Originally published September 2017.
We’re coming right up against the anniversary of the signing of the Constitution on September 17th, 1787. Two-hundred thirty years ago, our founders were in the process of tossing out the Articles of Confederation in favor of our new Constitution. Under the pseudonym Publius, Alexander Hamilton, James Madison, and John Jay were writing what we now call “The Federalist Papers” to drum up support for this new Constitution, and with it, this new republic that would unite the states under a single, more powerful, governing body.
But not everybody was on board with this new Constitution. One such detractor was a New York lawyer named Robert Yates (writing under the pseudonym Brutus), who began writing essays containing a very different message from that of Hamilton, Madison, and Jay. Yates actually attended the first month of the Constitutional Convention, so he had firsthand knowledge of the details of the Constitution being proposed.  I was reading his first essay recently (Brutus I), and he leveled extensive criticisms of the Constitution and of the government that would result from it. I couldn’t help but wonder what he’d think of the country today, and of the fact that it’s lasted as long as it has, given his criticisms.
Modern Americans are blessed with two-hundred thirty years of hindsight and education about the founding of the country and of the Constitution. We’ve all been taught about the great things about the Constitution and why our country has been a successful one for as long as it has (though according to some recent polling, few people are retaining what they were taught). But Yates didn’t have the benefit of any of that hindsight. He only had his own knowledge about government and a historical perspective on former republics as basis for his arguments. But the truth is, even at his historical disadvantage, he made some pretty good points (and at least one not-so-good-one, in my estimation). Since we’ve had all this time now to test out the validity of his claims, let’s see how they stack up.
In his first anti-Federalist essay, Yates proclaims two possibilities from his perspective: The first possibility is that the men who wrote and signed the Constitution will be heralded as heroes for generations to come, that uniting the states under this Constitution would lead to greater liberty, and that “the human mind will expand in knowledge and virtue, and the golden age be.” To be clear, he didn’t really see this as a possibility as he went on to make clear in the rest of the essay; it was more of a rhetorical device. And the second possibility is reminiscent of something out of a twentieth-century dystopian novel, where “subversion of liberty” and “despotism” become the rule. Unless you’re a radical extremist of some sort, I think we can generally agree that the country generally turned out more like the first of Yates’s two predictions. We’ve had (and still have) our fair share problems, but we have worked to correct them and over the centuries, and we continue to do so.
One very specific complaint about the Constitution lodged by Yates in the first essay was about what has become known as the “necessary and proper” clause (Article 1, Section 8). This was the part of Yates’s essay where I realized that he was going to be making a pretty good case, because I still see people arguing over this clause today, centuries later. The necessary and proper clause has been used to justify everything from the formation of a national bank (only four years after Yates wrote this essay) to elements of FDR’s New Deal. I’m quite sure if Yates had still been around to see the Constitution used to justify the expansion of the federal government to the extent that the New Deal did, he would have felt even more justified in his condemnation.
The next specific complaint he made was against what is known as the Supremacy Clause of the Constitution (Article 6 Clause 2). He essentially argues that there’s not even any point to having states anymore under this system. What’s the point? he argues, when the federal government will have all the power to overrule them at its own pleasure.
In these first two arguments that I’ve described, I think Yates would find that there is still some sympathy for these arguments today, principally among conservatives who would be on board with Yates’s call for a smaller, not stronger, central government. However, I don’t think that anybody (of a reasonable persuasion anyway) would argue that they are reason abolish the uniting principles of the country.
Ironically, Yates’s most persuasive argument (and the one he uses the bulk of his ink writing) may have come with a bit of help from Baron de Montesquieu (a French political theorist who some of the American Founding Fathers carefully studied and admired). Essentially, he cited work of Montesquieu that thoughtfully explained that a republic should be small. Yates goes on to make the case that any representative government that intends to serve millions of people (there were only three-million people America at this time – imagine if he knew we’d one day have more than three-hundred million) will undoubtedly become disastrously become bureaucratic and “unwieldly.” I don’t know about you, but I think there is a lot of truth in this idea. He supports this idea with examples of Greek and Roman republics which started small, but grew out of control and became tyrannical.
All of his arguments weren’t perfectly sound, in my estimation, however. He does argue that, historically, no standing army has ever been on the side of liberty, and thus, a standing army is antithetical to liberty. Obviously this raises the question: How does a country protect its interests if it has no means to ward off invaders? I think he missed the mark here.
So I ask: What do you think this critic of the United States of America, before it even officially became the United States of America, would think of our republic today if he had the benefit of two-hundred thirty years of hindsight? Would he see our history as proof that his ideas of an out-of-control republic as confirmation of his suspicions? Or would he recognize that our Founding Fathers who wrote the Constitution (which has lasted longer than any other in history – and it’s not even close), had a pretty good idea of what they were doing, after all?
(2012) The U.S. Constitution: A Reader. 10th Edition. (Edited by the Hillsdale College Politics Faculty) Hillsdale, Michigan. Hillsdale College Press.
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