Civic education · legal record

Federalist and Anti-Federalist: two complete accounts

Candor to both ideologies. Not scored by the government that later won. Then the legal issues they left open, and the Lincoln pattern: acts while Congress was out, legalized after the fact, by a Congress that did not contain the dissenters.

How to read this

Do not start from the United States as it presently operates and work backward. That is how one ideology is made to look inevitable and the other is made to look like a mistake. Start from 1787–88, when the Constitution was a proposal. Nine states could put it into operation among themselves. North Carolina and Rhode Island had not consented. The argument was whether the plan was a confederated republic of states or a consolidated government over a single people.

Federalist and Anti-Federalist are not nicknames for two modern parties. They are two complete accounts of consent, scale, executive energy, courts, and the Bill of Rights. Candor means stating each account as its authors stated it — including what each side was willing to risk.

I. What the Federalists actually claimed

The Federalists did not claim the Constitution was a small, shy government. They claimed the Articles of Confederation had failed to pay debts, raise men, and regulate commerce, and that a republic on a continental scale needed energy, union, and a government that could act on persons, not only on states. Publius (Madison, Hamilton, Jay) is the brief.

• Union or anarchy. Without a competent general government the states would quarrel, tax each other, and invite foreign intrigue. Federalist 6–8, 15.
• Extended republic. A large republic does not abolish faction; it multiplies it so no single faction can lock the whole. Federalist 10. This is a claim about scale, not about tenderness toward minorities in a state.
• Partly national, partly federal. Ratification by peoples of the states; House national; Senate federal; President mixed. Federalist 39. Madison denied consolidation in theory while designing a government that could operate without waiting for state legislatures.
• Ambition against ambition. Structure, not parchment declarations, would keep the departments in their lanes. Federalist 51.
• Energy in the executive. Unity, duration, adequate provision, competent powers. A feeble executive means a feeble government. Federalist 70. Hamilton said this out loud. It is not a later smear.
• Independent judiciary. Life tenure; the courts as an intermediate body between the people and the legislature, to keep the latter within limits. Federalist 78.
• Bill of Rights unnecessary, even dangerous if incomplete. The people retained what they did not grant; listing some rights might be read as surrendering the rest. Federalist 84.

“Energy in the executive is a leading character in the definition of good government. … A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.”

Alexander Hamilton, Federalist No. 70 (1788).

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.”

Hamilton, Federalist No. 84 (1788).

Candor: the Federalists wanted a government that could act in a crisis without assembling thirteen legislatures. They thought the electoral forms and the extended sphere were enough. They lost the Bill of Rights argument as a condition of ratification, and they wrote the amendments. They did not lose the energetic executive. That design is in Article II because they put it there.

II. What the Anti-Federalists actually claimed

The Anti-Federalists did not claim America should have no union. They claimed the Philadelphia plan was a consolidation: a government over a single national people, with clauses elastic enough to finish the work later. Brutus, the Federal Farmer, Centinel, Cato, George Mason, Patrick Henry, and the North Carolina minority are the brief. North Carolina’s withheld consent — sixteen months outside the Union until a Bill of Rights was on the table — is the political fact, not a footnote.

• Consolidation. Necessary and proper plus the supremacy clause plus federal courts would, over time, leave the states as corporations. Brutus I.
• Scale. Free government requires representation that actually knows the people. A continent is too large; the center will not hear the rim. This is the small-republic claim, not a claim that farmers cannot read.
• Standing army and the sword. A general government with its own troops would not depend on the militia of the states. The sword and the purse in one remote hand.
• Courts that swallow courts. Brutus XI–XV: federal jurisdiction, equity, and “arising under” will draw all causes upward. The Supreme Court will construe the Constitution as it wishes, and there is no appeal from that construction.
• Energetic executive as a crown in a crisis. A single president, commander of the army, with patronage, will not remain a clerk of Congress when the country is afraid.
• Bill of Rights as the price of consent. Enumeration is how a people keep what they did not grant. Without it, “we the people” is a blank the government fills. Mason’s objections; the ratifying conventions’ recommendatory amendments; North Carolina’s refusal until the amendments moved.

“The territory of the United States is of vast extent; it now contains near three millions of souls, and is capable of containing much more than ten times that number. Is it practicable for a country, so large and so numerous as they will soon become, to elect a representation, that will speak their sentiments? … In so extensive a republic, the great officers of government would soon become above the control of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them.”

Brutus I (18 October 1787).

“There is no declaration of any kind for preserving the liberty of the press, the trial by jury in civil cases, nor against the danger of standing armies in time of peace.”

George Mason, Objections to This Constitution of Government (1787).

Candor: the Anti-Federalists lost the vote in enough conventions to put the Constitution into operation. They won the Bill of Rights, and they won the Ninth Amendment’s rule of construction — enumeration shall not be construed to deny or disparage others retained by the people. They did not win a weak executive, a small republic, or a construction of necessary-and-proper that stayed small. Later history is not a refutation of their warnings. It is, in large part, the record of those warnings coming due.

III. Both were right about something

The Federalists were right that the Articles could not do the jobs a union has to do. They were right that a republic can be large. They were right that parchment barriers without structure are weak.

The Anti-Federalists were right that “necessary and proper,” the tax power, federal jurisdiction, and a single commander would be read broadly once the government existed. They were right that a Bill of Rights was the only way a dissenting people would consent. They were right that an energetic executive would not wait for Congress in a crisis, and would then ask Congress to say that what had already been done was lawful.

A civic class that picks a winner and teaches the other as a curiosity is not candor. It is the later system teaching itself. This hall does not do that.

IV. Legal issues left open in 1788

The Convention and the ratifying debates did not close these questions. They remain live. They are not “policy.” They are allocation of power.

1. Who suspends habeas corpus. Article I, Section 9 places the suspension clause in the legislative article: the privilege shall not be suspended unless in rebellion or invasion the public safety requires it. It does not say the President is the judge of that condition. The Federalist account of executive energy implies he may have to act first. The Anti-Federalist account says if he is the judge of his own necessity, the writ is a favor.
2. Who takes the country to war. Congress declares; the President is commander. The line between “repel invasion” and “make a war” is the whole problem.
3. Necessary and proper. An auxiliary power, or a second Constitution. McCulloch (1819) read it broadly. That is a construction. It is not the only reading Brutus allowed.
4. Nature of the Union. Compact of states, or act of one people. Madison in Federalist 39 said both, on purpose. The Civil War was litigated with guns first and cases after.
5. What a Congress is when a section of the people is not seated. The Constitution assumes the states are in the room. It does not say what happens when they are not, or when seating is made the price of a result.
6. When a court may reach the question. If the injury is live only during the emergency, and the opinion comes after, the government has already won the only moment that counted.

V. Lincoln: Congress out, then a Congress without dissenters

This section is not a eulogy and not a denunciation. It is the case in which Federalist energy and Anti-Federalist warning met. The facts are dateable.

A. The window while Congress was out

Fort Sumter fell 13–14 April 1861. On 15 April Lincoln called 75,000 militia and summoned Congress to a special session — for 4 July 1861. He chose the date. For eleven weeks the President, not Congress, was the federal government that acted:

• 15 April — call for troops; special session set for July 4.
• 19 April — blockade of Southern ports. A blockade is an act of war. Congress had not declared one.
• 27 April — order to General Scott authorizing suspension of habeas corpus along the military line between Philadelphia and Washington. Later orders extended the line (Florida coast, 10 May; Philadelphia–New York, 2 July — two days before Congress sat).
• Enlargement of the regular army and navy, and the drawing of funds, beyond what existing statutes clearly allowed.

This is the first and only time a President has claimed to suspend the writ without prior congressional authorization. Jackson had declared martial law at New Orleans in 1814–15 as a general in the field. He was not sitting as President in Washington designing a continental policy.

B. Merryman — litigated, then ignored

John Merryman was arrested 25 May 1861 and held in Fort McHenry. Chief Justice Taney, sitting on circuit, issued the writ. The commanding general refused, citing the President’s order. Taney’s opinion in Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861), is the Anti-Federalist construction in a black-letter form: the suspension clause is in Article I; Congress is of necessity the judge of whether public safety requires suspension; the President’s duty is to take care that the laws be faithfully executed, not to suspend them.

Lincoln did not produce Merryman. He did not appeal. The full Supreme Court never heard the case while the body was in the fort. That is what “never properly litigated” means here: there was a court, there was an opinion, there was no enforcement and no timely review. The writ was answered by the army.

On 4 July Lincoln told the special session: the whole of the laws which were required to be faithfully executed were being resisted; “are all the laws but one to go unexecuted, and the government itself go to pieces, lest that one be violated?” That is the Federalist 70 sentence in wartime. It is also the sentence Brutus said a single executive would eventually speak.

C. Retroactive legality

On 6 August 1861 Congress enacted that all of the President’s acts, proclamations, and orders respecting the army, navy, militia, and volunteers after 4 March 1861 “are hereby approved and in all respects legalized and made valid, to the same intent and with the same effect as if they had been issued and done under the previous express authority and direction of the Congress of the United States.” That formula is the thing itself: not “we now authorize,” but “we declare the past was already authorized.”

The blockade was upheld in the Prize Cases, 67 U.S. 635 (1863), 5–4. The captures were lawful from the President’s proclamation, the Court said, because a civil war is a fact, not a congressional courtesy. The dissent (Nelson) said a war of that kind is for Congress to make. The majority opinion is the Federalist result. The dissent is the Anti-Federalist allocation. It was decided after ships were already taken.

The Habeas Corpus Suspension Act, 3 March 1863, came nearly two years after the first suspension order. Congress then authorized the President to suspend. That is the order the Constitution’s placement of the clause implies. It is not what happened in April 1861.

Ex parte Milligan, 71 U.S. 2 (1866), held that a civilian may not be tried by military commission where the civil courts are open. It was decided after the war, when the commissions had already done their work. Justice Davis: the Constitution is not suspended by the government it creates. That sentence is the Anti-Federalist remnant, spoken when it could no longer stop the arrests.

D. A Congress with the dissenters not in the room

The 37th Congress sat without the eleven states that had claimed to leave. That is a fact about the body that passed the August 6 legalization and the later war statutes. Whether secession was lawful is a separate question. The effect on the legislature is not: the section of the country that dissented from the war policy was not voting. The Anti-Federalist fear of a distant majority that cannot hear the rim was, in that Congress, a seating chart.

After the war, readmission was made to turn on new state constitutions and on the Fourteenth Amendment. Members from those states were not seated until the result was locked. Ironclad oaths kept men who had given Confederate aid out of federal office. Again: whether those conditions were wise is one argument. Whether they produced a Congress that could “legalize” the war settlement without the dissenting section in the chamber is not an argument. It is the procedure that was used.

An accuracy note: this is not a claim that every Union statute of 1861–68 is void, or that Taney’s circuit opinion bound the United States as a Supreme Court judgment (it did not). It is a claim that the sequence was act first, ratify after, litigate last — and that the ratifying Congress was not the Congress the Constitution describes when all the states are in it. “Retroactively legal” is Congress’s own phrase on 6 August 1861.

VI. Current problems — the same split

Do not read 1788 through today’s parties. Read today’s legal habits through 1788.

• Emergency first, statute later. The August 6 formula is now ordinary: proclamations, authorizations for use of force, continuing resolutions, and “we legalize what was done.” The Federalist wanted energy. The Anti-Federalist wanted the energy to wait for the legislature. The present habit is energy, then a legislature that prefers not to vote a clean no.
• Executive as a maker of rules. Hamilton’s executive was to execute. The administrative state writes the law-shaped thing and calls it execution. That is Brutus’s consolidation by clerks, not Publius’s energy in a single man who can be voted out.
• Courts after the fact. Standing, mootness, political-question, and delay. Merryman and Milligan are the ancestors: the live body is not in the courtroom when the opinion arrives. The coalitions brief in this hall already traces that pattern under Bruen.
• A Congress that ratifies rather than authorizes. If the dissenters are not seated, or not allowed a vote that can stop the machine, “consent of the governed” is the Federalist’s forms without the Anti-Federalist’s condition.
• Habeas and detention. Article I, Section 9 is still in the legislative article. Every later suspension and every later claim that the President may hold without charge still has to answer Taney’s placement argument, whether or not one likes Taney.

The Federalist contribution that must remain absolutely clear: a union that cannot execute is not a government; energy in the executive is a design choice, not an accident; an extended republic can break a local faction.

The Anti-Federalist contribution that must remain absolutely clear: consent is withheld until the rights are written; the clauses will be read to the limit; a single executive in a crisis will not wait; a court that speaks after the jail is empty has not done the job; a Congress that legalizes the past, without the dissenting section in the chamber, is not the legislature the people were told they were creating.

Both accounts are still the law’s parents. Neither is a mascot. This hall will not flatten one to flatter the other, and it will not pretend that later ratification turns an unlitigated act into a founding analogue.

Primary texts: The Federalist (1787–88); Brutus I, XI–XV; Mason, Objections; North Carolina Hillsborough journal (1788). Cases: Ex parte Merryman, 17 F. Cas. 144 (1861); Act of Aug. 6, 1861, 12 Stat. 326; Prize Cases, 67 U.S. 635 (1863); Habeas Corpus Suspension Act, 12 Stat. 755 (1863); Ex parte Milligan, 71 U.S. 2 (1866). Civic record, not legal advice.