|
 1787
|
October 1787
|
 Oct 18, 1787: Brutus I (New York)
|
The New York Antifederalist, anticipating by two weeks the opening paragraph of Federalist 1, also addressed to the people of New York, introduces his own first essay with the observation that “the most important question that was ever proposed to your decision, or to the decision of any people under heaven, is before you.” Nothing less than “the dignity of human nature” and the blessings of liberty are at stake. Brutus then argues that “although the government reported by the convention does not go to a perfect and entire consolidation, yet it approaches so near to it, that it must, if executed, certainly and infallibly terminate in it.” The necessary and proper clause, the supremacy clause, and the judicial power have the potentiality to transform America from a system of confederated states into a “complete consolidated government.” And anticipating the distinction between a democracy and a republic in Federalist 10 and 63, and agreeing that a representative government is to be preferred to a pure democracy, Brutus then argues that, contrary to wisdom and experience, the Framers have given us “an extensive republic” rather than a confederation of small republics. A “free republic” over “such vast extent” of territory is impracticable because, in time, the people will become “acquainted with very few of their rulers” and lose “confidence” in, and control over, the government.
Full Text of Document
|
|
|
|
November 1787
|
Nov 1, 1787: Brutus II (New York)
|
He considers “the merits” of his argument in Brutus I “that to reduce the thirteen states into one government, would prove the destruction of your liberties.” Again anticipating The Federalist, Brutus argues that “when a building is to be erected which is intended to stand for ages, the foundation should be firmly laid.” But the foundation of the Constitution is poorly laid because it lacks a declaration of rights “expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with.” He rejects as “specious” the arguments of an unnamed Framer’s State House speech (James Wilson) as to why a bill of rights is unnecessary: after all, “the powers, rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object to which they extend, as that of any state government.” Furthermore, why did the Framers secure certain rights in Article I, Section 9, “but omitted others of more importance”?
Full Text of Document
|
|
|
Nov 15, 1787: Brutus III (New York)
|
In this essay, Brutus, anticipating Federalist 55, attempts to show that in the Constitution “the powers are not properly deposited, for the security of public liberty.” He is a firm supporter of the position that “representation in government should be in exact proportion to the numbers” of people. Thus he is upset with 1) the 3/5 provision in the scheme of representation in the House, 2) equal representation for the States in the Senate, 3) the insufficiency in the number of representatives to be elected, 4) the lack of provision for a “resemblance” of the “true likeness of the people” in the assembly, 5) the probability that only the “rich” and “well born” will be represented, and 6) things will get worse. In short, “the representation is merely nominal—a mere burlesque; and that no security is provided against corruption and undue influence.”
Full Text of Document
|
|
|
Nov 29, 1787: Brutus IV (New York)
|
Anticipating Federalist 51 and 55, Brutus states that “experience has taught mankind” the need for special precautions in the framing of free governments. “The great art, therefore, in forming a good constitution, appears to be this, so to frame it, as that those to whom the power is committed shall be subject to the same feelings, and aim at the same objects as the people do, who transfer to them their authority. There is no possible way to effect this but by an equal, full and fair representation; this, therefore, is the great desideratum in politics.” It is more important that the government be in accordance “with the will of the people” and not “the will of the few” rather than “the administration of it be good or ill.” Brutus ends with a prophecy: “power, lodged in the hands of rulers to be used at discretion, is almost always used to the oppression of the people, and the aggrandizement of themselves.”
Full Text of Document
|
|
|
|
December 1787
|
Dec 13, 1787: Brutus V (New York)
|
Brutus turns to an examination of “the nature and extent of the powers granted
to the legislature.” He considers this inquiry to be a necessary preliminary to the larger question of just how separate are the powers lodged in the separate branches of the federal government. He interprets these legislative powers, or means, in light of the Preamble that sets down the ends of the new government and the supremacy clause of Article VI; he declares that Congress is granted all power over taxation, and to pass all necessary and proper laws, all the better for carrying out the comprehensive and undefined ends of the Preamble. This Constitution does not guarantee to the states “the power to conduct certain internal concerns.” All the more reason, says Brutus, for a bill of rights restricting the reach of Congress over the authority of the states and the liberty of the people, and a larger number of representatives in the Congress.
Full Text of Document
|
|
|
Dec 27, 1787: Brutus VI (New York)
|
Will the Constitution, in its frame and operation, “annihilate the state governments?” Will the state governments lose control of their internal police? Brutus answers, “yes” to both questions. It will be said that the states have the concurrent power of taxation. Brutus responds that here is no limit to the power of Congress under Article I, Section 8 “unless the people rise up, and, with a strong hand, resist and prevent the execution of constitutional laws.” He is concerned that the general government will extend its reach into virtually every aspect of life. After all what issue can’t be placed under the common defense and general welfare clauses? He concludes this essay with a refutation of Hamilton’s argument in Federalist 23 that “the means, says the gentleman, ought to be proportioned to the end.” But don’t we have two levels of government? Shouldn’t the state government have “an uncontroulable power to raise a revenue, adequate to the exigencies of their governments?”
Full Text of Document
|
|
|
|
1788
|
January 1788
|
Jan 3, 1788: Brutus VII (New York)
|
Brutus repeats his claim that a guaranteed source of revenue must be provided to each level of government in a “complex” “confederated government.” However. “no such allotment has been made in this government.” He again refers several times to the fallacious arguments of Federalist 23 without identifying the “writer.” That argument presumes, says Brutus, that 1) securing the general welfare and common defense are the exclusive province of the general government. On the contrary, the general government is to protect “against foreign attacks,” leaving to the state government the internal task “of administering justice among its citizens.” It also presumes that 2) the glory of the nation is the measure of the happiness of the people. According to Brutus, “the ability and character of the convention, who framed the preferred constitution, is sounded forth and reiterated by every declaimer and writer in its favor, is a powerful argument to induce its adoption. “But are not the patriots who guided our councils in the perilous times of the war, entitled to equal respect?” “A defensive war is the only one I think justifiable.” Finally, it argues that we cannot anticipate the future. True, but in extraordinary times, the best defense is the “happiness and good order of the people.”
Full Text of Document
|
|
|
Jan 10, 1788: Brutus VIII (New York)
|
Brutus continues his examination of Article I, Section 8. He states that the Constitution provides that the power to 1) “borrow money is general and unlimited.” Accordingly, the general government “may create a national debt, so large, as to exceed the ability of the country ever to sink.” He understands that emergencies might arise and accordingly, suggests a two-thirds vote to authorize such borrowing. 2) the power to “raise armies, is indefinite and unlimited and authorizes the raising of forces, as well in peace as in war.” Standing armies in peacetime are dangerous to liberty. He ends with this axiom: “the general government ought not to have authority to do it; for no government should be empowered to do that which if done, would tend to destroy public liberty.”
Full Text of Document
|
|
|
Jan 17, 1788: Brutus IX (New York)
|
Brutus begins the essay with the following statement: “The design of civil government is to protect the rights and promote the happiness of the people.” And the question of this essay is: Does the Constitution pass this test? The state constitutions pass the test because their constitutions have either a prefatory bill of rights or restrictions on power within their documents. But the Framers of the general government leave us confused. They constrain the general government from doing some things—no bill of attainder—but don’t address others—no standing army in time of peace—so what are they up to? Brutus criticizes the arguments of an unidentified “author” who argues that a provision in the Constitution with respect to standing armies is unnecessary and dangerous. Over half the essay is then devoted to criticizing the remarks of “a writer who is the boast of the advocates of this new constitution” on behalf of standing armies. This writer, says Brutus, calls “into question the candor and integrity of those who advance the objection,” and with insinuating that “their intention is to mislead the people, by alarming their passions, rather than convincing them by arguments addressed to their understandings.” We think Brutus has in mind Hamilton’s remarks in Federalist 1.
Full Text of Document
|
|
|
Jan 24, 1788: Brutus X (New York)
|
“The liberties of a people are in danger from a large standing army, not only because the rulers may employ them for the purposes of supporting themselves in any usurpations of power, which they may see proper to exercise, but there is a great hazard, that an army will subvert the forms of the government, under whose authority, they are raised, and establish one, according to the pleasures of their leader.” Thank goodness that Washington, unlike “a Julius Cesar or a Cromwell” was “a patriot as well as a general.” True, we need to maintain garrisons and be prepared for necessities, but why does this admission lead automatically to standing armies in time of peace? He is referring, w/o citing the “writer,” to the “curious” arguments of Hamilton in Federalist 24-26. Brutus concludes that the state legislatures will not be able to check the general government because of the supremacy clause and the Congress won’t be able to check itself because “I have, in some former numbers, shewn, that the representation in the proposed government will be a mere shadow without the substance.”
Full Text of Document
|
|
|
Jan 31, 1788: Brutus XI (New York)
|
Brutus claims “I have not met with any writer, who has discussed the judicial powers with any degree of accuracy.” To that end, he first examines the nature and extent of the judicial powers and second, “inquire(s) whether the courts who are to exercise them are so constituted as to afford reasonable ground of confidence that they will exercise them for the general good.” He is particularly concerned with what we today would call judicial review. Article III, Section 2 says: “the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority, etc.” His concern is: “what latitude of construction this clause should receive, it is not easy to say.” What particularly concerns Brutus is the word “equity.” “By this they are empowered, to explain the constitution according to the reasoning spirit of it without being confined to the words or letter.” And, note, he continues, “from this court there is no appeal.” Accordingly, there will be a strong propensity within the Constitution to lead to the establishment of a consolidated rather than a confederated government by way of the power of judicial review. In fact, the judicial power enables the judiciary “to mold the government, into almost any shape they please.”
Full Text of Document
|
|
|
|
February 1788
|
Feb 14, 1788: Brutus XII (Part 2) (New York)
|
“In my last, I shewed, that the judicial power of the United States under the first clause of the second section of article eight, would be authorized to explain the constitution, not only according to its letter, but according to its spirit and intention, and having the power, they would strongly incline to give it such a construction so as to extend the powers of the general government, as much as possible, to the diminution, and finally the destruction, of that of the respective states.” Here he shows how the judicial power “will operate in its exercise to effect these purposes.” At the heart of judicial dominance is its power “to determine all questions that may arise in the course of legal discussion on the meaning and construction of the constitution.” And then it will follow that these rulings will “guide the legislature in their construction of their powers.” What if they use the Preamble in conjunction with Article I, Section 8 as their guide to the spirit of the Constitution? There are no limiting principles to be found there. The justices will “mold the government into almost any shape they please.”
Full Text of Document
|
|
|
Feb 21, 1788: Brutus XIII (New York)
|
“Having in the two preceding numbers, examined the nature and tendency of the judicial power, as it respects the explanation of the constitution, I now proceed to the consideration of the other matters, of which it has cognizance.” It makes sense that the judicial power shall extend to case arising under the laws of the United States, but to do the same with respect to treaties “is unintelligible to me.” And he conceives 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 to be pernicious and destructive.” To the argument that he is exaggerating, Brutus repeats his earlier axiom: “if it be improper for a government to exercise a power, it is improper they should be vested with it. And is unwise to authorize a government to do what they cannot effect.” The judicial power will, if it makes sense, “crush the states beneath its weight.”
Full Text of Document
|
|
|
Feb 28, 1788: Brutus XIV (Part 1) (New York)
|
Brutus considers the appellate jurisdiction clause to be “one of the most objectionable parts of the constitution.” He is particularly concerned about allowing “appeals in criminal matters. It is contrary to the sense of our laws, and dangerous to the liberties of the citizen.” With respect to civil cases, the wording of the Constitution is obscure, but he is concerned that it means that there is “no room left for a jury on appeals to the supreme court.” He is also concerned about the costs involved “to render justice to every suitor” in the federal courts. But, it is said, Congress will never let all these concerns become reality. “The just way of investigating any power of government, is to examine its operation supposing it to be put into exercise. If upon enquiry, it appears that the power, if exercised, would be prejudicial, it ought not to be given.”
Full Text of Document
|
|
|
|
March 1788
|
Mar 20, 1788: Brutus XV (New York)
|
Brutus reminds his reader that this is a continuation of Brutus XIV, where he showed “that the supreme court under this constitution would be exalted above all other power in the government, and subject to no control. The business of this paper will be to illustrate this, and to show the danger that will result from it.” His main point is “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.” He is particularly concerned that the judges “feel themselves independent of heaven itself.” 1) “There is no power above them that can correct their errors or control their decisions,” 2) “they cannot be removed from office or suffer a diminution of their salaries, for any error in judgment or want of capacity,” 3) “the power of this court is in many cases superior to that of the legislature.” Proof: “the supreme court … 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.”
Full Text of Document
|
|
|
|
April 1788
|
Apr 10, 1788: Brutus XVI (New York)
|
What sorts of checks are there in the Constitution to curtail judicial abuse? That is the question that begins this final essay. His answer is, first of all, the separation of powers. But, in the end, there must be a supreme power by means of which the Supreme Court “ought to be called to account,” and that power is the people themselves. So the Constitution calls for the Senate as a “court of impeachments.” This observation leads Brutus into a consideration of the composition and powers of the Senate. He is ambivalent about the Senate. On the one hand it preserves the principle of equal representation of the states, but on the other hand the Senate “will possess a strange mixture of legislative, executive and judicial powers, which in my opinion will in some cases clash with each other.”
Full Text of Document
|
|
|
|
|
