The Anti-Federalist Impulse
Many who speak with great passion about the Constitution rather frequently make anti-Federalist arguments.
One of the remarkable aspects of a great bit of the political philosophy of the Tea Party movement and their fellow travelers (such as the anti-BLM protesters) is that while they speak with great passion about the Constitution and the Founding Fathers (and especially the Framers of the Constitution) they actually rather frequently make anti-Federalist arguments.* The anti-Federalists were those who opposed the ratification of the US Constitution, typically on the grounds that that states ought to continue to retain their power positions under the Articles of Confederation (the US’s first constitution, more or less, that was in place from 1777-1789).
One of the massive mistakes made by those on the rightward side of the debate who claim the sacred nature of the Constitution is the assertion that the Framers were states rights activists or that the goal of the constitution was to constrain the federal government vis-à-vis the states. While there is a debate to be had over the appropriate scope of the federal government, as well as the meaning of things like the 10th Amendment, the commerce clause, and the general welfare clause, there is no debating that the whole goal of the US Constitution was to create a strong, viable central government. It is indisputable that the US Constitution was written and deployed to give the federal government more power over the states than had previously existed (not the other way around as some would have it). Yes, there are limits placed on the federal government, but the Constitution itself was not created in the context of the need to constraint government, it was created in the context of the need to create a viable, functional government (and one that was demonstrably more powerful than that which existed under the Articles of Confederation). The argument for true state-level sovereignty was an anti-Federalist, pro-Article of Confederation argument. Indeed, if the Framers had wanted a tiny central government that was subordinate to the states they already had one and therefore had no reason to meet in Philadelphia in 1787.
To quote James Madison from a letter to George Washington in April of 1787: “I would propose that…the national government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports and imports, the fixing the terms and forms of naturalization, etc. etc.”
This man, the venerated “Father of the Constitution” wanted to put “compleat authority” over certain policy areas in the hands of the central government. This was an argument for the augmentation of that central government, and a sizable augmentation at that, as the central government under the Articles was quite anemic (indeed, it barely existed). Yes. there are areas of shared power between the central government and the states, and there are even areas of policy that reside solely in the hands of states. Those facts, however, do not undercut the simple fact that the government under the US Constitution represented the destruction of the confederal order that pre-existed it in which states were fully sovereign entities..
As such, when Cliven Bundy made these statements (source), he was hearkening not to the constitutional order, but instead to the anti-federalist cause:
“I believe this is a sovereign state of Nevada,” Bundy recently told a radio reporter. “…I abide by all of Nevada state laws. But, I don’t recognize the United States Government as even existing.”
Host: “So essentially you have a deal already with Nevada and the Bureau of Land Management is essentially trying to revoke or renege that deal?”
Cliven Bundy: “Yeah, it gets back to the ownership of this. Who owns this land? Does the sovereign State of Nevada own this land within their borders? Or does the United States own this land with their borders? If United States owns this land then I guess I’m wrong. But what if this is a sovereign State of Nevada and Clark County, Nevada owns this land? The People of Clark County, Nevada owns this land.”
This strikes me as being what Alexander Hamilton called the ”inordinate pride of State importance” in Federalist 20.
If one is going to argue that, ultimately, the states should supersede the federal government, then one is not making federalist (i.e., pro-constitution) arguments, one is making an anti-federalist (i.e., anti-constitution) arguments. Bundy’s focus here, in the face of clearly established law (not to mention the constitution of Nevada) on his state and county are, to be colloquial, kickin’ it old school. This kind of thinking led to the Whiskey rebellion (put down by Framer and Founder’s Founder, George Washington).
If one wants to see the Framers’ views of a system in which state power can trump federal power (i.e., a confederation) one need look no further than Federalist 15-22 (not to mention the text of the Constitution itself).
From those numbers I will end with this quote from 16, which strikes me as especially relevant to the Bundy Ranch business (emphasis mine):
The result of these observations to an intelligent mind must be clearly this, that if it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice.
An Addition: It should be noted that having an anti-Federalist impulse, or making an anti-Federalist argument does not make one wrong. I am not arguing that the Framers are sacred and always right, nor am I suggesting that right thinking Americans have to agree with Hamilton and Madison. What I am saying, however, is that it is utterly inconsistent to claim the Framers as one’s moral foundation while parading around with the US Constitution one’s shirt pocket and then arguing from the anti-Federalist POV. At a minimum it shows that one does not understand one’s own arguments. Mostly it is just a constant source of amazement to me that those who are the most vocal about the Constitution and the Founding generation get it so wrong most of the time. I would much prefer it if these folks would simply say, “You know, the anti-Federalist had a point about X, Y, and Z” (but that would mean that the Constitution isn’t perfect, which would create its own set of difficulties for them).
*For example, see Brutus’ concerns about Article I, Section 8.