As well as appealing to the sense he
knew all reasoning Americans possessed of their innate and unalienable rights
(British-derived though they mainly were), Robert Yates also raised several
questions in Brutus II that concerned the specific wording of certain sections
of the proposed constitution, and how those sections could potentially be
applied. Unlike his inquires that had to do with natural rights, and which
showed the mind of a political philosopher at work, Yates’ assertions which
related to the actual text of the Constitution and its interpretation were the
work of a practised legal scholar. Sharply focussed, Yates pinpointed two
particularly troubling aspects of the draft of the Constitution that was
submitted to the states in 1787/88 which would prove to be fundamental to two
centuries of debate in the United States over the nature and extent of the
federal government and the power it wields. In so doing, Yates’ intention was
to further punctuate the need for a codified bill of rights to be included in
the draft constitution then under debate. Unintentionally, however, he was
reinforcing what I referred to in the previous post as one of the American
people’s more unusual aspects; their abiding constitutionalism.
Because
of the experience they had gained living under charter-governed colonial
regimes, and then put into practice themselves in the 1770s and 1780s in their
respective states, Americans had become acutely aware of both the strengths and
weaknesses of written constitutions. Worded too specifically and they could
prove inflexible and burdensome; too vaguely and they could be easily abused.
There was a delicate balance that needed to be struck, and in 1787/88 it was
still unclear whether or not the delegates in Philadelphia had hit the mark.
Then as now, speculation abounded as to what the overall intentions of the Framers
had been; to largely preserve the independence of the states while creating a
federal government that was more efficient within its limited sphere, or drastically
alter the balance of power in favor of a centralized authority at the expense
of the states? After scrutinizing
certain aspects of the raw text of the Constitution, Yates believed that the
latter was the case and was keen to make it known.
The
first criticism he leveled was one he seemed to happen upon almost unintentionally.
The thrust of Yates’ argument in Brutus II concerned the necessity of including
a bill of rights in the proposed constitution. The Framers, he wrote, had
argued in defense of the exclusion by claiming that the existence of similar
declarations of rights in the various state constitutions rendered a similar
instrument in the federal charter redundant. To that end Yates discussed which
of the rights represented in the state constitutions he felt were most
essential, and then pointed to certain sections of the proposed constitution
that made explicit mention of them. What he claimed to have uncovered ran quite
contrary to the claims made by the Framers. In Section nine of Article one,
Yates pointed out in paragraph eleven of Brutus II, the Constitution declared
that the writ of habeas corpus shall not be suspended unless in cases of
rebellion, that no bill of attainder (whereby a legislature could declare
someone guilty of a crime without benefit of trial) or ex post facto laws shall
be passed, and that no title of nobility shall be granted by the United States.
Though Yates did not disagree with any of these declarations in principle, he
was at a loss to explain their purpose. At no point did the Constitution
explicitly grant the power of suspending habeas corpus, passing ex post facto
laws, or any of the other offences that these statements would seem to guard
against. In that case, what was the purpose of these restrictions? “The only
answer that can be given is,” Yates wrote, “That these are implied in the
general powers granted. With equal truth it may be said, that all the powers
which the bills of rights guard against the abuse of, are contained or implied
in the general ones granted by this Constitution.” By leveling this criticism
Yates was drawing attention to what would become one of the most hotly debated
concepts embodied in the Constitution, that of implied powers.
As
written constitutions are meant to explicitly demarcate and limit the powers
and responsibilities of a government, the notion that there are certain actions
a government could accomplish that are only implied (and not clearly stated) by
its charter has historically proven to be extremely problematic. In the case of
the United States Constitution, this idea is most often felt to be embodied by
the “Necessary and Proper Clause.” Located in Article one, Section eight, it
states that the United States Government has the power, “To make all Laws which
shall be necessary and proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the Government of the
United States, or in any Department or Officer thereof.” Constitutional
interpretation being an inexact science at the best of times, this sentence has
been used to justify any number of measures over the last two centuries of
American history that would not seem to have been explicitly sanctioned by the
nation’s governing charter. The Constitution, for instance, makes no explicit
mention of the State Department, the Treasury, a national bank, or any cabinet
secretaries. The Washington Administration, however, felt that all of these
things were necessary and proper for the fulfilment of its stated duties and
responsibilities. While this is not a particularly objectionable example,
measures that have invoked the Necessary and Proper Clause often met with stiff
resistance from advocates of strict constructionism who questioned the
propriety of their government assuming too many powers that the Constitution
did not clearly describe or limit. Robert Yates would seem to have been in this
camp as well, though the offending clause was not the specific source of his
chagrin.
Rather,
Yates’ alarm stemmed from the Framers’ apparent need to create explicit limits
to powers which did not otherwise seem to exist. If, as they claimed, the bills
of rights contained in the state charters were protection enough against the
powers granted by the proposed constitution, why did they also feel the need to
echo certain among them? If the state constitutions already guaranteed habeas
corpus (and most of them did), and the federal constitution didn’t grant the
explicit power to suspend it, why declare that the writ would not be violated? As
aforementioned, the only conclusion Yates could see was that the Constitution
contained far more implied powers than the Framers were willing to let on, and
that the exclusion of a federal bill of rights was little more than an attempt
to limit the restrictions on their use. This fact, as Yates understood it, was
made all the more distressing by the second section of the Constitution he
chose to highlight in Brutus II, the so-called “Supremacy Clause.”
Located
in Article six, and ever the bane of state’s rights advocates, the Supremacy
Clause flatly declares that, “This Constitution, and the laws of the United
States which shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States, shall be the
supreme law of the land [.]” In Yates’ mind this was tantamount to the Framers
effectively abolishing all of the state constitutions, in as much as they would
be considered null and void if they were found to be in conflict with the
federal Constitution. Not only that, he continued in paragraph thirteen of
Brutus II, but all laws passed by the Federal Congress in pursuance of the
Constitution would likewise obliterate contradictory state statutes. “No
privilege,” Yates wrote, “Reserved by the bills of rights, or secured by the
state governments, can limit the power granted by this, or restrain any laws
made in pursuance of it.” The argument the Framers made about the adequacy of
the various state declarations of rights to guard the liberties of the people
was thus entirely false. If the Federal Congress chose to abridge certain
rights in pursuit of some higher objective and was not limited in any way by
the text of the Constitution, the bill of rights of Massachusetts or Virginia
could offer no effective legal barrier.
Worse
yet, if that was possible, was the potential for abuse inherent in the
treaty-making abilities the Constitution granted the President. Along with the
laws passed by Congress, the Supremacy Clause grants treaties signed by the
United States the status of “supreme law of the land.” The terms of such
treaties would thus supersede all state laws, up to and including their
constitutions. As treaty-making powers rested solely with the President, and
their adoption only required two-thirds of the Senate, Yates perceived that the
terms of the Constitution effectively reduced the number of people would could
drastically alter or abridge the civil rights of American citizens to a
distressing few. How could the states how to guard against such a potentially
arbitrary, and yet irresistible, exercise of federal power? “The most important
article in any [state] Constitution may therefore be repealed,” Yates asserted
in paragraph fourteen, “Even without a legislative act.” In all it was Yates’
overwhelming conclusion that a federal bill of rights was the best, and in some
cases only solution, to problems presented by these kinds of alarming
eventualities.
Having
said all of that, and by way of conclusion, I think it’s important to recall a
few things about the Anti-Federalists and their legacy. In as much as its
supporters failed to achieve many of their stated objectives, chief among them
the rejection of the Constitution or the inclusion of a bill of rights prior to
ratification, Anti-Federalism was arguably on the losing side of one of the
earliest and most polarizing political debates in post-Revolutionary American
history. And though consequently many of its most ardent advocates became
staunch opponents of the federal government that came into existence in 1789,
anti-federal agitation gradually faded away as new ideological and regional
fault lines began to take shape in the United States. By at least the turn of
the nineteenth century, and certainly by the 1820s, few if any prominent
Americans would have been quite so willing to denounce the Constitution and the
government it created as Robert Yates, Patrick Henry, and their contemporaries
had been in the late 1780s. In spite of this eventual disappearance, however,
the Anti-Federalists left an indelible mark on the history and political
culture of their country.
The United States Bill of Rights,
taken up in June, 1789 as one of the first legislative measure of the First
Congress, was a parcel of ten amendments to the Constitution that, among other
things, guaranteed freedom of speech, religion and of the press, protected the
right to bear arms and of trial by jury, and guarded against unlawful search
and seizure and cruel and unusual punishment. Submitted for ratification in
September of the same year, Virginia became the last of the original states to
approve in December, 1791. As a clear and unambiguous declaration of the rights
and liberties enjoyed by every single American, the Bill of Rights was
precisely what many of the Anti-Federalists (Yates included) had demanded
during the ratification debate. And because it was a part of the Constitution
proper, the rights therein could not be abridged by either the Federal Congress
or any of the various state legislatures without further amendments. Their unglamorous
departure aside, it was a stunning victory for the Anti-Federalists – thanks to
their efforts, their speeches and broadsides and essays, they had helped make
the personal and unalienable sovereignty of the individual an unshakable
cornerstone of the supreme law of the American republic.
But
more than that the Anti-Federalists, and the Federalists for that matter,
helped establish one extraordinarily important fact about how American
political culture could function. While in later periods, from the early
nineteenth century to the present day, political conflict in the United States
has been expressed in legislative deadlock and obstructionism, ad hominem
personal attacks, and even threats of armed resistance, the disagreements
between the Federalists and Anti-Federalists were comparatively restrained.
Tempers ran hot at times, but the main forum of disagreement seemed to be
confined to the printed page. Rational debate provided the battlefield and reason
and rhetoric the weapons. Rather than relying on the loudness of the voices and
the audacity of their claims, both sides counted on their audience being able
to distinguish a valid argument from an invalid one. They helped things along,
certainly, by structuring their assertions in such a way as to appeal or
insinuate, but threats of violence or personal attacks rarely if ever seemed to
factor into the efforts made by either the supporters or the critics of the
United States Constitution.
The Anti-Federalists in particular
seem to present a model of decorum and civility. They made a well-reasoned and
impassioned case against the adoption of the Constitution, in the process
pointing out many of its flaws and demonstrating how easily the new federal
power could be abused. Having failed to achieve their main goal, with the
ratification of the document they so ardently opposed, they didn’t threaten
secession, lead an armed resistance from within their respective state
governments or otherwise refuse to cooperate. Rather, many of them accepted the
altered status quo, sought seats in the Federal Congress and continued to
caution against runaway Federal power. In time this embryonic
Anti-Administration bloc would evolve into the Democratic-Republican faction
(whom I’ve spoken about before), one of the most influential political
organizations in the history of the early United States. In spite of their
“failure” in 1787/88, it seems, the Anti-Federalists achieved a great deal. And
I would submit that this was because of the way they conducted themselves,
their respect for reasoned debate, their acceptance of an unfavorable outcome,
and their rejection of sensationalist tactics.
Anyway, that’s how I see it. By
all means, judge for yourself: http://www.constitution.org/afp/brutus02.htm
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