Year XLII, 2000, Number 1, Page 156

 

 

The Debate between American Federalists and Antifederalists from 1787 to 1800 and Its Current Situation
 
FRANCO SPOLTORE
 
 
Introduction
 
It is difficult to foresee whether and on which text European States will agree to adopt a Federal Constitution. However, we can safely say that, though the European Federation will not be a copy of the American one, the obstacles to be overcome in the early phases will be similar to those present at the time of the establishment of the American Federation. A first confirmation of this hypothesis comes from the debate that arose after declarations made by the heads of certain European governments[1] in favour of the European Constitution. The terms of this debate are analogous to those of the debate between American federalists and antifederalists of more than two centuries ago. A debate in which the American constituents tried to answer questions such as: Should the central government of the Union be stronger than that of individual States? What powers should it have? Who will represent the people? Who will be head of the Union? What rights should be guaranteed to citizens with regards the Government? Can a State be brought before a Court of Law? Who will guarantee peace among the States? Who will have the power to stipulate international agreements? Can single States keep armed militia?
If we think of the European Union and not the United States of America, we can see these questions are still topical today. This modernity also emerges from the arguments of those who today are opposed to the creation of a federal European government. From their arguments it would emerge that the defence of particular interests and sovereignty are, today as in the past, the major obstacles on the road to federation. In fact, contemporary anti-federalism, similarly to that of America, is rooted in the idea of a State, sovereignty, people and rights that do not permit the democratic growth of the government sphere from one to more States to achieve peace. It is an idea that Nationalism exhausted, but did not invent, and that the American federation dented but didn’t beat, as is seen by the difficulty in creating new continental federations outside America. In fact, if historical experience and reason suggest that a federation is the real alternative to international anarchy, anti-federalism still continues to prevail as our choice.
The reason is found in Machiavelli’s Principe in the chapter on new principates.[2] Inertia and difficulty of innovation mean that men tend to keep the “old order” and ignore the good example of the ancients, which could help them to modernise the States.[3] In Europe the historical, social and political conditions for the establishment of a Federal State have existed for some time past, but after half a century of integration, European Federation is still of “doubtful success”, because many — too many — still maintain the impossibility of imitating the American federation.[4] It is up to the federalists to show that such an attitude is based on an “unreal knowledge of history”.[5] It is certainly easier to think that the foundation of the American State was inevitable and that a European one is impossible because it still meets with too much opposition. But this is not so: the institutions on which the United States are still founded were very much argued against initially, and were only consolidated after the battle fought mainly by Hamilton and a few federalists.
Thanks to Altiero Spinelli and Mario Albertini, European federalism has regained the historical sense of that battle, and hence the essays in the Federalist, written by Hamilton together with Jay and Madison to illustrate the advantages of the federal Constitution over the confederal formula, remain a fundamental witness.[6]
 
I. The Origins of the Debate: Plurality of States or Single State?
 
After the victory of the war of independence, the United States of America had to face a series of serious commercial, economical and military problems, which do not find room for discussion here. It is enough to remember that the will to question the Articles of Confederation matured in a climate of deep crisis and uncertainty. As George Washington observed,[7] without a new constitution, the union would soon fall prey to “anarchy, tumult or disorder”, as is shown, for example, by the anti-taxation revolt which erupted in 1786 in Massachusetts, quelled by the intervention of the army[8] and the secessionist revendications of Vermont from the State of New York.[9]
The Convention of Philadelphia met within this difficult situation. The debate was opened with the exposition of the plan for Virginia (May 1787) on the part of the governor Edmund Randolf, which predicted the strengthening of central government, established the basis of a new Constitution, and refused to merely reform the Articles of Confederation. After listing the defects of the Confederation, Randolf proposed remedies, drawing up a plan that meant a first Chamber elected by the people and a second with representatives elected by the first and by the parliaments of the States, a single State and a system of Courts nominated by the two chambers. After some days of lively debate, most parts of the proposals for the plan for Virginia had been well accepted by the delegates. But many States, especially the smallest, were worried by the prospect of too much strengthening of the general executive, and insisted on the necessity of maintaining an equal share of power of vote and government among States. At that point the New Jersey delegation put forward a second plan proposing to maintain the form of the league of States provided for by the Articles of Confederation. During the course of this debate, Hamilton, a New York delegate, openly declared himself as being “unfriendly to both plans”,[10] because he was convinced that neither would provide institutions energetic enough and with the same republican principles in America, as would enable a government of the Union to survive.[11] In his speech he criticised the New Jersey plan because “leaving the States in possession of their Sovereignty” it remained within the old Confederation. He also contested the Virginia plan as it left the States too many margins to reinforce their own governments to the detriment of the general one. He proposed therefore, the transformation of the Confederation into a single State with an independent executive from that of the States, through the institution of an elective monarchy. In the days following his intervention, the delegates continued to be divided between those for the Virginian plan and those for the New Jersey plan, and Hamilton returned to New York. He again participated in the work of the Convention when the compromise between the advocates of several States and those of a single government had matured, and together with Samuel Johnson, Governor Morris, Madison and King, took part in the Committee which drew up the final wording of the Constitution.
After three months of lively debate, the Convention approved the Constitution to be put forward for ratification by the Convention of single States. But three delegates, Randolf and Mason from Virginia and Gerry from Massachusetts, refused to answer the call of Franklin the delegate from Pennsylvania, to submit a single motion of approval with the formula “to agree to this Constitution with all its faults” and to refrain from publicising the criticisms expressed during a discussion of the adopted texts.[12] Other delegates for example Hamilton’s two colleagues representing the State of New York, had already left the Convention, as sign of open disapproval. The way in which the Convention closed left therefore the feeling that the result of the ratification was uncertain. A few days after the end of the Convention of Philadelphia, Hamilton admitted that “the causes operating against its adoption are powerful and there will be nothing astonishing in the Contrary”. And so he concluded: “it is probable that the contests about the boundaries of power between the particular governments and the general government and the momentum of the larger States in such contests will produce a dissolution of the Union. This after all seems to be the most likely result.”[13]
These few references to the debate, which took place at the convention give an idea of the clarity with which the problems to be resolved were put on the carpet, and which, in spite of the compromise, would continue to divide supporters of the various solutions for a long time.
 
II. The Future of the States and That of the Union (1787-1788)
 
The Legitimacy of the Convention and of the New Constitution.
 
The Convention of Philadelphia had not been called to form a new State, but to reform the Confederation. It was called “to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the union”.[14] The procedure of convocation should have embraced the need to guarantee involvement of the States in the reforms of continental institutions.[15] Up until the last minute doubts were expressed on its actual popular legitimacy. Who did the Convention represent? The Americans who manifested in the war of independence or the peoples of the States?[16] The legitimacy of the Convention was rigorously put forward by two of the antifederalist delegates of the New York State at the Convention, Robert Yates and John Lansing, who had left Philadelphia ahead of time.[17] The justification for their behaviour in the letter addressed to the governor George Clinton, testifies the attempt to nullify the results of the Convention. In fact Yates and Lansing insisted that their behaviour was embedded with loyalty towards the people and the State of New York. This attitude excluded any submission to other Constitutions or people, and decidedly opposed the opinion expressed by one eminent federalist exponent, James Wilson, who had highlighted the new element introduced by the Convention: “Let it be remembered then, that the business of the Foederal Convention was not local, but general; not limited to the views and establishment of a single State, but co-extensive with the continent, and comprehending the views and establishments of thirteen independent sovereignties… We were involved in difficulties which pressed on all sides, and no precedent could be discovered to direct our course.”[18] Wilson’s speech also contained one of the first analyses of the advantages of the Constitution and looked at the anxiety expressed by the antifederalists grouping them together under five points: 1) the absence of a charter of rights; 2) the risks of consolidation of a new government; 3) the danger of a new aristocratic regime out of touch with the people; 4) the risk of creating a taxation system more oppressive than the British one; 5) fears for the birth of a permanent federal army. This speech, widely reproduced and circulated by the press of the time, echoed widely and reactions soon followed.
A few weeks after this speech another delegate at the Convention, Elbridge Gerry,[19] took the opportunity to answer Wilson. Gerry admitted that, “as the welfare of the union requires a better Constitution than the Confederation, I shall think it my duty as a citizen of Massachusetts, to support that which shall be finally adopted, sincerely hoping it will secure the liberty and happiness of America”. However, his objections were insidious: Gerry was not attacking the Constitution because it was federalist, but because it was not federalist enough. In so doing he was drawing attention to the ambiguity with which the term “federal” was used as a synonym of “confederal”: “The Constitution proposed has few, if any federal features, but is rather a system of national government… The question on this plan involves others of the highest importance: 1) Whether there shall be a dissolution of the federal government? 2) Whether the several State Governments shall be so altered as in effect to be dissolved? 3) Whether in lieu of the federal and State Governments the national Constitution now proposed shall be substituted without amendment?”[20] And on the subject of the amendments he added: “Others may suppose, that the Constitution may be safely adopted, because therein provision is made to amend it: but cannot this object be better attained before a ratification, than after it? And should a free people adopt a form of Government, under conviction that it wants amendment?”[21] Gerry’s speech therefore tended to reinforce the party of those who, recognising the limitations of the Confederation, were still not completely satisfied with the Constitution set out in Philadelphia.
Luther Martin, one of the delegates at the Convention who had contributed to the setting down of the New Jersey plan, intervening under the pseudonym of The Genuine Information, upheld the same thesis.[22] According to Martin three parties had faced each other at the Convention: there were those who wanted the destruction of existing governments and the establishing of a kind of American monarchy, those who wished to increase the powers of the single States and lastly the republican federalist party which proposed to use “our present federal system as the basis of their proceedings, and as far as experience had shewn us that there were defects, to remedy those defects, as far as experience had shewn that other powers were necessary to the federal government, to give those powers”. For Martin federal principles were those upon which the Articles of Confederation were based: “Each State, when States enter into a federal government, are entitled to an equal vote, because before they entered into such federal government, each State was equally free and equally independent… So adequate representation of States in a federal government, consists in each State having an equal voice either in person or by its representative in every thing which relates to the federal government.”[23] We can tell from these first quotations how the antifederalist arguments went way beyond the defence of the right of the single States being represented in the new system of government, a right recognised by the new Constitution. They put forward the problem of delimiting federal sovereignty.
 
Sovereignty.
 
At a time when sovereignty generally still referred to a single subject (the monarch), and only recently and in America itself began to refer to the people, it was difficult to even think of referring the term to the system of federal institutions. The antifederalists maintained it was impossible to allow more than one sovereign within the same institutional structure. They were willing to admit to the inadequacies of the Articles of Confederation and the need to transfer power at a federal level, but not to the extent of questioning the sovereignty of States. On their part, the federalists observed the fact that the Constitution guaranteed the sharing of federal sovereignty to the States. One of the most cited authors to defend this position was Montesquieu, whose works were widely studied by both federalists and antifederalists. Centinel (Samuel Bryan), Brutus and Cato (the governor of New York, Clinton) tried to show the inadequacy of the New Constitution by referring to Montesquieu’s authority. But Hamilton referred to the same, first using the pseudonym of Caesar[24] and then that of Publius,[25] to show the opposite. Madison, speaking of supremacy rather than sovereignty, tackled the problem from another point of view: so as to refute the antifederalist argument of a Constitution of a national (centralising) character, he maintained the thesis that the Constitution was “neither national nor federal”.[26]
As opposed to the Articles, the new Constitution did not specify who was sovereign of the Union.[27] The future of the Union therefore inevitably depended on the equilibrium between the various levels of government, and no longer on unilateral acts of the States. To this end Cincinnatus’ (Arthur Lee’s) criticisms towards Wilson are indicative of the preoccupation of the antifederalists: “The sovereignty, inasmuch as it prescribes general rules for the conduct of civil life, is called the legislative power — in deciding controversies among its citizens, conformably to those laws it is called judiciary power — in arming its citizens against a foreign enemy, or ordering them to cease hostilities; it has the power of war and peace — the appointment of officers to aid it in the case of the public, is the power of establishing magistrates. Now, Sir, all these attributes of sovereignty, being vested exclusively in your new government, it is not a mockery of common sense to tell us, the State sovereignties are not annihilated? And yet you undertake to prove that upon their existence depends the existence of the federal plan — and when this mighty undertaking is explained, it is because they must meet once in two years to elect part of the federal sovereignty.”[28]
As far as propaganda was concerned the antifederalists found themselves in a difficult situation when they had to indicate alternative solutions to the new Constitution. The road they followed was that of asking for a Bill of Rights to be introduced into the Constitution which would protect citizens from any abuses of the federal government and proposing a series of amendments limiting federal power. Federal Farmer[29] skilfully gave voice to this propaganda. With moderation but strength, articulate arguments and apparently open to debate, it expressed a clear preference for a plan of limited consolidation in which the new government’s sphere of influence would be specified. The objective of the Federal Farmer was to point out the risk of distancing government from the people and therefore of returning to a tyrannical government. It dealt with worries over “undefined powers” and all those powers whose execution could be not exercised “on safe and proper ground”.[30] The author’s doubts were explicit: “Instead of seeing powers cautiously lodged in the hands of numerous legislators, and many magistrates, we see all important powers collecting in one centre, where a few men will possess them almost at discretion”.[31] From this came the proposal to amend the Constitution to guarantee the States more power. Federal Farmer wished to show the relationship between safeguarding the rights of the individual and the constitutional guarantees of the States. Its conclusion was that only at a level nearer to the people, that of the States, would it be possible to guarantee the rights and freedom of individuals. In this sense Federal Farmer, together with other authors, for example An Old Whig (George Bryan),[32] shared a faith in the State constitutions to preserve liberty. The constitutionalist party of Pennsylvania, to which An Old Whig gave expression, prioritised preserving republican values won and contained within the various constitutions during the war of independence rather than the problem of having an efficient government of the Union. In this light the objective was to formulate “a plan of confederation, which may enable us at once to support our continental union with vigor and efficacy, and to maintain the rights of the separate States and invaluable liberty of the subject”.[33] This request expressed the wish to affirm the primacy of State legislation over federal and gives significance to the debate over the effective guarantee offered to the individual freedom of various State legislations. This is shown by some of Pennsylvania’s laws, whose Constitution was considered by many antifederalists as the most advanced of the Union (Centinel described it as the “great palladium of equal liberty”).[34] With the Test Acts this State deprived citizens of their full rights of citizenship unless they swore loyalty to the State. Furthermore the Acts set out sanctions for certain religious and social minorities. Some federalists accused them of wanting to maintain supremacy of State legislation so as to preserve certain discriminatory laws and to these Centinel objected that the new Constitution had been conceived of to destroy the internal harmony of States.[35]
The constitutional tradition of Pennsylvania, together with the fact that the debate on ratification began in that very State, made it a crossroads not only of the debate, but also of tensions. In Pennsylvania the antifederalists, as we shall see, did not give up easily. One of the earliest documents expressing dissent towards the Constitution proposed and which had wide circulation was the Address and Reasons of Dissent of the Minority, that is of the antifederalists of Pennsylvania defeated at the convention for ratification. This document was written and circulated in an attempt to re-launch opposition to the ratification of the other States as well as to show a series of amendments and denounced violation of the articles of the confederation in establishing a minimum number of ratifications necessary for the Constitution to come into force.[36] This clause, according to the authors, undermined the very foundations of the Union as it violated the spirit of the confederal pact of the United States.
As already mentioned the tensions in Pennsylvania were not only verbal. In December 1787, after the State convention had ratified the Constitution, the revolt in the town of Carlisle produced nervous reactions even in the antifederalist camp. The same authors of the Dissent declared themselves against similar acts of violence and Gerry denounced the danger of a possible civil war.
The clash over sovereignty touched the raw nerve of the role of judiciary power and its efficacy in settling the conflicts between States, between States and federation and between individuals and States. The relationship between individuals and States was particularly topical at the time and did not only involve the citizens of the United States, but also the British anxious to reclaim their credits from the ex-colonies. Federal Farmer intervened again here warning of the danger of the States being humiliated by the Court of Justice.[37] Brutus raised exactly this issue of risk in an essay which proposed to answer the question: “Can an individual sue a State?”[38] Now not only did the Constitution of Philadelphia provide individual citizens with the possibility of taking a State to court, but it allowed the wider action of judiciary power through the acts of Congress. Brutus analysed this eventuality, highlighted its dangers and accused the authors of the Constitution of wanting unlimited consolidation of the State. His arguments tended to meet with citizens’ contempt towards a procedure, which annulled sovereignty of their States. “The proper province of the judicial power, in any government, is, as I conceive, to declare what is the law of the land… But I conceive the clause which extends the power of the judicial to controversies arising between a State and citizens of another State, improper in itself, and will, in its exercise, prove most pernicious and destructive. It is improper, because it subjects a State to answer in a court of law, to the suit of an individual. This is humiliating and degrading to a government, and, what I believe, the supreme authority of no State ever submitted to. The States are now subjects to no such actions. All contracts entered into by individuals with States, were made upon the faith and credit of the States, and the individuals never had in contemplation any compulsory mode of obliging the government to fulfil its engagements.”[39]
 
Conditional Ratification or Adoption in toto.
 
During the ratification process more than a hundred amendments to the Constitution were proposed. Among these two were particularly significant: one which asked for the explicit reaffirmation of the sovereignty of the States and that which proposed excluding the possibility of going to the Supreme Court to settle conflicts between two or more States. Many of the Convention’s delegates, following the example of that of Massachusetts, accepted ratification with the intention of attacking again at the first Congress. Others tried to gain a second Convention straight away.
In the decisive passages of the ratification, arguments became heated as in the case of Virginia and New York. When he announced his vote against the Constitution, the Virginian Richard Henry Lee used terms leaving little hope for the future of the Federation: “It seems probable that the determinations of four States will be materially influenced by what Virginia shall do. This places a strong obligation on our country to be unusually cautious and circumspect in our Conventional conduct. The Mode that I would propose is something like that pursued by the Convention Parliament of England in 1688. In our Ratification insert plainly and strongly such amendments as can be agreed upon, and say; that the people of Virginia do insist upon and mean to retain them as their undoubted rights and liberties which they intend not to part with; and if these are not obtained and secured by the Mode pointed out in the 5th article of the Convention plan in two years after the meeting of the new Congress, that Virginia shall be considered as disengaged from this Ratification.”[40] This position of blackmail did not end but in the final resolution various proposals of amendment which were “highly objectionable” had to be included, according to Madison.[41] Bearing witness to the bitterness of the debate which took place at the Convention of Virginia, Madison informed Hamilton he was “so uncharitable as to suspect that the ill will to the Constitution will produce every peaceble effort to disgrace and destroy it. Mr [Patrick] Henry declared previous to the final question that although he should submit as a quiet citizen, he should wait with impatience for the favorable moment of regaining in a constitutional way, the lost liberties of his country.”[42]
The battle between federalists and antifederalists at the Convention of New York started when it was still unknown whether the minimum number of approvals necessary for the Constitution to enter into force would be reached or not. Ratification was uncertain as Madison again shows indirectly in a letter to Hamilton: “I am sorry that your situation obliges you to listen to propositions of the nature you describe. My opinion is that a reservation of a right to withdraw if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification, that it does not make New York a member of the New Union, and consequently that she could not be received on that plan. Compacts must be reciprocal, this principle would not in such a case be preserved. The Constitution requires an adoption in toto, and for ever… This idea of reserving right to withdraw was started at Richmond and considered as a conditional ratification which was itself considered as worse than a rejection.”[43]
The New York Convention (July 1788) was the last important occasion for the antifederalists to play the card of convocation of a second general Convention to amend the Constitution. As can be read in Madison’s letter quoted from above, the New York antifederalists had proposed conditional ratification. During the debate a famous antifederalist, Melancton Smith, proposed that the Convention invite other States to call for a second Convention and to temporarily suspend federal powers to do with the military, elections and tax, until the question of amendments had been resolved. Smith, representing the proposals of Virginian Lee, tried to push through a ratification, which included recognition of the right to secession in the case of the first elected Congress not having elected a second Convention. But when he received the news of ratification of Virginia and New Hampshire and after having received assurance that the New York Convention would support the request to include the Bill of Rights in the Constitution, he accepted to vote for ratification. To get certain antifederalists to back away from their intention not to vote for ratification, it was decided that a Circular[44] be sent to the other States. This was drawn up with the contribution of Jay,[45] with which the delegates of the New York Convention invited the organisation of a second general Convention. Pennsylvania was the first and only State to respond with any zeal to the invitation, calling at Harrisburg (September 1788) a Convention open to antifederalists of various tendencies, among which the leader of the Carlisle revolt, William Petrikin, representing the most violent wing and Charles Pettit, a moderate antifederalist. The intervention of the latter was decisive in toning things down and indicating a procedure which in denouncing the method of the armed uprising proposed by Petrikin, recommended following the way already gone down by the other States: that of preparing for battle with Congress and asking to have included in the Constitution a Bill of Rights and the amendments proposed by the various Conventions. At this point the battle between federalists and antifederalists moved over into the new Congress.[46]
 
III. The Power of the States and That of the Federation (1789-1800)
 
The Bill of Rights and the Attempt to Reinstate the Confederation.
 
Once it had come in to office, the new Congress had to face problems highlighted by the antifederalists during ratification, and mainly that relating to the insertion of a Bill of Rights within the Constitution, which occurred in the form of the first ten amendments of the Constitution. Only the first amendment[47] approved by the Congress actually related directly to the fundamental principles of the protection of rights, as underlined by Madison in his report to the Congress.[48] The introduction to the Bill of Rights specifically mentioned the reasons[49] why the Congress had decided to propose that the States ratify a series of amendments, the final text of which was the result of yet another clash between federalists and antifederalists. Madison, introducing before Congress the proposed amendments, explained the risks that could ensue from deviating from the provisions of the Constitution: “It cannot be a secret to the gentlemen in this house, that, notwithstanding the ratification of this system of government by eleven of the thirteen United States, in some cases unanimously, in others by large majorities; yet still there is a great number of our constituents who are dissatisfied with it… I do conceive that the constitution may be amended; that is to say, if all power is subject to abuse, that then it is possible the abuse of the powers of the general government may be guarded against in a more secure manner than is now done, while no one advantage, arising from the exercise of that power, shall be damaged or endangered by it. We have in this way something to gain, and, if we proceed with caution, nothing to lose; and in this case it is necessary to proceed with caution… And therefore I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.”[50]
The initial formulations of the amendments sustained by the antifederalist minority elected at the Congress were particularly insidious. The question that the antifederalists felt strongest about was that regarding the protection of citizens’ freedom, but it was not the only one. The structures of the fiscal and judiciary systems were also discussed. The situation was very unstable, as the structures of the old Confederation were being dismantled, and those of the new institutions were being created. For example, since the new Constitution did not define the procedure for the appointment of the various governmental offices, the new Congress had lengthy discussions to establish the procedure for appointing the Foreign, Treasury and War Secretaries of State. In the end Madison’s proposal was accepted; it proposed that each secretary should be “appointed by the President, by and with the advice and consent of the Senate, and… be removable by the President”.[51]
No other argument was so bitterly debated as that relating to the limitation of power of the new government to those expressly delegated by the Constitution. On this point there was the risk of raising the whole question again over the new constitutional structure, and the restoration de facto of the confederation. Madison’s answer was that: “The powers not delegated by this Constitution, nor prohibited by it to the States, are reserved to the States respectively”.[52] This wording would have been acknowledged in the tenth amendment. Antifederalists like Tucker tried to have the word expressly inserted between not and delegated, but were not successful. Madison observed that “this question was agitated in the Convention of Virginia; it was brought forward by those who were opposed to the Constitution, and was finally given up by them”.[53] In the same way a heated battle developed on the powers of taxation, the electoral system and the maintenance of the armed troops. On the subject of taxes Tucker upheld the right of States to establish those taxes to be applied. On the electoral system Aedanus Burke upheld an amendment that would ensure that the “Congress shall not alter, modify or interfere in the times, places or manner of holding elections of senators or representatives, except when any State shall refuse, or neglect, or be unable by invasion or rebellion to make such election”.[54] Elbridge Gerry instead made an attack regarding the maintenance of the armed troops: “What, sir, is the use of militia? It is to prevent the establishment of a standing army, the bane of liberty.”[55] This request was partly acknowledged in the second amendment, on the basis of which the citizens of the United States, “a well regulated militia being necessary to the security of a free State”, still have the inviolable right “to keep and bear arms”.
In general the antifederalists were not satisfied with the final text of the amendments proposed by Madison: they believed that the first Congress had not been capable of protecting the rights of the individuals and the powers of the States. Richard Henry Lee summarised his colleagues’ dissatisfaction in this way: “The great points of free elections, Jury trial in criminal cases much loosened, the unlimited right of Taxation, and Standing Armies in peace, remain as they were. Some valuable Rights are indeed declared, but the powers that remain are very sufficient to render them nugatory at pleasure.”[56]
At the conclusion of the controversy regarding the amendments, a new phase in the battle between federalists and antifederalists began: a battle about the interpretation of the Constitution.
 
Central Bank and the Implicit Powers.
 
The alliances that had confronted each other in the preparatory phase of the new Constitution and in its confirmation did not remain compact for long. The exercise of power by the federal government imposed certain choices, which not only the antifederalists but also many federalists, were not prepared to share. Could the new government, for example, have operated without adequate economic and financial means? This was the concern at the root of the numerous reports presented to Congress by the Secretary of the Treasury Hamilton.[57] The Constitution did not provide for the creation of a central Bank, it did not provide indications on how to manage the debt, neither did it indicate how to manage relations with European powers. It was a case of interpreting the Constitution each time, and deciding if and how in the different areas it was the States or the Congress who had the power to decide. For the antifederalists opposed to the ratification up to the last minute, the choice had been made for some time. This was not the case for those antifederalists who had accepted the new Constitution and for those moderate federalists who feared an excessive reinforcement of federal power. A supporter of the Constitution such as senator William Maclay (Pennsylvania), who had described Richard Henry Lee as “a notorious antifederalist” and Elbridge Gerry as “highly antifederal”,[58] found himself increasingly supportive of the arguments of Lee and Gerry, to criticise “the designs of a certain party to use the General Power to carry the Constitution into effect by a constructive interpretation”, saying that this strategy could have been extended “would extend to every case that Congress may deem necessary or expedient”.[59]
At the time, the only reference text in circulation was The Federalist. However, not all considered Publius as the best guide for interpreting the Constitution. For example, Elbridge Gerry considered The Federalist to be “political heresy” and denounced the partiality with which the accounts of the various ratification Conventions had been diffused. More generally, the criticism of the ‘constructive interpretation’ of the Constitution became the meeting point between the traditional antifederalists and many federalists who at the time had fought for the Constitution. Madison and Jefferson could by then be counted among these.
It is worth considering the basic objections Madison raised against Hamilton’s plan for the need for a central Bank. “Is the power of establishing an incorporated bank among the powers vested by the constitution in the legislature of the United States?... In admitting or rejecting a constructive authority, not only the degree of its incidentality to an express authority, is to be regarded, but the degree of its importance also; since on this will depend the probability or improbability of its being left to construction. Reviewing the constitution with an eye to these positions, it was not possible to discover in it the power to incorporate a Bank.
The only clauses under which such a power could be pretended are either: 1. The power to lay and collect taxes to pay the debts, and provide for the common defence and general welfare; 2. The power to borrow money on the credit of the United States; 3. The power to pass all laws necessary and proper to carry into execution those powers.”[60] The constitutive law of the Bank could not be included in any of these powers, Stated Madison, and he continued: “To understand these terms in any sense, that would justify the power in question, would give to Congress an unlimited power; would render nugatory the enumeration of particular powers; would supercede all the powers reserved to the State governments. These terms are copied from the articles of confederation; had it ever been pretended, that they were to be understood otherwise than as here explained?”[61] Finally, after having referred to the fact that the Constitution made explicit reference to the power of the Congress for monetary regulation, declaration of war, and the provision of weapons to an army, he then went on to the implicit powers demanded by the supporters of the Bank: “The doctrine of implication is always a tender one… It is not pretended that every insertion or omission in the Constitution is the effect of systematic attention. This is not the character of any human work, particularly the work of a body of men. The examples cited, with others that might be added, sufficiently inculcate nevertheless a rule of interpretation, very different from that on which the bill rests. They condemn the exercise of any power, particularly a great and important power, which is not evidently and necessarily involved in an express power. It cannot be denied that the power proposed to be exercised is an important power.”[62]
The law regarding the Bank was passed with no further pressure or difficulties. The immediate result of the battle however was not the birth of a strong and active central Bank — an objective that would be achieved much later —, but a rekindling of the confrontation over sovereignty. Madison’s Statements not only cast doubt on the opportunity of creating a Bank. They touched on the very sense of what was in play: the creation of a new State. While Hamilton was decidedly focusing on this objective, Madison and the antifederalists believed that the United States were not and should not become a real State. More specifically they feared that the affirmation of the new State’s sovereignty would have meant its transformation into a monarchy. For Madison and Jefferson the ratification of the Convention represented above all the last act of the revolution that had freed the Americans from British domination. In an article that became a sort of founding manifesto for the republican-democratic party that old and new antifederalists joined, Madison insisted that the ratification of the Constitution had marked the beginning of a new split between the parties: it was no longer a case of being for or against independence from the British crown, for or against the Constitution, but a case of being for or against republican values: “The Republican party, as it may be termed, conscious that the mass of people in every part of the union, in every State, and of every occupation must at bottom be with them, both in interest and sentiment, will naturally find their account in burying all antecedent questions, in banishing every other distinction than that between enemies and friends to republican government.”[63] From that Statement, the political agenda of Madison and the antifederalists became that of proving that the real enemies of the Constitution had become the very people who had advocated a reinforcement of the federal government.[64] But behind the “loyal opposition”, which Madison and the others professed to embody, a danger lurked. As in citizens’ eyes the republican values in the young American democracy were a manifestation of the Constitutions of the single States, to consider the defence of those values as a priority led perhaps unwittingly to upholding the demands of the States towards the still fragile Federation. This defence was to assume different forms. Firstly it manifested itself within the debate on the division of competence between the power of the States and that of the union, but subsequently it became the premise of the claims of the right to secession of the States.
 
The Power of Intervention of the Supreme Court.
 
In 1793 two cases were brought before John Jay, President of the Supreme Court: the case of Ware v. Hylton, in which the parties were a British citizen and one from Virginia, and the case of Chisholm v. Georgia, which saw a citizen from South Carolina suing the State of Georgia. The latter case gave Jay the opportunity to form a very clear judgement in favour of the sovereignty of the Federation against that of the States. The case of a State being brought up for trial, feared by the antifederalists during the debate on the ratification of the Constitution, displayed such harshness that it induced the States to request, and obtain, the introduction of a further amendment to limit the powers of Congress. Jay exposed his judgement on sovereignty with extreme clarity, taking advantage of one of the first occasions to affirm the central role of the judicial power in a federal system: “It is said, that Georgia refuses to appear and answer to the plaintiff in this action, because she is a sovereign State, and therefore, not liable to such actions… It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority… No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint-tenants in the sovereignty.
From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows, that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the prince; here it rests with the people; there, the sovereign actually administers the government; here, never in a single instance; our governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. Their princes have personal powers, dignities and pre-eminences, our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens… For the reasons before given, I am clearly of opinion, that a State is suable by citizens of another State.”[65]
 
Domestic Politics and Foreign Politics.
 
The domestic situation in the early 1790’s gave cause for alarm. The organisation of a “loyal opposition” through a network of clubs of the new Democratic-Republican Party put the Federalist Party in power in increasing difficulty. The aim of these clubs was to raise the attention of public opinion on the danger of an authoritative degeneration of the federal government, in part drawing on the antifederalist themes and in part on the French revolutionary spirit. This climate saw the explosion of the armed rebellion linked to the protest against the federal tax on Whiskey, which Washington and Hamilton had to tackle energetically, provoking new accusations of authoritarian behaviour on the part of the antifederalists.
The Whiskey rebellion also had important repercussions on the debate regarding the future of the judiciary system. The rebels should have judged by the Federal Courts, and also on this subject the democratic-republican leaders once more took up the objections brought forward by the antifederalists during the ratification. This is how one of them, Albert Gallatin, spoke: “Despotic governments eagerly seize every opportunity which the faults and the temporary folly of any part of the nation may afford them, in order to add new energy to their powers and to justify the arbitrary exercise of a jurisdiction extended to new objects”.[66] Speaking on the government’s request to remove the rebels from the judgement of local Courts, he continued: “They are to be tried, not in their country, and their fate depends on the verdict, not of a jury of their own vicinage, acquainted with their private character and the whole tenor of their lives, but on men selected from amongst strangers”.[67] On this occasion too the antifederalists reiterated the objection made repeatedly during and after the ratification: their opposition to the Constitution and the government was motivated by zeal and not by aversion to federalism. Findley explained thus his anti-federalism: “Myself and others have been called Antifederalists, as a name of reproch, yet I do, and always did, treat the appellation with contempt. If I erred, it was from an excess of zeal for federalism, and a jealousy least the federal republican principles of the government were not sufficiently guarded, and in this we agree with the majority of the citizens of the United States”.[68]
The situation was not calm even on the international front. The treaty with Great Britain should have been concluded to put an end to disputes on western boundaries and commercial problems. And on this question, the ratification of the so-called Jay Treaty,[69] the debate on the interpretation of the Constitution was destined to assume ever more heated tones.
Beyond controversies on the specific content of the Treaty, which also resulted in violent demonstrations against Jay — who had negotiated the Treaty — and Hamilton — who had inspired him —, the basic question brought to light was the power to make treaties. This was being exercised for the first time, according to the Constitution, by the President and by the Senate, with the exclusion of the Congress, to whom, on that occasion, the documentation relating to the development of negotiations between Great Britain and the USA was not given. On one hand the democratic-republican opposition demagogically maintained the right for Congress to ratify the treaties, but on the other it took this occasion to reaffirm the opportunity to revise the constitutional norms on the qualifying majorities required in the Senate for the ratification of international treaties. Hamilton took up his position once more with a series of articles signed Camillus, to uphold the Senate’s ratification of the Jay Treaty. After the Senate’s ratification, Congress held its own debate during which certain considerations were re-proposed. They were considerations that had emerged in various Conventions on whether to make the majority required to ratify treaties more stringent — 2/3 of the total number of senators instead of 2/3 of the senators present — and on the anti-democracy of the procedure which excluded the Congress, the Chamber of the people’s representatives, from the ratification of the treaties. The debate took the form of quotations from the Federalist on the one side and from Dissent of the Minority, letters of the Federal Farmer and minutes from the Conventions on the other. The latter, in particular, became the main reference texts of those opposing the government.
 
The States’ Demand for the Power of Interposition.
 
Once the constitutional crisis provoked by the ratification of the Jay Treaty had been solved, the contention between federalists and antifederalists moved onto another level: that of the legitimacy of the acts of Congress. The cause of this clash originated once more from foreign politics. Relations with Great Britain were on the way to being resolved, but the definition of the United States policies towards France became increasingly urgent. On the one hand it was feared that France would stir up revolt in the United States, relying on widespread antifederalist dissatisfaction and on the numerous contacts that existed between French revolutionaries and American politicians. On the other hand the French government’s actions posed a worry on the international field. Tension between France and the USA reached such a point that President Adams was persuaded to entrust the ex-President Washington and Hamilton with the task of preparing a military plan for a possible French invasion. This situation, together with the Congress’ adoption of the Alien and Sedition Acts,[70] refuelled antifederalist opposition, which accused federalists of wanting to continue with the secret plan to install an authoritarian and Unitarian regime. The opposition to the Acts was very harsh and had important consequences on the theoretic and practical evolution of antifederalism. Instead of following the path of the constitutional opposition, and therefore that of recurring to the Supreme Court, the antifederalists, headed by Jefferson and Madison, incited the States to disobey the federal government. The two political acts, which seriously challenged the legitimacy of the federal government, were the resolutions of Kentucky, devised by Jefferson, and that of Virginia, devised by Madison. The two documents went further than the antifederalist rhetoric against a consolidation of federal power. They embraced the thesis on the basis of which the federal pact was a contract between States, and not with the people, and consequently the States, and not the Supreme Court, as the expression of the people, could sit in judgement of the violations of the pact. In the resolution of Kentucky it was Stated: “As in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measures of redress”.[71] In this way the State of Kentucky affirmed the right of the States to judge for itself the constitutionality of the federal laws. The variant introduced by the resolution of the State of Virginia consisted in the affirmation of the right of more States, and not of only one State, to be judges of the constitutionality of the statutes. The other States did not follow Kentucky and Virginia’s invitations to disobey. At this point the State of Kentucky reiterated its request to consider null those federal laws not seen as conforming with the Constitution (nullification), while Virginia reaffirmed the right of States to oppose the application of those acts of government or of Congress that seemed to violate Constitutional rights (interposition). Although secession was not explicitly talked about, these positions posed a serious threat to the survival of the Union. Madison’s report to the State of Virginia in 1800 presented, in a more cautious manner than Jefferson had hoped, the question of the right of secession of the States, trying to conciliate federalism and secessionism.[72] The result was that it supplied the antifederalists with the theoretical cover, still lacking, for their battle against the legitimacy of the federation to continue. It is a fact confirmed by pro-antifederalist American literature,[73] that Madison’s 1800 report would become an important reference point for those who fought during the Eighteen hundreds to defend the sovereignty of the States. It is thus relevant to quote some excerpts of that long report which constituted the occasion for presenting the resolutions of no confidence, which the State of Virginia had towards the Congress. “The constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”[74] And on the question of the opportunity of recurring to the Supreme Court it argued thus: “The proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it”.[75] Furthermore Madison Stated that the attempt “to consolidate the States by degrees, into one sovereignty” would have meant “to transform the present Republican system of the United States, into an absolute, or at best a mixed monarchy”.[76]
The attenuation of tensions with France and the return of foreign politics on the margins of the American political scene brought about crisis once again. The defeat in the same year of the federalist party in the presidential elections and the fact that Jefferson became President first and later Madison in the following twenty years contributed to reinsuring what had at one time been the antifederalist opposition and that de facto had come to power. Hamilton’s proposal[77] of rapidly strengthening the federal government thus waned. The marginalisation of the American continent from European struggles, with the exception of a few episodes, enabled the USA to remain in a sort of power limbo.[78] From 1800, only the Supreme Court would have still played a role in defending the federal institutions in the States’ demands, repeatedly affirming its authority in judging the conformity to the Constitution of the acts of the various levels of power and government. Its action alone, however, in the absence of the farsighted policies that Hamilton was only able to sketch and never implement in favour of continental development and of the consolidation of the legitimacy of the Union, would not have been sufficient to avoid the crisis of the civil war some decades later.
 
Brief Final Considerations
 
From this quick review of federalist and antifederalist positions in the last decade of the eighteenth century certain conclusions can be drawn.
1) The federalists and the antifederalists tried to affirm or defend two different models of sovereignty. In one case it was an unexplored sovereignty, that of the Union of more States, in the other it was a tested sovereignty, that of the States, which proved to be inadequate in facing the problems posed by the detachment of colonies from Great Britain. It was this very evidence of inadequacy that forced many antifederalists to support the ratification of the Constitution. If we look at the present day, in Europe the formulation and then the ratification of a federal Constitution, at least for a nucleus of countries, will not be possible either without the support of the moderate antifederalists. A support unlikely to manifest itself outside a frame of profound crisis in which the alternative between confederation and federation will have to be clearly presented to the political class and to public opinion.
2) The approval of the Constitution did not bring an end to the battle between federalists and antifederalists. Instead it marked the beginning of a new battle to affirm federal sovereignty. In this phase the fundamental role of the Supreme Court began to manifest itself. Removing from the Congress and the States the power to interpret the Constitution, the Supreme Court contributed to consolidating the federal mechanism as opposed to the confederal one. Considering the future of Europe, the problem of affirmation of federal sovereignty will, in the same way, constitute a crucial phase of the battle between European federalists and antifederalists after any ratification of the Constitution. The European antifederalists will also be unwilling to forego taking advantage of the initial weakness of the federal institutions to try and move the needle of the scales of power towards the States.
3) Without the reinforcement of the federation after its birth, the antifederalist centrifugal pressures would have condemned the United States of America to a return to confederation and therefore anarchy. The future European Federation will have to face a similar problem in a more difficult situation since Europe, as opposed to America, will remain at the centre and not on the fringes of the main international problems. Within this picture the tensions that will inevitably arise following the choices that will have to be made in foreign politics, will represent a difficult testing table for the survival of the Federation.


[1] Especially after the German Foreign Ministers Joschka Fischer’s speech at the Humboldt University of Berlin, 12 May 2000 and that of the President of the Republic of France Jacques Chirac at the Bundestag 27 June 2000.
[2] Niccolò Machiavelli, Il Principe, Torino, Einaudi, 1961, Chapter VI, p. 28.
[3] “None the less in the instituting of Republics, in maintaining States, in the governing of Kingdoms, in organising an army and conducting a war, in (giving) judgement for Subjects, in expanding the Empire, there will not be found either Prince, or Republic, or Captain, or Citizen, who has recourse to the examples of the ancients… Whence it arises that they who read take infinitely more pleasure in knowing the variety of incidents that are contained in them, without ever thinking of imitating them, believing the imitation not only difficult but impossible: as if heaven, the sun, the elements, and men should have changed the order of their motions and power, from what they were ancienty.” Niccolò Macchiavelli, Discourses on Livy, English version at (http://www.constitution.org/mac/disclivyl.htm).
[4] Larry Siedentop gives an illuminating example in his book Democracy in Europe, Penguin Books Ltd, 2000. He explains all the advantages of the federation and concludes that the time is still not ripe for it in Europe.
[5] Niccolò Machiavelli, in op. cit., p. 60.
[6] Mario Albertini, Il Federalismo, Antologia e definizione, Bologna, Il Mulino, 1993 and “Federalism” in The Federalist, XLII (2000), p. 87. Also see the Italian version of The Federalist: Il Federalista, Bologna, Il Mulino, 1997, and in particular the introduction by Lucio Levi.
[7] “George Washington to Charles Carter” in The Debate on the Constitution, Part One, New York, Literary Classics of the United States, Inc., 1993, p. 612.
[8] In a letter to Jefferson at the end of 1786, Jay expressed his anxiety thus: “The inefficacy of our Government becomes daily more and more apparent. Our Credit and our Treasury are in a sad Situation, and it is probable that either the Wisdom or the Passions of the people will produce Changes. A Spirit of Licentiousness has infected Massachusetts, which appears more formidable than some at first aprehended; where similar Symptoms will soon mark a like Disease in several other States is very problematical.” Donald L. Smith, John Jay, A Founder of a State and Nation, New York, Teachers College Press, 1968, p. 113.
[9] Only a few weeks before the start of the Philadelphia Convention Hamilton had spoken in front of the Assembly of the State of New York on the question of the request for independence of Vermont. He proposed to refuse both the hypothesis of putting down secession with the help of the army and to satisfy Vermont’s request: if New York was no longer able to maintain unity with Vermont, “this admission must operate as a new inducement to the several States to strengthen the Union”. From this perspective Hamilton was asking to accept recognition of the independence of Vermont only if this new State were part of the Union. This precedent would be very important in defining the criteria for expansion and of the formation of new States within the United States, as can be seen in Article 4 of the Constitution which States: “ New States may be admitted by the Congress into this union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress”.
[10] Alexander Hamilton, “Plan for National Government, June 18, 1787”, in Ralph Ketcham, The Antifederalist Papers and the Constitutional Convention Debates, New York, New American Library, 1986, p. 70.
[11] In 1803 Hamilton justified in the following way those anxieties on which his speech in Philadelphia was based: “That the political principles of the people of this country would endure nothing but republican government; 2) that the republican theory should have here a fair and full trial; 3) for such a trial it was essential the government should have all the energy and stability that could be reconciled with the theory”. Broadus Mitchell, Alexander Hamilton, Youth to Maturity (1755-1788), cit., p. 400.
[12] Benjamin Franklin, “Speech at the Conclusion of the Constitutional Convention, September 17, 1788”, in The Debate on the Constitution, Part One, cit., p. 3.
[13] Alexander Hamilton, “Conjectures about the New Constitution, September 24, 1788”, in The Debate on the Constitution, Part One, cit., p. 9.
[14] Donald L. Smith, op. cit., p. 116.
[15] The problems of the legitimacy of continental institutions were not new to American political debate. One has only to think that back in 1776 Thomas Paine faced the issue in a very successful paper: Common Sense. Thomas Paine, Collected Writings, New York, Literary Classics of the United States, 1995, pp. 32-34.
[16] In January 1787 Jay wrote to Washington: “To me the policy of such a convention appears questionable; their authority is to be derived from acts of State legislatures. Are the State Legislatures authorized, either by themselves or others, to alter constitutions? I think not; they who holds commissions can by virtue of them, neither retrench nor extend the powers conveyed by them. Perhaps it is intended that this convention shall not ordain, but only recommend; if so there is danger that recommendations will produce endless discussion and perhaps jealousies and party heats. Would it not be better for Congress plainly and in strong terms to declare that the present Federal Government is inadequate to the purposes for which it was instituted; that they forbear to point out its particular defects or to ask for an extension of any particular powers, lest improper jealousies should thence arise; but in their opinion it would be expedient for the people of the States without delay to appoint State conventions (in the way they choose their general assemblies), with the sole and express power of appointing deputies to a general convention who, or the majority of whom, should take into consideration the Articles of Confederation and make such alterations, amendments, and additions thereto as to them should appear necessary and proper, and which being by them ordained and published should have the same force and obligation which all or any of the present articles now have? No alterations in the government should, I think, be made nor if attempted will easily take place, unless deductible from the only source of just authority — the People.” Donald L. Smith, op. cit., p. 116.
[17] “We beg leave briefly to State some cogent reasons which, among others, influenced us to decide against a consolidation of the States. These are reducible into two heads.
First: The limited and well defined powers under which we acted, and which could not, on any possible construction, embrace an idea of such magnitude as to assent to a general Constitution in subversion of that of the State.
Secondly. A conviction of the impracticability of establishing a general Government, pervading every part of the United States and extending essential benefits to all… From these expressions, we were led to believe that a system of consolidated Government, could not, in the remotest degree, have been in contemplation of the Legislature of this State, for that so important a trust, as the adopting measures which tended to deprive the State Government of its most essential rights of Sovereignity, and to place it in a dependent situation, could not have been confided, by implication, and the circumstance, that the acts of the Convention were to receive a State approbation, in the last resort, forcibly corroborated the opinion, that our powers could not involve the subversion of a Constitution, which being immediately derived from the people, could only be abolished by their express consent, and not by a Legislature, possessing authority vested in them for its preservation.” “Robert Yates and John Lansing, Jr, to Governor George Clinton, 14 January 1788”, in The Debate on the Constitution, Part Two, cit., p. 3.
[18] “James Wilson’s Speech at a Public Meeting, Philadelphia, October 6, 1787”, in The Debate on the Constitution, Part One, cit., p. 65.
[19] “Elbridge Gerry to the Massachusetts General Court, 3 November 1787”, in The Debate on the Constitution, Part One, cit., p. 231.
[20] Ibid., p. 232.
[21] Ibid., p. 233.
[22] At the time it was usual for federalists and antifederalists to use pseudonyms. The choice was for rhetorical motives, a wish to express ideas without the reader being influenced by the fame of the author. In certain cases reasons were less noble such as being able to offend the opposition from anonymity so as not to run the risk of being accused of slander. Just as for the federalists Publius became the name behind which Hamilton, Madison and Jay hid in the Federalist Papers. Antifederalists were behind pseudonyms such as Brutus, Cincinnatus, One of the Common People, A Democratic Federalist, A Federal Farmer, Centinel etc.
[23] “The Genuine Information II”, in The Debate on the Constitution, Part One, cit., p. 640-644.
[24] Consulted in Italian in Paolo Vervaro (by) Hamilton-Clinton, Lettere sulla Costituzione Federale, Napoli, Guida Editore, 1996.
[25] “A distinction, more subtle than accurate has been raised between a confederacy and a consolidation of the States. The essential characteristic of the first is said to be, the restriction of its authority to the members in their collective capacities, without reaching to the individuals of whom they are composed. It is contended that the national council ought to have no concern with any object of internal administration. An exact equality of suffrage between the members has also been insisted upon as a leading feature of a Confederate Government. These positions are in the main arbitrary; they are supported neither by principle nor precedent. It has indeed happened that governments of this kind have generally operated in the manner, which the distinction, taken notice of, supposes to be inherent in their nature — but there have been in most of them extensive exceptions to the practice, which serve to prove as far as example will go, that there is no absolute rule on the subject. And it will be clearly shewn, in the course of this investigation, that as far as the principle contended for has prevailed, it has been the cause of incurable disorder and imbecility in the government. The definition of a Confederate Republic seems simply to be, an “assemblage of societies” or an association of two or more States into one State. The extent, modifications and objects of the Federal authority are mere matters of discretion. So long as the separate organisation of the members be not abolished, so long as it exists by a constitutional necessity for local purposes, though it should be in perfect subordination to the general authority of the Union, it would still be, in fact, and in theory, an association of States, or a confederacy. The proposed Constitution, so far implying an abolition of the State Governments, makes them constituent parts of the national sovereignty by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power — This fully corresponds, in every rational import of the terms, with the idea of a Federal Government” in The Federalist, Oxford, Basil Blackwell, 1987, IX, p. 39.
[26] “The proposed Constitution therefore is in strictness neither a national nor a federal constitution; but a composition of both. In its foundation, it is federal, not national; in the sources from which the ordinary powers of the Government are drawn, it is partly federal, and partly national; in the operation of these powers, it is national, not federal; in the extent of them again, it is federal, not national; and finally, in the authoritative mode of introducing amendments, it is neither wholly federal, nor wholly national”. James Madison, The Federalist, op. cit., XXXIX, p. 195. In this article Madison in replying to antifederalist criticisms attributes to the term federal the sense of Union as confederation of sovereign States and to the term national that of a unitary State.
[27] Article 2 of the Articles of Confederation ran “Each State retains its sovereignty, freedom and independence, and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled”.
[28] Cincinnatus (Arthur Lee), “V, Reply to Wilson’s Speech, November 29, 1787”, in The Debate on the Constitution, Part One, cit., p. 114.
[29] Students have been uncertain as to whether to attribute these letters to the Virginian Richard Henry Lee or to Melancton Smith, of New York.
[30] “Letters From the Federal Farmer”, in The Debate on the Constitution, Part One, cit., pp. 260 and the following.
[31] Ibid., p. 282.
[32] Saul Cornell, The Other Founders, Anti-Federalism and the Dissenting Tradition in America, 1788-1828, 1999, Chapel Hill, The University of North Carolina Press, p. 85.
[33] Ibid., p. 87.
[34] Ibid., p. 101.
[35] Ibid., p. 102.
[36] In this long document three motives for dissent were particularly pointed out. “…We Dissent, first, because it is opinion of the most celebrated writers on government, and confirmed by uniform experience, that a very extensive territory cannot be governed on the principles of freedom, otherwise than by a confederation of republics, possessing all the powers of internal government; but united in the management of their general, and foreign concern. …We Dissent, secondly, because the powers vested in Congress by this constitution, must necessarily annihilate and absorb the legislative, executive, and judicial powers of the several States, and produce from their ruins one consolidated government, which from the nature of things will be an iron handed despotism, as nothing short of the supremacy of despotic sway could connect and govern these United States under one government. …We Dissent, Thirdly, Because if it were practicable to govern so extensive a territory as these United States includes, on the plan of a consolidated government, consistent with the principles of liberty and the happiness of the people, yet the construction of this constitution is not calculated to attain the object, for independent of the nature of the case, it would of itself, necessarily produce a despotism, and that not by the usual gradations, but with the celerity that has hitherto only attended revolutions effected by the sword”. “Dissent of the Minority of the Pennsylvania Convention, December 18 1787”, in The Debate on the Constitution, Part One, cit., p. 535.
[37] Ibid., p. 273.
[38] Brutus XIII, in The Debate on the Constitution, Part two, cit., p. 222.
[39] Ibid., p. 225.
[40] “Richard Henry Lee to Edmund Pendleton, May 26, 1788”, in The Debate on the Constitution, Part two, cit., p. 464.
[41] James Madison, “To Alexander Hamilton, June 27, 1788”, in Madison Writings, New York, The Library of America, 1999, p. 407.
[42] Ibid., p. 407.
[43] Ibid., p. 408.
[44] “We the members of the Convention of this State, have deliberately and maturely considered the Constitution proposed for the United States. Several articles in it appears so exceptionable to a majority of us, that nothing but the fullest confidence of obtaining a revision of them by a General Convention, and an invincible reluctance to separating from our sister States, could have prevailed upon a sufficient number to ratify it, without stipulating for previous amendments”. “Circular, July 26, 1788”, in The Debate on the Constitution, Part two, cit., p. 546.
[45] Ibid., p. 1012.
[46] Saul Cornell, op. cit., pp. 136 and following.
[47] First Amendment: “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
[48] James Madison, “Speech in Congress Proposing Constitutional Amendments”, in op. cit., p. 437.
[49] The introduction to the Bill of Rights is explicit here and reminds us how it was the consequence of reservations expressed at the Conventions of numerous States that at the moment of ratification had expressed “a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: and as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution” (4 March 1789).
[50] James Madison, op. cit., p. 440.
[51] Broadus Mitchell, Alexander Hamilton, The National Adventure (1788-1804), New York, The MacMillan Company, 1962, p. 15.
[52] James Madison, op. cit., p. 444.
[53] Saul Cornell, op. cit., p. 160.
[54] Ibid., p. 161.
[55] Ibid., p. 161.
[56] Ibid., p. 162.
[57] This is the Report on the Public Credit, the Report on a National Bank, the Report on the Establishment of a Mint, the Report on Manufactures, presented by Hamilton between 1789 and 1791 and a second Report on the Public Credit of 1795.
[58] Saul Cornell, op. cit., p. 164.
[59] Ibid., p. 165.
[60] Madison, “Speech in Congress opposing the National Bank”, in op. cit., pp. 482-483.
[61] Ibid.
[62] Ibid., p. 486.
[63] Madison, “A Candid State of Parties, 1792”, in op. cit., p. 530.
[64] The antifederalist William Findley summarised the situation in this way: “Those who opposed adopting the government without amendments, in their zealous criticism on the Constitution, said the time might come, when an insidious faction would get into the legislature, and expound these expressions in such a manner as to bottom a subversion of the governments on them; but those who advocated the Constitution in the State Convention, pronounced this apprehension to be absurd… Those who were designated antifederalists when the Constitution was in a probationary State, were not opposed to a Federal government, but… they objected to the proposed instrument as not being defined with that precision, nor guarded with those restraints that were necessary”, in Saul Cornell, op. cit., p. 169.
[65] In The Founders’ Constitution, Volume 5, Amendment XI, Document 1 (http://press-pubs.uchicago.edu/founders/docments/amendXlsl.html) The University of Chicago Press, 2000. “The authority of this case was abrogated by an amendment, Article 11 of the Constitution U.S., which provides that “the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United State.” Nonetheless this case decision by the Supreme Court of the United States remained a corner stone in the political debate between federalists and antifederalists. This amendment was proposed Dec. 2, 1793, declared adopted Jan. 8, 1798.
[66] Saul Cornell, op. cit., p. 202.
[67] Ibid., p. 203.
[68] Ibid., p. 206.
[69] The instructions given to Jay to negotiate with the English had been simple and clear:
 “to repel war, for which we are not disposed…, to assert, with dignity and firmness, our rights, and our title of reparation for the past injuries”, Broadus Mitchell, Alexander Hamilton, The National Adventure 1788-1804, cit., p. 336.
[70] Under the menace of a war with France, in 1798 Congress approved four laws known as Alien and Sedition Acts. The first of these laws was the Naturalisation Act, (18 June). This law established that 14 years of residency were required instead of 5 to be able to be considered citizens of the United States. Therefore Congress approved the Alien Act (25 June) with which it authorised the President to expel those foreigners considered “dangerous to the peace and safety of the United States”. The third law, the Alien Enemies Act (6 July) allowed the arrest and deportation of any foreigner acting on the orders of a foreign power in time of war. The last law, the Sedition Act (14 July) declared any betrayal of the United States to be a crime including the publication of “any false, scandalous and malicious writing”. This provision, obvious for any legislation, was still not so for federal law for which State legitimacy was not unanimously recognised. Following this law, 25 newspaper editors were arrested, but opposition to the Alien and Sedition Acts was such as to favour the election of Thomas Jefferson in 1800. Once elected, Jefferson conceded grace to all those who had been imprisoned on the basis of the Sedition Act, and Congress gave back all the fines paid including the interest. However laws of this kind continued to be part of the history of the United States especially during times of international crises. In the forties the Smith Act forbade any person to declare themselves in favour of overturning the government of the United States. In the case of Dennis v. U.S. (1951) the Supreme Court established that this law was directly applicable to members of the Communist Party, but since the Court modified its opinion, Congress is no longer authorised to legislate to ban anyone who maintains it necessary to overturn federal government, unless they “are urged to do something now or in the future” (Brandenburg v. Ohio (1969)).
[71] Saul Cornell, op. cit., p. 240.
[72] Ibid., p. 245.
[73] Saul Cornell, op. cit.
[74] Madison, “Report on the Alien and Sedition Acts, 1800”, op. cit., p. 611.
[75] Ibid., p. 613.
[76] Ibid., p. 615.
[77] “The recent efforts of Virginia and Kentucky to unite the State legislatures in a direct
resistance to certain laws of the union can be considered in no other light than as an attempt to change the Government”. The reorganisation of the Virginian militia had made the survival of the federal government, “a question of force”. To oppose this tide Hamilton proposed a federal plan to promote the influence and popularity of the government through 1) the ramification of the judiciary system; 2) an efficient policy for the construction of new roads; 3) a policy of incentives for innovation, through prizes for inventions and new techniques in agriculture and industry; 4) the creation of a federal military academy; 5) the subdivision of larger States into smaller; 6) punitive laws for those who caused revolt. Broadus Mitchell, Alexander Hamilton, The National Adventure 1788-1804, cit., p. 455. To gain some idea as to how far the United States still had to go before reaching some of the objectives indicated by Hamilton, one only has to remember the reason behind the veto opposed in 1817 by the then President Madison to the law of Congress on canals and roads: “The power to regulate commerce among the several States can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce… To refer the power in question to the clause to provide for the common defense and general welfare would be contrary to the established and consistent rules of interpretation… Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them.” Madison, in Madison Writings, p. 719.
[78] “Nothing is more striking to a European traveller in the United States than the absence of what we call the government or the administration”, Alexis de Tocqueville, Democracy in America, New York, Random House, 1990, 1:3.

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