Anti-Federalists Part 6: Brutus

Brutus is possibly the most famous of the anti-Federalist writers in modern times. While his arguments are not as thorough as the Federal Farmer, nor as impassioned as Centinel, nor did he stand the test of time as well as Cato, he is first in eloquence and quotability. He also delivers on all of qualities mentioned above at a more than satisfactory level, and so he is considered the single best Anti-Federalist author.

Brutus was the pseudonym for Robert Yates, a New York judge, politician and delegate to the Constitutional convention. His letter to the New York Assembly was mentioned in a previous post. He would later run for the Governor of New York twice, losing to George Clinton and John Jay.

Brutus’ main concerns are similar to many of the Anti-Federalists we’ve looked at so far. He is primarily worried about the federal government engulfing the state governments and believes that the Bill of Rights is desperately needed.

On the second point, on the need of a Bill Rights, Brutus delivers the most compelling argument thusfar. The Constitution specifically forbids Bills of Attainder, ex post facto laws and ensures the right of habeas corpus. If these limitations on Congress’ power are needed, why not the things that appear in the Bill of Rights?  In my opinion, this clearly defeats the most prevalent Federalist arguments. against the Bill of Rights.

Before the question of how the federal government will engulf the state governments is considered, Brutus discusses why there needs to be state governments, and not just a single federal government. In doing so he repeats the Montesquieu quote Cato used about the nature of large republics.

It is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country. In a large republic, the public good is sacrificed to a thousand views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is easier perceived, better understood, and more within the reach of every citizen; abuses are of less extent, and of course are less protected.

His other reasons for wanting many small republics are that a small size is able to provide adequate representation with a reasonably sized legislature and that a diverse nation requires diverse laws. A confederation allows these small republics to operate nearly independently. Some power is necessarily ceded to the federal government, but Brutus feels this should be very narrowly specified by the Constitution.

Brutus also works towards developing a theory of government to help explain where he is coming from in his critique of the Constitution. His fundamental point is the sovereignty of the people. He believes that men are not angels, and fundamentally don’t change over the course of history. Brutus believes it is the tendency for governments to gather more and more power to them, only giving up power when revolution requires it. The fundamental purpose of government, according to Brutus, is to prevent violence and to promote the prosperity and happiness of the people. He acknowledges that governments require compromises on the liberty versus security of the people.

“The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established. To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect. But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, etc. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up.”

A main focus of Brutus’ essays discussing how the federal government is going to usurp the states and will tend towards despotism with time. He cites the Preamble to the Constitution as evidence it is intended to serve as a government for the people, not for the states. The states are not mentioned in the Preamble, and this is evidence the purpose of the Constitution is to render them irrelevant. The clear purpose of the Constitution, according to Brutus, is not confederation, but consolidation.

The makeup of Congress is a point of contention for Brutus. He argues, like the Federal Farmer, that one representative per 30,000 people (now one per 710,000) is far to few to actually be representative of that group of people. There is so much diversity among those 30,000 people that they cannot be adequately represented. He compares this to British Parliament which has about one per ten-thousand at the time.

“The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them—a representation of the people of America, if it be a true one, must be like the people. It ought to be so constituted, that a person, who is a stranger to the country, might be able to form a just idea of their character, by knowing that of their representatives.”

Even if Congress was somehow able to provide the kind of representation Brutus thought would be adequate, he believes it possesses far too much power, although he acknowledges the benefits and necessity of a functioning confederacy. The following quote, somewhat prophetic, shows how much he feared the powers being given to Congress:

“This power, exercised without limitation, will introduce itself into every corner of the city, and country-It will wait upon the ladies at their toilett, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and the 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 the parlour, preside over the table, and note down all he eats or drinks; it will attend him to his bed-chamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his 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 labour, it will be with him in the house, and in the field, observe the toil of his hands, arid 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!”

He goes on to enumerate his reasons for believing Congress will acquire so much power. Congress is given unlimited taxing authority, while the state’s taxing authority is limited to just direct taxes on citizens. This gives Congress extra taxation power, and squeezes out the states because they will have to share in direct taxation. What makes this seem particularly odd to Brutus is Congress, under the Articles of Confederation, had specifically asked to be given specific taxation powers starting in 1781 (5% import tax, for instance) and it was not granted. He believes that strict limits to the size and nature of taxes should be in the Constitution. The type of federal government Brutus envisions does not require much revenue, and limiting the amount and types of taxes available to it would prevent it from growing outside its set bounds. Likewise, he doesn’t believe Congress ought to be able to borrow unlimited sums.

Brutus takes a strong stance against a standing army. He concedes that men for frontier forts and enough of an army to repulse a surprise attack are prudent, he believes the Constitution should strictly limit the size of any standing army. Brutus’ main objection is that military coups are all too common in the history of republics, and that there is nothing that can be done to guarantee against them while there is a standing army.

“Besides, sir, we know the passions of men, we know how dangerous it is to trust the best of men with too much power. Where was a braver army than that under Jul. Caesar? Where was there ever an army that had served their country more faithfully? That army was commanded generally by the best citizens of Rome, by men of great fortune and figure in their country, yet that army enslaved their country.”

Brutus believes that the only thing that saves a free nation from its army is the personal qualities of the commanding general.

”But had [Washington], been possessed of the spirit of a Julius Cesar or a Cromwell, the liberties of this country, had in all probability, terminated with the war; or had they been maintained, might have cost more blood and treasure, than was expended in the conflict with Great-Britain.”

The remainder of Brutus’ essays deal with his issues with the judiciary and the Senate. He strongly believes there is not an effective systems of checks against the judicial branch and that it will slowly cause further expansion of Congress’ already too-broad powers. Brutus fears that the “intent” rather than the word of the law will be used to interpret law, as it was in Britain at the time. He fretted that the location of the Supreme Court would ensure only the upper classes had access to it, as traveling to Washington DC to make use of the court would be impractical for most. On the subject of judicial review, he states: “I believe [British courts] in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution.”.

Brutus looks to Britain as a model for structuring the courts. Rather than one Supreme Court, there are several top-level courts with different jurisdictions. The House of Lords can overrule court rulings they deem to be incorrect. The House of Commons could dismiss judges found to be incompetent or having bad judgement. He goes so far as to suggest that the old regal prerogative of dismissing judges would work for the US president due to the elected and non-hereditary nature of the position.

To the Senate, Brutus only offers one major suggestion before his series of essays finishes. He worries that the Senate holds large legislative power (approximately equal to that of the House), as well as executive power (confirming appointments) and judicial power (removal from office). He believes these should be spread to distinct bodies, and in the case of a Court of Impeachment, it ought to be popularly derived.

Brutus’ essays are wide-ranging but form a coherent narrative as he dissects the issues with the new constitution. He raises intelligent and interesting points that often stand up to modern scrutiny. His writings display a very realistic approach to governance, assuming that people and institutions will tend to act in the way they have in the past. He believes in very small republics with large legislative bodies that enable them to be very near to common people. It is my belief, that this type of thinking is a good guide for America today, and reading Brutus has helped me to focus some of my own thinking about politics.

 

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