Et Tu, Brute?
Return of the Anti-Federalists
Most of us remember, I hope, that Alexander Hamilton, James Madison, and John Jay wrote under the name “Publius” to convince New York State to ratify the Constitution. Their essays are known to us as The Federalist Papers.
Less well remembered are the authors who wrote as Cato, Brutus, and the Federal Farmer, among other noms des plumes. They were convinced that the new document drafted in Philadelphia during the summer of 1787 was a bad idea. Because they opposed the plan to establish a Federal government, they became known as the Anti-Federalists.
Confusion often arises when talking about Federalists and Anti-Federalists because when we use the term “federalism” today we mean reserving power to the states and not giving it to the central government in D.C. But that was the Anti-Federalist position. We have reversed the terms. The Federalists didn’t want federalism whereas the Anti-Federalists were federalists.
The Anti-Federalists were concerned that the Constitution gave the federal government too much power over the states. They were especially concerned about the existence of a standing army, which had always been associated with kings and tyrants. Brutus, whose real identity can be narrowed down to one of three men, wrote in October of 1787: “In despotic governments, as well as in all the monarchies of Europe, standing armies are kept up to execute the commands of the prince or the magistrate, and are employed for this purpose when occasion requires.”
Republics were supposed to be protected by militias, by the free citizens who spontaneously rallied to the common cause. The Minutemen of the Battle of Lexington and Concord are one of the finest examples.
The concerns of the Anti-Federalists are back in the headlines (often without people knowing they are repeating old arguments) because of two current issues: the use of National Guard troops to protect ICE (Immigration and Customs Enforcement) agents here in the US, and the use of the Navy in the destruction of small boats off our shores, boats allegedly running drugs from Venezuela.
Immigration Enforcement
President Trump ran on the issue of immigration enforcement. While he also ran on this issue in 2016, a surge in illegal immigration under the Biden Administration added to the urgency.
Trump’s first effort was to effectively close the border to new illegal immigrants. In itself, this could not address the issue of people already here, which is estimated to be around 14 million persons. What do you do about that many people in the country illegally?
Over one-and-a-half million people have standing deportation orders against them, meaning a judge has issued a statement that they must be removed by ICE. In other words, one in ten illegals have such an order. What the Trump Administration has focused on, however, is removing illegals with criminal records or existing charges. That number is surprisingly high, somewhere around half a million people. As you can imagine, these people do not want to leave.
Add to the normal difficulty of arresting and removing people who do not want to leave the country the large part of the American public that does not want them deported. People have protested in front of ICE facilities, often trying to prevent vehicles from entering or departing. They do this to prevent ICE from enforcing the laws. One woman recently opened a stopped ICE vehicle to help the arrested person escape.
In response to these and similar actions, the Trump Administration activated National Guard units to aid ICE agents. Most of what they have done is control the entrances and exits to ICE facilities, much as they have been stationed at train stations and monuments in Washington in assistance of the police there.
The Supreme Court is currently considering a case from Illinois where the state is suing the federal government over the use of National Guard soldiers in Chicago. This will not be an easy call. The courts have usually been very deferential to the Executive branch in deciding what requires extraordinary measures. Executive powers are vested in an individual rather than a group precisely so that decisions can be made quickly and without excessive deliberation. (The ongoing government shutdown is a case in point.) The Judicial branch has not wanted to second guess the Executive for doing what it is supposed to do.
Of course, all of this is more pressing when the President has access to a standing army.
Venezuelan Boats
The US Navy is currently engaged in military action against small boats that it tracks leaving Venezuelan ports and heading to American waters. That means blowing them up.
Many people are upset about this because there is no due process to prove that the boats in question are running drugs. There is no trial. They could be innocent, high-speed fishermen and are simply blown out of the water and killed. Very few people on the planet have the kind of power an American president does.
But presidents have always had this power. Thomas Jefferson did not have Congressional approval when he sent the USS Enterprise and three other ships to protect American ships from pirates sailing out of Tripoli, with clear orders to sink any that threatened them. Pres. Obama did much the same, back again to Tripoli, in 2011. He acted on his own and without authorization from Congress. There have been many cases of presidents doing this.
A Standing Army
The Anti-Federalists were not wrong to worry about establishing a standing army. A militia is much more in keeping with the ideals of republicanism. There are many wars in the history of this country that would most likely have been avoided without an army. But one of those is the Civil War. If Abraham Lincoln did not have a standing army, despite how useless Gen. McClellan was, the country would not be what it is today.
It is hard to imagine how a modern state could exist without a standing army. This does not mean, however, that we can dismiss the dangers inherent in military power. Whether you approve or disapprove of Pres. Trump’s policies in regards to the National Guard or the US Navy, one should always be concerned when such awesome powers are used.
We must also consider what, if any, alternative there might be to a unitary executive. George Mason of Virginia suggested a committee of six members to serve as the Executive branch. Would the history of this country be better with this structure? Decisions would still be made by fallen men. A committee of presidents might have made different decisions, but so would different individual presidents.
Brutus was right to warn against standing armies, but the actions of his eponymous predecessor did not save the Roman Republic. Unintended consequences are a fact, if not quite a rule, in politics.