September 27 marks the anniversary of the publication of the first of the Antifederalist Papers in 1789. The Antifederalists were opponents of ratifying the US Constitution. They feared that it would create an overbearing central government, while the Constitution's proponents promised that this would not happen. As the losers in that debate, they are largely overlooked today. But that does not mean they were wrong or that we are not indebted to them.

In many ways, the group has been misnamed. Federalism refers to the system of decentralized government. This group defended states rights - the very essence of federalism - against the Federalists, who would have been more accurately described as Nationalists. Nonetheless, what the so-called Antifederalists predicted would be the results of the Constitution turned out to be true in most every respect.

The Antifederalists warned us that the cost Americans would bear in both liberty and resources for the government that would evolve under the Constitution would rise sharply. That is why their objections led to the Bill of Rights, to limit that tendency (though with far too little success that has survived to the present).

Antifederalists opposed the Constitution on the grounds that its checks on federal power would be undermined by expansive interpretations of promoting the "general welfare" (which would be claimed for every law) and the "all laws necessary and proper" clause (which would be used to override limits on delegated federal powers), creating a federal government with unwarranted and undelegated powers that were bound to be abused.

One could quibble with the mechanisms the Antifederalists predicted would lead to constitutional tyranny. For instance, they did not foresee that the Commerce Clause would come to be called "the everything clause" in law schools, used by centralizers to justify almost any conceivable federal intervention. The 20th-century distortion of the clause's original meaning was so great even the vigilant Antifederalists could never have imagined the government getting away with it.

And they could not have foreseen how the Fourteenth Amendment and its interpretation would extend federal domination over the states after the Civil War. But it is very difficult to argue with their conclusions from the current reach of our government, not just to forcibly intrude upon, but often to overwhelm Americans today.

Therefore, it merits remembering the Antifederalists' prescient arguments and how unfortunate is the virtual absence of modern Americans who share their concerns.

One of the most insightful of the Antifederalists was Robert Yates, a New York judge who, as a delegate to the Constitutional Convention, withdrew because the convention was exceeding its instructions. Yates wrote as Brutus in the debates over the Constitution. Given his experience as a judge, his claim that the Supreme Court would become a source of almost unlimited federal over-reaching was particularly insightful.

Brutus asserted that the Supreme Court envisioned under the Constitution would become a source of massive abuse because they were beyond the control "both of the people and the legislature," and not subject to being "corrected by any power above them." As a result, he objected to the fact that its provisions justifying the removal of judges didn't include making rulings that went beyond their constitutional authority, which would lead to judicial tyranny.

Brutus argued that when constitutional grounds for making rulings were absent, the Court would create grounds "by their own decisions." He thought that the power it would command would be so irresistible that the judiciary would use it to make law, manipulating the meanings of arguably vague clauses to justify it.

The Supreme Court would interpret the Constitution according to its alleged "spirit", rather than being restricted to just the "letter" of its written words (as the doctrine of enumerated rights, spelled out in the Tenth Amendment, would require).

Further, rulings derived from whatever the court decided its spirit was would effectively "have the force of law," due to the absence of constitutional means to "control their adjudications" and "correct their errors". This constitutional failing would compound over time in a "silent and imperceptible manner", through precedents that built on one another.

Expanded judicial power would empower justices to shape the federal government however they desired, because the Supreme Court's constitutional interpretations would control the effective power vested in government and its different branches. That would hand the Supreme Court ever-increasing power, in direct contradiction to Alexander Hamilton's argument in Federalist 78 that the Supreme Court would be "the least dangerous branch."

Brutus predicted that the Supreme Court would adopt "very liberal" principles of interpreting the Constitution. He argued that there had never in history been a court with such power and with so few checks upon it, giving the Supreme Court "immense powers" that were not only unprecedented, but perilous for a nation founded on the principle of consent of the governed. Given the extent to which citizens' power to effectively withhold their consent from federal actions has been eviscerated, it is hard to argue with Brutus's conclusion.

He further warned that the new government would not be restricted in its taxing power, and that the legislatures war power was highly dangerous: "the power in the federal legislative, to raise and support armies at pleasure, as well in peace as in war, and their controul over the militia, tend, not only to a consolidation of the government, but the destruction of liberty."

He also objected to the very notion that a republican form of government can work well over such a vast territory, even the relatively small territory as compared with today's US:

History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.

   What you think you know might not be true Brutus accurately described both the cause (the absence of sufficient enforceable restraints on the size and scope of the federal government) and the consequences (expanding burdens and increasing invasions of liberty) of what would become the expansive federal powers we now see all around us. But today, Brutus would conclude that he had been far too optimistic. The federal government has grown orders of magnitudes larger than he could ever have imagined (in part because he was writing when only indirect  taxes and the small federal government they could finance were possible, before the 16th Amendment opened the way for a federal income tax in 1913), far exceeding its constitutionally enumerated powers, despite the constraints of the Bill of Rights. The result burdens citizens beyond his worst nightmare.

The judicial tyranny that was accurately and unambiguously predicted by Brutus and other Antifederalists shows that in essential ways, they were right and that modern Americans still have a lot to learn from them. We need to understand their arguments and take them seriously now, if there is to be any hope of restraining the federal government to the limited powers it was actually granted in the Constitution, or even anything close to them, given its current tendency to accelerate its growth beyond them.

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Taxes and the General Welfare Mises Daily: Monday, April 08, 2002 by Gary Galles

We are approaching April 15, when people's checkbooks remind them that even if "taxes are the price we pay for a civilized society," it doesn't follow that the civilization we get is worth the taxes we are forced to pay.

But this issue is hardly new. In fact, more than two centuries before our federal budget sped past the $2 trillion mark, those known as anti-federalists warned us that the price we would have to pay for government would rise. So as you struggle to understand the latest IRS forms, and particularly as you write that big check to the United States Treasury, it is worth remembering what they said.

The anti-federalists opposed the Constitution on the grounds that its checks on federal power would be undermined by expansive interpretations of promoting the "general welfare" (which would be claimed for all laws) and the "all laws necessary and proper" clause (which would expand limited federal power to all-inclusive), leading to a federal government so powerful that its powers were bound to be abused.

One particular concern was that it gave the national government almost unlimited taxing discretion. A leading proponent of that position was Robert Yates, a delegate to the Constitutional Convention who withdrew because the convention was exceeding its instructions. Yates wrote under the pseudonym of Brutus in the 1787 New York Journal.

Brutus described federal taxing power in one letter as one "that has such latitude, which reaches every person in the community in every conceivable circumstance, and lays hold of every species of property they possess, and which has no bounds set to it, but the discretion of those who exercise it."

In another letter, he said that "it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation . . . It opens the door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community [and] eat up their substance."

Brutus wrote that federal taxing powers "will introduce such an infinite number of laws and ordinances, fines and penalties, courts and judges, collectors, and excise men, that when a man can number them, he may enumerate the stars of Heaven," which sounds a lot like what millions of Americans face in the annual April torture of figuring out their IRS forms.

Brutus also clearly pointed out how invasive tax collection could become:

This power, exercised without limitation, will introduce itself into every corner of the city, and country--it will wait upon the ladies at their toilet, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into parlor, preside over the table, and note down all he eats or drinks; it will accompany him to his bedchamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labor, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them will be GIVE! GIVE!

Brutus quite accurately described both the cause (erosion of constitutional restraints on the size and scope of the federal government) and the consequences (citizens facing ever higher taxes from the government's collection agency) of expanded federal taxing powers . But he was writing only of the effects of direct (e.g., excise) taxes and the small federal government they could finance, long before the 16th Amendment overrode the tax uniformity clause and opened the way for a federal income tax in 1913.

Don't let anyone tell you that the rich are somehow escaping. The wealthiest 1 percent now pay more than a third of all the taxes. This far outstrips their 19-percent portion of taxable income. Meanwhile, taxpayers in the bottom half pay only 4 percent of the taxes. Because the rich make a large contribution to productivity and investment, everyone suffers from this game of redistribution.

If Brutus was here to witness our current tax tab, he would conclude that he had been far too optimistic. A federal government, grown orders of magnitudes larger than he could ever have imagined, guarantees tax burdens beyond his worst nightmare.

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Gary Galles, 9/27/2006
Gary M. Galles is a professor of economics at Pepperdine University.

See his Mises.org Articles Archive. See also "The Political Economy of the Antifederalists" by James Philbin, "Empire or Liberty: The Antifederalists and Foreign Policy" by Jonathan Marshall, "Live Free or Separate" by William Watkins, "Taxes and the General Welfare," by Gary Galles, and "Why the Bill of Rights," by Gary Galles.