Today is the 225th anniversary of the first essay from “Brutus.” Here is his essay excerpted from my book “The Original Counter-Argument: The Founders’ Case Against the Constitution, Adapted for the 21st Century.” Like all other essays in the book, I have RePhrased his into modern English to make it easier to read and understand. Brutus was an amazing advocate for personal freedom.
New York Journal
Thursday, October 18, 1787
“Brutus” wrote sixteen essays critical of the new Constitution from October 1787 to April 1788. While not widely reprinted, they were formidable arguments and were influential enough to be referenced by “Publius” in the Federalist Papers. In fact, the essays of “Brutus” first appeared in the New York Journal, which was the same paper in which most of the Federalist Papers appeared. The pen name “Brutus” refers to Marcus Junius Brutus who helped assassinate the tyrannical Julius Caesar in order to preserve the Roman Republic.
We do not know for sure the identity of “Brutus,” but it believed to be Robert Yates. Others point to Abraham Yates, Jr. (his uncle), who was mentioned earlier as a possible author of the Cato essays. It did not matter much at the time who the actual authors of these essays were, since it was the ideas that mattered and not the personalities. In fact, knowing the personalities might have hampered the message getting through the politics. But looking back from an historical perspective, it would be helpful to know the authors in order to sift out any underlying motivations for their beliefs.
Robert Yates (1738–1801, aged 63) was 49 at the time of this essay. He had been appointed to the New York State Supreme Court as an associate justice. He represented New York at the Federal Convention. Yates and co-delegate John Lansing did not like what they saw, so they returned home early. Their letter explaining why appears later in this book. Yates did serve in the New York Ratifying Convention, working against adoption of the Constitution. The other co-delegate, Alexander Hamilton, stayed and later wrote many of the Federalist Papers in favor of the Constitution.
To the Citizens of the State of New York:
When we are called upon to investigate and decide an issue that affects not just our community, but upon which hangs the happiness or misery of generations yet to come, the unselfish among us cannot help but feel particularly interested in the result.
I believe that honest and objective people will appreciate the efforts of any individual who works to find a wise and prudent answer. I am therefore encouraged to offer my thoughts on the current public crisis.
This country has perhaps never seen such a critical period in its political concerns. We have felt the feebleness of the ties that hold these United States together, and the lack of sufficient energy in our current confederation to manage, in some instances, our general concerns. A variety of quick-fixes were proposed to patch things up, but nothing worked. A Convention of the states was assembled and they have written a constitution which will probably be submitted to the people to ratify or reject; the people who are the fountain of all power and to whom alone have the right to make or unmake constitutions, or forms of government, to their satisfaction. You have before you the most important question that you or any people under heaven have ever faced. You are to elect men specifically for the purpose of deciding the question.
If the proposed constitution turns out to be a wise one, calculated to preserve the invaluable blessings of liberty, to secure the immeasurable rights of mankind, and to promote human happiness, then, if you accept it, you will lay a lasting foundation of happiness for millions not yet born; future generations will rise up and call you blessed. You may take delight in the prospects of this vast extended continent becoming filled with free men who will assert the dignity of human nature. You may comfort yourselves with the idea that society in this favored land will quickly advance to the highest point of perfection; the human mind will expand in knowledge and virtue, and the golden ages will, to some degree, be realized.
But if, on the other hand, this form of government contains principles that will lead to the subversion of liberty, that is, if it tends to establish a despotism, or worse, a tyrannical aristocracy, then if you adopt it, this only remaining refuge for liberty will be shut up, and all future generations of people will curse your memory.
It is therefore a momentous question before you. Those things that motivate a noble and virtuous mind now call you to examine it well and to make a wise judgment. Some are insisting that this constitution must be approved, even it if is imperfect. They say that if it has defects, then the constitution can best be modified once the defects are experienced. But remember, once the people part with power, they can seldom or never get it back again, except by force. There are many instances in the past where the people have voluntarily increased the powers of their rulers, but few instances, if any, where the rulers have willingly reduced their own authority. This is enough of a reason to persuade you to be careful in how you place the powers of government.
With that brief introduction out of the way, I turn now to a consideration of the proposed constitution.
Is a confederated government the best one for the United States or not? In other words, should the thirteen United States be reduced to one great republic, governed by one legislature and under the direction of one executive and one judicial or should they continue on as thirteen confederated republics under the direction and control of a supreme federal head only for certain defined national purposes?
It is an important question because although the government defined by the convention does not call for a complete and entire consolidation, it comes so close that it will, if executed, certainly result in it.
This government will have absolute and uncontrollable power over every object it touches through its legislative, executive, and judicial branches. This comes from the last clause in Article 1, Section 8 which declares,
That the Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution, in the government of the United States; or in any department or office thereof.” And in Article 6 it is declared “that this constitution, and the laws of the United States, which shall be made in pursuance thereof, and the treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or law of any state to the contrary notwithstanding.
It appears from these articles that there is no need for any state government to be between the Congress and the people to execute any one power vested in the general government, and that the constitution and laws of every state are nullified and declared void when they are inconsistent with this constitution or the laws made in pursuant of it, or with treaties made under the authority of the United States. The government is then an all-encompassing one and not a confederation. It is itself as much a complete government as that of New York or Massachusetts and has the same absolute and perfect powers to make and execute all laws, to appoint officers, institute courts, declare offenses, and extract penalties over every object to which it extends, as any other in the world. As far as its powers reach, all ideas of confederation are given up and lost. It is true that this government is limited to certain objects, or more precisely, some small degree of power is still left to the states. But every honest observer who pays close attention to the powers vested in the general government will be convinced that if this constitution is executed then all powers that are reserved for the individual states will quickly be annihilated, except for those that are barely necessary to the organization of the general government.
The powers of Congress extend to everything of even the least importance. There is nothing valuable to human nature, nothing precious to free men, that is not within its power. It has authority to make laws which will affect the lives, the liberty, and the property of every man in the United States and the state constitutions and state laws cannot in any way prevent or impede the full and complete execution of every power given. The Congress would have the power to lay taxes, duties, imposts, and excises—there is no limitation to this power, unless one could say that the clause that directs how those taxes shall be applied is somehow a limitation. But this is no restriction at all since by this clause the taxes are to be applied to pay the debts and to provide for the common defense and general welfare of the United States. And since Congress has the authority to take on debt at its own discretion, they are the sole judges of what is necessary to provide for the common defense, and they are the only ones who determine what is for the general welfare. This power is therefore neither more nor less than a power to lay and collect taxes, imposts, and excises at their pleasure. Not only is the power to lay taxes unlimited, to any amount they require, but they also have the perfect and absolute power to raise those taxes in any method they please. No one state has any more power to affect this than they have of affecting what another state does. Therefore, in the laying of and collection of taxes, the idea of confederation is totally lost and that one of entire republic is embraced.
It should be noted here that the authority to lay and collect taxes is the most important of any power that can be granted. It connects with almost all other powers, or will eventually. Taxation is the great means of protection, security, and defense in a good government. And it is the great engine of oppression and tyranny in a bad one. This is inevitable considering the contracted limits which are set by this constitution on the state governments’ ability to raise money. No state can emit paper money or lay any import or export taxes except by the consent of Congress. And even then the net product shall be for the benefit of the United States. The only means that remains for any state to support its government and discharge its debts is by direct taxation of its own people. But the United States also has the power to lay and collect taxes in any way they please. Everyone who thinks this through will see that the amount of money that can be raised by direct taxation within any country is limited and when the Federal government begins to also exercise direct taxation in all of its parts, the legislatures of the several states will find it impossible to raise monies to support their governments. Without money they cannot be supported, and they must dwindle away and, as mentioned previously, their powers will be absorbed into that of the general government.
It might be shown here that the Congressional power to raise and support armies as they wish, in peacetime as well as in war, and their control over the militia, tend not only toward a consolidation of the government, but the destruction of liberty.—I will not dwell upon this, however, since a few observations on the judicial power of this government, in addition to the preceding, will fully reveal the truth of this position.
The judicial power of the United States is to be vested in a supreme court, and in such inferior courts as Congress may from time to time ordain and establish. The powers of these courts are very extensive. Their jurisdiction encompasses all civil causes, except those that arise between citizens of the same state, and it extends to all cases in law and equity arising under the constitution. I assume that at least one inferior court must be established in each state along with all of the executive officers necessitated by each court. It is easy to see that in the natural course of things, these courts will eclipse the dignity, and take away the respectability, of the state courts. These inferior courts will be totally independent of the states, deriving their authority from the United States, and receiving from the states fixed salaries; and in the course of human events it is to be expected that they will swallow up all the powers of the state courts.
It is impossible to say to what extent the “necessary and proper” clause in Article 1, Section 8 will do away with all idea of confederated states and result in an entire consolidation of the whole into one general government. The powers given by this Article are very general and comprehensive and it may be construed to justify the passing of almost any law. A power to make all laws which are deemed necessary and proper for executing all powers given by the constitution to the United States, its departments and officers, is a power that is very comprehensive and indefinite, and may, for all I know, be exercised in such a way as to entirely abolish the state legislatures.
Suppose the legislature of a state passes a law raising money to support their government and pay the state debt. Can the Congress repeal this law since it might prevent the collection of their own tax which they think is necessary and proper to provide for the general welfare of the United States? All laws made under this constitution are the supreme law of the land and the judges in every state are bound to them, no matter what the state constitutions or laws may say to the contrary. Through such supreme laws, the government of a particular state could be overturned in one stroke, and therefore be deprived of every means of its support.
This example is not used to imply that the constitution would authorize a law like this. And it is not used to unnecessarily alarm people by suggesting that Congress would be more likely to go beyond its constitutional limits than that of any individual state’s congress. But what is meant is that the Congress of the United States are vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts, and excises, of regulating trade, raising and supporting armies, of organizing, arming, and disciplining the militia, of instituting courts and other general powers. And they are by this clause given the power of making all laws, necessary and proper, for executing all of the above. They have the ability to exercise this power as to entirely annihilate all the state governments, and reduce this country to one single government. And if they have the ability to do it, it is pretty certain that they will. For it will be found that the power retained by the individual states, as small as it is, will clog up the wheels of the government of the United States. Congress will therefore be naturally inclined to remove it out of the way. Besides, it is a truth confirmed by the unfailing experience of the ages, that every man, and every body of men, that are given power are always inclined to increase it, and to acquire a superiority over every thing that stands in their way. This inclination, which is implanted in human nature, will operate in the federal legislature to lessen and ultimately subvert a state’s authority. And having the advantages of supreme power, will ultimately succeed if the federal government succeeds at all. It is obvious then that everything this constitution lacks in order to possess a complete consolidation of the several parts of the union into one complete government, with total legislative, judicial, and executive powers, will for all intents and purposes inevitably get in its exercise and operation.
Getting back to the original question, is it best for the thirteen United States to be reduced to one great republic or not? It is assumed that everyone agrees that whatever government that we may adopt, it must be a free one, that it should be framed in such a way as to secure the liberty of the citizens of America. And that it should be the kind that would provide a full, fair, and equal representation of the people. Is a government that is constructed like this and founded on these principles able to be put into practice successfully? And can it be exercised over the whole United States, reduced into one state?
If we respect the opinions of the greatest and wisest men who have ever written on the science of government, we must conclude that a free republic cannot succeed over a country as large or as increasingly populous as ours. I will limit myself to two quotes from among the many respected authorities on the subject. The first one comes from Baron de Montesquieu, Spirit of Laws, Vol. 1, Book VIII, Chapter XVI: Distinctive Properties of a Republic.
It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation: there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country.
In an extensive republic, the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and of course are less protected.
Of the same opinion is [the Italian criminologist] Cesare Beccaria.
History furnishes no example of a free republic that is anything like the size of the United States. Both the Grecian and Roman republics started out relatively small. But over time, both of them extended their conquests over large territories of country. And the consequence was that they changed from having a free government to having the most tyrannical that ever existed in the world.
In addition to the opinions of the wisest men and the experiences of mankind, there are a variety of natural reasons to be against the idea of an extensive republic. In every government, the will of the ruler is the law. In despotic governments, with the supreme authority being in one person, his will is law and can just as easily be put into effect over a large extensive territory as over a small one.
In a pure democracy, the people are the rulers and their will is declared by themselves. That is why they must all come together to deliberate and decide. This kind of government cannot be put into effect over a relatively large country. It must be confined to a single city or at least limited to an area small enough so that its people can conveniently come together to debate, to understand the subject submitted to them, and to declare their opinion on the matter.
In a free republic, while the laws are still derived from the consent of the people, the people themselves do not come together to deliberate and decide in person, but instead they choose representatives who are supposed to know their minds and to have the integrity to declare this mind.
In every free government, the people must agree to the laws by which they are governed. This is the key distinction between a free government and an autocratic one. The former are ruled by the will of the whole, expressed in any manner they agree upon. The latter are ruled by the will of just one or a few. If the people are to agree to laws created by their representatives, then the manner of choice and the number of representatives chosen must be such that the representatives can know, agree to, and be consequently qualified to declare the will of the people. For if they do not know, or are not inclined to speak for the will of the people, the people do not govern, instead the ruling authority is in a few. Now, in a large extended country it is impossible to have a representation that possesses the people’s will and has the integrity to declare the minds of the people without having so many representatives as to be unwieldy and to be subject to the inconveniences of a democratic government.
The territory of the United States is vast. It now contains nearly three million souls and is capable of containing much more than ten times that number. Is it practical for a country so large and numerous to elect a representation that will speak to their sentiments without that representation becoming so numerous as to be incapable of transacting public business? It certainly is not.
In a republic, the manners, sentiments, and interests of the people should be similar. If this is not the case, there will be a constant clashing of opinions. And the representatives of one part will be continually struggling against those of the other. This will delay the operations of government and will prevent it from promoting the public good. If we apply this fact to the United States, we become convinced that it should not be one government. The United States includes a variety of climates. The different parts of the union produce very different things and their interests are consequently diverse. Their manners and habits differ as much as their climates and productions, and their attitudes are by no means the same. The laws and customs of the several states are, in many respects, very diverse and in some respects opposite. Each state would be in favor of its own interests and customs and, consequently, a legislature that includes representatives of all of the respective parts would not only be too numerous to act with any care or decision, but would be composed of such heterogeneous and discordant principles that they would constantly be contending with each other.
In a republic that would be the size of the United States, the laws cannot be executed promptly.
The magistrates in every government must be supported in the execution of the laws either by an armed force or maintained at the public expense for that purpose; or by the people turning out to aid the magistrate upon his command in the case of a resistance.
In despotic governments, as well as in all of the monarchies of Europe, standing armies are kept ready to execute the commands of the prince or the magistrate and are employed for this purpose when required. But they have always proved to be the destruction of liberty and are abhorrent to the spirit of a free republic. In England, where armies depend upon the parliament for their annual support, it is always complained that the armies are oppressive and unconstitutional and are seldom employed in executing the laws, except on extraordinary occasions, and then under the direction of a civil magistrate.
A free republic will never keep a standing army to execute its laws. It must depend upon the support of its citizens. But when a government is to receive its support from the aid of the citizens, it must be constructed in such a way as to have the confidence, respect, and affection of the people. When a magistrate calls, people who offer themselves to execute the laws are influenced to do it either by affection to the government or from fear. When a standing army is at hand to punish offenders, every man is motivated by fear and therefore when the magistrate calls, will obey. But where no standing army is at hand, the government must rest for its support upon the confidence and respect which the people have for their government and laws. When the people as a body are engaged, the government will always be sufficient to support and execute its laws and to make any opposing faction fearful enough to not only prevent an opposition to the execution of the laws themselves but also to compel most of them to actually come to the aid of the magistrate. But in a republic as large as the United States the people likely will not have as much of the confidence in their rulers as is necessary. In a free republic, the people’s confidence in their rulers comes from knowing them, from their being responsible to the people for their conduct, and from the power the people have of displacing them when they misbehave. But in a republic as large as this continent, the people in general would be acquainted with very few of their rulers, would know very little about their proceedings, and would have a difficult time making changes. The people in Georgia and New Hampshire would not know one another’s mind, and therefore could not act together to enable them to effect a general change of representatives. The different parts of such a large country could not possibly become acquainted with the conduct of their representatives, and could not know the reasons for their actions. As a result, they will have no confidence in their Congress, will suspect them of ambitious views, be distrustful of every measure they adopt, and will not support the laws they pass. So, the government will be unfeeling and inefficient and there is nothing to prevent it from becoming otherwise except by establishing an armed force to execute the laws at the point of a gun—the most dreaded kind of government of all.
In a republic as large as the United States, the legislature cannot pay attention to the various concerns and needs of its different parts. It cannot have enough representatives to be acquainted with the local conditions and needs of the different districts. And even if it could, it would not have nearly enough time to handle the large variety of cases that would be continually coming up.
In such a large republic, the highest officers of government would soon be above the control of the people, would then abuse their power for their own gain, and would then use that power to oppress the people. The trust we would place in the executive officers of a country as large as the United states would be wide-ranging and substantial. The command of all the troops and navy of the republic, the appointment of officers, the power of pardoning offenses, the collecting of taxes, and the power to spend them, with a number of other powers, would be firmly fixed in the hands of a few. When these powers are accompanied by great honor and personal reward, as they always will be in large governments, ambitious and scheming men will be highly motivated to pursue them. They will then use their new powers to gratify their own interests and ambitions. And it is hardly possible in a very large republic to call them to account for their crimes or abuses of power.
These are some of the reasons why it appears that a free republic cannot exist for very long over a country as large as this. If the new constitution intends to consolidate the thirteen states into one, as it evidently does, it must not be adopted.
Even though I believe that the consolidation of the whole union into one republican form of government is enough of a reason to reject it, I also believe that there are enough other problems with it that are so material and fundamental that no friend of liberty, happiness, and mankind would adopt it. I beg the honest and objective attention of my countrymen while I state these objections—after careful attention to them they weigh heavy on my mind and I sincerely believe they are well founded. There are many small objections to the constitution which I shall ignore (I do not expect perfection in any work of man) and if I did not truly believe that this plan was defective in its fundamental principles, in the foundation upon which a free and equal government must rest, I would hold my peace.
Essays RePhrased Key Points:
- “Brutus” asked, “Is it best for the thirteen United States to be reduced to one great republic or not?”
- “Brutus” had many other quotable phrases. Here are some of the best:
- “Once the people part with power, they can seldom or never get it back again, except by force. There are many instances in the past where the people have voluntarily increased the powers of their rulers, but few instances, if any, where the rulers have willingly reduced their own authority.”
- “The powers of Congress extend to everything of even the least importance.”
- “Taxation is the great means of protection, security, and defense in a good government and it is the great engine of oppression and tyranny in a bad one.”
- “Congress has the ability so exercise its power to entirely annihilate all the state governments, and reduce this country to one single government. If they have the ability to do it, it is pretty certain that they will.”
- “If we respect the opinions of the greatest and wisest men who have ever written on the science of government, we must conclude that a free republic cannot succeed over a country as large or as increasingly populous as ours.”
- “If the people are to agree to laws created by their representatives, then the manner of choice and the number of representatives chosen must be such that the representatives can know, agree to, and be consequently qualified to declare the will of the people.”
- “It will be impractical to govern such a large country, being at 3 million people and possibly growing to 30 million.”
- “In a republic, the manners, sentiments, and interests of the people should be similar.”
- “The government will be unfeeling and inefficient and there is nothing to prevent it from becoming otherwise except by establishing an armed force to execute the laws at the point of a gun—the most dreaded kind of government of all.”
- “In such a large republic, the highest officers of government would soon be above the control of the people, would then abuse their power for their own gain, and would then use that power to oppress the people.”