" These key defects in the Constitution threaten democracy — because we ignored the warnings ," Raw Story , May 12, 2021

"These key defects in the Constitution threaten democracy — because we ignored the warnings," *Raw Story*, May 12, 2021

Christopher Jon Sprigman, These key defects in the Constitution threaten democracy — because we ignored the warnings, Raw Story (May 12, 2021), https://www.rawstory.com/us-constitution/

To the extent that Americans are aware of them at all, the Anti-Federalists are remembered as a band of vaguely disreputable second-raters who failed to prevent the 1788 ratification of the US Constitution—a document that for many Americans has become, over the past two centuries, something approaching a divine instrument. But now, at a moment when so many of the Constitution's vaunted democratic safeguards seem to be breaking down, the Anti-Federalists' legacy may be due for a more respectful reassessment. As a matter of fact, the Anti-Federalists deserve credit for seeing the future quite clearly, and for perceiving, long before the rest of us could, some of the Constitution's most dangerous latent defects. So what did the Anti-Federalists believe? And what led them to oppose the Constitution's ratification? Anti-Federalist thinking was complex, and Anti-Federalists disagreed with one another on many specific policy questions. Indeed, their fractiousness explains, in part, why they failed to defeat the Constitution. But at the core of Anti-Federalism was a coherent set of beliefs about human nature, the promise and peril of democracy, and how to design democratic institutions. The late, great political theorist Wilson Carey McWilliams summed up the Anti-Federalists' fundamental beliefs this way: "The Anti-Federalists began with the conviction, axiomatic in traditional political science, that the measure of a republic is the public spirit of its citizens. The grounds for this view are simple and probably unanswerable: a republic is self-governing only to the extent that laws are enforced by citizens as well as made by them. Self-rule includes rule over the self. Members of a society are not fully autonomous if they are compelled by others to obey the law. Republican excellence [that is, small "r" republican excellence], therefore, requires strong assent, a commitment to abide by the law, and submitting one's conduct to a common rule." The Anti-Federalists believed that democratic government depended on the virtue of individual citizens and—strange as this may sound to us—that government must be designed to foster that virtue, by creating the "public happiness" that grows out of citizens having an intimate connection to self-government as a collective enterprise. Public happiness is what Thomas Jefferson refers to in the Declaration of Independence when he declared that government is instituted to secure our rights to "Life, Liberty, and the pursuit of Happiness." This is not the same as personal satisfaction—indeed, public happiness requires citizens to subordinate their personal satisfaction to the public good (or, in ideal circumstances, to merge the two). Because democracy both depended on and created this sort of public engagement, the Anti-Federalist model insisted that as many decisions as possible must be pushed out from the center to the states. Only in those smaller, more homogeneous communities, the Anti-Federalists argued, can individuals meaningfully participate in public debate, directly experience the benefits of legislating in the common good, and feel the ties of affection to fellow citizens that undergirds public happiness. (Note that though the Anti-Federalists were localists, they nevertheless were not tied to the classical model of the Greek city-state. They understood that modern life required greater scale.) By contrast, the Federalists were far more skeptical about democracy leaning heavily on the virtue of the mass of citizens. "A dependence on the people," James Madison wrote in Federalist No. 51, "is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions." The Federalists imagined democracy for a large, diverse and fractious America in which citizens engaged with the public interest only occasionally and more likely acted according to their grubby private interests than some noble conception of the public good. The Federalists aimed to fit democracy to these hostile conditions. The key innovation, laid out in Federalist No. 10, was the view that Anti-Federalist localism was upside-down. Only a large, diverse republic, Madison said, could "break and control the power of faction," by which he meant a private or group interest inconsistent with the public good. First, in an extended republic, Madison wrote, it would simply be more difficult for a faction to gain enough leverage to dictate policy: "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution." Madison acknowledged that scale was not a complete answer. Factional interest may gain majority support even in a large country. In that instance, the Federalists relied not upon the virtue of citizens, but of their representatives. Because representatives in a large republic are chosen by a larger and more diverse body of citizens, the results of elections, Madison wrote, "are more likely to centre in men who possess the most attractive merit and the most diffusive and established characters." Once in office, these men will act "to refine and enlarge the public views," blunting factional proposals "by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations." So the Federalists relied heavily on deliberation by national elites. They downplayed citizen virtue in favor of elite virtue. The Anti-Federalists objected furiously. They saw the Federalists as centralizing power, removing virtue from politics, elevating representatives as a sort of aristocracy, and, ultimately, as setting loose the power of self-interest which inevitably, they feared, would usher in tyranny and corruption. None of this is to deny that the Anti-Federalists had their blind spots; it's difficult to imagine that their program of localism and citizen virtue could possibly have worked in a country as large and individualistic as America. And yet in light of what we've all witnessed, who can say now that the Anti-Federalists didn't, in general, see the defects of the Federalist project more clearly than the Federalists who defeated them? The Anti-Federalists feared that the national government would wax in power at the expense of the states. They were correct. They feared that future presidents would make claims to monarchical power. They were again correct. The Anti-Federalists feared that the legislature would become oligarchic. Today's United States Congress, comprised of a majority of millionaires, bears the Anti-Federalists out on this one, too. The Anti-Federalists were perhaps most prescient, however, in predicting how the United States Supreme Court would become glutted with power—to the point where we risked, in the view of the Anti-Federalists, becoming a nation ruled by judges. The Federalists believed the federal courts were, in Hamilton's words, the "least dangerous" branch. He argued in Federalist No. 78 that we had little to fear from courts, because they were powerless relative to the president and the Congress: "The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments." But the Anti-Federalists understood the likely role of the Supreme Court—the only court established in the Constitution—very differently. Those views are best summed up by the Anti-Federalist "Brutus," who, in the months prior to the Constitution's ratification, wrote a series of editorials in a New York newspaper detailing his fears that the Supreme Court would exercise essentially unreviewable power: "[T]he supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible." Unlike in England, Brutus wrote, where rulings are subject to correction by Parliament, under the proposed Constitution the courts are subject to no check: "There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will, generally, soon feel themselves independent of heaven itself." And also unlike in England, where courts claim no power to set aside democratically-enacted laws, Brutus predicted that the Supreme Court would insert itself into lawmaking by striking down legislation: "The supreme court then, have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and, therefore, in this respect their power is superior to that of the legislature." And finally, Brutus predicted that the Constitution's vague text wouldn't constrain the Supreme Court's power, but rather further expand it. Most of the Constitution's articles, he wrote, and especially the most important ones, "are conceived in general and indefinite terms, which are either equivocal, ambiguous, or which require long definitions to unfold their meaning." The Supreme Court would feel little constraint from "any fixed or established rules, but would determine, according to what appears to them the reason and the spirit of the constitution." Brutus expected the Court would take every opportunity to expand its power to control the Constitution's meaning: "Not only will the constitution justify the courts in inclining to this mode of explaining it, but they will be interested in using this latitude of interpretation. Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpared to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority." "This power in the judicial," Brutus concluded, "will enable them to mould the government, into almost any shape they please." Brutus's Anti-Federalist account of the Supreme Court has proven far more accurate than Hamilton's conviction that the Court would act with "neither FORCE nor WILL, but merely judgment." The Anti-Federalists were correct in anticipating that the Constitution's oracular text would license the Supreme Court to make political judgments, cloaked (barely) in the language of law. They were correct in anticipating there would be no possibility of democratic recourse in most instances—even where the Supreme Court exercised its great "latitude of interpretation" to issue deeply unpopular decrees. And the Anti-Federalists were prescient in predicting the Supreme Court would refuse to be constrained by "any fixed or established rules." We saw an example of that when the court reversed course after decades of First Amendment Free Exercise precedent, introducing a new formula for deciding those cases—one more favorable to claims that religious organizations should be exempt from generally-applicable laws and regulations. The court did so not in the context of a case on its regular docket, but in a "shadow docket" case decided outside the court's normal procedure and with minimal briefing and no oral argument. In so holding, the court broke its own rules, which bar changing the law in a shadow docket decision. But who is going to hold the court accountable? The Anti-Federalists knew. No one. Unfortunately, the Anti-Federalists did not anticipate all the harm that would eventually be done by our imperial Supreme Court. Most importantly, they did not predict that a political party would attempt, as Republicans did under Donald Trump and will do again the next time a Republican occupies the White House, to harness the Supreme Court's overweening power for partisan political ends. Republicans have built their recent political strategy around stocking the federal bench with right-wing judges. And they've done this with a greater goal in mind. The party can effectively stay in power even if it can't win. The furious energy with which Trump, Mitch McConnell, and the Federalist Society worked to elevate partisan conservatives—by far the most consequential achievement of Trump's presidency—is all about frustrating the ability of the Democrats to do much with power once they have it. That said, the Anti-Federalists' lesson for us is that the problems with the Supreme Court are much deeper than the politics of the moment. It's not just that the justices are too conservative or too liberal. It's that they are too powerful. That is why the Americans need to be looking back to the Anti-Federalists for ideas about how to shrink the power of the Supreme Court. Recent proposals have focused mostly on shifting the Court's composition through court packing and the introduction of judicial term limits. But the Anti-Federalists would have wanted a deeper reform. One that is focused not on who sits on the court but on creating accountability for it. There is such a mechanism—one that the Federalists wrote into the Constitution itself but the implications of which the Anti-Federalists, unfortunately, failed to apprehend. Article III gives Congress power to strip jurisdiction: a power that can be employed to rein in politicized courts and even override judicial decisions, at least when courts are standing in the way of change that a substantial and enduring political coalition wants. The implications of Article III power are potentially profound. Congress's power over courts' jurisdiction means that it can reclaim from an unaccountable Supreme Court authority to interpret the Constitution in particular cases. It would give us, in other words, some of the accountability that the Anti-Federalists warned we lacked.