AN ANTI-FEDERALIST GOVERNMENT WOULD BE UNSAFE AND INEFFECTIVE

AN ANTI-FEDERALIST GOVERNMENT WOULD BE UNSAFE AND INEFFECTIVE

1. AN ANTI-FEDERALIST SYSTEM WOULD BE VULNERABLE TO FOREIGN ATTACK

Robert Webking, Assistant Professor of Political Science, “The Federalist: Government Power and Individual Rights,” THE CONSTITUTIONAL POLITY, 1983, p. 9.

The first of the advantages is the increased safety from foreign attack that comes with Union. “Among the many objects to which a wise and free people find it necessary to direct their attention that of providing for their safety seems to be the first.” Other nations must be prevented from having just causes for warring with the Americans and they must also be discouraged from attacking injustly on the pretext of trumped up charges. With the Union the Americans will be less likely to present just causes for war to foreign nations because there will be a single interpretation of the law of nations and of treaties. That single interpretation will not be dominated by the unjust desires of any part of the Union. Moreover, should the national government provide a just cause for war to a foreign nation it is far more likely that the dispute will be settled without recourse to war with one large nation than it would be with several smaller confederacies. Publius notes the reality that “acknowledgements, explanations, and compensations are often accepted as satisfactory from a strong united nation” when they would not be accepted from a weaker power.

Thomas E. Baker, Director of the Constitutional Resource Center, BYU JOURNAL OF PUBLIC LAW, 1999, p. 76.

In any civilized society the most important task is achieving a proper balance between freedom and order. In wartime, reason and history both suggest that this balance shifts to some degree in favor of order - in favor of the government's ability to deal with conditions that threaten the national well-being. It simply cannot be said, therefore, that in every conflict between individual liberty and governmental authority the former should prevail. And if we feel free to criticize court decisions that curtail civil liberty, we must also feel free to look critically at decisions favorable to civil liberty. To conclude his historical exegesis, the Chief Justice brings us back one last time to Lincoln's dilemma to ask and answer rhetorically, "Should he, to paraphrase his own words, have risked losing the Union that gave life to the Constitution because that charter denied him the necessary authority to preserve the Union? Cast in these terms, it is difficult to quarrel with his decision."
3. ADVANCES IN CULTURE AND TECHNOLOGY MAKE ANTI-FEDERALISM IMPRACTICAL

Larry D. Kramer , Professor of Law, New York University Law School, COLUMBIA LAW REVIEW, January, 2000, p. 291-292.

The specific limits of federal power envisaged by the Founders in 1789 are gone, and any effort to roll back federal power to what it meant at the Founding would be foolish as well as utterly impractical. Even the harshest critics of New Deal jurisprudence acknowledge that changes in society, culture, and the economy require a different kind of national authority today, both practically and as an interpretive matter. Hence, notwithstanding any purported claims of fidelity to original intent, the limits on Congress proposed by today's advocates of judicially-enforced federalism in fact look nothing like any limits that existed when the Constitution was adopted. The question thus becomes, which process should determine the appropriate revised allocation of authority between the federal government and the states: constitutional politics or judicial edict? Mesmerized by the mantra "our Federal government is one of limited powers," the Justices assume that it necessarily falls on them to define new limits - some limits, any limits, even if those limits bear no resemblance to anything imagined by the Founders or observed in the past. But imposing novel judicially-defined limits just for the sake of having judicially-defined limits is an ill-conceived formalism. In a world of global markets and cultural, economic, and political interdependency, the proper reach of federal power is necessarily fluid, and it may well be that it is best defined through politics. Certainly, as we have seen, this is more consistent with the original design than the Court's new made-up limits-for-the-sake-of-limits. Embracing the hurly-burly of politics while paying attention to how states protect themselves in that domain is a much "truer" interpretation of our Constitution.

FEDERALIST THEORY PROTECTS INDIVIDUAL AND MINORITY RIGHTS

1. STRONG CENTRAL GOVERNMENT IS SELF-RESTRAINING

Larry D. Kramer , Professor of Law, New York University Law School, COLUMBIA LAW REVIEW, January, 2000, p. 252-3.

North Carolina lawyer-planter Archibald Maclaine, writing as Publicola, made the charge of Anti-Federalist duplicity even more explicitly: I find some people are so strangely infatuated, as to think that Congress can, and therefore will, usurp powers not given them by the states, and do any thing, however oppressive and tyrannical. I know no good grounds for such a supposition, but this, that the legislative and judicial powers of the state have too often stepped over the bounds prescribed for them by the constitution; and yet, strange to tell, few of those, whose arguments I am now considering, think such measures censurable - The conclusion to be drawn here is obvious - The objectors hope to enjoy the same latitude of doing evil with impunity, and they are fearful of being restricted, if an efficient government takes place.

Robert Webking, Assistant Professor of Political Science, “The Federalist: Government Power and Individual Rights,” THE CONSTITUTIONAL POLITY, 1983, p. 7-8.

Publius’ original argument about how a people can secure the advantage and avoid the disadvantage of majority rule rests upon a distinction between species of popular government. In a pure democracy, where people gather to rule themselves directly, he writes, the danger of majority faction is unavoidable. Such a form of government can exist with only a small territory, and in a small community it is virtually certain that there will be a majority with the same partial interest. In a republic, however, the problem can be avoided. The difference between a pure democracy and a republic is that in the latter the people do not rule directly, but through representatives. Representation yields a number of happy advantages for Publius, but the decisive one is size. A republic can be very much larger than a pure democracy, and because it is larger it can include a great variety of people with many different kinds of economic activities and, hence, a multiplicity of interests. The existence of many distinct interests means the existence of many interest groups or factions. The existence of many factions rather than merely two makes it likely that there will be no majority faction. All factions will be minority factions and each faction will be prevented from using the government unjustly by the fact of majority rule. “Extend the sphere,” Publius writes, “and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”
3. A FEDERALIST THEORY OF LEGAL RIGHTS STOPS DISCRIMINATION

Daan Braveman, Dean and Professor of Law, Syracuse University College of Law, THE AMERICAN UNIVERSITY, February, 2002, p. 619.

Perhaps the most significant breakthrough in the transformation process occurred in Brown v. Board of Education. In striking down state segregation, the Supreme Court dramatically altered the relations between the states and the national government, and made the federal courts the primary guardians of federal rights. In the years following Brown, the lower federal courts became the litigation forum for state school segregation cases, as well as actions challenging a wide range of other state activities, including zoning, reapportionment, police misconduct, and prison conditions. Notably, Brown was not decided in isolation but rather at a time when the world outside the courtroom was changing dramatically. The other branches of the federal government had a national and international agenda, which included the expansion of federal rights and a federal interest in protecting those rights from state deprivation. "A new spirit of nationalism" replaced the isolationism of the turn of the century and, as Judge Gibbons stated: "In the global village, deference to local solutions for problems that transcend local interests is a quaint anachronism." By the 1960s, the structure envisioned during Reconstruction was firmly established. Individuals had federal rights, federal remedies, and a federal forum to challenge state conduct that violated federal law.