The Federalists were the faction that supported the newly drafted Constitution during the ratification contest, as against the Anti-Federalists who opposed it. In the account given on the show, the label itself was a piece of political craft: the men who backed the Constitution knew that calling themselves nationalists would alarm states’ rights supporters, so they took the term Federalist instead. Carol Berkin calls this an intellectual train robbery, noting that the people the Federalists labeled Anti-Federalists were the true federalists, as in the Confederation. Carol Berkin on The Bill of Rights No One Wanted (2016)
William Watkins Jr. describes the same division: after the Constitution was drafted, the country was asked to ratify, and it broke down into two factions—Federalists who supported the newly drafted Constitution and Anti-Federalists who opposed it. He characterizes the Anti-Federalists as Republicans with a small “r” who believed in a true form of republicanism. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
The Bill of Rights as Federalist tactic
Berkin describes the first Congress as filled with Federalists, with the presidency and both the Senate and the House under their control. Madison, she says, pulled a political tactic: he proposed that they pass a Bill of Rights, get credit for it, and thereby separate the Anti-Federalist base from its leadership, so that people would conclude the Federalists must not be tyrannical and give the government a chance. When Madison proposed it, he expected everyone to see what a great move it was, but he was greeted with the same groans heard at the convention; colleagues called him “Little Jemmy Madison” and told him to go away, since they had not set tonnage rates, organized the judiciary, or found a permanent spot for the capital. It took a month of badgering before they would agree to discuss it, and until the middle of the summer for them to realize it would be as close to a death blow to the opponents of the Constitution as anything they would ever do. Carol Berkin on The Bill of Rights No One Wanted (2016)
Bob Zadek adds two facts he attributes to Berkin’s book: that Madison, running against Monroe in Virginia for the House of Representatives, made a campaign promise to take steps to adopt a Bill of Rights, and that many states—Virginia and New York among them—understood ratification to be conditioned on the promise, unenforceable, that Congress would adopt a Bill of Rights. Berkin modifies this: two states did not ratify because they could not make the amendment, and it was not that states could not say “you must include amendments” but that they chose not to; most said they would ratify on the condition that Congress consider the amendments, while Rhode Island and North Carolina said binding, and so could simply have defeated the Constitution. Carol Berkin on The Bill of Rights No One Wanted (2016)
Berkin also describes Madison as a wily politician who wanted above all to protect the power to tax and the power to regulate commerce, and who believed that adding a Bill of Rights did nothing of substance because the federal government already lacked power to interfere with the freedoms protected. Zadek puts the same point as Madison treating it as a freebie. Berkin adds that Madison wanted to give the federal government power to step in when states abused the civil rights of minorities, fearing tyranny of the majority over minorities—by which he meant members of religious sects such as the small Baptist sects, the Moravians, or the Quakers, and people who disagreed with the majority about policy. Carol Berkin on The Bill of Rights No One Wanted (2016)
Enumerated versus implied powers
A caller, Michael from San Francisco, asks how the 9th and 10th Amendments got lost in Supreme Court arguments. Berkin answers that they are not so much ignored as overtaken by court decisions affirming implied powers and the necessary and proper clause. What the Anti-Federalists fought for in Congress, and lost, was a single word: they wanted the amendment to say no power not expressly given to the federal government. Zadek frames the underlying issue as the limited enumerated powers given to the federal government and the fear that Congress would use necessary and proper and other clauses to expand them. Carol Berkin on The Bill of Rights No One Wanted (2016)
Berkin corrects the amendment at issue: it is the 10th Amendment that the fight over “expressly” concerns, and she quotes it as providing that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states and the people. The Federalists, she says, thought they had to have power to make decisions as things come up and to legislate on things they had not thought about when writing the Constitution, which is why they wanted implied powers and the necessary and proper clause. The 9th Amendment, by contrast, protects unenumerated rights: it reminds us that just because the founders specifically said government cannot interfere with freedom of the press or freedom to practice religion, mentioning those rights is not in derogation of other rights not mentioned. She calls this, after 235 years, an ongoing debate. Carol Berkin on The Bill of Rights No One Wanted (2016)
Who predicted correctly
Watkins argues that if you run a tally like a scoreboard—comparing the Federalists’ promises about how limited the Constitution would be and how certain clauses would confer no really new powers, against the Anti-Federalists’ predictions of what those provisions would actually do—it is clear the Anti-Federalists were correct. He names the clauses they predicted would be abused: the General Welfare clause at the beginning of Congress’s enumerated powers, the Necessary and Proper clause at the end, the Commerce clause, which he says has become a sort of universal jurisdiction for the national government over many matters, and the treaty power, which they predicted could be used to undermine the rights of the people and the states. He describes them as men dedicated to a form of republicanism stressing government at the local level, what Jefferson would call his ward republics. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Zadek puts the question in stronger terms: whether the Anti-Federalists saw something the Federalists knew was there but did not care about, or something the Federalists did not see. He invites listeners to read The Anti-Federalist Papers, a collection of essays by those who opposed the Constitution, and says their dire predictions about the king-like power of the president and the reach of the federal government into everyday lives all came true, while the promises made by the founders turned out not to be so. He names Madison, Hamilton, Jay, and Washington—who, he notes, did not speak out much—as having gotten it wrong in terms of their promises, and proposes to discuss with Watkins whether the Federalists knew they were selling something other than what was promised or simply did not understand what they were doing. [[episodes/crossroads_for_liberty__with_william_watkins_jr|Crossroads for Liberty with William Watkins Jr. (2017)]]
Ilan Wurman takes up the same question and agrees that the Anti-Federalists were prescient in some respects. He notes that the Anti-Federalists thought the judiciary would slowly accrete power to itself through precedents and judicial review, and that Hamilton had responded that the courts have only the power of judgment, not will or force, and no power of the purse or the sword; the Supreme Court, Wurman says, has an outsized role in modern American politics. The Anti-Federalists also feared the executive, and Wurman, describing himself as an executive power scholar, says the founders took the list of royal prerogative powers exercised by the king, as set out in Blackstone, and assigned most of them to Congress—so that Congress was supposed to have far more say in foreign affairs than the modern imperial presidency has. He concludes that the Anti-Federalists were prescient about the risks of an imperial presidency and of Congress aggrandizing power vis-à-vis the states, and that it took 150 years for them to start becoming right and 200 years to become right, mostly because of failings as a people and letting politics trump constitutional principle. The Conservative Constitution (2021)
The enumeration of powers
Wurman offers a revisionist account of why Article I, Section 8 enumerates powers at all. The Constitutional Convention, he says, rejected a resolution to enumerate power—Resolution 6—in favor of a resolution giving Congress all legislative powers over matters in which the separate states were independent or separately incompetent, and then the Committee of Detail went ahead and enumerated power anyway, ignoring the convention’s instructions. His explanation, which he credits to William Crosskey, a Chicago professor in the 1930s, is that over half the powers in the enumeration are taken directly from Blackstone’s chapter on the royal prerogatives. He insists that the enumeration does in fact and in effect limit the national government’s power and that this is a good thing, but calls the standard story about its origins a myth. The Conservative Constitution (2021)
Federalists and the Second Amendment
David Harsanyi says the only debate around the Second Amendment between the Federalists and the Anti-Federalists was who would control the militias; it had nothing to do with whether individuals would hand back their weapons. He notes that the Minutemen did not hand back their weapons after fighting in Concord and Lexington, that the militias existed because of individuals rather than the reverse, and that people brought their own guns and took them home afterward. He also says that most of the colonies had something similar to a Second Amendment in their own constitutions that was much clearer about its being an individual right. [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
Across episodes: who was right about the Constitution
The question of whether the Federalists or the Anti-Federalists better understood the Constitution’s long-term effects runs across the 2017, 2021, and 2016 episodes, and the treatment shifts in emphasis rather than in verdict. Watkins, in 2017, argues the Anti-Federalists were correct clause by clause—General Welfare, Necessary and Proper, Commerce, the treaty power—and that their predictions came true to a T. Wurman, in 2021, agrees they were prescient about judicial accretion and the imperial presidency, but frames the founders as largely right about the principles they sought to enact and describes his own project as taking those principles—self-government, liberty, separation of powers, federalism—and providing a corrective, adding the historical claim about Resolution 6 and Blackstone’s royal prerogatives that Watkins does not mention. Berkin, in 2016, supplies the mechanism by which the Federalists neutralized the Anti-Federalist critique in the first Congress: Madison’s Bill of Rights tactic, which she presents as a deliberate political move rather than a conversion. What changes between the earlier and later treatments is the level of analysis—Berkin on legislative tactics, Watkins on clause-by-clause prediction, Wurman on institutional design and the origins of enumeration—not the underlying judgment that the Anti-Federalists saw further.
What the sources do not cover
The excerpts do not describe the Federalist Papers as a publication, its authors, or its individual essays, beyond Zadek’s mention of Madison, Hamilton, and Jay and a section heading referring to the Federalist Papers as propaganda. They do not give founding dates for either faction, the names of specific bills, or the holdings of any case; Berkin refers to court decisions affirming implied powers without naming one. Nor do they state the outcome of the ratification contest state by state, beyond the note that Rhode Island and North Carolina did not ratify and that Rhode Island did not participate in the ratification battle.