THE ANTI—FEDERALIST "BRUTUS" - Intercollegiate Studies Institute

Momentous then is the question you have to determine, and you
are called upon by every motive which should influence a noble
and virtuous mind, to examine it well, and to make up a wise
he Anti–Federalist essays by Brutus were published between
T October 18, 1787 and April 10, 1788 in New York as part of
that state's ratification debate. These eighteen articles are among
the best of those written to oppose adoption of the proposed constitution for, "[t]he Anti–Federalists had no publicist more able
than Robert Yates." 1 The articles are rewarding because they raise
the majority of the important Anti–Federalist objections, because
some are a dialogue with certain of the Federalist Papers, and
because of an interesting and prophetic analysis of the proposed
judiciary which is original to Brutus. The fact that we do not know
the identity of Brutus lends a certain piquancy to the enterprise.2
So little has been published on the Anti–Federalists in generals
and on Brutus in particular, 4 that one has a refreshing sense of
Cecelia M. Kenyon, The Antifederalists (New York: Bobbs-Merrill & Co.,
1966), p. 323.
2 Robert Yates is generally thought to be Brutus, but among other candidates
are Thomas Tredwell and Melancton Smith. There is no decisive evidence to
settle the question of authorship which will be considered below at p. 4, but
the problem is not unusual. The authorship of Cato (once firmly attributed
to Governor Clinton of New York) has been challenged by Linda DePauw in
The Eleventh Pillar (Ithaca, New York: Cornell University Press, 1966), pp.
283-292; and Richard Henry Lee's claim to the "Letters from the Federal
Farmer" has been severely undermined by Gordon Wood. See "The Authorship
of the Letters from the Federal Farmer," William and Mary Quarterly, 3rd
Series, Vol. XXXI, No. 2 (April, 1974), pp. 299-308.
This will be remedied by a definitive edition of all the Anti–Federalist essays
with an introductory essay by Herbert J. Storing to be published by the University of Chicago Press. Until then we have to make do with Jackson Turner Main,
The Antifederalists, Critics of the Constitution 1781-1788 (Chicago: Quadrangle
Books, 1964); Cecelia M. Kenyon, op. cit.; and Morten Borden, The Antifederalist
Papers (East Lansing, Mich.; Michigan State University Press, 1965), for commentaries. For texts see Paul Leicester Ford, ed., Pamphlets on the Constitution
on the United States (Brooklyn, N.Y. 1888) and Essays on the Constitution of the
United States 1787-1788 (Brooklyn, N.Y. Historical Printing Club, 1892); John
Bach McMaster and Frederick Stone, eds. Pennsylvania and the Federal Convention, 1787-1788 (Lancaster, Pa.: Historical Society of Pennsylvania, 1888).
4 The only writing devoted exclusively to Brutus is William Jeffrey, Jr.,
What significance is there, if any, to the choice of "Brutus"
as a pseudonym? Douglass Adair has argued persuasively that
Alexander Hamilton, for one, chose his pseudonyms very carefully
and that they provide important clues to his intention in the
writing at hand. 5 Let us assume both that "Brutus" took seriously
the classical and other allusions the name Brutus would arouse and
that his readers recognized and appreciated them. There are three
possible Brutuses which would have been familiar to the probable
audience: Plutarch's, Shakespeare's, and Swift's. In Plutarch we
read, "The very enemies of Brutus would say that he had no other
end or aim, from first to last, save only to restore to the Roman
people their ancient government;" but Plutarch makes clear that
Caesar's supremacy, although it had the name of tyranny, was not
actually cruel or tyrannical and his death was instantly regretted
by the common people.° Or the famous lines from Shakespeare's
Julius Caesar:
This was the noblest Roman of them all;
All the conspirators save only he
Did that they did in envy of great Caesar;
He only, in a general honest thought
And common good to all, made one of them. (Act V, scene 5)
But most directly to the point of the debates over ratification of
the oCnstitution is Swift's Brutus. In Swift Caesar is more harshly
condemned than by Plutarch or Shakespeare. The Anti—Federalist
Brutus himself alerts us to the relevance of Caesar's betrayal of
Rome's ancient constitution to the contemporary controversy. In
the essay No. X he continues a previous discussion of the dangers
of a large standing army. Not only are "the liberties of a people in
danger . . . but there is great hazard, that an army will subvert
the forms of government, under whose authority, they are raised,
and establish one, according to the pleasure of their leader."7
"The Letters of Brutus—A Neglected Element in the Ratification Campaign
of 1787-1788," University of Cincinnati Law Review, Vol. 40, No. 4 (1971), pp.
643-777 (including the entire text of Brutus); and it is really a vehicle for an
attack on the Federalist Papers.
Douglass G. Adair, "A Note on Certain of Hamilton's Pseudonyms," in
Fame and the Founding Fathers (New York: W. W. Norton & Co., 1974), pp.
Plutarch's Lives, Dryden trans., Vol. III (New York: Lovell, Coryell and
Co., n.d.,), p. 399, 397.
Emphasis mine. All quotations from Brutus are taken from the unpublished
manuscript of Herbert J. Storing, The Complete Anti-Federalist, generously
lent to me by the author.
History teaches that this can happen easily, and Brutus mentions
two remarkable instances "worthy of the most careful attention of
every lover of freedom.—They are taken from the history of the
two most powerful nations that have ever existed in the world;
and who are the most renowned, for the freedom they enjoyed, and
the excellence of their constitutions:—I mean Rome and Britain."
And now he tells us why he has chosen to write as Brutus.
In the first [Rome], the liberties of the commonwealth was [sic]
destroyed, and the constitution overturned, by an army, lead [sic] by
Julius Caesar, who was appointed to the command, by the constitutional authority of that commonwealth. He changed it from a free
republic, whose fame had sounded, and is still celebrated by all the
world, into that of the most absolute despotism. A standing army
affected this change, and a standing army supported it through a
succession of ages.. .
In order to prevent the new Constitution from changing "a free
republic" into a "despotism" perhaps led by a Caesar, Brutus, the
Anti—Federalist, speaks to his contemporaries and warns them of its
dangers, for the proposed Constitution permits a standing army.
What is at stake, he writes, is the possible "subversion of liberty—
if it [this form of government] tends to establish a despotism, or
what is worse, a tyrannic aristocracy, then if you adopt it, this only
remaining asylum for liberty will be shut up, and posterity will
execrate your memory." (No. I) Here is Swift's Brutus:
I was struck with profound Veneration at the Sight of Brutus; and
could easily discover the most consummate Virtue, the greatest
Intrepidity, and Firmness of Mind, the truest Love of his Country,
and general Benevolence for Mankind in every Lineament of his
Countenance. . . . [A]nd Caesar freely confessed to me, that the
greatest Actions of his own Life were not equal by many Degrees to
the Glory of taking it away. . . . I chiefly fed my Eyes with beholding the Destroyers of Tyrants and Usurpers, and the Restorers
of Liberty to oppressed and injured Nations.8
Brutus, a true patriot, lover of liberty, and benefactor of mankind
alerts us to the dangers of the proposed constitution. There is
another curiosity in the choice of this pseudonym. Alexander
Hamilton was a great admirer of Julius Caesar, according to
Jonathan Swift, Gulliver's Travels, Robert A. Greenberg, ed. (New York:
W. W. Norton & Co., 1970), pp. 167-8. Gulliver is on the Island of Sorcerers
and Magicians, Glubbubdrib, and is allowed to call back dead persons with whom
he wishes to speak in order to set the record of history straight, or to satisfy his
own curiosity.
Thomas Jefferson's account, given some years after a revealing
episode. In response to the recital of Jefferson's own trinity of
great men consisting of Bacon, Newton, and Locke, Hamilton said,
"The greatest man who ever lived was Julius Caesar!" 9 Hamilton's
Publius of the Federalist Papers was frequently the object of
Brutus' criticism, or vice versa; it might be said that they were
engaged in a replay of an ancient confrontation.
Like several other important Anti–Federalist writings we cannot
be certain who wrote Brutus. 1 ° The view that the essays were
written by Robert Yates apparently originates with Paul Leicester
Ford, although Douglass Adair, for one, did not believe that Yates
had the ability for the job. n Adair favored Thomas Tredwell as
the author. Jeffrey suggests Melancton Smith because Brutus was
a moderate opponent of ratification and favored prior amendments,
as did Smith. Smith was also a lawyer and one of New York's
leading Anti–Federalists. 12 Yates is not implausible as the possible
author, however. As those who have commented on Brutus have
noted, although he disclaims legal knowledge, he is clearly well
qualified in that department. Robert Yates was on the New York
Supreme Court when he was elected to the Federal Convention of
1787 as a delegate, and was appointed its Chief Justice in 1790.
He and Lansing left the convention early, in July, and subsequently
decided not to return believing that, among other factors, the
convention was exceeding its powers. 13 Yates was the author of a
famous set of convention notes (covering the period of his atten9
Punctuation in the original. Adair, op. cit., p. 279. Letter from Jefferson to
Benjamin Rush of 1811, reporting an incident in 1791.
lc. See Footnote 2 supra.
11 In the bibliography to his volume entitled Pamphlets on the Constitution
of the United States, Ford writes,
"In reprinting this pamphlet I have suggested, with a question mark, that
Brutus was written by Thomas Tredwell, having found that he used that signature to a newspaper essay published in 1789. I have since concluded that
they were from the pen of Robert Yates, member of the Federal Convention
from New York."
This is all the evidence Ford provides.
12 Jeffrey, op. cit., pp. 645-6.
See De Pauw, op. cit., pp. 62-64, for evidence that Yates and Lansing left
because of the pressure of other responsibilities (Yates' duties as Supreme Court
judge, etc.,) and only subsequently determined not to return because of deep
misgivings about the work of the convention. The consequence of this departure,
combined with Hamilton's long absences, was to leave New York virtually unrepresented, and even when Hamilton was present he was unable to vote as
New York's instructions required two out of the three delegates to be present
before a ballot could be cast.
a monopoly of this power. Number VII follows with the caution
that limits must be set to Congress' revenue powers lest they destroy
the state governments, and argues that the internal purposes of
union are as important as the external (this in answer to Hamilton's
argument in Federalist XXIII that such revenue powers must be
unlimited to meet indeterminate threats to public safety). In
Number VIII and IX he attacks the Constitutional provisions
which permit standing armies in time of peace, and in X. he draws
our attention to the important historical lessons of Rome and
Cromwellian England regarding the subversion of the form of
government made possible by standing armies. Brutus does not urge
an absolute prohibition under all circumstances, but favors a
moderate arrangement which would avoid standing armies in peace
time except under the most urgent conditions.
In Number XI Brutus introduces his notable discussion of the
proposed federal judiciary. He urges a close look at this branch as
it will be "placed in a situation altogether unprecedented in a
free country." Our author then examines the judicial article (Article
III) with exceptional skill and prescience, charging that the judiciary will be empowered to explain the Constitution according to
its spirit and not be confined to the words or letter of it. Number
XII continues the analysis of the judicial power (this subject will
occupy the author for the rest of his papers)—emphasizing its
inclination to extend the power of the general government at the
expense of the states. In Number XII (continued), he shows that
the liberal use of the judicial power justified by the necessary and
proper clause and certain judicial fictions will reach to most of the
jurisdiction of the state courts. In XIII Brutus argues that the
Constitution permits suits by an individual against a state and
that it is particularly unacceptable that the power might be used
(backed by the force of the general government) to collect debts
owed by a state. Number XIV objects to the Supreme Court's
appellate jurisdiction on two grounds: that it is unheard of in
criminal cases and that it will reach to fact as well as to law and
thus destroy the power of juries. XV continues the attack on the
appellate power and charges that it will operate to favor the
wealthy against the poor and men "of midling fortune" because of
the cost and the delay in reaching final judgments, and is unnecessary because the practices of state courts prove that they can be
depended upon to do justice. The articles of Brutus end with
dance—until July 5, 1787) which are next in importance to our
understanding of the event, to those of James Madison. The letter
which he and Lansing sent to Governor Clinton explaining why
they left the convention contains a number of objections to the
constitution which are also in Brutus' writings, but they are common enough among Anti–Federalists not to be decisive in determining authorship. 14 Yates became an Anti–Federalist delegate to
the New York ratifying convention and voted against the Constitution. It is possible that the remarkably prophetic attack on the
power of the proposed federal judiciary could only be the work of
a judge, of a person who knew the judicial mind and temperament
from the inside, and that points to Yates.
In his eighteen articles which were published in the New York
Journal, Brutus raises many of the same objections to the Constitution as do other Anti–Federalist writings. Nevertheless he does
so more ably and effectively than many other opponents of the
Constitution, and the essays were widely published and read.15
Number I introduces the themes of Brutus' objections to the proposed Constitution which are: the spectre of consolidation and the
small republic argument, a theory of representation which the
construction of the legislature fails to meet, grave fears about the
taxing power, the necessary and proper clause, the dangerous potential of the judiciary, and the threat of a standing army. Number
II includes a classically simple and straightforward statement of
Locke's social compact theory and its necessary relationship to
individual rights, which leads to Brutus' objection that the constitution lacks a Bill of Rights. Number III presents his theory of
representation and a consequent critique of the proposed legislature; Number IV continues in the same vein emphasizing the
inequality and insufficiency of representation in the proposed government, attacking Congress' ultimate power over elections. Number V examines the necessary and proper clause (Article I, Section 8)
in conjunction with the objects of union as set forth in the
Preamble to the Constitution, emphasizing the power over revenue,
and Number VI introduces the discussion of the potential of the
taxing power in the general government: how it will lead to the
destruction of the state governments ("swallow up"), how the general government under the proposed Constitution will have in fact
14 See Max Farrand, The Records of the Federal Convention of 1787, Vol. III,
(New Haven, Conn.: Yale University Press, 1966), pp. 244-7.
15 For a summary of the evidence see Jeffrey, op. cit., p. 662, Fn. 54.
Number XVI, in which he predicts the full development of the
judicial branch into its present form. In the papers on the judiciary
taken as a whole Brutus foresees with great accuracy this history,
a feat unique to him.
I will discuss the most important and interesting points Brutus
makes in his articles based on their profundity and soundness, as
well as on the extent to which they represent objections raised by
many Anti–Federalists; in some cases what arouses our interest is
the difference between Brutus and other Anti–Federalists. Since the
reader does not have the text of Brutus before him, and since it
is almost unavailable, I will run close to abusing the privilege of
direct quotation. 16 Finally I will make some critical observations
about Brutus as a whole.
Article Number I is distinct for three reasons. First, in it he
presents the main charges made by most Anti-Federalists against
the proposed constitution. Next, differing with most Anti–Federalists, but in common with many Federalists and Publius of the
Federalist Papers, Brutus agrees that the situation in the country is
serious, and that he has "been induced to offer [his] thoughts upon
the present important crisis of our public affairs."
Perhaps this country never saw so critical a period in their political concerns. We have felt the feebleness of the ties by which these
United States are held together, and the want of sufficient energy
in our present confederation, to manage, in some instances, our
general concerns. Various expedients have been proposed to remedy
these evils but none have succeeded. (No. I)
Indeed, there are certain parallels between the opening of Number I and the first paper of the Federalist. Like Publius/Hamilton,
Brutus reminds us that the decision which must be made regarding
the proposed form of government is "a question in which not only
the present members of the community are deeply interested, but
upon which the happiness and misery of generations yet unborn is
in great measure suspended."
A further comparison of the language which opens the Federalist Papers and the essays of Brutus supports the view that they
represent a kind of direct dialogue:
The subject speaks it own importance; . . . the fate of an empire
in many respects the most interesting in the world. It has been
frequently remarked that it seems to have been reserved to the
Virtually the only place where the whole of Brutus is presently available
is in Jeffrey, op. cit.
people of this country, by their conduct and example, to decide the
important question, whether societies of men are really capable
or not of establishing good government from reflection or choice,
or whether they are forever destined to depend for their political
constitutions on accident and force.17
The most important question that was ever proposed to your
decision, or to the decision of any people under heaven, is before
you, and you are to decide upon it by men of your own election,
chosen specially for this purpose. If the constitution, offered to your
acceptance, be a wise one, . .. then, if you accept it, you will lay a
lasting foundation of happiness for millions yet unborn; generations
to come will rise up and call you blessed.18
The third curious fact about Brutus Number I is that it was
directly answered by a Pennsylvania Federalist, Pelatiah Webster,
in "The Weakness of Brutus exposed: or, some/ Remarks/ in/
Vindication of the Constitution/ proposed by the late/ Federal
Convention,/ against the/ Objections and gloomy Fears of that
Writer/ Humbly offered to the Public/ By/ a Citizen of Philadelphia." 19 Webster and Brutus disagree not so much about specifics
as about a matter of confidence; neither is aware of a third possibility, that presented in Publius/Madison's Federalist X. This issue
is the issue of consolidation, and of the theory of a small republic
and its peculiar relationship to democracy and liberty. Brutus first
deals with the dangers of consolidation: the probability that the
proposed government will eventuate in a single centralized form to
the destruction of the states. In the opinion of Brutus one single
consolidated government would be fatal to liberty for,
If respect is to be paid to the opinion of the greatest and wisest
men who have ever thought or wrote on the science of government,
we shall be constrained to include, that a free republic cannot
succeed over a country of such immense extent, containing such a
number of inhabitants, and these increasing in such rapid progression as that of the whole United States.
Alexander Hamilton, James Madison, John Jay, The Federalist Papers,
Clinton Rossiter, ed. (New York: New American Library, 1961), p. 33.
Brutus, No. I. As I am citing an unpublished manuscript I will only give
the article number so that an interested reader would be able to refer to the
article in whatever text is available.
Published just over two weeks after Brutus No. I; the latter, according to
Webster, published in the Pennsylvania Packet Oct. 26, 1787. Webster's prompt
response testifies to the extent to which Brutus was circulated and reprinted
and felt. Webster later published his "Political Essays" in Philadelphia in 1791,
and a copy of "The Weakness of Brutus Exposed" can be found in Ford, Pamphlets, op. cit., pp. 119-131.
Brutus cites the authority of Montesquieu and Beccarari in support
of this analysis.
What is the evidence that the proposed constitution is in fact
a thinly disguised consolidated government, or one which is "so
near to it, that it must, if executed, certainly and infallibly termi.
nate in it?" First, the proposed government is to "possess absolute
and uncontroulable power" regarding every object for which it is
created, and this is evidenced by the necessary and proper clause,
in Article I, Section 8 of the constitution. 20 Taken in conjunction
with the Supremacy Clause, this provision, Brutus concludes, creates
"as much one complete government as that of New York or Massachusetts, has as absolute and perfect powers to make and execute
all laws, to appoint officers, institute courts, declare offenses, and
annex penalties, with respect to every object to which it extends,
as any other in the world." He chooses to minimize the force of the
fact that it is a government limited to certain objects, a government
created of delegated and enumerated powers. Indeed, it would be
fair to say Brutus does not recognize it as such. Instead he argues
that the powers of the general legislature "extend to every case
that is of the least importance—there is nothing valuable to human
nature, nothing dear to freemen, but what is within its power."
The powers will be abused, for,
it is a truth confirmed by the unerring experience of ages, that
every man, and every body of men, invested with power, are ever
disposed to increase it, and to acquire a superiority over every
thing that stands in their way. This disposition, which is implanted
in human nature, will operate in the federal legislature to lessen
and ultimately to subvert the state authority . . . what this constitution wants of being a complete consolidation of the several
parts of the union into one complete government . . . it will
necessarily acquire in its exercise and operation.
Pelatiah Webster attacks Brutus for timidity, for "his fear and
tremblings about the new government," for assuming that the
powers granted to the general government must be abused and
will destroy liberty and civil rights.
If any conclusion at all can be drawn from this baseless assemblage of gloomy thoughts, I think it must be against any union at all;
0 "Congress shall have power to make all laws which shall be necessary and
proper for carrying into execution the foregoing powers, and all other powers
vested by this constitution, in the government of the United States; or in any
department or office thereof;" known at the time as the "sweeping clause."
against any kind of federal government. For nothing can be plainer
than this, viz. that the union can't by any possibility be supported
with success, without adequate and effectual powers of government? 21
The end of Webster's essay is revealing of the extent of the difference in confidence:
But after all, the grand secret of forming a good government, is,
to put good men into the administration: for wild, vicious, or idle
men, will ever make a bad government, let its principles be ever
so good; but grave, wise, and faithful men, acting under a good constitution, will afford the best chances of security, peace, and
prosperity. . . .22
Neither author knows of Madison's solution to the problem—nor
could they, for it was not published in Federalist X until Nov. 22,
1787, another two weeks after Webster's piece. If the author of
Brutus was Judge Robert Yates, he had heard Madison's theoretical
solution to the problem of size and republican liberty on June 6
at the Federal Convention, and had apparently remained unpersuaded. 23 Webster's point against Brutus is well taken, that the
thrust of Brutus' argument is against "any union at all" but
Webster's own solution—putting good men into office—cannot be
absolutely relied upon in a democratic form of government. Another
security is wanted: combining "enlargement of sphere" with the
encouragement of a certain natural development of society, and a
governmental structure which employs the principle of self–interest
to produce decent, non–tyrannical self-government.
The second part to Brutus' argument on this point is that "a
free republic cannot succeed over a country of such immense extent." Here he speaks as did many Anti–Federalists, citing the
authority both of Montesquieu and the experience of history. In a
large republic the interest of the public is more likely to be sacrificed, while in a small one it is easier to comprehend the public
21 Ford,
22 Ibid.,
op. cit., p. 121, 122.
p. 131.
23 There he would have heard Madison say,
"The only remedy is to enlarge the sphere, & thereby divide the community
into so great a number of interests & parties, that in the 1st place a majority
will not be likely at the same moment to have a common interest separate from
that of the whole or of the minority and in the 2nd place, that in case they shd.
have such an interest, they may not be apt to unite in the pursuit of it. It was
incumbent on us to try this remedy, and with that in view to frame a republican system on such a scale & in such a form as will controul all the evils wch.
have been experienced." Farrand, op. cit., Vol. I , p. 136.
interest, it can be understood by all, there is less abuse, or what
there is, is more easily detected. Great size of population and
territory screens knowledge of abuse from all but the few who are
benefiting from it. America is already too large to be a single free
republic; Brutus fears it will rapidly be turned into a consolidated
Crucial to a free republic is the kind of representation which
takes place. In order for real "assent to the laws by which [men]
are governed" to occur, those chosen must be "qualified to declare
the [true] sentiments of the people," otherwise "the people do not
govern, but the sovereignty is in a few." But in a large country
such representation is impossible or else the representative body
would be so large as to be incapacitated. To satisfy his conception
of representation, Brutus requires that the representatives accurately reflect all classes of citizens; the representative body should
be a microcosm of the entire society. But in a large diverse country
this is patently impossible; furthermore, these very differences
would prevent any hope of reaching actions in the public good.
Here Brutus takes a position exactly the opposite of the theory of
Federalist X, which in addition to making a case for enlargement
of sphere, treats diversity as positively desirable in achieving decent
and free government. Brutus writes,
In a republic, the manners, sentiments, and interests of the people
should be similar. . . . If we apply this remark to the condition of
the United States, we shall be convinced that it forbids that we
should be one government. . . [A] legislature, formed of representatives from the respective parts, would not only be too numerous to
act with any care or decision, but would be composed of such
heterogenous and discordant principles, as would constantly be
contending with each other.24
These observations lead him directly to the dangers of a standing
army. The reasoning is as follows. A free government depends upon
the support of its citizens and requires the "confidence, respect, and
affection of the people." This confidence follows from the people
knowing their officers and their conduct and replacing those who
are found wanting. Yet in so large a country this would not be
The argument for homogeneity in a small republic seems to be a natural
inference from Montesquieu's views in Book V, chapters 3-7 of The Spirit of the
Laws. Brutus' opinions were widely shared and not at all surprising. The government proposed: a democratic republic over an extended sphere—had no previous parallel.
possible and this would result in the destruction of the people's
confidence in their legislature, in distrusting its measures, and in
an unwillingness to support the laws. There would be no other recourse than to that of a standing army to enforce the laws; this is the
most terrible of possibilities. Brutus has now laid out the structure of
his entire argument, although we cannot consider every part of it
here. In the second number he brings up an objection which is today
widely regarded as having been decisive at the time: the absence
of a Bill of Rights.
In his formulation of this position, Brutus rests his case directly
on the social contract theory of John Locke and its implications
for individual liberties. "The principles," he writes, "upon which
the social compact are founded, ought to have been clearly and
precisely stated, and the most express and full declaration of rights
to have been made," but since they were not, Brutus sets out the
theory in classic and uncomplicated form. The American people
"hold this truth as self-evident, that all men are by nature free."25
No one or group is born to have authority over the rest, rather,
"the origin of society then is to be sought, not in any natural right
which one man has to exercise authority over another, but in the
united consent of those who associate." 26 Men formed societies because of the inconveniences of the state of nature, where "every
individual pursues his own interest; in this pursuit it frequently
happened, that the possessions or enjoyments of one were sacrificed
to the views and designs of another; thus the weak were a prey to
the strong. . . . The common good, therefore, is the end of civil
government, and common consent, the foundation on which it is
established." In order to achieve the common good a certain amount
of the individual's natural liberty must be given up "to enable
those, to whom the administration of the government is committed,
to establish laws for the promoting the happiness of the community, and to carry those laws into effect." However, there are some
rights which cannot, in the nature of the case, be given up. "Of
25 Jeffrey observes on this point that this is a "deft emendation of some
language taken from the Declaration." op. cit., p. 679. It certainly is. In his
entire discussion of the social contract Brutus makes no mention of equality, of
any kind.
26 This follows nicely Locke's requirement of unanimity for the first compact,
the one in which men decide to form society. The compact by which government
is then established requires only a majority.
ex post facto laws, pass bills of attainder, or grant titles of nobility?
It certainly does not in express terms. The only answer that can be
given is, that these are implied in the general powers granted.
This argument is consistent with Brutus elsewhere, for he believes
that there are no restrictions upon the powers granted to the general government and that they encompass all of import to the
individual. A tentative answer to him might be that most of the
powers he mentions are essentially connected to the power to
legislate, no matter what the proper objects of that legislation are.
Bills of attainder and ex post facto laws are kinds of legislation,
not objects, and need to be specifically excepted out of the general
grant of legislative power, just as it was necessary to exempt certain
powers from those of the states.28
The paper concludes with what must have sounded like a wild
flight of imagination: the prediction that the treaty power, because
it like the laws and the Constitution were to be the supreme law
of the land, and because it was vested in the president and two
thirds of the Senate alone, could be used to repeal the "most important article in any constitution, even without a legislative act."28
This served as an additional argument for the necessity of a declaration of rights and suggests to Brutus an intent to deceive and
to enslave.38
Edmund Randolph points out in the Virginia Ratifying Convention that
suspension of habeas corpus is an exception to Congress' general power to regulate the courts. Jonathan Elliot, Debates on the Adoption of the Federal Constitution (New York: Burt Franklin, from the edition of 1888), III, p. 464. The
modern reader may like Alice in Wonderland hearing these arguments from a
20th century perspective. It is essential to recall that both the Federalists and the
Anti—Federalists believed in limited government in order to preserve individual
liberties and the private pursuit of happiness. Without this perspective much of
the dialogue and the assumptions on which it is based are lost to us.
29 Missouri v. Holland, 252 U.S. 346 (1920), fulfilled Brutus' expectations.
There the Supreme Court said, "It is obvious that there may be matters of the
sharpest exigency for the national well-being that an act of Congress could not
deal with but that a treaty followed by such an act, could, and it is not lightly to
be assumed that, in matters requiring national action, 'a power which must
belong to and somewhere reside in every civilized government' is not to be
found. . . ."
James Madison believed, correctly, I think, that the objection to the
Constitution based on the lack of a Bill of Rights was a smokescreen which
concealed the true objections. They pertained to the amount of power transferred from the states to the general government. In this Brutus does not differ
from other Anti—Federalists as he is much more exercised about the taxing
power and the potential of the judiciary than he is about the absence of the Bill
of Rights. The amount of space he devoted to these two issues is vastly more
than that to a Bill of Rights. The last eight papers deal with the judiciary, and
this kind are the rights of conscience, the right of enjoying and
defending life, etc."27
Since government was necessary because "one part exercised
fraud, oppression, and violence on the other," and since rulers
"have the same propensities as other men" it is appropriate that
"bounds should be set to their authority." History teaches that in
every country which was in any sense free it was necessary for the
people themselves to resist the natural tendencies for rulers to
extend their authority at the expense of public liberty. Brutus
rejects the argument which was advanced by James Wilson, Hamilton in Federalist LXXXIV, and Madison in letters to Jefferson and
others, as well as by other Federalists, that since the government
would be one of powers delegated to it from those of the states,
by the sovereign authority—the people—whatever powers it does
not have are retained either by the states or by the people. Therefore, this view runs, since it was delegated no powers over matters
of conscience, speech, press, etc., it had no power over these individual liberties. This Federalist argument was far from the sophistry
it is commonly regarded to be today, for most men believed that
these powers had been retained by the states. One persuasive piece
of evidence of this is the fact that when Madison introduced his
amendments to the Constitution he added one entirely on his own,
and these were his words:
No state shall violate the equal rights of conscience, or the freedom
of the press, or the trial by jury in criminal cases.
Only one member of the House of Representatives voted against
the amendment, but it failed to pass the Senate which was then.
chosen directly by the state legislatures.
Brutus uses what he regards as a powerful argument to demonstrate the true intentions of the framers of the Constitution, and
to show that they gave the game away by including some protections in the Constitution and noY. others.
We find they have, in the 9th section of the 1st article, declared
that the writ of habeas corpus shall not be suspended, unless in
cases of rebellion—that no bill of attainder, or ex post facto law,
shall be passed—that no title of nobility shall be granted by the
United States, etc. If everything which is not given is reserved, what
propriety is there in these exceptions? Does this constitution any
where grant the power of suspending the habeas corpus, to make
27 Compare this with James Madison's speech of June 8, 1789, in the House
of Representatives introducing amendments to the Constitution.
Brutus, like Thomas Jefferson, did not understand that the
greatest threat to individual liberty in a democracy comes from the
majority itself. His argument here reflects the conviction, as do
Jefferson's letters urging the addition of a Bill of Rights, that the
only threat to liberty comes from the abuse of power by the governors. In the most profound sense it is a "whole new ball game"
and it was left to James Madison, Tocqueville, and John Stuart
Mill to instruct us fully in the new rules.31
Number III launches Brutus' critique of the proposed legislature on numerous counts. First, because of the three–fifths compromise there is no real proportional equality of representation in the
House of Representatives. Brutus is outraged that the inhuman
traffic in slaves is to be made the basis for additional representation
of southern states, and that the business is to continue until 1808.
Turning to the Senate he objects to the equality of representation
of all states regardless of population in that body, in particular
because of its great powers. The theory of legitimate representation
which is suggested in the first essay is elaborated upon here.
The very term, representative, implies, that the person or body
chosen for this purpose, should resemble those who appoint them—
a representation of the people of America, if it be a true one, must
be like the people. It ought to be so constituted, that a person, who
is a stranger to the country, might be able to form a just idea of their
character, by knowing that of their representatives. They are the
are one good reason why authorship by Judge Yates is plausible; the taxing
power comes up again and again in consecutive papers.
This is not the place for a comprehensive examination of the adoption and
philosophy of the U.S. Bill of Rights. But a word of caution is permissible. An
honest look at the entire history of the Bill of Rights, freed from today's rhetoric
and bias, reveals a very disappointing record. Hamilton's statement in Federalist
LXXXIV is not sophistry but a pretty accurate description of this history:
"They [Bills of Rights] would contain various exceptions to powers which are
not granted; and, on this very account, would afford a tolerable pretext to claim
more than were granted. For why declare that things shall not be done which
there is no power to do? .. .
"I will not contend that such a provision would confer a regulating power; but
it is evident it would furnish, to men disposed to usurp, a plausible pretense
for claiming that power. They might urge with a semblance of reason that the
Constitution ought not to be charged with the absurdity of providing against
the abuse of an authority which was not given . . . op. cit.," pp. 513-514.
For an illuminating discussion comparing the place of a declaration of
rights in a nondemocratic government with the new threat to liberty in a democratic one, see J. S. Mill, On Liberty, Max Lerner, ed. Essential Works of John
Stuart Mill (New York: Bantam Books, Bantam Matrix Edition, 1965), pp. 255263.
sign—the people are the thing signified. It is absurd to speak of one
thing being the representative of another, upon any other principle.
Let us call this the microcosm theory. For such a body to be truly
representative it would have to be very numerous, and the "general
assembly" (House of Representatives) as constituted is too small,
only 65 men. The six allotted to the state of New York cannot
begin to embody all the classes of people in that state. Instead,
"[a]ccording to the common course of human affairs, the natural
aristocracy of the country will be elected." He strongly suspects
that it will be a body easily corrupted and that the view that this
is necessary is held by some at the Federal Convention: "[t]he
more I reflect on this subject, the more firmly am I persuaded, that
the representation is merely nominal—a mere burlesque; and that
no security is provided against corruption and undue influence."
Continuing in the same vein, number IV reiterates the objections based on the small number who will make up the House of
Representatives; here emphasis is upon the impossibility of knowing the representatives, the loss of confidence in the government
which will mean "it must be executed by force, or not executed at
all." Yet Brutus goes further in foreseeing the eventual destruction
of even this inadequate representation. By means of its powers in
the last resort over the manner in which elections will take place,
Congress will be able to control the outcome of elections and in
effect, destroy the franchise. The most interesting objection is the
microcosm theory of representation. This theory is still very much
a live issue as it has been for centuries. It rests on the view that a
representative body is a substitute for direct democracy, in which
all the citizens assemble and conduct the public business directly.
On this theory the only legitimate representation would be that
which most closely approximates the exact characteristics of the
citizens, and representation as such is a poor substitute for the real
thing, acceptable only because of necessity." On the other hand
the theory of representation put forward in the Federalist Papers
regards representation as positively desirable in itself. Turning
the Anti–Federalist argument completely around, Publius/Madison
argues that representation is good because it makes possible extent
of sphere: a large and diverse republic. In addition the distance it
provides between the momentary passions of the citizens and the
32 See Hanna Fenichel Pitkin, The Concept of Representation (Berkeley:
University of California Press, 1972), Ch. 4.
actions of the deliberative body helps to create the stability which
all previous democratic governments lacked.33
Many of the criticisms made by Brutus embody the confusion
which has always attended the American form of a federal government. And the confusion persists. We need to remember that there
was no previous example of a federated government like that
designed in 1787, and that the name `federal' refers to a form of
union transformed by the U. S. Constitution into a government.
Federal' or `confederal' (they are the same) described sovereign
political entities linked by a league or treaty, much as the United
Nations or a regional defense organization like NATO, are today.
Brutus' concern with the line between the power of the states and
that of the general government is legitimate, and one of the powers
he worried most (as a dog worries a bone) was the taxing power.
The taxing power had a symbolic as well as a practical importance,
and it was too soon after the Revolution for anyone with public
concerns to forget the former. In the view of the contemporary
political theory, the taxing power was the key to all else for all
the essential powers of government were interrelated. Legitimate
government was limited government; government which was limited as to objects, not in power. Put another way, limited government does not mean weak government, but government which has
a limited number of ends or objects and which possesses all the
power requisite to accomplish those objects. A classic statement of
those objects is found in Brutus, No. XII: "The preservation of
internal peace—the due administration of justice—and to provide
for the defense of the community, seems to include all the objects
of government. . . ." Or, when looking at the language of the
Preamble to the Constitution, he says, "If the end of the government is to be learned from these words, which are clearly designed
to declare it, it is obvious it has in view every object which is
embraced by any government . . . to constitute a government which
33 Consult Federalist X and LXIII. The direct response to the objection "that
the House of Representatives is not sufficiently numerous for the reception of all
the different classes of citizens in order to combine the interests and feelings of
every part of the community, and to produce a true sympathy between the
representative body and its constitutents," (the words are Publius/Hamilton's),
found in Federalist XXXV and the beginning of XXXVI appears to this writer
to support Brutus' charge. They seem to demonstrate the soundness of Brutus'
Nobjection so long as one starts with the view of legitimacy described above. The
est counter argument, in my opinion, is to make the positive case for repreN
N ion itself, as the Federalist does.
is to extend to every case for which any government is instituted,
whether external or internal."34
It is proper here to remark, that the authority to lay and collect
taxes is the most important of any power that can be granted; it
connects with it almost all other powers, or at least will in process
of time draw all other after it; it is the great mean of protection,
security, and defense, in a good government, and the great engine
of oppression and tyranny in a bad one.35
Brutus objects that the constitution gives an undefined taxing
power to the Congress which it will abuse and which will enable
it eventually to destroy the states by monopolizing all the sources
of revenue. The Constitution "should have marked the line in
which the general government should have raised money, and set
bounds over which they should not pass," he writes in No. V. The
only protection the people have from the abuse of the power to
tax is the quality of their representation, and since it will not be
sufficiently large to embody all the various circumstances of its
constituents it cannot be relied upon. One answer to this objection
ought to be that the representatives themselves will have to live
with the tax laws which they pass and that this was expected to
make them tax fairly and moderately.
Brutus predicts that if the state governments "can raise money
only by permission of the general government, it follows that the
state governments will be dependent on the will of the general
government for their existence" (No. IV). Continuing in No. V
and into VI he examines the taxing power in conjunction with the
necessary and proper clauses and the Preamble to the Constitution
and concludes (in No. VII) that
every source of revenue is under the controul of Congress; it therefore follows, that if this system is intended to be a complex and not
a simple, a confederate and not an entire consolidated government,
it contains in it the sure seeds of its own dissolution.
Either the authority of the new government will become a nullity
(just as, he points out, happened with the Confederation) or that
34 "We, the people of the United States, in order to form a more perfect
union, establish justice, insure domestic tranquility, provide for the common
defense, promote the general welfare, and secure the blessings of liberty to
ourselves and our posterity, do ordain and establish. . . ."
Number I. Compare with Madison in 1819; "In the great system of Political
Economy having for its general object the national welfare, everything is related
immediately or remotely to every other thing; and consequently a Power over
any one thing, if not limited by some obvious and precise affinity, may amount
to a power over every other." Gaillard Hunt, ed. The Writings of James Madison,
Vol. VIII (New York, G. P. Putnam's Sons, 1900), p. 448.
The only causes for which they can be displaced, is, conviction of
treason, bribery, and high crimes and misdemeanors.
This part of the plan is so modelled, as to authorise the courts,
not only to carry into execution the powers expressly given, but
where these are wanting or ambiguously expressed, to supply what
is wanting by their own decisions. (No. XI)
"[T]he power of this court is in many cases superior to that of the
legislature. . . . this court will be authorised to decide upon the
meaning of the constitution, . . . not according to the natural and
obvious meaning of the words, but also according to the spirit and
intention of it." (No. XV). Since the legislature receives its powers
from the same source of legitimacy as does the judiciary—the people
expressing their will in their constitution—and since the legislature
can only exercise their own constitutional powers, they are prevented
from encroaching on judicial powers. For they are held independently just as the legislature holds its powers independently. But the
judiciary has 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." He reminds his readers that in England the judges
can have their decisions overruled by the House of Lords on the
grounds of error, and the Parliament has the authority, "by a new
law, to explain a former one, and by this means to prevent a reception of such [contrary to the sense of Parliament] decisions."
(No. XV). Notice two things at this point. First, Brutus' description of what we call judicial review is already more comprehensive
than that described by either Hamilton in Federalist LXXVIII, or
Marshall in Marbury v. Madison; it is the modern judicial branch
he is outlining. Secondly, he states the power of Parliament in
respect to English courts very carefully."
What are the arguments and evidence Brutus uses to support
these charges and analyses? Why does he so fear these possibilities?
How are Publius/Hamilton's Federalist papers a response to Brutus?
To begin with, Brutus places great emphasis upon the words "extend
Brutus says in the passage quoted (No. XV): "but in cases where they give
an explanation to the laws or constitution of the country, contrary to the sense of
the parliament, though parliament will not set aside the judgment of the court,
yet. . . ."
cerns about a standing army. 38 His are not mere idle speculations,
or foolish objections, but are based on recent experience and history,
yet he attempts a moderate position and sketches out alternate constitutional arrangements which would place much greater restrictions on peacetime armies.
Essays XI—XVI are primarily devoted to a discussion of the proposed national judiciary, and were published between January 31,
1787 and April 10, 1788. The dates are important because Publius/
Hamilton's papers on the judiciary in the Federalist are clearly in
response to Brutus. Since Federalist LXXVIII (published May 28
1788), has been so influential, Brutus' discussion should be of great
interest to us. I will try to show that Hamilton's argument and true
purpose cannot be fully appreciated except in response to the issues
Brutus raises. Only Brutus, of commentators pro or con, predicts the
actual development of the judiciary, raising difficult questions for
those who would study and understand "the least dangerous
branch." 39 Since he devotes eight out of eighteen essays to the
judicial power we can assume he considered it of the greatest importance. We can also refuse to believe his disclaimer to legal
knowledge or competence, since these papers demonstrate a clear
mastery of the "arcane science." At the beginning, the substance of
his charge is that,
It is, . . . of great importance, to examine with care the nature
and extent of the judicial power, because those who are to be vested
with it, are to be placed in a situation altogether unprecedented
in a free country. They are to be rendered totally independent,
both of the people and the legislature, both with respect to their
offices and salaries. No errors they may commit can be corrected
by any power above them, if any such power there be, nor can they
be removed from office for making ever so many erroneous adjudications.
38 Alexander Hamilton's letter to Washington at the time appears to be an
attempt to warn him, although it is open to a less friendly interpretation. See
letter of Feb. 13, 1783 in Harold C. Syrett and Jacob Cooke eds., The Papers of
Alexander Hamilton, Vol. III (New York: Columbia University Press, 1962), p. 253.
8 These questions include the true dimensions of the judicial power, the
intentions of those who designed the constitution, the failure of any other contemporary to see the startling possibilities (I would include Hamilton and
Marshall in this although mine is a controversial opinion), and the role of the
individual judge as statesman. The reader should remember that Brutus is
writing before the comprehensive and controverted legislation of 1789 creating
lower federal courts, before Marbury v. Madison and the Federalist retreat into
the judiciary, and before McCulloch v. Maryland.
federation support his argument. He draws from the experience
under the Articles of Confederation to show that even at the most
perilous time no one advocated a monopoly on a taxing power,
"an unlimited power to collect taxes, duties and excises, . . . to be
vested in the united states." The thrust of his discussion is a direct
answer to Hamilton and an attempt to demonstrate that there can
be a "limitation of that authority which is to provide for the defense
and protection of the community."
Brutus takes up two further major objections in the remainder
of his essays. The first concerns the dangers of a standing army,
which we have considered in attempting to unlock the motive for
the pseudonym, Brutus. In Numbers VIII, IX, and X Brutus attacks
those who justify a standing army in peacetime and those who
defend these arrangements on the grounds that the temper and
inclination of the American people is such that standing armies are
not the dangerous potential which they have been in other times
and places. He quotes at length from Pultney's speech in Parliament
in the 18th century, then he produces evidence from the state constitutions and from the present situation with the Continental Congress. Finally he turns to the two most compelling historical examples, those of Rome and Britain. In a more homely example, Brutus
reminds us of the events at the end of the recent war, in America,
the Newburgh Addresses. 37 Had General Washington been a different sort of man, instead of the republican patriot he was, America
might have known first hand the "hazard, that an army will subvert
the forms of the government, under whose authority, they are raised,
and establish one, according to the pleasure of their leader." Brutus
charges that some at the late Federal Convention had been involved
with the Newburgh Addresses, which lends color to his sharp con37
This refers to several anonymous letters directed to the officers of the main
Washington camp near Newburgh, N.Y. Distressed at their financial circumstances
and Congress' inability or unwillingness to provide for them fairly, the author of
these letters reached a responsive audience. They counselled defiance of Congress,
even a refusal to lay down arms at the end of hostilities until they were paid.
These views were supported by some prominent financial interests which were
heavily involved in the expense of the Revolution, including Robert and
Gouverneur Morris, and Alexander Hamilton. They feared that peace would
come with no settling of obligations and sought a strongly centralized government
which could force the states to pay the Revolutionary obligations, even using the
threat of military force if necessary. Washington's prudent behavior entirely
defused the situation. See C. Edward Skeen, "The Newburgh Conspiracy Reconsidered," William and Mary Quarto-1y, 3rd series, Vol. 31, No. 2 (April, 1974),
pp. 271-298.
of the individual states will disappear, and they will become mere
shadows. In No. VII Brutus is disagreeing directly with Publius/
Hamilton's Federalist XXIII where Hamilton says, "unless it can
be shewn that the circumstances which may affect the public safety
are reducible within certain determinate limits, unless the contrary
of this position can be fairly and rationally disputed;• it must be
admitted as a necessary consequence, that there can be no limita.
don of that authority which is to provide for the defense and
protection of the community." Hamilton issues a challenge which
Brutus takes up. Hamilton says later in the same paper that the
adversaries of the proposed government ought to give up foolish
complaints about the extent of the powers and show "that the
internal structure of the proposed government was such as to render
it unworthy of the confidence of the people." 36 Not only does
Brutus attempt to answer Hamilton's initial charge in his VII
essay, but he has already discussed at length his objections to the
structure—to those aspects which would "render it unworthy of the
confidence of the people." Brutus' reasoning goes as follows. First,
the "protection and defense" of the political community are not to
rest completely and entirely with the general government, but are
confined to foreign dangers (including invasion), crimes on the
high seas, and internal rebellions. But, Brutus points out, the protection of the citizen against private violence, against crimes of
one person against another, are the responsibility of the state
governments and ought to be.
His second answer to Publius/Hamilton speaks to a more difficult issue:
The preservation of internal peace and good order, and the due
administration of law and justice, ought to be the first care of
every government.—The happiness of a people depends infinitely
more on this than it does upon all that glory and respect which
nations acquire by the most brilliant martial achievements—and I
believe history will furnish but few examples of nations who have
duly attended to these, who have been subdued by foreign invaders.
If a proper respect and submission to the laws prevailed over all
orders of men in our country; and if a spirit of public and private
justice, oeconomy and industry influenced the people, we need not
be under any apprehensions but what they would be ready to repel
any invasion that might be made on the country.
Elaborating on this view in the rest of the paper he attempts to
show that both European, and American history under the Con36
Federalist XXIII, op. cit., p. 156. The first quote from XXIII is from Brutus,
No. VII.
to all cases in law and equity," citing Blackstone and Grotius as to
the meaning of equity jurisdiction. Grotius defines equity, according to Brutus, as "the correction of that, wherein the law, by reason
of its universality, is deficient; for since in laws all cases cannot be
foreseen, or expressed, it is necessary that when the decrees of the
law cannot be applied to particular cases, there should some where
be a power vested of defining those circumstances, which had they
been foreseen the legislator would have expressed. . . ." Brutus
further quotes, "That equity, thus depending essentially upon each
individual case, there can be no established rules and fixed principles of equity laid down, without destroying its very essence, and
reducing it to positive law." His point here is to show that by an
equity jurisdiction, the Supreme Court will be "empowered, to explain the constitution according to the reasoning spirit of it, without being confined to the words or letter" (No. XI). And these
explanations will,
have the force of law; because there is no power provided in the
constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the
legislature themselves, cannot set aside a judgment of this court,
because they are authorised by the constitution to decide in the last
resort. The legislature must be controuled by the constitution, and
not the constitution by them. They have therefore no more right to
set aside any judgment pronounced upon the construction of the
constitution, then they have to take from the president, the chief
command of the army and navy, and commit it to some other
person. The reason is plain; the judicial and executive derive their
authority from the same source, that the legislature do theirs; and
therefore in all cases, where the constitution does not make the one
responsible to, or controulable by the other, they are altogether
independent of each other.
Brutus returns to an earlier theme in explaining why the federal
courts will be personally inclined to enlarge their scope and the
authority of Congress along with it, as well as finding justification
in the provisions of the Constitution itself for "latitude of interpretation." This is the interest men in public office feel in enlarging
their own power, in protecting the rights and privileges of their
office, and thus increasing their own "dignity and importance" in
government councils and affairs. With increased responsibilities will
also come increase in pay. They will have the force of precedent to
aid them; the English courts have vastly enlarged their own jurisdiction at their own hands. Brutus gives the example of English courts
of exchequer extending their powers in the face of an act of Parliament expressly limiting them; how much easier for the American
federal courts to act in the face of constitutional silences. "This
power in the judicial, will enable them to mould the government,
into almost any shape they please." The legislature will not intentionally pass laws which it knows the court will refuse to recognize
on the grounds that they have exceeded their constitutional powers,
but similarly, the legislature will reach to the outermost boundaries
the court sets to their powers whenever the occasion arises. 41 In this
way the court's opinion of the meaning and intention of the constitution "will become the rule to guide the legislature in their
construction of their powers."
Brutus takes his bearings from the Preamble to the Constitution
in order to determine what latitude the court will allow. Here as
in a number of places he interprets the meaning of the Constitutional grants by reference to the purposes set forth at the beginning
of the document. This enables him to conclude that the courts, using
these principles to expound the Constitution, will construe the
grants so generously that "every department under it, [will] take
cognizance of every matter, not only that affects the general and
national concerns of the union, but also of such as relate to the
administration of private justice, and to regulating the internal and
local affairs of the different parts." (No. XII).
After discussing the principles by which the court will operate
and the latitude this will give to the Constitutional powers both of
the legislature and of the court, Brutus considers specific matters
Brutus' reasoning as to the principles the Court will use remarkably anticipates Hamilton's (and later Marshall's) language to explain why the Court cannot
give effect to unconstitutional legislation:
Ty the legislature pass laws, which, in the judgment of the court, they are
not authorized to do by the constitution, the court will not take notice of
them; for it will not be denied, that the constitution is the highest or supreme
law. And the courts are vested with the supreme and uncontroulable power to
determine, in all cases that come before them what the constitution means;
they cannot, therefore, execute a law, which, in their judgment, opposes the
constitution, unless we can suppose they can make a superior law give way to
an inferior." (No. XII)
Jeffrey's purpose is to show that Hamilton doesn't deserve the credit for
articulating the miraculous doctrine of judicial review: ". . . Alexander Hamilton,
. . . , was far indeed from uttering freshly–minted and indubitable truths about
the power of the Supreme Court to declare the invalidity of congressional statutes.
Compelled by the Constitution's text [which Hamilton denies in Federalist
LXXXI] to acknowledge judicial review, Hamilton was unable to do more than
repeat the assertions of 'Brutus' and attempt to minimize their alarmist impact
and to diminish their argumentative force." Op. cit., p. 655.
over which the court has jurisdiction. In particular he is concerned
about that part of Article III which extends the judicial power to
controversies between a state and citizens of another state, first because it is improper for a sovereign power to be subject to suit without its consent; and secondly because he can conceive of a chain of
developments in which citizens of other states acquire notes against
a state and bring legal action in order to get payment of these debts.
This would happen, he suggests, in sufficient volume to bring a state
down financially—particularly in regard to the debts they incurred
in fighting the Revolution. He is convinced that the legislature will
have the power to pass laws under the necessary and proper clause
to provide for the process of reaching and executing judgments
against a state.42
In subsequent numbers Brutus discusses the court's appellate
jurisdiction (No. XIV), the independence of the judiciary, and the
problem of accountability. The last leads to a discussion of impeachment and a brief consideration of the Senate, with which Brutus
concludes his articles. He shows that contrary to the views of some,
the court's appellate jurisdiction will lie in criminal as well as civil
cases, a largely unprecedented arrangement. He foresees the harassment of individuals by means of a series of trials, where they "may
be subjected to intolerable oppression. They may be kept in long
and ruinous confinement, and exposed to heavy and unsupportable
charges, to procure the attendance of witnesses, and provide the
means of their defence, at a great distance from their places of
residence." Another very serious possibility is undermining the right
of jury trials. He reminds his readers that they are already familiar
with the practice of appeals in civil courts from an inferior to a
superior tribunal where judges rule on both law and fact, where
sometimes new facts are introduced and the cause entirely changed
from what it was below. Threats to the great right of trial by jury
brought forth eloquent responses from Anti-Federalists in every
state. The consequence of appeals in civil courts had been to
render the determination of the jury less significant, making the
right in such instances an empty one. Brutus carefully examines
specific language: "In all the other cases before mentioned, the
supreme court shall have appellate jurisdiction, both as to law and
4 2 The Eleventh Amendment to the U.S. Constitution is the consequence of
such a case, Chisholm v. Georgia, 2 Dallas 419 (1973); a suit by a citizen of South
Carolina for money owed by Georgia. Brutus' discussion is in No. XIII, continued.
43 The Americans in the 18th century regarded the three great rights as those
fact," concluding that in a manner unprecedented in common law
courts, the supreme court will "have the same jurisdiction of the fact
as they are to have of the law .. .; the common law is a stranger
to any such jurisdiction" (No. XIV). In defense of the clause it was
said that the legislature could establish the right of trial by jury on
appeals, but this does not satisfy the objection. Brutus points out
that such a practice exists in some eastern states and that the consequence is that a cause is rarely determined in a lower court, all
cases of any importance are appealed, the lower courts have become
useless, "and answer very little purpose, save only to accumulate costs
against the poor debtors who are already unable to pay their just
debts." Indeed, he remarks that this was one of the main reasons for
the famous Shays' Rebellion recently in Massachusetts." "No man
of midling fortune, can sustain the expence of such a law suit. . . ."
His conclusions are very pessimistic.
From these remarks it appears, that the administration of justice
under the powers of the judicial will be dilatory; that it will be
attended with such an heavy expence as to amount to little short of
denial of justice to the poor and midling class of people who in
every government stand most in need of the protection of the law
and that the trial by jury, which has so justly been the boast of
our fore fathers as well as ourselves is taken away under them.
(No. XIV, continued)
The history of the state courts demonstrates that it is not necessary to entrust such a large jurisdiction to the supreme court; the
state courts can be trusted and indeed, the states are prohibited in
other passages in the constitution from the "wanton" attacks on
property which has led to abuses in some state courts. The states are
prohibited from emitting "bills of credit, or mak[ing] anything but
gold and silver coin a tender in payment of debts" and "no state
shall pass any law impairing the obligation of contracts." Retaining
the full vigor of the state system of justice "would preserve the good
old way of administering justice, would bring justice to every man's
door, and preserve the inestimable right of trial by jury. It would
of religion, press, and jury trials. Contemporary civil libertarians need to be
reminded of the third and its honorable history. See Leonard Levy, Origins of the
Fifth Amendment (London: Oxford University Press, 1968). Madison's proposed
amendment against the states (see page 15 supra) demonstrates this also.
44 Popular dislike and suspicion of courts and lawyers continued well into the
19th century, and not without reason. See Richard E. Ellis, The fejjersonian
Crisis, Courts and Politics in the Young Republic (New York: Oxford University
Press, 1971).
be following, as near as our circumstances will admit, the practice
of the courts in England, which is almost the only thing I would
wish to copy in their government."
The conclusion of this detailed and careful consideration of the
proposed judicial department is an examination of the extent to
which it will be beyond the reach of any power in the government
or in the community. "In short, they are independent of the people,
of the legislature, and of every power under heaven." 45 (No. XV).
He compares what will be the status of the American judiciary with
that of the English showing the various ways the English courts are
subject to the higher power of the Parliament. Since the English
courts are regarded as "put upon the most prudent establishment"
the fact that they have no comparable power is instructive and
revealing. Here Brutus theorizes about the relationship between an
independent judiciary and the sovereign authority in a political community which anticipates arguments Hamilton will use in Federalist
LXXVIII, and shows why those arguments are misleading. "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." (No. XV). He distinguishes between the independence of the judiciary in England, which means that the
judges hold their offices during good behavior and have fixed salaries, but where there is a higher tribunal which can correct their
errors; and that of the judiciary in the proposed Constitution where
"there is no power above them to set aside their judgment." He
meets Hamilton's arguments in Federalist LXXVIII, when he writes
45I believe Brutus goes farther in recognizing this phenomenon than any
contemporary, or than other commentators do until after the change in the
Supreme Court which takes place during the New Deal and which is accompanied
by a considerable liberal justification for a court which is the embodiment of
judicial supremacy, and whose decisions are final except for the corrective of a
Constitutional amendment. As late as 1938 E. S. Corwin writes, "The idea, .. .
that a pronouncement of unconstitutionality by the Court fixes the meaning of
the Constitution as against the national legislative power, . . . has never assumed
a sufficiently authoritative shape to put it beyond the reach of important challenge." Court Over Constitution (Princeton: Princeton University Press, 1938), p.
82. Earlier, Corwin raised one of the logical difficulties in the doctrine of finality
of Supreme Court determinations of constitutionality:
.. [T]he conspicuous breakdown of the principle of stare decisis in the field
of constitutional law has weakened both its historical and its lbgical foundations.
For with what consistency can it be argued that the President and Congress are
bound by the Court's past interpretations of the Constitution but that the Court
itself is not?" Pp. 77-78.
that the reasons which favor the independence of the judiciary in
England "do by no means apply to this country."
The great reason assigned, why the judges in Britain ought to
be commissioned during good behavior, is this, that they may be
placed in a situation, not to be influenced by the crown, to give
such decisions, as would tend to increase its powers and prerogatives. . . . The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger
inducements to increase the prerogatives of his office than those who
hold their offices for stated periods, or even for life. Hence the
English nation gained a great point, in favour of liberty. When they
obtained the appointment of the judges, during good behaviour,
they got from the crown a concession, which deprived it of one of
the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the
people. But these reasons do not apply to this country, we have no
hereditary monarch; those who appoint the judges do not hold their
offices for life, nor do they descend to their children. . . . But much
less can it be shewn, that the nature of our government requires
that the courts should be placed beyond all account more independent, so much so as to be above controul.
It is instructive to compare Hamilton's use of these ideas.
The standard of good behavior for the continuance in office of the
judicial magistracy is certainly one of the most valuable of the
modern improvements in the practice of government. In a monarchy
it is an excellent barrier to the despotism of the prince; in a
republic it is a no less excellent barrier to the encroachments and
oppressions of the representative body. .. .
Upon the whole, there can be no room to doubt that the convention acted wisely in copying from the models of those constitutions
which have established good behavior as the tenure of their judicial
offices, in point of duration; . . . The experience of Great Britain
affords an illustrious comment on the excellence of the institution.46
Brutus does not believe that the provisions for impeachment of
judges will serve to make them sufficiently responsible or make their
independence compatible with a representative government. This
leads to his final and brief consideration of the Senate and its powers (he does not discuss the executive branch except tangentially
several times); in a seeming contradiction he approves of the equal
representation of states in that body. In the previous instance (see
page 17ff) he objects on the grounds of inadequate representation
of the political community, and the different proportions states con46
Federalist Papers, op. cit.,
pp. 465 and 472.
tribute. Here he approves of the arrangement because it injects a
confederal principle into a government he regards as too wholly
centralized. But he believes that the term of the senators is too long
and that the many powers of the body are to some extent
Does Brutus primarily fear a judiciary which will be in some
sense above the legislature? No; his fundamental concern is that this
judiciary "will operate to a total subversion of the state judiciaries,
. . . the judicial power will operate to effect, in the most certain,
but yet silent and imperceptible manner, what is evidently the tendency of the constitution:—I mean, an entire subversion of the legislative, executive and judicial powers of the individual states. Every
adjudication of the supreme court, on any question that may arise
upon the nature and extent of the general government, will affect
the limits of the state jurisdiction. In proportion as the former
enlarge the exercise of their powers, will that of the latter be
restricted." (No. XI).
Hamilton had access to all of these articles on the judiciary when
he wrote his in the Federalist Papers for the last one was published
over a month before the final series of papers (all those after and
including Federalist LXXVIII) appeared in book form on May 28,
1788. At first glance Federalist LXXVIII seems to bear out a preconception of Alexander Hamilton, writing as Publius, as distrustful
of democracy; yet the paper goes even farther, unnecessarily far, in
letting the cat out of the bag as to how to moderate and check the
popular influences in a representative democracy. Or so it appears.
But what Hamilton is really doing is trying to put the cat back into
the bag; he is trying to make the best of Brutus' charges and turn
the flank of a very dangerous argument. Looked at in this fashion,
Hamilton's arguments in Federalists LXXVIII–LXXXII appear in
a very different light than is usually thought. These papers on the
judiciary are an heroic attempt to turn the force of Brutus' predictions to his advantage, to the advantage of the constitution, not
against it. Accordingly, Hamilton is very slippery on a number of
crucial points even editing the objections so that they can be
answered, and at times his hands move faster than the eye can
follow as he engages in a shell game, particularly in Federalist
Brutus sets the agenda. The gist of his analysis is that this
judiciary is unprecedented in a free country, that it will have the
power to decide questions of the meaning of the Constitution (as
well as to invalidate legislation) according to its "spirit" as well as
its letter, that it will be uncontrollable, and will mold the constitution and the government into whatever form it pleases, and that it
will wish to enlarge its own powers and those of the legislature at
the expense of those of the states, to a fatal extent. Hamilton does
not mention directly the charge that the court will enlarge its own
and the legislature's powers, but converts the issue into one of sovereignty: whether the court when it sets aside legislation which
conflicts with the fundamental principles of the Constitution (as he
says it must) is setting itself above the legislature. In LXXVIII
Hamilton paints a picture of a court which is not only compatible
with a representative democracy, but the essence of it; a court more
democratic than the elected representatives of the people. He has
subtly transformed Brutus' potent objection into one he can manage.
Indeed, Brutus himself was not enthusiastic about the legislature,
except that he understood it could be controlled by the sovereign
people much more effectively than a permanent and independent
supreme court. 47 Hamilton's characterization of the court as the
"least dangerous branch' s can be understood as a response to Brutus'
description of its essentially unchecked power: Hamilton is saying
that its power is checked, by the nature of the thing, by the kind of
institution a court is. He is also careful to describe the (supposed)
power to set legislation aside as limited to that which violates the
"manifest tenor" of the Constitutional provisions. Apparently
Hamilton was not satisfied with the utility of these words for in
Federalist LXXXI he writes,
In the first place, there is not a syllable in the plan under consideration which directly empowers the national courts to construe
the laws according to the spirit of the Constitution, or which gives
them any greater latitude in this respect than may be claimed by
the courts of every State. I admit, however, that the Constitution
ought to be the standard of construction for the laws, and that
wherever there is an evident opposition, the laws ought to give
place to the Constitution. But this doctrine is not deducible from
any circumstance peculiar to the plan of convention, but from the
general theory of a limited Constitution; and as far as it is true is
equally applicable to most if not all the State governments.48
47 Both Madison and Hamilton make the point earlier in the Federalist, in
XXXIII and XLIV respectively, that the remedy for unconstitutional legislation
is the ballot box; throw the bums out of office. The necessity of responding to
Brutus explains the curious contradiction between these two papers and LXXVIII.
As with his use of the analogy between the English monarch and the
American Congress, Hamilton creates illusion with his firm reference to the
Perhaps the most startling statement by Hamilton is a direct
answer to the charge (found in an anonymous quotation in Federalist LXXXI) that the "errors and usurpations of the Supreme Court
of the United States will be uncontrollable and remediless." Hamilton says that the impeachment power will be a weapon in the hands
of the legislature, should the Court encroach on the legislative
power, that there will be some power which can control the court.
It is important to see this in Hamilton's own words:
. . . [T]he supposed danger of judiciary encroachments on the
legislative authority . . . is in reality a phantom. . . . The inference is greatly fortified by the consideration of the important
constitutional check which the power of instituting impeachments
in one part of the legislative body, and of determining them in the
other, would give to that body upon members of the judicial department. . . . There never can be danger that the judges, by a series
of deliberate usurpations on the authority of the legislature, would
hazard the united resentment of the body intrusted with it, while
this body was possessed of the means of punishing their presumption by degrading them from their stations.49
Hamilton is speaking of an abuse of political trust, of crossing the
boundaries of separation of powers, of impeachment as a political
power, and not of narrowing the scope as developed in the attempt
to impeach Justice Chase.
This is just some of the evidence which serves to indicate the
extent to which Hamilton's judicial papers are in answer to Brutus
—directly provoked by his attack. Since no other Anti–Federalist
made such a comprehensive analysis of the judicial power, or foresaw its development as Brutus did, there was no other critic of this
article of the Constitution whom Hamilton had to answer. For this
reason alone Brutus justifies study.
I have tried here to present the flavor of Brutus as well as some
sense of the argument of the whole. He is incomparably better than
the mass of Anti-Federalist writing and a good deal of Federalist
writing—Pelatiah Webster for one. One of the most reassuring qualities of Brutus is the extent to which he views political questions
theoretically and takes theory seriously. The essays are full of examples: the small republic theory of government, the social contract, a
relationship between the judiciary in the states and the proposed national
arrangement. The actual relationship was quite different as the states generally
had weak executives threatened by "overbearing" legislatures (Virginia's was
notoriously weak), while the national government would have a vigorous, independent, executive which was designed partially to check legislative excesses.
49 Federalist, op. cit., pp. 484-5.
theory of representation, the principle of limited government, of
political economy, the implications of constitutionalism. This outlook testifies also to the fact that the debate over ratification took
place in terms of great theoretical questions on both sides, dare one
say great philosophical questions? If Brutus had believed that his
readers would only be convinced by practical concerns, by bread and
butter issues as we now say, he certainly would have used only them.
Instead he spoke in the accepted "language" of his time and was one
of the more influential Anti–Federalist publicists.
In his consideration of the merits of the proposed plan of government there are two interesting omissions. The presidency receives no consideration, and the Senate only gets a page or two.
Apparently he expected to continue with the Senate and changed
his plans, but there is no reference to a future discussion of the
executive branch. The greatest part of the essays is devoted to the
judiciary, the other main themes are the taxing power, the principle of representation embodied in the plan, the dangers of a standing army, the want of a Bill of Rights, and always, behind every
other question, the issue of consolidation and the continued vitality
of the states. Thus one of his important themes becomes the extent
of the powers transferred to the general government, the absence of
limits to that power, and how it will operate eventually to destroy
the states.
Throughout our history there have been predictions of the premature demise of the states. In my opinion both Federalists and
Anti–Federalists failed to appreciate that the states are simply essential in the American hybrid federal system and will not fade away.
Both sides were pessimistic about their continued existence, some
Federalists hoping that affection and common sense would lead
Americans to replace the states with the central government as their
primary loyalty; the Anti–Federalists fearing that the same would
occur, but for different reasons. It was not, however, unreasonable
to be skeptical about this new unknown form of government and in
Brutus we see a very intelligent version of this. In theory, our partly
national–partly federal government shouldn't work; and we don't
really know why it does.
The criticisms Brutus makes of the proposed government are
thoughtful and often persuasive. But perhaps Pelatiah Webster was
right, that Brutus was guilty of too much timidity, a failure of the
political imagination. Certainly the thrust of his analysis was the
extreme danger of this Constitution, if adopted, to much that Americans cherish. Some of his predictions were right, so much so that it
is dismaying. At the same time he was wrong on the most important
issue: the consequence of the adoption of the frame of government
was both to preserve the states and individual liberty as well. But
the opposition of such thoughtful critics may have been decisive in
achieving the decency and moderation which makes American
democracy unique in the history of democracies.
If you accept it, you will lay a lasting foundation of happiness for
millions yet unborn; generations to come will rise up and call you
blessed. You may rejoice in the prospects of this vast extended continent becoming filled with freemen, who will assert the dignity of
human nature. You may solace yourselves with the idea, that society,
in this favoured land, will fast advance to the highest point of
perfection; the human mind will expand in knowledge and virtue,
and the golden age be, in some measure, realised.
Geneva, Illinois
by Giuseppe Prezzolini
Professor John P. Diggins in his Mussolini and Fascism, The View
From America, Princeton University Press, 1972, when referring to the
Casa Italiana of Columbia University accuses the Casa of having been
a Fascist propaganda organization without ever mentioning the real
activities of the Casa, such as the publication of literary monographs,
the Paterno Library Collection of Italian Classics, and periodicals; the
many student clubs that met there; the concerts and lectures it offered;
the drama and choral groups that performed there; the thousands of
inquiries concerning Italy answered every year; the visits of scholars,
poets, and musicians. He forgets that the Casa is the scenario of a
university. Diggins' sources were old newspapers and magazines.
Sentence by sentence, like hammer blows of facts, Prezzolini destroys
all the accusations. Who invited Prezzolini to Columbia? None other
than his old friend Arthur Livingston, qualified by Diggins as the most
anti-Fascist. Who were the visiting professors from Italy? Casella, Loria,
De'Negri, all anti-Fascists. Nor does Diggins ever mention the Casa
Italiana Administrative Board made up of distinguished Columbia professors and administrators, including Arthur Livingston, who every year,
from 1930 to 1940 during Prezzolini's tenure of office as Director,
approved his annual reports.
The Case of the Casa Italiana is based on documents and letters,
especially important because they are from guests who were there for
long periods of time, among whom Moravia, Borgese, Cecchi, and
some. Nobel prize winners such as Fermi and Segre. Diggins uses only
second hand sources and a narrow view.
It is up to the reader to judge whether the partisan bias of Diggins
is to be believed above the facts of Prezzolini.
To: American Institute of Italian Studies
c/o Villa Walsh
Morristown, N.J. 07960
Please send me
I enclose $