12] Civic virtue, and its call for private integrity and public duty, informed much of the republicanism of the era. In contrast, George Clinton’s incentives were arguably self-serving and motivated by a need to hoard control at the state government level—and were not necessarily republican or virtuous in any meaningful sense. It is crucial to consider these distinctions between various Antifederalist arguments and motivations for the ratification debates to be properly understood.

George Mason may well best represent the combination between the civic principles of Warren and Clinton’s wishes to retain state power. As previously noted, George Mason had already been influential upon the republic with his writing of the Virginia Declaration of Rights in 1776. He was a Virginia delegate to the Constitutional Convention and refused to sign the document due to its lack of a Bill of Rights. Mason feared the supremacy of the proposed Constitution over the laws of the states, combined with its lack of enumerated guaranteed rights of citizens, would circumvent both state power and individual rights. Further, “Mason feared that Congress would abuse the ‘necessary and proper’ clause… to extend its authority so far as to threaten the powers retained by the states and rights retained by the people.”[13] A number of individual state constitutions included a Bill of Rights, or some assertion of rights of the people. Mason understandably argued that without a federal Bill of Rights, both the Necessary and Proper clause and the Supremacy Clause of the Constitution could undermine individual state protections of such rights. He argued that “the laws of the general Government being paramount to the laws and Constitution of the several States, the Declaration of Rights in the separate States are no Security.”[14] Considering these factors, he felt obliged to reject the new model of government. Pauline Maier affirms, “Without the prospect of a second convention, [Mason] declared, he would neither sign the document nor support it in Virginia.”[15] Mason’s determined argument for the necessity of a Bill of Rights was perhaps the most emblematic of Antifederalist sentiment. He was willing to accept the new federal government, but not without a guaranteed protection of rights, and his concern was with preserving the principle of Natural Law.

Among the most prominent of the Antifederalists were the writings of “Centinel,” “Cato,” and “Brutus;” anonymous writers who fervently argued against ratification. The identity of these figures has been debated for centuries. Centinel is generally thought to have been Samuel Bryan of Pennsylvania, or perhaps his father George. Most historians believe Cato to be the aforementioned George Clinton. Brutus is generally thought to have been Robert Yates, who had been a delegate from New York to the Constitutional Convention. Yates left in disgust prematurely because the Convention had strayed so far from its allegedly intended agenda: to create improvements to the Articles of Confederation. Once Yates saw that the aims of Alexander Hamilton and James Madison were to throw the Articles out and start anew, he left.

Some of the pseudonymed Antifederalists might have been more than a single person, much like “Publius” in The Federalist had been three different writers: Alexander Hamilton, James Madison, and John Jay. Although there were numerous Antifederalist writings, including the aforementioned writings of “A Columbian Patriot”/Mercy Otis Warren, a need to limit the focus of these is necessary for the practical purposes of this work. It should not, therefore, be taken that these writings—or these authors—are exhaustive.

Antifederalist arguments brought the need for enumerated, protected rights to the forefront. Centinel, in his second essay, argued for the protection of a free press. “As long as the liberty of the press continues unviolated, and the people have the right of expressing and publishing their sentiments upon every public measure, it is next to impossible to enslave a free nation.”[16] A free press, able to publish even the most unpopular and antiauthoritarian views, secures liberty for all and keeps the people’s representatives in check. It is both a means of protecting democratic sentiment, but also a protection for those who hold unpopular opinions. Centinel also defended the right to worship according to one’s individual conscience. The protection of such right, it was stated, required a specified guarantee at the federal level. “[T]here is no declaration [in the Constitution], that all men have a natural and unalienable right to worship Almighty God, according to the dictates of their own consciences and understanding…”[17] These concerns sustained the right of individual speech and individual worship against the prerogatives of the state. Centinel similarly stated the concerns of George Mason, “[T]he security of the personal rights of the people by the state constitutions is superseded and destroyed, hence results the necessity of such security being provided for by a bill of rights to be inserted in the plan of federal government.”[18]

Cato also stated objections similar to those of George Mason. Mason stated that “there never was a government over a very extensive country without destroying the liberties of the people…”[19] Cato, like Mason, summoned the arguments of French Enlightenment philosopher Montesquieu. “Montesquieu observes, that ‘the course of government is attended with an insensible descent to evil, and there is no reascending to good without very great efforts.’ The plain inference from this doctrine is, that rulers in all governments will erect an interest separate from the ruled, which will have a tendency to enslave them.”[20] Again, a distrust of government—including representative government, is at issue. While some today may want to see such apprehension as paranoiac, it was a reasonable suspicion by those who had only recently thrown off the shackles of monarchy.[21]

The figure who most artfully and directly combated the ratification of the Constitution and the arguments for its support by the Federalists was Brutus. Named after one of the prime conspirators who assassinated Caesar to save the Roman republic, the Antifederalist Brutus was an impressive intellectual force to friend and foe alike. Pauline Maier observes, “Both ‘Cato’ and ‘Centinel’ expressed admiration for [Brutus’s] ‘masterly’ arguments. Even The Federalist… recognized ‘Brutus’ as a formidable opponent by answering him, though without acknowledging him by name.”[22]

It is indeed the writings of Brutus which may ring most similar to that of classical liberals and libertarians today. His predictions appear outright prophetic when he writes, in essay number XII, that the Constitution’s preamble would “authorise the Congress to do any thing which in their judgment will tend to provide for the general welfare, and this amounts to the same thing as general and unlimited powers of legislation in all cases.”[23] Brutus’s misgivings here appear to hinge upon the potential of unfettered federal power—regardless of any possible popular sentiment.

Supporters of the Constitution similarly made many of their arguments by employing antidemocratic positions. Many of the essays known as The Federalist, written by Alexander Hamilton, James Madison, and John Jay, were explicitly critical of democracy. Federalist no. 10, written by Madison, states that “democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”[24]

Similarly, The Federalist asserts the need for liberal republican government precisely to ward off those who may take office and attempt to bend power to themselves for their own selfish aims. “Enlightened statesmen will not always be at the helm.”[25] Madison’s defense of longer terms for Senators and the political dominance they would hold, versus that of the House of Representatives, in their advise and consent role and ratification of treaties was thus, “assemblies yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions… a body which is to correct this infirmity ought itself to be free from it…”[26] The impulse of sudden passions from the electorate or from leadership could improperly sway the direction of Congress, and Federalists wanted to assure such fleeting passions were kept in check. This was also why the Senate was to be one step removed from the election of the people and were to be instead representatives of the individual states. Professor of Law, Frank B. Cross, acknowledges, “By being less immediately majoritarian, the Senate would foster stability in government.”[27] This check the Senate was designed to have against the impulse of sudden and violent passions was ostensibly removed with the Seventeenth Amendment in 1913 through the direct election of Senators.

Safeguard Against Democracy: Independent Courts

Perhaps the most crucial undemocratic function of the U.S. government is the independence of the courts. The independence of the judiciary was not new when the Constitution was proposed. As with much of the qualities of the proposed federal government, an independent judiciary was a key element of state governments, and had been championed by figures such as John Adams from the earliest days of the American Revolution. The undemocratic, indeed antidemocratic nature of an independent judiciary—especially at the level of the Supreme Court—was another check against the momentary appetites and legislative whims of the people and their representatives.

Brutus, in essay XI, shared the same fear of the Supreme Court as he did of the national legislature. “They will give the sense of every article of the constitution… in their decisions they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution.”[28] It is worth noting that Brutus condemns the new constitution for the potential power of its democratically elected body, the Congress, as well as its undemocratic body, the judiciary. However, history has proven Brutus to some degree correct when he asserts in essay XI that “the judicial power of the United States, will lean strongly in favour of the general government…”[29]

Nevertheless, the alternative would be for courts to be beholden to public opinion and/or legislative rule. This has been referred to in the modern era as judicial deference or judicial restraint. The opposite of which, so-called judicial activism, is seen in the present age as verboten. The irony of Brutus’s criticism of the independent judiciary, of course, is that it is the very independence of the courts which secure the liberties Brutus and other Antifederalists were concerned about. When John Marshall firmly established the federal precedent of judicial review in the Marbury v. Madison decision in 1803, he was properly asserting the co-equal power of the Supreme Court to judge the constitutionality of federal statutes.[30] Regardless of the protests by figures like Thomas Jefferson that Marshall read into the Constitution a power the Supreme Court was never explicitly given—without such power, the Court would neither be co-equal, nor independent. In the twentieth century, Justice Robert H. Jackson commented on this principle in West Virginia State Board of Education v. Barnette (1943). “Justice Jackson provided a classic explication of the minoritarian argument for judicial review… ‘the very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials…”[31]

It is indeed the brilliance of judicial independence at the highest level of the federal government, an inherently undemocratic system, which helps to preserve individual liberties. Francis Edward Devine observes, “Judicial review, in itself, is postulated on the possibility of overriding democratically elected legislatures in the interest of indefeasible rights.”[32] Such assertions have grown unpopular in academic circles in recent decades. Whether this is due to prevailing political ideology in academe or an assumed elitism implied in undemocratic methods, is not entirely clear. What is clear, however, is that while the democratic elements of the United States system of government have been applauded; indeed, celebrated—its undemocratic safeguards have been ignored or deliberately avoided. This is despite the civil liberties which have been protected and even expanded due to their presence. This is the irony of the American republican system: undemocratic safeguards have strengthened American democracy. By empowering individual rights, the rights of all are reinforced. The alternative, pure democracy—something occasionally advocated for in the modern age, would instead be indebted to the shifting biases of a sizable tyranny. As Devine acknowledges, “If the majority were to rule, rights viewed as fundamental in the American tradition would be, at least at times, abolished.”[33]

[End of Part Three]

Notes:

     [1] Gordon S. Wood, “The Origins of Vested Rights in the Early Republic,” Virginia Law Review 8, no. 7 (October 1999): 1425, http://www.jstor.org/stable/1073871.      [2] Gordon S. Wood, “The Origins of Vested Rights in the Early Republic,” 1422.      [3] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 338.      [4] Ibid., 331.      [5] Pauline Maier, Ratification: The People Debate the Constitution, 1787-1788 (New York: Simon and Schuster, 2010), 93.      [6]Maier, Ratification, 324.      [7]Ibid., 325.      [8] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 331.      [9] The writings of “A Columbian Patriot” were long thought to be the work of Elbridge Gerry. It was only upon the discovery of original drafts in the twentieth century that Mercy Otis Warren became known as the legitimate author.      [10] Cheryl Z. Oreovicz, “Mercy Otis Warren (1728-1814),” Legacy 13, no. 1 (1996): 60, http://www.jstor.org/stable/25679185.      [11] Maier, Ratification, 335.      [12] Oreovicz, “Mercy Otis Warren (1728-1814),” 55.      [13] Maier, Ratification, 46.      [14] George Mason, “Objections to the Constitution of Government Formed by the Convention.” ca. September 17, 1787. Manuscript document. George Washington Papers, Manuscript Division, Library of Congress. http://edu.lva.virginia.gov/docs/MasonsObjections.pdf.      [15] Maier, Ratification, 49.      [16] George Bryan, “Centinel II,” Online Text. Retrieved from the Library of Congress, https://www.loc.gov/item/90898133/.      [17] Bryan, “Centinel II.      [18] Ibid.      [19] Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge: Belknap Press of Harvard University Press, 1967), 349.      [20] Cato, “Essay VII (1788),” The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham (New York: Signet Classics, 1986), 344.      [21] Cato was, like Brutus, a reference to an historical adversary of Julius Caesar. It was also, however, a reference to Cato’s Letters, a series of essays by British writers John Trenchard and Thomas Gordon, published in the 1720s. The essays’ warnings against tyranny were influential upon American political thought in the eighteenth century.      [22] Maier, Ratification, 83.      [23] Brutus, “Essay XII (1788),” The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham, (New York: Signet Classics, 1986), 319.      [24] Publius, “Federalist No. 10 (1788),” The Federalist Papers, ed. Clinton Rossiter. (New York: Mentor, 1961), 49.      [25] Ibid., 48.      [26] Publius, “Federalist No. 62 (1788),” The Federalist Papers, ed. Clinton Rossiter. (New York: Mentor, 1961), 347.      [27] Frank B. Cross, “Institutions and Enforcement of the Bill of Rights,” Cornell Law Review 85, no. 6 (September 2000): 1560. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2821&context=clr.      [28] Brutus, “Essay XI (1788),” The Anti-Federalist Papers and the Constitutional Convention Debates, ed. Ralph Ketcham, (New York: Signet Classics, 1986), 311-312.      [29]Brutus, “Essay XI (1788),” The Anti-Federalist Papers,312.      [30] The Supreme Court’s power of judicial review is not explicitly granted in the Constitution. Thus, it has been criticized by scholars and politicians across the political spectrum. Yet, it remains that individual rights may have been endangered further had federal judicial review never been asserted by Chief Justice John Marshall in the Marbury case. Furthermore, while not spelled out in the Constitution, a tradition of judicial review certainly existed in the young nation prior to 1803. Judicial review has proven to be a powerful check against legislative and executive overreach, despite the controversy over its legitimacy.      [31] Frank B. Cross, “Institutions and Enforcement of the Bill of Rights,” Cornell Law Review 85, no. 6 (September 2000): 1551. http://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=2821&context=clr.      [32] Francis Edward Devine, "Absolute Democracy or Indefeasible Right: Hobbes Versus Locke," The Journal of Politics 37, no. 3 (1975): 737, http://www.jstor.org/stable/2129323.      [33] Devine, "Absolute Democracy or Indefeasible Right: Hobbes Versus Locke," 738.