Guest Essayist: Justin Dyer, Ph.D., Author and Professor of Political Science, University of Missouri

Scholars generally attribute the authorship of the letters of Brutus to Robert Yates (1738-1801), a prominent New York politician and judge who was a delegate to the Philadelphia Convention in 1787.  After voicing his opposition to the plan of the Convention, Yates returned home to New York. During the state ratification debates, he then became an outspoken opponent of the proposed Constitution. In his polemical essays against the Constitution, Yates’ chosen pen name was Brutus, and his objective was to slay Ceasar. Of the men writing against the Constitution in 1787 and 1788, Brutus was the most far-sighted and prescient. The late Herbert Storing, a scholar who was instrumental in collecting and editing many of the Anti-Federalists’ writings, noted that Brutus “very accurately anticipated the breadth with which the Supreme Court would construe its own powers and those of the general legislature and the line of reasoning that would be used.”

The new government, Brutus warned in his first essay, would consolidate power in the national government and render the states largely inconsequential. Although legislative power was limited to the objects listed in the Constitution, Brutus predicted that two provisions in the Constitution would unravel this scheme of limited powers. First, the Constitution grants Congress the power to “make all laws which shall be necessary and proper for carrying into execution” its enumerated powers. Second, the national Constitution and “laws of the United States” are the “supreme law of the land.” The powers of the national government, Brutus asserted, would be vast and comprehensive, supreme over state laws, and limited only to what the government itself decides is necessary and proper for its own purposes.

Brutus thought that the only way for power to be consolidated over so a vast a territory (comprising the original 13 colonies and a total population 100 times smaller than the United States today) was for the government to maintain a standing army or national police force. “In so extensive a republic,” Brutus insisted, “the great officers of government would soon become above the controul of the people, and abuse their power to the purpose of aggrandizing themselves, and oppressing them.” The Constitution would, over time, create an unaccountable executive branch whose officers exercise power to satisfy their own interests; federal judges who interpret the Constitution broadly to empower the national government at the expense of the states; and a Congress that is unrestrained by the enumerated powers in Article I of the Constitution.

Although Brutus exaggerated the threat of national power and did not seem to appreciate the threat raised by powerful state and local governments, his letters are a challenge to us today precisely because he got so many things right. When Robert Yates’ notes on the Philadelphia Convention were published in 1821, the editor began his preface by observing that the historians of kings have always paid particular attention to infant monarchs so to prognosticate “what they would be on the throne, by what they have been in the nursery.” In the same way, the editor writes,

The historians of free nations ought not to be less attentive to collect whatever may throw light on the origin of their government, on the principles which have guided their legislators, and on the seeds of disease from which human prudence has never been able to guard entirely human institutions.

Under the pseudonym Brutus, Yates was among those early critics of the Constitution who identified some the seeds of disease “from which human prudence has never been able to guard entirely human institutions.”  It is for us today, as friends of the Constitution, to speak candidly about what is good, what is bad, and what can be made better in our fundamental law. Pairing the Federalist Papers with some of the Constitution’s most articulate critics is a necessary first step.

April 5, 2013 – Essay #35 

Read Essay I by Brutus here:

Justin Dyer teaches political science at the University of Missouri. He is the author, most recently, of Slavery, Abortion, and the Politics of Constitutional Meaning. Follow him on Twitter: @JustinBDyer.

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