The Anti-Federalists and the administrative state

  • 17 July 2019
  • NormanL

Many of us have read the Federalist Papers, the articles penned by James Madison, John Jay and Alexander hamilton that helped win adoption of the U.S. Constitution. But almost as many are not familiar with the other side of the argument -- from the Anti-Federalists. They, too, wrote a series of articles on what they saw as the weaknesses and potential dangers in the proposed Constitution. 

The Wall Street Journal interviewed Judge Andrew Oldham, a Trump appointee to the 5th Circuit Court of Appeals, who has made it his job to raise our awareness of what the Anti-Federalists stood for and what we can still learn from them:

The Anti-Federalists’ arguments were often “scattershot,” Judge Oldham says, partly because they “weren’t collaborating in the same way” as their Federalist rivals. But they all worried that basic liberties were at risk “if we have a new federal government that has new power, and no Bill of Rights.” The Anti-Federalists would ask: “What if Congress does X, and it’s going to abridge my rights?” The Federalists would reply: “Congress can’t do X because Article I, Section 8”—Congress’s enumerated powers—“doesn’t have that power in it.”

Yet the Anti-Federalists’ reading of history was that “our rights are secure when we write them down on paper,” Judge Oldham says. Their models were the 1628 Petition of Right and the 1689 English Bill of Rights. States ended up ratifying the Federalists’ Constitution “on the premise that it would have these amendments to it.”

Judge Oldham is impressed by the prescience of Anti-Federalist concerns “about the way executive power would evolve over time.” In a forthcoming paper for the New York University Journal of Law & Liberty, he quotes the Anti-Federalist Cato (thought to be future Vice President George Clinton), who wrote that the presidency would “create a numerous train of dependents” in the executive branch, so that the president would end up “surrounded by expectants and courtiers”—an aristocracy, which might be compared to today’s Washington elite.

Oldham says the Anti-Federalists can help us understand the rise of the so-called Administrative State:

Liberals and conservatives are deeply polarized on the administrative state. So were the Federalists and Anti-Federalists in the late 18th century, yet they had a common tradition. Judge Oldham notes that “they’re all naming themselves after leaders of the Roman Republic”—Publius, Brutus, Cincinnatus—because they all supported republicanism and believed “the only legitimacy of the government” was that it acted on behalf of the people.

For all their disagreements, today’s left and right also believe this. But intense polarization, as the Anti-Federalists recognized, can create a fertile ground for tyranny. That makes fidelity to the Constitution all the more important, and reading the Anti-Federalists and the Federalists together can aid that project. Judge Oldham cites Sir Thomas More in Robert Bolt’s 1960 play, “A Man for All Seasons,” on the importance of always being faithful to the law, even when it doesn’t suit one’s immediate purposes: “If we cut down every law in England to get after the devil, then when the wind blows, and the devil turns round on you, where do you have to hide, with all of the laws of England being laid flat?”

In building the administrative state, progressives have aimed at vanquishing many devils—and in some cases succeeded. Yet they might have stretched the limits of the nation’s fundamental law in the process.

The University of Tulsa has a web page devoted to the original writings and speeches of the Anti-Federalists. It can be found here.