Anti-Federalist Papers: Brutus II, Part II: Common Ground and Continuity

            When Brutus (or Robert Yates, as was almost certainly the scribe’s true identity) set out to confront the advocates of the United States Constitution in a series of essays publish in the New York Journal and the Weekly Register in 1787 and 1788, he did so very much in the spirit of opposition. The Massachusetts compromise, which allowed ratification to be linked to eventual amendment, had yet to take place and the object of most Anti-Federalists was at that time to entirely defeat the ratification effort and force either a second constitutional convention or an abandonment of the effort altogether. Yates, therefore, had little reason to be conciliatory or show any admission to the Federalist point of view. Consequently the tone of the majority of his essays is quite scathing (perhaps a factor in why they are so memorable), showing a degree of contempt for the at-times vague language employed by the Constitution and a desire to expose what he perceived as the Framers self-interest and corruption. Nevertheless, Yates and him opponents were a part of the same generation of Americans. They’d been raised and educated in much the same intellectual environment, and in spite of their economic or cultural distinctions (being wealthy or middling, Dutch or English, Puritan or Quaker) most drew from the same basic philosophical well. There are, accordingly, more than a few appeals in Yates’ Brutus II to what would almost certainly have constituted common ground among members of the Revolutionary Generation.

            Among the first of these common references that Yates made was in the second paragraph of Brutus II, and concerned the notion of a social contract and natural rights. Like John Adams or Thomas Jefferson, Yates seemed keen to endorse the basic philosophical concept that all societies are based on an unspoken contract between rulers and ruled. Government is the reaction to perceived needs; people need protection, from each other and from outsiders, and so they form communities that provide certain services in exchange for a voluntary surrender of a portion of each member’s personal sovereignty. “The common good, therefore,” Yates wrote, “is the end of civil government, and common consent, the foundation on which it is established.” This is a classic example of social contract theory, and a concept fundamental to contemporary Western European philosophy. Though I know I’ve discussed this very concept in a previous post, some time has passed since then. For that reason, I’d like to take a moment to delve into a somewhat expanded refresher on the topic of the social contract.

            Natural law, natural rights and the social contract have been topics of discussion for centuries, perhaps millennium, among the foremost minds of their respective generations. From Ancient Greece and India, to Republican Rome and Renaissance Italy; they were hardly new ideas by the time of Yates and the Anti-Federalists. That being said, social contract theory as it was understood by the Revolutionary Generation in America was very much a product of the 17^th and 18^th centuries. The thinkers that would likely have resonated for them the most were Hugo Grotius, Thomas Hobbes and John Locke. Grotius (1583-1645) was a Dutch jurist, philosopher and statesman who theorised that every individual possessed certain rights that were not granted to them by monarchs or political institutions but were inherent to their existence as human beings. These rights were part of a moral framework that was not based on a specific religious doctrine, but rather stemmed from a sense of social acceptability that was born out of consensus. People, Grotius argued, were the prime sovereign actors in society and their actions were constrained by what they and their neighbours agreed was suitable behaviour. Hobbes (1588-1679), English philosopher and polymath, expanded on these ideas in the 1650s and formulated a more structured social framework than Grotius had imagined in the 1620s. While Hobbes was willing to endorse the notion of natural rights and was the first to describe the political arrangement between the governed and their governors as a “social contract,” his description of the concept was quite rigid. While Hobbes believed that individuals did cede some of their rights when they recognised the authority of law and government, he did not believe that these rights remained with the individual. Living within a society, he asserted, was tantamount to endorsing the authority that made that society possible; the only way to completely recapture ones rights would be to exit the social contract completely by living outside society in a state of complete anarchy.

            Locke (1632-1704), the great English republican luminary, was the social contract theorist that most educated American in the late-18^th century would have been familiar with and sympathetic towards. It was Locke that described the more flexible social contract that men like Jefferson fully endorsed, and that recognised rights and responsibilities on behalf of both the ruled and the ruler. He believed that the purpose of the state was to act as a neutral judge between individuals and communities, and to protect the life, liberty and property of those within its borders. A government that violated these terms was guilty of breaking the social contract, and thus offered itself up to be overthrown and replaced. Lockean social contract theory was very much at the heart of the rights-based ideology expressed by the American Founding Fathers and was prominently featured in the Declaration of Independence. Locke’s was not, however, the most recent articulation of the concept that the Founders would have had access to. Swiss thinker Jean-Jacques Rousseau (1712-1778) had developed his own formulation of social contract theory in his 1762 treatise, the aptly titled Social Contract. While not as widely known and read in America as Locke, perhaps because he was both radical and French, Rousseau was still highly influential among a certain (particularly well-read) percentage of the Revolutionary Generation. His argument was somewhat more abstract that any of his predecessors, and regarded the social body as almost an entity unto itself. Law and government, he wrote, were the product of social consensus and functioned best when individuals surrendered their wants and desires to the greater good. Representative government was, to Rousseau, a step in the right direction, but still created a barrier between people and their government and would need to be eventually transcended. To most of the Founders, who as they matured had been inundated by British rights culture, this self-abnegation was a bridge too far. Locke was their yardstick, and it was in a Lockean mode that Yates set out the beginnings of his argument in Brutus II.

            Though the Anti-Federalist Papers were certainly an instrument of opposition, in this case to the proposed Federal Constitution, they were also, like the Federalist Papers, a tool of persuasion. Yates and his fellow Anti-Federal authors wrote for an audience whose minds they were intent on swaying to their cause. Because of the way the Constitution had to be ratified by specially-formed conventions prior to its adoption this was far from an ineffective tactic. And in Brutus II Yates demonstrated one of the simplest ways he appealed to the reason of his readers, by establishing a sense of agreement and consensus between them and him. The social contract was a commonly understood concept among the class of men who were in attendance at the state ratifying conventions. If Yates could show how aligned the opinions of his audience already were with his own, convincing them to overcome the remaining differences was hopefully made all the simpler.

            It was doubtless in this mode that Yates also argued for the inclusion of a bill of rights in the federal constitution by citing past examples taken from both the British and American contexts. This was, in fact, the main object of Brutus II. Yates, among many others, felt the Constitution’s lack of a clearly defined series of legal protections for individual rights was highly suspect. For something that had formerly been highly revered in America (as the idea of a bill of rights certainly was), such a conspicuous absence struck many of the document’s critics as a naked attempt by those that stood to wield the powers granted to the new government to erase any legal roadblocks to their eventually assuming tyrannical authority. As the Anti-Federalists and Yates in particular were quick to point out, there existed in the 1780s much precedent to be found in favour of the inclusion of a bill of rights, or something like it. English legal history furnished two influential examples, the Magna Carta and the 1689 Bill of Rights. The former was drafted by a collection of rebellious barons in 1215 and forced on a reluctant King John I in exchange for allowing him to maintain his throne. Among other things, most having to do with now-obscure feudal privileges, the Magna Carta guaranteed certain rights to free-men (people not in service to a feudal lord) and the church, ensured standard practises in trial matters, and restricted the levying of fines so as not to endanger a person’s livelihood.

In spite of the fact that it remained in force until well into the 19^th century, however, the significance of the Magna Carta is largely symbolic. Indeed, the charter that was forced on John I in 1215 was almost immediately annulled by the crown; subsequent versions were issued by later monarchs in an attempt to placate the nobility, though these later Magna Cartas no longer contained the provisions that represented a direct challenge to the power of the monarchy. For example, the earliest drafts of the document included a provision that would have allowed the creation of a council of nobles who could meet in order to review the monarch’s behaviour. If it was found that the king/queen was in violation of the rights granted by the charter, the council could authorise the seizure of crown property. This clause was highly objectionable to John I and his successors, and subsequent versions of the Magna Carta (most notably the 1297 draft that was submitted to and approved by parliament) omitted it entirely. Nevertheless, the idea of the Magna Carta, that even monarchs were not above the rule of law and could be bound by their subjects to respect certain rights, proved highly influential both in Britain and in America. Among other things, it came to be regarded as the cornerstone of what’s known as the unwritten British Constitution, and led to the emergence of Parliament as a body that represented the interests of the kingdom apart from the crown and wielded significant legal authority on its own.

Over the centuries that followed the distinct legal authority and identity of Parliament grew and evolved, and the British tolerance for unchecked monarchical power waned. In 1689, the overthrow of James II and the installation of his daughter Mary and son-in-law William as joint monarchs witnessed yet another evolution of the British Constitution in the direction of codifying the rights of the people and the restrictions placed on the crown. The subsequent Bill of Rights was, as previously discussed, the culmination of nearly fifty years of conflict between Parliament and the monarchy. As a piece of legislation, it enshrined a variety of individual protections into British law; among them were guarantees of the freedom to bear arms, freedom of speech, freedom from cruel and unusual punishment, and prohibitions against royal interference in function of the law. Symbolically, its significance was perhaps more far-reaching. For Englishmen in the late-17^th century the Bill of Rights confirmed what they already felt in their hearts; that they were among the freest people in the world and the most conscious of their rights. Over the course of the 1600s they had faced down the spectre of absolute monarchy and slain it, and the Bill of Rights was the great symbol of their victory. Americans, who in the main were of British heritage, felt this sense of pride no less than their brothers across the Atlantic. Among the Founding Generation, the Bill of Rights was one of the most highly regarded and widely cited examples of the British freedoms the revolutionaries felt had been taken from them and which they hoped to reclaim.

            By pointing to both the Magna Carta and the 1689 Bill of Rights as objects of inspiration Yates was affirming his and his countrymen’s legal heritage, harkening back to the founding of the United States (as a revolt over the violation of established rights) and once more attempting to establish a common ground between himself and his readers.