14 May 2009

The cycles in human functions of society

One of the reasons that the Anti-Federalist works make compelling reading is that they are looking beyond the structure of the proposed Constitution and at previous human societies and their governments so as to see the pathways that were taken by them and how they related to the proposed new form of government. From that examination the ideas start to build up and then were examined for fit into the Constitution's structural pathways. While much of the talk did lead to the Bill of Rights, a number of items were not addressed by those first ten Amendments. It is true that many of the expectations of the Anti-Federalists did not come to pass, while others that were once thought of as safely relegated to history have returned from the dust to haunt our modern times. The reason for their views, disparate as they were, was that the applicable standard for how human society functions is governed by patterns that our Earthly law takes: when creating the same sort of law device, we find that it is limited to certain scopes and abilities without regard to culture. That is why looking at Ancient Greece, the Roman Republic, Confederation of the Swiss, or the government of Vienna were critical to the Anti-Federalists as they each had proclivities and trends due to the structure of their governments. Thus Spain, Netherlands, Britain and many other Nations with different forms of government also served as touchstones to examine their pasts and outcomes. If you can identify the key points of a larger trend problem and find those points in the proposed Constitution, then they are a problem in how governing will come out.

This was not the only methodology used, however, and another was put forward on the basis of the governing parts and how they were constituted. These views are purely structural and not depending upon more than human nature as understood at the time. Human nature, it must be understood, is based on what the nature of man is: a being that comes from the Law of Nature and Nature's God. Whatever formulation we give to this base state of humanity, be it from single divine source, multiple divine sources or just the system that came about due to physics and chemistry in the universe, that state of man is invariant over time. That state of human nature is then refined by our creation of society, but it still remains of its original stock. As with highly polished and stained wood, the underlying material is still wood and has all the benefits and deficits of being wood rather than, say, iron or aluminum or silicate structure. That recognition that we are all created equal, with all Liberty and Freedom born within us is then the measuring stick for the outcomes of human nature in creating society, States and Nations.

These are two of the most simple tools of analysis of human society and governments: past works and structural views based on known starting point. There is no science of them, however, as we have been loathe to apply numbers, meaning and measure to human actions so as to not only qualify them, but quantify them. Even in our modern times, this is not done, as to do so becomes politically charged by those who do not wish for human society and governments to get such high level of definition as it is thought that will reduce man to mere known quantities. That reduction, however, is not in the analysis but is part of our beings as natural man: if we are given Liberty and Freedom in equal measure, our actual being is flawed and that effects how we approach Liberty and Freedom as we create society. By this view the nature/nurture 'debate' is ill-founded as there is no statement of what man is in his base state in nature and how we create the means to change that via culture and society. As we once did not understand why charcoal, sulfur and saltpeter acted as they did when combined in certain proportions, chemistry allowed us to examine the pieces, understand them and refine the nature of the end product. What it was would always be: the mystery of it would only deepen as we understood it better and that would lead to further discoveries of the nature of atoms, chemistry and physics. Alchemy gave way to Chemistry and that did not, alone, demonstrate a 'philosophers stone' but demonstrated that such a thing was the act of actually seeking answers in a methodical way.

So when reading the Anti-Federalist works we come upon one of the closest reviews of man and the society, governments, States and Nations that are created by man-made laws on Earth as those things relate to a solid, known starting point.

One of the best statements to lay the groundwork for understanding how natural man comes to make society and government is given in An Old Whig IV in OCT 1787:

Men when they enter into society, yield up a part of their natural liberty, for the sake of being protected by government. If they yield up all their natural rights they are absolute slaves to their governors. If they yield up less than is necessary, the government is so feeble, that it cannot protect them. To yield up so much, as it necessary for the purposes of government; and to retain all beyond what is necessary, is the great point, which ought, if possible, to be attained in the formation of a constitution. At the same time that by these means, the liberty of the subject is secured, the government is really strengthened; because wherever the subject is convinced that nothing more is required from him, than what is necessary for the good of the community, he yields a cheerful obedience, which is more useful than the constrained service of slaves. To define what portion of his natural liberty, the subject shall at the time be entitled to retain, is one great end of a bill of rights. To these may be added in a bill of rights some particular engagements of protection, on the part of the government. Without such a bill of rights, firmly securing the privileges of the subject, the government is always in danger if degenerating into tyranny; for it is certainly true, that "in establishing the powers of government, the rulers are invested with every right and authority, which is not in explicit terms reserved." Hence it is that we find the patriots, in all ages of the world, so very solicitous to obtain explicit engagements from their rulers, stipulating, expressly, for the preservation of particular rights and privileges.

Patriotism is the act of extracting explicit, stipulating and exactly expressed limits of government so that the common man is protected. What An Old Whig does is to encapsulate much of Thomas Paine's work into this, so that it is clearly understood the reasons for government are, and that not looking for government to do everything requires the patriotic duty of ensuring that the strict bounds of the governing structure are respected. This effort is done to forestall 'expansive' views of government, as seen with someone like Theodore Roosevelt, and those that would stretch the meaning of 'general welfare' to mean the entire welfare of everyone, at all times, in all conditions, always.

Dissent to just naysay is not patriotic. Patriotism points out the problems in legislation and how it is enacted and adjudicated and points to the overstepping in all three areas by each branch of government. 'Strict Constructionism' is NOT just an application to the Supreme Court: that is a misplaced zeal for a particular set of views and trying to stop bad laws ONLY once they have come about. Patriotism is to examine each branch of government, its workings, identify the problems in each area and then propose solutions for each so as to keep its domain of power sacrosanct and limited. The Civil Rights movement that looked at all three areas of government was Patriotic: its effort was to ensure the rights of all citizens to be treated equally in each branch of government and by the entirety of the laws enacted. Whenever dissent is brought up, it must go beyond just a 'bad law' and state how such laws do not respect the domains of power granted to government in detail and in full. Thus the deriding of the President for utilizing the powers given as Head of State, Commander of the Armies and the Navies and Head of Government must understand that any legislation addressing such powers must respect them and the awesome capability we hand to a President in doing things outside the realm of the Nation as it interacts with other nations and oversees the use of the common property of mankind in the form of the high seas and the earth beneath them and the atmosphere above up to the end of it and the beginning of space.

By examining the basis for what government is, how it is made and why we invest negative liberties in it, An Old Whig properly re-states the basis for all government in any Nation. That is historical analysis that relies on Locke, Vattel, Grotius and many others who have gone into great detail on how the laws of Earth are different from the Laws of Nature and why we set aside some Liberty in society for the organs we call government. Man who retains all Liberty and exercises all for himself is a savage, an animal in stature. Only by vesting negative Liberty for common oversight in the State and the Nation can we have space to exercise positive Liberty freely without threat of our negative Liberties we invest in government overwhelming us and dissolving civil society.

Federal Farmer used the structural approach quite often. Thus examining the system as proposed led to questions that were derived from it and how human nature acts upon such structures. Federal Farmer III on 10 OCT 1787 is a work that heavily goes into the structural analysis realm, and I will use boldface where necessary to call out some parts:

Dear Sir, The great object of a free people must be so to form their government and laws and so to administer them as to create a confidence in, and respect for the laws; and thereby induce the sensible and virtuous part of the community to declare in favor of the laws, and to support them without an expensive military force. I wish, though I confess I have not much hope, that this may be the case with the laws of congress under the new constitution. I am fully convinced that we must organize the national government on different principles, and make the parts of it more efficient, and secure in it more effectually the different interests in the community; or else leave in the state governments some powers proposed to be lodged in it - at least till such an organization shall be found to be practicable. Not sanguine in my expectations of a good federal administration, and satisfied, as I am, of the impracticability of consolidating the states, and at the same time of preserving the rights of the people at large, I believe we ought still to leave some of those powers in the state governments, in which the people, in fact, will still be represented - to define some other powers proposed to be vested in the general government, more carefully, and to establish a few principles to secure a proper exercise of the powers given it. It is not my object to multiply objections, or to contend about inconsiderable powers or amendments. I wish the system adopted with a few alterations; but those, in my mind, are essential ones; if adopted without, every good citizen will acquiesce, though I shall consider the duration of our governments, and the liberties of this people, very much dependant on the administration of the general government. A wise and honest administration, may make the people happy under any government; but necessity only can justify even our leaving open avenues to the abuse of power, by wicked, unthinking, or ambitious men. I will examine, first, the organization of the proposed government, in order to judge; 2d. with propriety, what powers are improperly, at least prematurely lodged in it. I shall examine, 3d, the undefined powers; and 4th, those powers, the exercise of which is not secured on safe and proper ground.

First comes the statement of the objective, which is for a free people to be able to form a government that can write and administer laws that society will have confidence in as respecting the virtuous part of the community, and yet be minimal in weight so as not to require a military to enforce them.

Second is the problem of having such government be efficient but to also not impinge upon different parts of a diverse community unequally. As each community has diverse interests, the nature of government that is representative of them must respect that diversity and not make laws at the highest level, but to allow them to move down to more representative levels (in this case the States as the next major organizing unit of the Nation).

Third, to the end of the Second, the problems of larger government requires that the States retain powers and that an extremely close examination of the exact powers handed to the federal government is essential to protecting society from the larger, national, government.

Fourth the proposed Constitution is a good structure, by and large, but needs to address duration of government and the Liberty of the people who will have such Liberty dependant upon the general, national government.

Finally, good administrators will always respect the Liberty of the people, but by leaving the actual structure in place that is open to abuse of power by those with ill-intents such Liberty is put at peril.

From that Federal Farmer will then break out sections as specified to examine the structural problems in the proposed Constitution, how those are problems and the pathways of abuse of them, and then propose moderate changes to that structure to further limit or refine the powers and make them more exacting and circumscribed. It is that understanding that good men will not always govern and that those will malign views can and will come into high office that is an understood outcome of all governments be they representative or not. Such malign use increases when power is concentrated, and the object of representative government is to remove the ability to concentrate such power in fewer and fewer hands in proportion to the population as a whole. As general government for a nation is the resting place of individual negative liberties, it is the utilization of those negative liberties that must be highly defined and exactingly stated.

Even with an older writing style and its attendant peculiarities, this piece reads like a modern political analysis piece on the structure of representative government should read if we ever had people who bothered to write them. We have come to denigrate the Anti-Federalists for being on the 'losing side' of the Constitutional debate, while what was being done was criticism to build a stronger and more solid system to secure Liberty for the common man and ensure that society would not come to ill ends by this more general government. Many would propose a more State-based and centered system, and those, too, need to be respected as they have a different understanding of the problems of large scale Republics and other forms of government that had salient features to that which was proposed.

Robert Yates took time to distill Luther Martin's Objections from a three hour speech, and examining Martin's later works that was no mean feat as Luther Martin did tend towards bombast and not sticking to a point very well. While some of the criticisms raised were partially addressed with the Bill of Rights, some were not (as is the case in most Anti-Federalist works as the Constitution went through ratification and then immediate Amending). On 27 JUN 1787 in Luther Martin's Objections (sweetened and condensed by Robert Yates) we get the following mid-way through it:

Unequal confederacies can never produce good effects. Apply this to the Virginia Plan. Out of the number 90, Virginia has 16 votes, Massachusetts 14, Pennsylvania 12—in all 42. Add to this a state having four votes, and it gives a majority in the general legislature. Consequently a combination of these states will govern the remaining nine or ten states. Where is the safety and independency of those states? Pursue this subject farther. The executive is to be appointed by the legislature, and becomes the executive in consequence of this undue influence. And hence flows the appointment of all your officers, civil, military, and judicial. The executive is also to have a negative on all laws. Suppose the possibility of a combination of ten states; he negatives a law; it is totally lost, because those states cannot form two-thirds of the legislature. I am willing to give up private interest for the public good, but I must be satisfied first that it is the public interest. Who can decide this point? A majority only of the union.

The Lacedemonians insisted in the Amphictionic council to exclude some of the smaller states from a right to vote in order that they might tyrannize over them. If the plan now on the table be adopted, three states in the union have the control, and they may make use of their power when they please.

Some mis-reading of the Constitution went on, obviously, but the utilization of an Electoral College has the final fall-back to the House of Representatives. Indeed that Electoral College is a temporary body, made up of the Electors chosen by the people, but any mischief in such councils to dead-lock them throw the selection over to Congress. While not an obvious pathway for corruption, it still exists and we have seen unfaithful Electors show up rarely, but it has happened.

The power of the House to originate spending bills gives it great power on the Liberty of the people, and even with a Senate that can stop such legislation, the opportunity to subborn or otherwise find unfaithful Senators to their duty to the Union exists. In fact that was enhanced by Amendment XVII, so as to remove the Statehouse from the selection procedure and make both houses elected by the people directly. Amendment XVI also gutted the controls of the federal government which was prescribed from making disproportionate direct taxation upon the people, and allowed such a thing for the placement of direct taxation by varying proportion upon the people. Thus the problems of the Lacedemonians persists: a bare large state majority can inflict unequal laws and does not have to respect the minority opinion on such. Over time this creates an unbalanced system of government due to the corruption that is inherent in mankind when applied to concentrated societal power venues.

Later in his speech Luther Martin brought up the following examples:

On this latter ground, the state legislatures and their constituents will have no interests to pursue different from the general government, and both will be interested to support each other. Under these ideas can it be expected that the people can approve the Virginia Plan? But it is said, that people, not the state legislatures, will be called upon for approbation, with an evident design to separate the interest of the governors from the governed. What must be the consequence? Anarchy and confusion. We lose the idea of the powers with which we are entrusted. The legislatures must approve. By them it must, on your own plan, be laid before the people. How will such a government, over so many great states, operate? Wherever new settlements have been formed in large states, they immediately want to shake off their independency. Why? Because the government is too remote for their good. The people want it nearer home.

The basis of all ancient and modern confederacies is the freedom and the independency of the states composing it. The states forming the Amphictionic council were equal, though Lacedemon, one of the greatest states, attempted the exclusion of three of the lesser states from this right. The plan reported, it is true, only intends to diminish those rights, not to annihilate them. It was the ambition and power of the great Grecian states which at last ruined this respectable council. The states as societies are ever respectful. Has Holland or Switzerland ever complained of the equality of the states which compose their respective confederacies? Bern and Zurich are larger than the remaining eleven cantos (so are many of the states of Germany); and yet their governments are not complained of. Bern alone might usurp the whole power of the Helvetic confederacy, but she is contented still with being equal.

This question of independence for locality and abiding by some level of interdependence and shifting the power towards the latter and more remote government is not one to be taken lightly. Small and compact confederations act well due to limited geography and closely aligned populations, and the use of Dutch and Swiss confederacies points to that fact. Larger Nations succumb to the distance effect for general government when the interdependence is too high: general government concentrates power and shifts decision making out of its best venue of more local government which is responsive to local concerns.

By applying historical analysis to similar governmental set-ups (without regard to underlying type of structure to get to the larger structure) Luther Martin via Robert Yates makes key points about the necessary limits that governments have when working in federal systems or confederations. The slow movement of power via the processes that allow for larger sub-units or populations to slowly corrode the process so as to make the interests of the most populace majority the absolute will of the general government then creates a form of ungoverned democracy that seeks mere majoritarian rule by fiat without the need to respect the rights of the minority population. Only when the populations are small and the Nations compact does this not happen: when they become more wide ranging, the abuse of power due to its distance becomes large factor in the stability of the entire Nation.

The writer Centinel tends more towards bombast, it is to be admitted, although not as intemperate as Luther Martin when he writes directly (Robert Yates had the unenviable task of making Martin's speech civil), and is very pointedly suspicious of those that took part in writing the Constitution. He fits more into the mold of what we commonly think of as Anti-Federalist, but even he has to use analytical tools to back his suspicions. In that era before the Great Conspiracy Theories For Everything were put forth for nearly everything, he falls back upon simple historical precedent:

I have been anxiously expecting that some enlightened patriot would, ere this, have taken up the pen to expose the futility, and counteract the baneful tendency of such principles. Mr. Adams's sine qua non of a good government is three balancing powers, whose repelling qualities are to produce an equilibrium of interests, and thereby promote the happiness of the whole community. He asserts that the administrators of every government, will ever be actuated by views of private interest and ambition, to the prejudice of the public good; that therefore the only effectual method to secure the rights of the people and promote their welfare, is to create an opposition of interests between the members of two distinct bodies, in the exercise of the powers of government, and balanced by those of a third. This hypothesis supposes human wisdom competent to the task of instituting three co-equal orders in government, and a corresponding weight in the community to enable them respectively to exercise their several parts, and whose views and interests should be so distinct as to prevent a coalition of any two of them for the destruction of the third. Mr. Adams, although he has traced the constitution of every form of government that ever existed, as far as history affords materials, has not been able to adduce a single instance of such a government; he indeed says that the British constitution is such in theory, but this is rather a confirmation that his principles are chimerical and not to be reduced to practice. If such an organization of power were practicable, how long would it continue? not a day - for there is so great a disparity in the talents, wisdom and industry of mankind, that the scale would presently preponderate to one or the other body, and with every accession of power the means of further increase would be greatly extended. The state of society in England is much more favorable to such a scheme of government than that of America. There they have a powerful hereditary nobility, and real distinctions of rank and interests; but even there, for want of that perfect equallity of power and distinction of interests, in the three orders of government, they exist but in name; the only operative and efficient check, upon the conduct of administration, is the sense of the people at large.

That from 05 OCT 1787 in Centinel I by Centinel.

It did last more than a day, but his point of the balancing act between these three branches, each having separate domains is clear. What this system has, however, is the inverse problem: a weak branch losing power to the other two branches of government. While President Lincoln wielded extraordinary powers, those were powers given in case of civil war or insurrection, as the Laws of War would need to intrude on the civil society for the defense of the Nation. One branch becoming stronger by its own inclination and then aided by a second branch and a third branch that was weak would not properly stop the accumulation of power to government.

Here the Amendment process is the one most liable for abuse as the overwhelming majority of the States must be reflected in Congress: no say is given to the President or Supreme Court as a check and balance. Thus with the aforementioned Amendments on directly electing Senators and direct taxation that is unequal, can be added the other part which is the ability of the House to set its own size. That was done in 1911 and has steadily concentrated more power into the hands of the House which remains the same size while the population grows. The ability of individuals to be heard in that venue decreases as they become a smaller fraction of the overall population represented. A strong President and abiding Congress can push through acts that then require the Supreme Court to strike down if it is a strong body. A weak Supreme Court will find agreeable arguments that stretch or even break traditional power structures via 're-interpretation' of the Constitution or making it 'living'. Then a President and Supreme Court can backstop changes to those rulings and make them firm changes in the system that breaks the structure.

That is the overall problem from 1900 to present. It is brought up by Centinel with more than a bit of bombast, innuendo, and outright ridicule, but even with that his points are extremely well taken. By fusing historical analysis with human nature based observations, he does overstate how fast such a system will go down by great orders of magnitude, but the problems pointed out are very real.

Before the Bill of Rights was added Richard Henry Lee's Objections to the Constitution of 16 OCT 1787 examines another example of analysis: that of appeal to past known authority's reasoning. This not just the citation of authority, which is common place for those that wish to get some backing to their points, but a discussion of what that authority said and why it is important. This form of analysis is one that is a rich endeavor as it does allow an individual to gain insight into modern problems by understanding their origin and how they were viewed when original laws that ours are descendant from were made. Not just blind recitation or mere footnote, this sort of discussion brings past insights alive via in-line text analysis (as vice the modern blockquote which we use today to offset original texts). This makes it harder to read, but also more lively, as Mr. Lee demonstrates:

It cannot be denied, with truth, that this new Constitution is, in its first principles, highly and dangerously oligarchic; and it is a point agreed, that a government of the few is, of all governments, the worst.

The only check to be found in favor of the democratic principle, in this system, is the House of Representatives; which, I believe, may justly be called a mere shred or rag of representation; it being obvious to the least examination, that smallness of number, and great comparative disparity of power, render that house of little effect, to promote good or restrain bad government. But what is the power given to this ill-constructed body? To judge of what may be for the general welfare; and such judgments, when made the acts of Congress, become the supreme laws of the land. This seems a power coextensive with every possible object of human legislation. Yet there is no restraint, in form of a bill of rights, to secure (what Doctor Blackstone calls) that residuum of human rights which is not intended to be given up to society, and which, indeed, is not necessary to be given for any social purpose. The rights of conscience, the freedom of the press, and the trial by jury, are at mercy. It is there stated that, in criminal cases, the trial shall be by jury. But how? In the state. What, then, becomes of the jury of the vicinage, or at least from the county, in the first instance—the states being from fifty to seven hundred miles in extent? This mode of trial, even in criminal cases, may be greatly impaired; and, in civil cases, the inference is strong that it may be altogether omitted; as the Constitution positively assumes it in criminal, and is silent about it in civil causes. Nay, it is more strongly discountenanced in civil cases, by giving the Supreme Courts, in appeals, jurisdiction both as to law and fact.

Judge Blackstone, in his learned Commentaries, art. Jury Trial, says, "It is the most transcendent privilege, which any subject can enjoy or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbors and equals—a constitution that, I may venture to affirm, has, under Providence, secured the just liberties of this nation for a long succession of ages. The impartial administration of justice, which secures both our persons and our properties, is the great end of civil society. But if that be entirely intrusted to the magistracy,—a select body of men, and those generally selected, by the prince, of such as enjoy the highest offices of the state,—these decisions, in spite of their own natural integrity, will have frequently an involuntary bias towards those of their own rank and dignity. It is not to be expected from human nature, that the few should always be attentive to the good of the many." The learned judge further says, that "every tribunal, selected for the decision of facts, is a step towards establishing aristocracy—the most oppressive of all governments."

Here Mr. Lee uses the analysis style of parallel development: first showing what is in the proposed system and then doing the parallel analysis using Blackstone. This is a fascinating way to work as it requires that the individual think about their entire view and that it has a high degree of correspondence with previous thoughts in that area. Parallel development analysis is one fraught with danger, as each set of circumstances is unique, but when looking at overall characteristics and removing current incidentals so as to define what a system is actually doing, that definition then can be examined in light of past thinking on that same sort of problem.

That is not a simple point to make and requires space to develop, and yet if you correctly place and identify the hallmarks of a current problem in comparison with past ones, you can then examine outcomes of the past one to see how that would play out with the modern one by adding incidental circumstances back in. Military commanders do this continually as the training at the highest levels of general staff require a deep knowledge of past campaigns across history so as to examine similarities and differences with modern campaign proposals. Being able to figure out the level of abstraction, say between Alexander's overall campaign and its drive to India vice the modern campaign in the same region of Afghanistan, depends on the analysis of culture, techniques and methodologies in each and then examining salient differences and similarities (ex. mobility and firepower has changed greatly but culture very little in the intervening millennia).

The trained legal mind of Mr. Lee shows through: he utilizes past analyses and decisions while distilling the modern counterparts and juxtaposes them to see if he can get a meaningful result in law and fact. Even though the Bill of Rights obviated much of his argument, there are remaining points he brings up about the Legislative Branch and its tendency to be unrepresentative across a number of branches that is not easily ameliorated even by the affirmations in the US Bill of Rights as compared to its English counterpart.

The points raised by these techniques are valid ones, then and now. They deal with the patterns of governments and how human nature makes institutions and those who run them powerful, and that in search of more power, those running the institutions become especially liable for abuse and corruption. One of the foremost of the writers that were in the Anti-Federalist camp was Brutus. Reading his works are like reading a modern logic based analysis, for all that they were written during the period of consideration of the Constitution. Starting with his first work on 18 OCT 1787 in Brutus I, the import of what is being done is clearly demonstrated and why getting it right, then, was of paramount importance:

When the public is called to investigate and decide upon a question in which not only the present members of the community are deeply interested, but upon which the happiness and misery of generations yet unborn is in great measure suspended, the benevolent mind cannot help feeling itself peculiarly interested in the result.

In this situation, I trust the feeble efforts of an individual, to lead the minds of the people to a wise and prudent determination, cannot fail of being acceptable to the candid and dispassionate part of the community. Encouraged by this consideration, I have been induced to offer my thoughts upon the present important crisis of our public affairs.

Perhaps this country never saw so critical a period in their political concerns. We have felt the feebleness of the ties by which these United-States are held together, and the want of sufficient energy in our present confederation, to manage, in some instances, our general concerns. Various expedients have been proposed to remedy these evils, but none have succeeded. At length a Convention of the states has been assembled, they have formed a constitution which will now, probably, be submitted to the people to ratify or reject, who are the fountain of all power, to whom alone it of right belongs to make or unmake constitutions, or forms of government, at their pleasure. The most important question that was ever proposed to your decision, or to the decision of any people under heaven, is before you, and you are to decide upon it by men of your own election, chosen specially for this purpose. If the constitution, offered to your acceptance, be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the inestimable rights of mankind, and promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed. You may rejoice in the prospects of this vast extended continent becoming filled with freemen, who will assert the dignity of human nature. You may solace yourselves with the idea, that society, in this favoured land, will fast advance to the highest point of perfection; the human mind will expand in knowledge and virtue, and the golden age be, in some measure, realised. But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty - if it tends to establish a despotism, or, what is worse, a tyrannic aristocracy; then, if you adopt it, this only remaining assylum for liberty will be shut up, and posterity will execrate your memory.

Brutus casts the fundamentals of Liberty forward from the Declaration - that of man in society to make or unmake governments. There is no higher power in this, and we depend upon the wisdom of our fellow man as reflected in our society to ensure that government abides by that society and does not seek to tyranny. From that introduction, and a bit more, he then goes on to start laying out the major questions of the proposed Constitution:

The first question that presents itself on the subject is, whether a confederated government be the best for the United States or not? Or in other words, whether the thirteen United States should be reduced to one great republic, governed by one legislature, and under the direction of one executive and judicial; or whether they should continue thirteen confederated republics, under the direction and controul of a supreme federal head for certain defined national purposes only?

This enquiry is important, because, although the government reported by the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.

Starting at the very top of the logical chain, the first question is major as the proposal is certainly going beyond the Confederation which then existed. This may seem minor to us, generations onwards, but it was a major point that Brutus would then reduce piece by piece to understand the parts of the system and what they meant as relative to the existing system. Over his papers Brutus would continue to examine the Constitution and even demonstrate logical problems of it, particularly in regards to slavery (which I examine, in part, here). These are not the ravings of a Monarchist, nor a rebel, nor a madman, but the considered examination of the Constitution in its part and whole which, as far as Brutus could write, is in many ways as good as or superior to the works of Hamilton, Madison, Jay, et. al. in the Federalist Papers or other allied Federalist writers. What is interesting is that some of the pieces by the Federalist Papers writers looked to be a response to Brutus, but on slavery Madison falls short, and far short, of the arguments presented by Brutus. Still, those arguments are not fabrications, but a logical examination of the role of the federal government in the system and what happens when the system is actually running.

This last is critical for all the Anti-Federalist writers as they saw the problems that happened in past governments (and even current ones) and realized that upon seeing the seeds of future problems in the Constitution it was incumbent upon them to call attention to them. The Bill of Rights would assuage a number of fears, but the majority of those dealt with more than individual rights, but what happens to a system that can be Amended and abridged either directly or indirectly via corruption and abuse of power. While Hamilton would point out there was no way to ever stop that, the human heart and mind being what it is, the Anti-Federalist view was that the path to such power should be hard, not easy.

Neglect of the system is also a point that a few brought up, and that is, perhaps, the easiest path of power for any seeking it: a population that is lax and lazy about their civic duty to help determine government will be easily led astray and impoverished, while those who govern will seek to rule, absolutely.

Speaking on this topic was Federal Farmer on 03 JAN 1788, Federal Farmer III :

De Lo[l]me well observes, that in societies, laws which were to be equal to all are soon warped to the private interests of the administrators, and made to defend the usurpations of a few. The English, who had tasted the sweets of equal laws, were aware of this, and though they restored their king, they carefully delegated to parliament the advocates of freedom.

I have often lately heard it observed, that it will do very well for a people to make a constitution, and ordain, that at stated periods they will chuse, in a certain manner, a first magistrate, a given number of senators and representatives, and let them have all power to do as they please. This doctrine, however it may do for a small republic, as Connecticut, for instance, where the people may chuse so many senators and representatives to assemble in the legislature, in an eminent degree, the interests, the views, feelings, and genuine sentiments of the people themselves, can never be admitted in an extensive country; and when this power is lodged in the hands of a few, not to limit the few, is but one step short of giving absolute power to one man - in a numerous representation the abuse of power is a common injury, and has no temptation - among the few, the abuse of power may often operate to the private emolument of those who abuse it.

Again examining past thought and then paralleling it with modern happenings via paraphrasing from known text. Here distance and sparseness of representation become corrupting. By not keeping vigilance against government giving interest to some over others, the good value it represents is degraded and becomes an object grab for power and riches.

Agrippa on 22 JAN 1788 in Agrippa XV would look at this and I break up the massive paragraph a bit to make it more readable:


Can any man, in the free exercise of his reason, suppose that he is perfectly represented in the legislature, when that legislature may at pleasure alter the time, manner, and place of election. By altering the time they may continue a representative during his whole life; by altering the manner, they may fill up the vacancies by their own votes without the consent of the people; and by altering the place, all the elections maybe made at the seat of the federal government. Of all the powers of government perhaps this is the most improper to be surrendered. Such an article at once destroys the whole check which the constituents have upon their rulers.

I should be less zealous upon this subject, if the power had not been often abused.

The senate of Venice, the regencies of Holland, and the British parliament have all abused it. The last have not yet perpetuated themselves; but they have availed themselves repeatedly of popular commotions to continue in power. Even at this day we find attempts to vindicate the usurpation by which they continued themselves from three to seven years. All the attempts, and many have been made, to return to triennial elections, have proved abortive. These instances are abundantly sufficient to shew with what jealousy this right ought to be guarded. No sovereign on earth need be afraid to declare his crown elective, while the possessor has the right to regulate the time, manner, and place of election. It is vain to tell us, that the proposed government guarantees to each state a republican form.

Republics are divided into democratics, and aristocratics. The establishment of an order of nobles, in whom should reside all the power of the state, would be an aristocratic republic. Such has been for five centuries the government of Venice, in which all the energies of government, as well as of individuals, have been cramped by a distressing jealousy that the rulers have of each other. There is nothing of that generous, manly confidence that we see in the democratic republics of our own country. It is a government of force. attended with perpetual fear of that force. In Great-Britain, since the lengthening of parliaments, all our accounts agree, that their elections are a continued scene of bribery, riot and tumult; often a scene of murder.

These are the consequences of choosing seldom, and for extensive districts. When the term is short, nobody will give an high price for a seat. It is an insufficient answer to these objections to say, that there is no power of government but may sometimes be applied to bad purposes. Such a power is of no value unless it is applied to a bad purpose. It ought always to remain with the people.


Here looking to the oligarchical setup of the Republic of Venice and the multi-province arrangement of the Dutch, along with the British Parliament, he utilizes comparisons of Republican forms of government to question the restraints in the proposed system. What is surprising to most modern readers, who come to the Anti-Federalists thinking they are just carping on a few points, is not only the variety of positions they take, but the solutions they offer to actually fixing the Constitution. These are not modern critics who only complain: they offer in-depth and substantive looks across history and then propose methods to better ensure that the path to absolute power is strewn with obstacles while still allowing the overall system to work effectively within the restrictions it has.

Centinel would go to the heart of the matter in Centinal No. 8 on 29 DEC 1787:

But as it is by comparison only that men estimate the value of any good, they are not sensible of the worth of those blessings they enjoy, until they are deprived of them; hence from ignorance of the horrors of slavery, nations, that have been in possession of that rarest of blessings, liberty, have so easily parted with it: when groaning under the yoke of tyranny what perils would they not encounter, what consideration would they not give to regain the inestimable jewel they had lost; but the jealousy of despotism guards every avenue to freedom, and confirms its empire at the expence of the devoted people, whose property is made instrumental to their misery, for the rapacious hand of power seizes upon every thing; dispair presently succeeds, and every noble faculty of the mind being depressed, and all motive to industry and exertion being removed, the people are adapted to the nature of government, and drag out a listless existence.

If ever America should be enslaved it will be from this cause, that they are not sensible of their peculiar felicity, that they are not aware of the value of the heavenly boon, committed to their care and protection, and if the present conspiracy fails, as I have no doubt will be the case, it will be the triumph of reason and philosophy, as these United States have never felt the iron hand of power, or experienced the wretchedness of slavery.

That is one of the hardest pieces of prediction to read from the Anti-Federalists as it speaks of a future time in which we have so discounted Liberty, so taken it for granted, that we do not understand its blessing as it relates to moderate and small government that only has a role to protect us.

The methodology for such a thing is laid out by many authors, but Cato condenses it best in Cato No. 6 on 13 DEC 1787,:

In what manner then will you be eased, if the expences of government are to be raised solely out of the commerce of this country; do you not readily apprehend the fallacy of this argument. But government will find, that to press so heavily on commerce will not do, and therefore must have recourse to other objects; these will be a capitation or poll-tax, window lights, &c. &c. And a long train of impositions which their ingenuity will suggest; but will you submit to be numbered like the slaves of an arbitrary despot; and what will be your reflections when the tax-master thunders at your door for the duty on that light which is the bounty of heaven. It will be the policy of the great landholders who will chiefly compose this senate, and perhaps a majority of this house of representatives, to keep their lands free from taxes; and this is confirmed by the failure of every attempt to lay a land-tax in this state; hence recourse must and will be had to the sources I mentioned before. The burdens on you will be insupportable-your complaints will be inefficacious-this will beget public disturbances, and I will venture to predict, without the spirit of prophecy, that you and the government, if it is adopted, will one day be at issue on this point. The force of government will be exerted, this will call for an increase of revenue, and will add fuel to the fire. The result will be, that either you will revolve to some other form, or that government will give peace to the country, by destroying the opposition. If government therefore can, notwithstanding every opposition, raise a revenue on such things as are odious and burdensome to you, they can do any thing.

Now this strikes very close to the modern time as what is 'Cap and Trade' or a 'carbon tax' other than a window light tax? The question of submitting to such 'reasonable' taxes is that they are unreasonable in the extreme, as when government can reach into your very home to tax what you do, then you are a slave to government. Any government that could raise such a revenue will be odious, burdensome and will be able to do anything it wants to you.

Harsh words and nearly prescient, as it correctly describes our current state of affairs from back in 1787.

This is what happens when the past is used to examine the present: future conditions can be considered and questions raised about present actions.

Today we stand at the precipice that the Anti-Federalists looked at and gritted their teeth in and behaved in a civil manner so as to try and ameliorate the things they saw that would come from such a government as proposed. Many of their arguments were forestalled by the Bill of Rights, but even those that would be addressed directly by the Bill of Rights did not address the other powers of government to circumvent those rights. We have seen single branches become weak for a time, and bad laws passed and instated, then as powers shift those openings are then exploited for uses far and beyond the first law given. Such is the state of the Interstate Commerce Clause that government can regulate anything at your local level that it feels it wants to based on a nebulous 'National Market'. That poor reasoning started in the Supreme Court, then was expanded by the Legislative and then backed by the Executive, and yet the power as given was highly circumscribed to not allow the federal government to do any such thing.

The Anti-Federalists were more than just naysayers, although there were a few that were just that, the majority were critics of the power arrangement as given not just due to animosity to those who wrote it, but due to the problems in what was written. While their motivations ranged from base to intellectual, their perseverance to the cause of Liberty an their Patriotism to restricted government cannot be more highly said. As Atticus would write in Atticus No. 1 from 9 AUG 1787, this was more than just the Constitution that was being examined:

Republicanism, a few years ago, was all the vogue of politicians. "A government of laws and not of men." But now the aristocratics and monarchy-men on the one hand, and the insurgent party on the other, are with different views contending for a "government of men, and not of laws." The weakness of republics is become the everlasting theme of speculative politicians. While a man of less enthusiasm, on remarking the extravagancies of parties, is ready to say,

For forms of government let fools contest,
Whate’er is best administ’red is best.

But even this is not strictly true. A government may be deficient in its form: and afford no principles on which the executive power shall proceed. We may therefore define a good government thus. It is that which contains a good system of laws, with provision suitable and sufficient, for the putting them into execution. By whatever name such a government be called, it is a good one. The goodness of forms of government is, however, almost wholly relative. Some agree with one nations, with respect to their temper and circumstances, some with another. Habit and actual experience alone, can absolutely determine that which is fit for any individual State.

Liberty, when considered as a power, is the unrestrained power of acting reasonably: As a privilege, it is the security which a man feels in acting rightly and enjoying the fruit of his own labor. When either of these are wanting, the people are not free, although their government may be called a democracy. When these exist, the people are free, although the government may be stiled an absolute monarchy. For an absolute, and arbitrary government, are very different things.

Liberty is the unrestrained power of acting reasonably, so as to ensure the security which we feel in acting rightly and enjoying the fruits of our labor.

Government must be limited for us to have Liberty.

And as our system now degrades to attempt to please everyone so as to secure absolute power in the federal government, we can look to those that came before us who criticized the system.

Who weren't listened to.

Now we shall pay dearly for ignoring their insights.

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